This case is before the Court as a result of the defendant's application under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 2.1 which is the Court's general power to make directions and orders for the conduct of proceedings.
The defendant is the insurer under a personal protection policy issued to the first plaintiff. The plaintiffs, who are husband and wife, claim payment of what is described as a critical illness benefit on the basis of "major brain injury" allegedly suffered by the first plaintiff. The benefit is in the order of $1 million.
The "major brain injury" is said to consist of cognitive impairment and dysfunction described colloquially as "cotton-wool head". The condition allegedly developed after the first plaintiff underwent eye surgery at Jeddah in Saudi Arabia in December 2010.
In December 2011 the first plaintiff wrote to Dr Khaled Shalaby of the Dr Soliman Fakeeh Hospital in Jeddah. Dr Shalaby was the surgeon who had been responsible for conducting the surgery in question.
The first plaintiff's letter stated.
… [T]he matter where you may be able to assist, relates to the possible consequences of the anaesthetic used in the surgery in Jeddah. This has been characterised to me medically as "post anaesthetic neuro dysfunction" about which I have read some available material. This material confirms that such consequences may occur.
My understanding is that the surgery which was to take approximately one hour in fact became a four hour procedure during which I was under general anaesthetic for the duration.
The sole purpose for my enquiry is to identify a possible cause of the "woozy head" and the chronic debilitating symptoms associated with it. Frankly I simply wish to obtain any information that may guide appropriate treatment, or at least provide some medically valid information to explain the problem that could lead to possible remedial options.
I fully understand that identifying the cause may not lead to a treatment based solution but at this stage I am keen to pursue all possibilities, however remote, as I become increasingly distressed that the symptoms are unabated and unchanged after almost a year.
I recognised at the outset that this request is unusual. I would also understand if any response may need to be directed through one of the treating doctors.
It appears that Dr Shalaby's response was to send the plaintiff three medical reports. The covering communication is not in evidence but the reports are. They are summaries of the treatment provided by Dr Shalaby and associated observations made by him.
The "reports" refer to the surgery in a very abbreviated way. They make no mention of the question of anaesthetic which is the subject of the request by the first plaintiff.
Proceedings were commenced in August 2015. In November 2015 the defendant's solicitors wrote to the solicitors for the plaintiffs asking for a signed authority to enable them to request the first plaintiff's medical records from the hospital. The defendant continued to pursue this request thereafter.
In October 2016 the defendant proposed that instead of the first plaintiff merely signing an authority the defendant should grant a Power of Attorney in Saudi Arabia to allow inquiries to be pursued within that country.
The defendant's solicitors have an office or offices in Saudi Arabia and they proposed that the first plaintiff sign a Power of Attorney authorising a representative from their Riyadh office to request the documents on the first plaintiff's behalf.
In November the solicitors for the plaintiffs responded saying:
We are instructed that our client will not agree to such an appointment in any circumstances.
The defendant's solicitors, nonetheless, persisted with their request. In January 2017 the first plaintiff (not his solicitors) emailed the hospital. The email attached a form apparently issued by the hospital authorising release of information. The request was for copies of investigations or results of x-rays for the discharge summary, and under "other" information there was sought a copy of the complete hospital file.
In his covering email the first plaintiff wrote:
For your information I had previously written to the Hospital in 2011 requesting information to which I have never received a response.
This was, obviously, a reference to the fact that the first plaintiff's request in December 2011 had been far wider than the three documents which were provided to him.
The hospital responded on 18 January by email. The email attached one of the medical reports which had previously been provided. It stated:
Please find the attached medical report as per your below request. Please feel free to contact me for any further help or inquiry.
It appears that the request had been misunderstood because plainly what was provided fell far short of what had been requested.
On 27 March 2017 the defendant filed the notice of motion which is before me for hearing today. The motion seeks an order requiring the plaintiff to execute a Power of Attorney in favour of lawyers at the defendant's solicitors' Saudi Arabian offices to enable them to obtain his medical records. The orders provide for undertakings to protect the confidentiality of any information so obtained and to ensure that it is used solely for the purpose of these proceedings.
On 2 April the first plaintiff wrote again to the hospital requesting "my complete medical record" held at the hospital.
On 6 April the hospital responded in the following terms:
The hard copy of your complete medical report is not available as the file was scanned to soft copy in multiple separate PDF files [and] cannot be sent via email. Am trying with our medical report department and IT team to fix the issue ASAP and will get back to you.
No further substantive response has been received, although the plaintiff has written on a number of further occasions, most recently on 14 June.
The application was initially before me on 12 May. On that occasion the notice of motion was stood over to allow continuing inquiries to take place by way of follow-up to the hospital's email of 6 April. However, no further response has been received from the hospital; the plaintiffs' position is to oppose the application and I must now decide whether to make the orders sought.
I feel bound to say that I do not understand why the plaintiffs' lawyers are apparently being so half-hearted about obtaining the first plaintiff's hospital records. At the trial the onus will be on the plaintiffs. The more information the first plaintiff has about what happened, the better placed he will be to offer a plausible explanation for the condition of which he now complains, a factor which would likely go a long way to sustaining the claim if it is a legitimate one.
The operation occurred almost six and a half years ago and that makes the obtaining of any relevant information that can be obtained from the hospital, particularly relating to the anaesthesia which the first plaintiff underwent, of even more significance than it would otherwise be.
On the face of it, I cannot see why the plaintiffs' lawyers should not in their own interests have been pursuing these records themselves, or at the very least embracing the pursuit of those records (at, I might add, the defendant's expense) when requested by the defendant.
The first point put for the plaintiffs in opposition to the application is that it is not known whether there ever were any records of the sort beyond the three reports that have been provided or if so, whether such records are still available. Nor is it known whether those records will bear on the issues to be determined in this case.
I do not think that this is a substantial reason for resisting the application. If the operation had taken place in Australia, a subpoena would have been issued as a matter of course for the production of the relevant records. That is because it is, obviously, at least "on the cards" that such records as might exist would be relevant.
The Court is not so helpless as to insist that before a subpoena can be issued it must be demonstrated that records, in fact, exist, and that they will, in fact, be relevant. The test is much broader than that.
The plaintiffs pointed out in this case (correctly) that there was no admissible evidence demonstrating that the record-keeping procedures with which the Court is familiar in Australia would necessarily have been followed in Saudi Arabia.
From the medical reports which are in evidence, I doubt that such evidence is necessary. Those reports which are in English appear to me to follow exactly the same course and to be in similar form to those which one would expect to see produced by a doctor operating in an Australian hospital.
There is every reason to think that the hospital when undertaking the surgery in question would have kept records comparable to those which would be kept by an Australian hospital for surgery of similar seriousness. In any event, it is quite clear from the email of 6 April that there may, indeed, be a hospital file.
The plaintiffs next argued that there was no power under UCPR r 2.1 to make the orders sought. The plaintiffs' argument was that there was a difference between what was said to be a procedural power and a power to order a plaintiff to act in a way which involved the exercise of, or might affect, his substantive rights.
In my opinion, it is clear that having regard to the scope and purpose of the rule, it is not to be construed narrowly or technically. The rule should be construed in accordance with its apparent purpose of equipping the Court with power to order the parties to do whatever may be seen as being necessary or expedient in the interests of a just, quick, and cheap resolution of the proceedings.
In Merkuloff v Yalisheff [2003] NSWSC 1183, Young CJ in Eq said he had no doubt that the Court had power under the rule to order a plaintiff, at the instance of a defendant, to obtain records from the Social Security authorities and to make any necessary application and waive any necessary confidentiality to do so. I have the same view and I have no doubt that the making of the order which is sought is within power.
Finally, the plaintiffs argued that the defendant had failed to show that the documents could not be obtained by subpoena. This was founded on a statement in an email sent in May 2016 by the defendant's solicitors to the effect that it was preferable for the first plaintiff to give the authority sought because it would be difficult, if not impossible, to issue a subpoena.
I find it extremely unmeritorious for this argument to be recycled more than a year after the correspondence in which reference to subpoenas was made, when in the intervening period the plaintiffs' legal representatives have either been ignoring the defendant's requests or have been contending that there is no basis for the documents to be produced.
To the extent that it is necessary to deal with the argument, I think the answer is plain. It is true that the Court has power under UCPR r 11.8AB to grant leave for the service outside Australia of a subpoena. The existence of that power was established by Rogers CJ Comm D in Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545. However, as his Honour pointed out, although the relevant rule confers the power to issue a subpoena, it does not authorise the grant of leave to serve a subpoena in another country inconsistently with established criteria of international law with regard to comity.
It is clear from his Honour's reasoning and from the works on international law which he quoted that whether a subpoena will be seen as an infringement of international law and an affront to the sovereignty of the country in which it is served depends on the law in that country and possibly also the identity of the party to be served.
In the case before his Honour he was considering an application to grant leave to serve a subpoena on a Japanese company in Japan. After referring to the limitations on the rule his Honour concluded at (at 553):
Whichever way the rule is read down it will not authorise giving leave to serve a Japanese company in Japan.
It follows that before the Court could be persuaded that a subpoena was a viable alternative, the Court would need to consider evidence concerning the legal system in Saudi Arabia and how foreign subpoenas would fit, if at all, into that system. No doubt this will be a matter which if contested would require expert evidence.
Furthermore, his Honour made it clear in the Arhill case that the Court would not exercise the power to authorise the issue of a subpoena in a foreign country, even if there was power to do so, in every case. In particular, the Court would need to consider the utility of the procedure (given that the Court is unable to directly enforce compliance with the subpoena) and whether some other alternative which is cheaper or easier is available.
In my opinion, it is absurd to suggest at this point of the application that the defendant should be required to go away and consider whether it could now obtain appropriate relief by way of subpoena when all of those matters are taken into account. In my opinion, the present case is a classical case for the exercise of the Court's power under UCPR r 2.1. As a result, I propose to make an order of the nature sought.
[2]
(Counsel addressed on costs)
As to costs it is appropriate to recount some of the background of the application in a little more detail. As I have already noted, the initial request was made by letter dated 30 November 2015. There was no response to that letter at all, despite reminders, before April 2016.
On 11 May the defendant's solicitors wrote to the plaintiffs' solicitor in the following terms:
I note your client's position in relation to the medical records. I'm still unsure what rights your client is seeking to reserve in respect of his records. Should you wish to press this reservation of rights, please clarify your client's position.
There appears to have been no response, or at least no substantive response, before 19 October when the Power of Attorney was requested as I have already recounted.
I have already referred to the plaintiffs' solicitors' letter of 18 November 2016 refusing to give a power of appointment "in any circumstances". The reasons offered were as follows:
It is obviously an extraordinary request. It is a fundamental principle of our adversarial legal system that the parties are independent of each other. It follows that our client cannot be compelled to appoint his opponent in litigation as his attorney.
We note that you say that our client has not sought records from the Saudi hospital. That is not true. We refer to our client's letter to his surgeon at the hospital dated 8 December 2011. The Saudi records provided to our client have already been provided to you.
There was no substance to this response. It is commonplace for a litigant to be asked to give authorisation for access to medical records or, indeed, to property, for the purposes of the litigation.
The reference to the letter of 8 December 2011 was quite inappropriate given that, as the first plaintiff himself acknowledged in his later email, that letter plainly did not answer the question that had been asked, or at least it did not fully do so.
In my opinion, the opposition to this application was entirely unreasonable. The defendant has been required to come to Court to make an application which should have been dealt with as a matter of consent more than a year ago.
In my opinion, the appropriate order is that the plaintiffs pay the costs of this application and that those costs be assessable forthwith.
I have already referred above to my puzzlement as to why in the interests of the plaintiffs the plaintiffs' legal representatives took the position which they took. Not only was that unreasonable as against the defendant but I cannot see how this obstructionist course could advance the plaintiffs' interests in getting the case on for hearing and obtaining evidence which is relevant to its resolution.
On the state of the evidence before me it is not possible to determine to what extent the plaintiffs' solicitors' actions are based on express instructions from the plaintiffs or from the exercise of the solicitors' own authority to conduct the proceedings on the plaintiffs' behalf. I therefore intend to direct that the plaintiffs' solicitors provide a copy of this judgment to the plaintiffs and advise the plaintiffs to seek independent advice on their liability for costs, both the defendant's costs which have been awarded against them and any costs of the application which the plaintiffs' solicitors may charge them.
The orders of the Court are as follows:
Order that the first plaintiff within seven days is to provide to the solicitors for the defendant a duly executed and completed Power of Attorney document in the form attached to the defendant's notice of motion dated 27 March 2017 upon the following undertakings of the defendant:
A. The defendant undertakes to take all reasonable steps to have any documents obtained pursuant to the Power of Attorney lodged with the court without first obtaining access thereto;
B. The defendant undertakes to indemnify the first plaintiff in respect of any costs or costs orders of and associated with actions taken in Saudi Arabia in pursuit of production of the first plaintiff's medical records pursuant to the Power of Attorney.
Order that the plaintiffs pay the defendant's costs of the motion as agreed or assessed.
Order that those costs be assessable and payable forthwith.
Direct that the solicitors for the plaintiffs provide to the plaintiffs a copy of my reasons for judgment when issued and advise the plaintiffs to seek independent advice on the plaintiffs' liability for costs of the motion (both the defendant's costs ordered against them and any costs that the plaintiffs' lawyers may charge them).
[3]
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Decision last updated: 22 June 2017