Before the Court are two notices of motion which seek to set aside a number of subpoenas issued by the defendant. The background to the proceedings is set out in a judgment of Harrison J in Pi v State of New South Wales [2015] NSWSC 324. In that judgment, his Honour dismissed the plaintiff's claim in defamation, otherwise struck out the statement of claim and gave the plaintiff liberty to re-plead. As a consequence, the plaintiff then filed a statement of claim which named his daughter as the second plaintiff. He also filed a notice of motion that sought the addition of her as a party and that he be appointed her tutor. Earlier today I dismissed that notice of motion.
In the meantime, that is between the time for the filing of that amended pleading and today, a number of subpoenas were issued by the defendant which the first named plaintiff, Mr Pi, wishes to challenge. In particular, five subpoenas were issued by the defendant apparently to entities holding documents concerning Mr Pi's daughter, the subpoenas having been issued on the contingency that she would remain a party. The entities to which those subpoenas were addressed were the University of South Australia, Dr Maree Chantor, the St John of God Hospital, Concord Hospital and Canterbury Hospital. It follows from the dismissal of the notice of motion seeking to add Mr Pi's daughter as a party and that he be appointed her tutor that those subpoenas should be set aside and any material produced in response to them returned.
Four of the other five subpoenas the subject of challenge were issued to the Roads and Maritime Services New South Wales, TAFE New South Wales, the University of New South Wales and "Transport for New South Wales". The apparent purpose of those subpoenas was to obtain documents that related to Mr Pi's claim for past and future economic loss. In applying to set aside the subpoenas, Mr Pi has made it unequivocally clear that he abandons any such claim. That matter having been noted, the State accepted that there was no further basis for seeking the production of the material from those entities and, accordingly, the subpoenas to those entities will be set aside.
Pi v State of New South Wales [2015] NSWSC 1410 | Case summary | Zoe
The remaining subpoena in dispute was issued by the State of New South Wales to Medicare Australia on or about 14 August 2015. It in effect seeks Mr Pi's complete file, including his schedules of payments and medical history from 1 January 2006 to date. It also seeks his "complete PBS file" for that period, which I understand is a reference to the Pharmaceutical Benefits Scheme. Thus it would catch details of the medications that he has received.
Mr Pi disputes the validity of the subpoena on a number of bases. In the written documents that accompanied his motion, he contended that these provisions were a breach of the privacy provisions as embodied in the Privacy and Personal Information Protection Act 1998. However, s 6 exempts the judicial functions of courts from its operation.
Otherwise, the core of Mr Pi's objection is the lack of relevance of this material sought to be captured. Allowing for the fact of abandonment of the past and future economic loss, Mr Pi's amended statement of claim nevertheless seeks damages for various forms of psychological harm he is said to have suffered as a consequence of his wrongful arrest. He also pleads that he became heavily dependent on medication. He makes a claim for future medical expenses as well as for general damages, along with aggravated and exemplary damages. His statement of particulars of his injuries recites the suffering of significant mental illness as a result of the wrongful arrest. This is said to extend to such symptoms as insomnia, auditory hallucinations, recurrent images and flashbacks, vomiting and trembling hand.
In general, the test for whether a party is entitled to seek production of documents within a specified class pursuant to the subpoena is not satisfied by merely establishing the documents sought are or may be relevant to the issues in the proceedings. Instead, it must be established that it is "on the cards" of the documents will assist their case (see Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 at [59]). In the context of medical records that statement needs to be understood against the background that the party issuing the subpoena will almost never know precisely what is contained within the records. Nevertheless, the starting position is that Mr Pi makes a claim that he suffered significant psychiatric injury requiring medication and that Medicare Australia can reasonably expect to have material that bears significantly on that question - namely, whether he does suffer from that injury, whether it was connected to the events surrounding his arrest, the extent of the injury, and his other medical needs as a consequence of that arrest. Of course, it may be that on an examination of the material it completely supports Mr Pi's case. However, such hindsight knowledge does not deny the fact that in the circumstances of a claim of the kind that Mr Pi makes it is generally "on the cards" that within the Medicare material there will be documents that would or could materially assist the defendant's case (see O'Shane v Harbour Radio Pty Limited [2014] NSWSC 93 at [40]).
The point made by Mr Pi in relation to this material was that, given his case concerns psychiatric harm, such material as to be found in the Medicare files that might relate to physical injuries concerning different events is completely irrelevant and should not be the subject of a subpoena. The difficulty with that contention is that it ignores two matters. The first is a practical matter - namely, that a subpoena that is addressed to a body at Medicare should not generally be drafted in such a means as to require the recipient, to undertake some detailed analysis of the records to determine whether or not they precisely relate to the particular form of injury and disability that Mr Pi claims. The second is that it is inherent in the nature of medical records that it is often difficult to completely separate a consideration of someone's psychological or psychiatric history from their overall medical history. Sometimes those matters are related.
In circumstances where the body of records held by Medicare can be expected to yield material of assistance to the defendant's case in the sense that I have described, in my view, it is not appropriate to set the subpoena aside on the basis that the subpoena as drafted could also capture material of a medical nature that is unrelated. Generally, it must be remembered that merely because material is produced upon subpoena does not make it publicly available. To the contrary, the parties and the legal practitioners who gain access to that material have strict obligations in relation to the legitimate use that they can make of the material that is produced.
Accordingly, the Court will decline to set aside the subpoena issued to Medicare.
Accordingly, the Court orders that:
1. The subpoenas issued in these proceedings to the University of South Australia, Dr Maree Chantor, St John of God Hospital, Concord Hospital and Canterbury Hospital be set aside and any material produced in response thereto be returned.
2. The subpoenas issued in these proceedings to the Roads and Maritime Services of New South Wales, TAFE New South Wales, the University of New South Wales and Transport for New South Wales be set aside and any material produced in response thereto be returned.
3. The plaintiff's notice of motion filed on about 17 July 2015 be otherwise dismissed.
4. The plaintiff's notice of motion filed 28 August 2015 be otherwise dismissed.
Mr Pi seeks his costs of the notices of motion that he filed concerning the subpoenas that I have just dealt with. He succeeded in respect of five of the subpoenas but only because he did not succeed in his earlier notice of motion seeking the joinder of his daughter and the approval of him to act as his daughter's tutor. He succeeded in respect of four of the remaining subpoenas but only because he abandoned his claim for economic loss. Upon that notice being given, the defendant indicated that it did not press those subpoenas. To the extent there was a debate over a subpoena, he did not succeed. In those circumstances, there is no basis to award him costs. I think the appropriate order is and I order that: (5) Each party pay the costs of Mr Pi's notices of motion filed 17 July 2015 and 28 August 2015.
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Decision last updated: 25 September 2015