HOBART, 30 July 1997 (hearing), 4 August 1997 (decision)

The plaintiff's action is one whereby she claims against the defendant (who was sued in accordance with the provisions of the Supreme Court Civil Procedure Act 1932, s64(15), as then in force) damages for personal injuries suffered by her as a result of the negligence and/or breach of contract, and/or breach of duty of the Government of the State, its servants and agents. The plaintiff alleges that she suffered her injury in the course of her employment with the Crown at the Woodhouse Centre, St John's Park, New Town, on or about 25 December 1991.

The defendant now seeks the orders to the following effect:

1 That the plaintiff supply to him an authority for access to all medical records held by treating medical practitioners and hospitals relating to the injury which is the subject of the action, and/or the parts of the plaintiff's body affected or allegedly affected by that injury and/or any relevant psychiatric condition.

2 That in default of the provision of such authority, the action be stayed pursuant to the Evidence Act 1910 ("the Act"), s25(1).

The defendant has submitted that the Act, s25, authorises the making of the orders sought. He has further submitted that orders to such effect also are authorised by s26(1) and that, if I were to conclude that s25 does not authorise the making of the orders sought, I should proceed under s26.

"25 (1) Where proceedings are taken against a person (in this section referred to as 'the defendant') in respect of any injury sustained by another person (in this section referred to as 'the injured person'), a medical practitioner appointed by the defendant shall be entitled, on demand of the defendant, to examine the injured person, and the injured person and all other parties (if any) to the proceedings shall give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury.

(2) If the injured person fails

(a) to submit himself to an examination by a medical practitioner appointed by the defendant for the purposes of this section; or

(b) to give to a medical practitioner so appointed all such facilities and information as he is required by this section to give to that medical practitioner,

the court in which any proceedings are taken by the injured person against the defendant (whether the proceedings are commenced before or after making of a demand under subsection (1)) may, on the application of the defendant, order that those proceedings shall be stayed until the injured person submits himself to the examination, or gives the facilities and information, as the case may be.

26 (1) Any party to any proceeding shall be at liberty to apply to a court or judge, or person acting judicially, for a rule or order for the inspection by himself, or by his witnesses, or by the jury, of any real or personal property the inspection of which may be material to the proper determination of the question in dispute or the making of any inquiry. It shall be lawful for the court or a judge, or such person as aforesaid, if it or he think fit, to make such rule or order upon such terms as to costs and otherwise as such court, judge, or person may direct.

Provided always, that nothing in this section contained shall affect the provisions of any Act as to obtaining a view by jury.

(2) Whenever any proceeding shall be pending in the Supreme Court in any jurisdiction, or in any court under the Local Courts Act 1896, the court or a judge thereof may, upon the application of any party to the proceeding, compel the opposite party to allow the applicant to inspect all documents in the custody or under the control of such opposite party relating to the proceeding, and, if necessary, to take examined copies of the same, in all cases in which prior to 6th October 1853 a discovery might have been obtained by filing a bill or by any other proceeding in a court of equity at the instance of such applicant."

The plaintiff made a claim for workers compensation in respect of her alleged injury. The claim form completed by her includes a medical authority in the form provided for by the Workers Compensation Regulations, reg4 (Form 1, section 5) which authorises the provision of information relating to the claim for compensation. It may therefore be doubted whether it would provide authority to furnish information concerning the claim for damages. In any event, on 26 June 1997 the plaintiff revoked the authority. Notice of that revocation was given to a hospital where the plaintiff has been treated, the manager of the Woodhouse Centre and the relevant insurer.

The defendant wishes to have the plaintiff medically examined. He wishes to provide a complete history to the medical practitioner who is to examine the plaintiff. It is for that purpose that he seeks authority for access to the plaintiff's medical records. Although the conclusions which I have reached make it unnecessary to give consideration to the nature of the authority which the defendant seeks, I observe that it is expressed in terms which are quite unsatisfactory. The way in which the records are described is by reference to their subject matter. The subject matters are not described in sufficiently definitive terms.

The primary purpose of s25 is to provide for the examination of an injured plaintiff at the instance of the defendant in an action which is brought in respect of the injury sustained. A secondary purpose of the section is to ensure that any medical practitioner appointed to so examine the injured plaintiff is given all necessary facilities and information to enable him or her to ascertain fully the nature and extent of the injury. As Neasey J said in Weedon v Green [1978] Tas SR 117 at 120 - 121:

"Section 25(1) gives on its face an unqualified right to a legally qualified medical practitioner appointed by the defendant, on demand by the defendant, to examine the injured person; and prima facie an unqualified duty upon the injured person and all other parties if any to the proceedings to give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury."

An injured person is not required to give any facilities and information to an examining medical practitioner unless objectively the particular facility or information sought is necessary to enable the practitioner to ascertain fully the nature and extent of the injury. Subject to that objective test being satisfied, it is a matter for the judgment of the appointed medical practitioner as to what facilities and information he or she requires for that purpose. The jurisdiction to order a stay conferred by s25(2) only arises if the injured person either fails to submit to an examination or fails to provide. to the medical practitioner appointed, the relevant facilities and information. Whilst submitting to a diagnostic procedure carried out by a person other than that practitioner may be a facility which the injured person must provide (see O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124), there is no warrant for importing into s25 any requirement that an injured person provide information to the party at whose instance the examination is to be carried out. It follows that s25 provides no authority for the making of the orders sought.

I turn to the alternative basis upon which the defendant submitted that orders should be made. I observe that the defendant did not place any reliance on s26(2). Clearly, that subsection has no application. The nature of the documents, the subject of the application, is such that it would not appear that they are either in the custody or under the control of the plaintiff. In any event, an application under that subsection must be supported by an affidavit that the party against whom the order is sought has in his or her possession or power certain documents relating to the action. There is no such affidavit. The subsection does not enable a party to discover what documents his or her opponent has, but only to see those documents which the party knows that the opponent has (see Hunt v Hewitt [1852] EngR 91; (1852) 7 Ex 236; 155 ER 931).

Counsel for the defendant submitted that the expression "any real personal property" appearing in s26(1) ought to be construed as including documents. Counsel for the plaintiff submitted to the contrary. No authority was cited for either proposition. I am of the view that that expression does include documents. In relation to a similar New South Wales provision which contained the same expression, Isaacs J held, in Barton v Australian Consolidated Press Ltd [1970] 3 NSWR 141, that the meaning of personal property should not be read down so as to exclude written documents. His Honour said, at 143:

"Having regard to the generality of the words 'real and personal property' and the interests of justice above adverted to, I am of the view that the same principles must apply to their construction and application as was decided in Persson's Case, supra, and no basis exists for restricting, cutting down or qualifying the meaning of 'personal property' so as to exclude written documents.

The description 'real and personal property' describes and embraces every type and class of property known to the law. There is no 'property' of any sort which does not fall under one or other of the words 'real' and 'personal'. True enough each has categories: real property comprises corporeal and incorporeal hereditaments, and 'chattels real' and 'chattels personal' may be convenient sub-divisions of 'personal property'; but once you exclude from that phrase real estate and interests therein and chattels real, then every other kind of property of whatever description falls within the classification of 'personal property' especially that which is visible or tangible, and that of course includes written documents of every description. The division of property into 'real and personal' derived from the kind of action which might have been brought for its recovery. Land was recovered by an action called a real action (actio realis), an action in rem, wherein the actual land itself was recovered. But in the case of moveable or tangible property the thing itself might not be recoverable and so the action had to be taken against the person who had taken or destroyed it and this was called a personal action (actio personalis): 'From the different remedies by which they could formerly be recovered seemed to have arisen the names of "real" and "personal" property, which are now more commonly used than "lands tenements and hereditaments" and "goods and chattels".' (Millard, Real Property, 3rd ed, p9)."

With respect, I agree. It follows that s26(1) authorises the making of an order concerning medical records. Of course, the power conferred is discretionary and the discretion ought to be carefully exercised (see Evatt v Australian Consolidated Press Ltd [1970] 1 NSWR 97). Questions of privilege adverted to by the plaintiff would be relevant to the exercise of the discretion.

Whilst s26(1) authorises the making of an order which, as appropriate, may be made against a party or against a stranger to the action (Persson v Heathwoods Pty Ltd (1967) 68 SR(NSW) 27), it does not follow that that subsection authorises an order of the type sought by the defendant. The order sought is not for inspection but for the provision of an authority which may make it more likely that a person in possession of a relevant document will permit inspection.

Armed with such an authority, it would be possible for the defendant to engage in far-ranging enquiries and seek to inspect whatever documents he may locate. Some of those documents may well contain material which is privileged by virtue of the Act, s96(2) and which, in the absence of specific authority, the keeper of the document would be prevented from making available for inspection by s96(2A).

An order under s26(1) concerning personal property ought to be directed to the person who has possession of the relevant personal property. Any application ought to be made on notice to that person and to the parties to the proceedings. The application, if it concerns documents, ought to be directed to particular documents. The discretion conferred by s26(1) ought to be exercised by reference to those particular documents. The defendant's reliance on s26(1) is not well founded because the subsection only permits the making of an order which confers an entitlement to inspect particular identified property and not whatever property answering to a general description as may be located by the party at whose instance the order is made.