Tahana v Hines

Supreme Court of NSW|2021-05-14|Before: Cavanagh J

REVISED EX TEMPORE JUDGMENT

HIS HONOUR: This matter comes before me on 14 May 2021 as Duty Judge by way of an urgent application on a motion filed by the first and sixth defendants ("the defendants") on 7 May 2021.
The defendants seek an order that the plaintiff provide to the solicitors for the defendants by 5pm on 17 May 2021 an executed authority for access to the plaintiff's Centrelink records.
Mr O'Keefe appears for the defendants and Mr Hall‑Johnston appears for the plaintiff. The plaintiff opposes the orders sought in the motion.

Background

The plaintiff alleges that he sustained injuries in a motor vehicle accident on 3 December 2013. He claims substantial damages from each of the defendants.
The proceedings are listed for hearing commencing 31 May 2021.
The issue that brings this matter to court is that the defendants seek access to the plaintiff's Department of Social Services records for the purposes of contesting at the least the plaintiff's claim for economic loss. The plaintiff has declined to provide an authority to the defendants to obtain access to the social security records.

The defendants' contentions

In brief, the defendants submit that: 1. the Court has the power to make an order directing the plaintiff to provide the signed authority, having regard to the Court's inherent power as well as ss 56 and 61 of the Civil Procedure Act 2005 (NSW) ("CPA"); and 2. the Court should make an order in the particular circumstances of this matter on the basis that the documents could have some relevance to the issues between the parties.
The defendants submit that having regard to the Social Security (Administration) Act 1999 (Cth) ("Social Security Act"), the request for the direction should be considered on the same principles as a request for a subpoena or a notice to produce.
The defendants submit that there is a legitimate forensic purpose for the seeking of the order. It is said that the documents are relevant and have an apparent connection to the issues in the case so as to justify the orders sought.

The plaintiff's contentions

The plaintiff submits that: 1. the Court does not have the power to make an order in the terms sought having regard to the proper construction and application of the CPA; 2. that having regard to the provisions of the Social Security Act, the Court would not make the order; and 3. that in the particular circumstances of this matter, having regard to the evidence brought on the application, the order should not be made as the documents sought could have no relevance to the issues between the parties having regard to the medical evidence.
In this regard, the plaintiff relies on a report from the doctor retained by the defendants, Associate Professor Richard Jones, dated 23 September 2020, and submits that the effect of the doctor's opinion is that the plaintiff is currently unemployable and could possibly only be employed in the future depending on future treatment. As such, the plaintiff submits that there can be no issue as to the plaintiff's incapacity at least for the past.
Mr Hall-Johnston submits that the Social Security Act is intended to protect persons in receipt of social security benefits from production of such documents and that there is a general right to privacy conferred by the legislation.
Further, he submits that the offence provision, being s 205, tends to suggest that the defendants should not be seeking access to the information, and it would be an offence to do so.

Consideration

The central point made by the defendants is that there is a power to make the order and there is a proper justification for the order in the circumstances of this matter. The defendants in particular refer to ss 56 and 61 CPA.
The defendants rely on the decision of Harrison J in El-Helou v Smith [1] which, it is suggested, involves relevantly identical issues.

Relevance of documents

It has occasionally been said by this and other Courts that a plaintiff who seeks substantial damages from a defendant based on a loss of income should be prepared to expose his or her financial affairs to the Court as part of the claim.
However there are limits and I agree with the defendants that it would not be appropriate to make the orders sought unless there is a legitimate forensic purpose in requiring the plaintiff to authorise release of the information from the Department, which the defendants suggest there is.
Plainly, an order shall not be made in circumstances in which the defendant is simply engaged in what is conventionally known as a fishing expedition. There is merit in the plaintiff's submission that, having regard to what is said to be the high point of the defendants' medical evidence, it is difficult to see what the relevance of such documents could be. However, Mr O'Keefe refers to other reports which are annexed to the affidavit of his solicitor, Leah Pryde, dated 7 May 2021, and refers more generally to the claims by the plaintiff.
As I understand the position, the plaintiff has been in receipt of social security benefits for some years and has been providing information to the Department in support of his entitlement.
The defendants submit that the relevance of the documents is twofold. Firstly, there could be documents which impact upon the plaintiff's credit and, secondly, that the documents produced would relate to the plaintiff's attempts to obtain work and his vocational rehabilitation over the period, such as to be relevant to the claim for loss of earning capacity both for the past and the future.
Seeking such an order merely for the purposes of obtaining documents which may be relevant to the plaintiff's credit would not be permissible. The defendants would merely be fishing for documentation in the hope that there might be something which would allow cross‑examination on credit issues. However, Mr O'Keefe emphasises that, contrary to the submission advanced on behalf of the plaintiff, there is a real issue on loss of earning capacity and a real issue as to the plaintiff's capacity to work in the past and into the future.
Whilst Associate Professor Jones offers an opinion as to his capacity, that is only one aspect of the evidence, and there is other evidence on which the defendant relies that allows the defendant to maintain that the plaintiff has had some earning capacity in the past.
In these circumstances, the opinion of Associate Professor Jones is not determinative of the issue.
I am satisfied that documents which may be held by the Department may have some relevance to an issue between the parties being the issue of what amount should be allowed for the plaintiff's loss of earning capacity.

The power to make an order

The next issue is whether there is a power to make the order or direction that is proposed. The order sought is that the plaintiff provide to the solicitors for the defendants an executed authority for access to the plaintiff's Centrelink records. I am thus asked to make an order directing that the plaintiff do something in the context of this litigation.
The defendants point to the inherent power of the Court to make orders controlling its own proceedings as well as ss 56 and 61 of the CPA.
As set out in s 61, the Court may by order give such directions as it sees fit for the speedy determination of the real issues between the parties to the proceedings. In particular, the Court may, by order, direct any parties in the proceedings to take specified steps in relation to the proceedings under s61(2)(a).
On one view, s 61(1) is directed only to orders which might assist in the "speedy" determination of the real issues between the parties. It might be argued that ordering the plaintiff to give authority to the Department to produce documents is not an order for the speedy determination of the real issues between the parties.
However, in my view, the provisions of Pt 6 of the CPA must be read broadly and having regard to their evident purpose. The overriding purpose of the Act and the Rules of the Court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings under s 56 CPA.
Section 61 should be read in context. Its purpose is to enable the Court to make such directions as it sees fit for the speedy determination of the real issues between the parties so as to facilitate the just, quick and cheap resolution of the proceedings.
It is important to emphasise that the overriding purpose is to facilitate not merely the quick and cheap resolution but the just resolution.
A consideration of what is "just" must necessarily mandate doing justice to both parties. The parties should be able to pursue such issues as arise on the pleadings and obtain access to such documents as may be relevant to the issues between them. The processes of the court are designed to facilitate such access.
At least some of these issues were considered by Harrison J in El-Helou. Whilst it is not clear to me that all of the arguments raised by Mr Hall-Johnston were raised before his Honour, his Honour did consider whether the Court had power to make the same type of order.
His Honour had regard to earlier cases such as Merkuloff v Yalisheff [2] in which Young CJ in Equity concluded that the court had power to make an in personam order to cause Centrelink to produce documents under the Freedom of Information Act 1982 (Cth). Having said that, there is no suggestion this is an application under the Freedom of Information Act.
His Honour also referred to the decision of Gzell J in Wray v Wray [3] .
His Honour ultimately accepted that there was no legislative prohibition on production of documents that are sought, provided that the route chosen for access to them is limited to or in accordance with that contemplated by s 208(1)(b).
In particular, his Honour found: "Having commenced these proceedings, the plaintiff fell under and remains bound by an obligation as far as reasonably possible to assist the Court to arrive at a fair conclusion. In the absence of even the hint of some proper reason, (for example but without attempting to be exhaustive) whether founded upon a statutory prohibition or an allegation of prejudice or the demonstration of some legitimate forensic disadvantage or claim of confidentiality or the assertion of privilege, it is difficult to discern any reason why it is not in the interests of the just, quick and cheap disposition of the proceedings to make an order in the terms sought by the defendant. It is also appropriate to bear in mind that despite the plaintiff's attitude to the provision of the requested authority, it is not out of the question that the material that is sought by the defendant may turn out to be wholly supportive of the plaintiff's claims in these proceedings. Such an outcome would have potential beneficial consequences for the just, quick and cheap resolution of this case." [4]
Having regard to my own consideration of Pt 6 of the CPA, I am satisfied that I have the power to make the order sought by the defendants.

Discretion to make the order

The next question is whether I should make the order. It does not seem to me that the sole factor for consideration is whether the documents are sufficiently relevant.
Mr Hall-Johnston's submissions are well made.
The purpose of s 207 of the Social Security Act must be to protect the essential right to privacy in that documents held by an officer of the Department are not amenable to any subpoena issued by a Court.
It follows that I accept that the very purpose of ss 205, 206 and 207 of the Social Security Act is to protect the privacy of the recipient of social security benefits.
However, as set out in s 208, the Secretary may disclose such information in certain circumstances.
One such circumstance is provided for in s 208(1)(b)(ii) being: "to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it."
The defendants seek the express authorisation of the plaintiff to obtain the information. If the plaintiff provides the express authorisation then the Secretary may provide it and any right to privacy which arises under other sections of the Act no longer applies.
Further, as the defendants submit, there is a form issued by Centrelink which is headed "Authority to Release Personal Information - Personal Injury, Insurance and Superannuation or other matter". It would seem obvious that, having regard to s 208, the Department has contemplated that a recipient of benefits may provide express authority to a third person, such as the defendants in this case, for the Department to release the information.
Whilst the plaintiff has a right to privacy, the Social Security Act thus provides a mechanism by which the Department's officers may be permitted to provide information to a third person.
It seems to me that the general statement which I made at the commencement of this judgment, being that a plaintiff who pursues a significant claim for damages against a defendant should be prepared to expose his affairs to scrutiny, has some force.
The plaintiff commenced these proceedings. He may ordinarily have the benefit of the protective provisions of the Social Security Act, but as I am satisfied that the documents sought could be relevant, I do not consider that I should exercise my discretion not to make the orders.
In the circumstances, I order that the plaintiff provide to the solicitors for the first and sixth defendants by 5.00pm on 17 May 2021 an executed authority for access to the plaintiff's Centrelink records.
In my view costs should be costs in the cause.
It seems to me that in some respects this was an unusual issue and not without its complexity. Although I understand that the defendants say they had the better of the argument, it seems to me this is a motion which arises in the ordinary course of the events and I am satisfied costs should be costs in the cause.

Endnotes

[2009] NSWSC 741.
[2003] NSWSC 1183.
[2007] NSWSC 164.
El-Helou at [23]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2021

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