Supreme Court New South Wales

• Medium Neutral Citation: P10 v D10 [2014] NSWSC 688
• Hearing dates: 16/05/2014
• Decision date: 30 May 2014
• Before: Fullerton J

Decision

1. Notice of motion dismissed.

2. The plaintiff to produce as if under a subpoena properly served in accordance with the Supreme Court Rules the following documents:

Any affidavits or statements sworn or made by the plaintiff, filed and/or read in any court proceedings from 1 January 2012 in respect of any application for parenting orders/custody of the plaintiff's children and/or any dispute relating to parenting orders/custody of the children that relate to the plaintiff's capacity to care for her children.

• Catchwords: PROCEDURE - subpoena for production of documents - notice of motion seeking to set aside subpoena - whether subpoena is substitute for discovery - whether subpoena an abuse of process - relevance - whether legitimate forensic purpose - "on the cards" test - medical negligence proceedings and related claim for damages - family law proceedings
• Legislation Cited: Civil Liability Act 2002 (NSW); Family Law Act 1975 (Cth); Family Law Rules 2004 (Cth); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Alister v R [1984] HCA 85; 154 CLR 404; Attorney General for New South Wales v Chidgey [2008] NSWCCA 65; O'Shane v Harbour Radio Pty Ltd [2014] NSWSC 93; R v Salem (1997) 96 A Crim R 421
• Category: Interlocutory applications
• Parties: P10 (Plaintiff/Applicant); D10 (Defendant/Respondent)
• Representation: Counsel: A Bartley SC / L Mathias (Plaintiff/Applicant); SA Woods (Defendant/Respondent); Solicitors: Colquhoun Murphy Barristers and Solicitors (Plaintiff/Applicant); Curwoods Legal Services (Defendant/Respondent)
• File Number(s): 2010/288957

Judgment

1 HER HONOUR: On 31 August 2010 the plaintiff commenced proceedings in this Court seeking damages for injuries she suffered in September 2007 whilst in the care of doctors at Albury Base Hospital. The damages claim includes a claim for her reduced capacity to care for her three young children by reason of her injuries and residual functional disabilities. It is not clear the extent to which the claim is limited to the plaintiff's reduced physical capacity.

2 On 13 November 2013 the defendant, D10, issued a subpoena requiring the plaintiff to produce documents identified in the schedule to the subpoena as follows:

Any documents (whether in draft or final form, and whether or not filed or read in any court proceedings) relating to any application for parenting orders/custody of your children and/or any dispute relating to parenting orders/custody of your children from 1 January 2012 to date including:

(a) Any correspondence relating to custody arrangements; and

(b) Any documents filed in any court including applications, responses, notices, affidavits, statements and proposed or final orders.

3 By letter dated 5 December 2013, the defendant amended the schedule responsive to a complaint form the plaintiff as to its breadth and issues of privilege. The amended schedule is as follows:

Applications, responses, affidavits, statements and final orders filed or read in any court proceedings from 1 January 2012 to date in respect of any application for parenting orders/custody of your children and/or any dispute relating to parenting orders/custody of your children that relates to your capability to care for your children.

4 The plaintiff commenced parenting proceedings in the Federal Circuit Court of Australia on 17 July 2013. Those proceedings have not resolved to final order. The three children have their own legal representative in the parenting proceedings.

5 By notice of motion the plaintiff seeks an order that the subpoena be set aside on a number of bases, including concerns about the unrestricted access to private information about people other than the parties to the parenting proceedings (including the three children), contrary to operating provisions of the Family Law Act 1975 (Cth); the use of the subpoena to gain a collateral advantage in the common law proceedings; and that the documents relating to the "capability" of the plaintiff to care for her children in the family law proceedings are irrelevant to the proper determination of the plaintiff's entitlement to compensatory damages for her reduced capacity to care for her children raised by the common law claim.

6 The plaintiff also submitted that the subpoena was being used as a substitute for discovery contrary to the Uniform Civil Procedure Rules 2005 (NSW). This is said to follow because the schedule requires her to make a judgment as to whether any of the itemised documents which may be in her possession relate to her capability to care for her children and that would require her to produce documents prepared by others concerning that question, even if they are wholly uncorroborated and perhaps even motivated falsely to discredit her in the parenting proceedings. I do not find that argument persuasive since the plaintiff admits possession of documents in the amended schedule which, I was given to understand, were in the possession of the plaintiff's solicitor at the bar table, from which it would logically follow that the plaintiff has already identified documents which satisfy the subpoena.

7 In the course of argument as to the breadth of the categories of documents in the schedule to the subpoena, and my expressed concern that despite the defendant undertaking that the use of the documents would be limited to the legal practitioners there was a risk that the documents would perhaps be utilised to fuel a collateral credit attack, the defendant's counsel made a further concession that the schedule could be further refined to only seek production of affidavits or statements sworn by the plaintiff in the parenting proceedings. For reasons which I will come to presently, I consider that a proper concession.

8 The plaintiff also submitted that it may be contempt of court or an abuse of the court's process to use documents produced on subpoena other than for the purpose of litigation in which the documents were prepared. My attention was drawn to Rule 15.27 of the Family Law Rules 2004 (Cth) which limits the use which is to be made of subpoenaed documents in the Family Court by providing that a person who inspects or copies a subpoenaed document under the Family Law Rules, or by order, must use the document for the purpose of that case only, and not disclose the contents of the document or give a copy of it to any other person without the Court's permission. Contrary to the submissions of the plaintiff's senior counsel I do not read the Family Law Rules as requiring that the subpoena issued in this Court for production of documents filed or read in Family Court proceedings be set aside as an abuse of process whether because of some absolute protection or category of statutory privilege attaching to the documents or because leave has not been sought under the Rules.

9 Counsel also relied on s 121 of the Family Law Act as an additional basis upon which the subpoena should be set aside. That section provides criminal sanctions for the publication or dissemination to the public, or a section of the public, any account of the proceedings in that Court or any part of the proceedings which identifies a party to the proceedings, a party who is related to or associated with a party to the proceedings or a witness in the proceedings. This, it was submitted, provides an absolute prohibition on the plaintiff producing under subpoena any of the documents referred to in the schedule since those documents would necessarily include the protected information. Section 121(9)(a)-(g) provides for exceptions to the absolute prohibition on publication or dissemination in s 121(1). For present purposes s 121(9)(a) has direct application. It provides that the prohibition does not apply to or in relation to:

the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings...

10 Counsel accepted that while that would permit the plaintiff "communicating" to the defendant some of the documents in the schedule, it would also necessitate making the concession that they were for use in the common law proceedings in this Court when that is the question at issue on the motion and not a concession she was prepared to make.

11 It seems to me that s 121(9) does provides an exception to the prohibition in s 121(1) that would otherwise prevent the plaintiff's full compliance with the compulsory process of requiring the production of documents under subpoena (since those documents would, in all probability, disclose the names and identities of persons involved in the parenting proceedings). The section also contemplates the question of access to the documents being resolved by this Court when access to the subpoenaed documents is sought, thereby allowing for the protection to be maintained where use of the documents is not sanctioned. Viewed in that way, the operation of s 121 does not necessitate that the subpoena be set aside.

12 That leaves the issue of the relevance of the documents to the issues in these proceedings. Relevance also informs the question as to whether if the documents were produced access would be granted with the defendant at that time needing to satisfy the Court that they had a legitimate forensic interest in accessing the documents and that it is "on the cards" that the documents will materially assist the defendant's case (see R v Salem (1997) 96 A Crim R 421). While the test of relevance for the purposes of the motion does not foreclose upon the issue of relevance should access to the documents be sought, there is a practical overlap in the nature of the tests to be applied.

13 In this case the relevance of the documents as contended for by the defendant (and, as I have noted, further limited by the defendant only seeking access to the affidavits sworn or statements prepared by the plaintiff in the parenting proceedings) is largely, although not exclusively, limited to the aspect of the plaintiff's damages claim that concerns the impact of her injuries on her future capacity to care for her children. The total amount claimed for their future care is $535,081.80.

14 It is unnecessary for present purposes to interrogate the breakdown of the plaintiff's claim between the costs of past and future care or to consider the extent to which s 15B of the Civil Liability Act 2002 (NSW) might limit her entitlement to an award for damages. I do note, however, that the defendant's expert occupational therapist makes no allowance for future care of the plaintiff's children (and that she limits the claim for past care). In her opinion, the plaintiff has a demonstrated capacity to care for her children in her current domestic relationship with her new partner and where she shares their care with her husband from whom she is separated following a breakdown in their marriage in August 2012. The plaintiff's occupational therapist, on the other hand, calculates the plaintiff's past and future care needs on the basis of gratuitous attendant care services received in the past, together with the need to provide for the cost of domestic assistance and childcare assistance in the future, in particular to ensure the plaintiff retains her current paid employment where domestic assistance would moderate the impact of her functional limitations compromising her capacity to work.

15 The defendant submitted that the documents satisfy both the substantive and adjectival tests of relevance - the former relating to direct proof of the fact in issue in the proceedings and the latter the capacity of the documents to support a conclusion or a proposition that has arguable relevance. The defendant also submitted that the documents might shed light on the issues in the case and, for that reason, might be reasonably regarded as materially assisting the resolution of the issues in the proceedings. In O'Shane v Harbour Radio Pty Ltd [2014] NSWSC 93 Beech-Jones J observed that the "on the cards" test referred to in the judgment of Gibbs CJ in Alister v R [1984] HCA 85; 154 CLR 404 (cited by Beazley JA in Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 at [65] as the source of the test) is applied prospectively as the party issuing the subpoena will usually not know what documents will be caught by the subpoena or what they will say. His Honour observed that the "on the cards" test does not deny the possibility, which may be a strong one, that the documents will not assist and may in fact damage the subpoenaing party's case. I also accept that in determining the question of relevance at this stage it is appropriate to recognise that the parties are entitled to prepare their case by a combination of different evidence of differing weight and, in addition, that it is desirable in the interests of justice that cross-examination is undertaken referenced to documents that might assist in the exposition of the defendant's case.

16 Where the relevance of a document sought by subpoena is purely speculative, that document fails the test of relevance. The plaintiff submitted that the relevance of the documents identified in the schedule to the subpoena in this case are properly described as speculative, despite two attempts at refinement.

17 It is unnecessary to detail the course of the parenting proceedings save as to note that the breakdown in the relationship between the plaintiff and her husband deteriorated over the course of their separation from August 2012, largely it would seem because of her husband's reaction to the plaintiff's new relationship with her female partner, to the point where the plaintiff sought the intervention of the Court to prevent her husband refusing her access to her children. From the materials before me it would appear that the plaintiff's husband claimed or asserted that she was "incapable" of caring for the children because of her "cognitive impairment", a matter that the plaintiff reported to Dr Wilcox, clinical psychologist, in a served medico-legal report of 19 December 2013. She also told Dr Wilcox that at an interim hearing in September 2013 her husband's evidence was rejected by the judge and orders were made for shared parenting, with the plaintiff being awarded custody of the children 65 per cent of the time. She is apparently seeking full-time custody of her children.

18 It was the reported acrimony between the plaintiff and her husband, and the recitation of the extent of their antagonism in various medical and other reports served on the defendant, that apparently prompted the issue of the subpoena, in particular, the assertion by the plaintiff's husband in the parenting proceedings (and obviously before the interim hearing) that the plaintiff was incapable of caring for their children because of some cognitive impairment and the plaintiff's positive assertions that she was physically and mentally well and capable of caring for them when conferring with her doctors. The defendant submitted that this evidence supports the inference that any incapacity in the plaintiff's ability to care for the children was not as a result of any physical disability or functional limitation resulting from her injuries, and that this bears directly upon the integrity of the plaintiff's claim for past and future care where it is her physical or functional disability that grounds that claim. The defendant submitted that it is "on the cards" that the plaintiff's affidavit sworn in the parenting proceedings and any statement prepared for those proceedings would be likely to provide evidence of that fact, thereby undermining her claim for damages.

19 In any event, as the defendant submitted, the pleadings in this Court do not eschew reliance by the plaintiff upon an argument that her need for assistance in the future includes consideration of a psychological dysfunction related to her physical disabilities. Significantly, save for the second hand report of the assertion of the plaintiff's husband in September 2013 that his wife was "incompetent", the only evidence of the plaintiff's incapacity to care for her children from a psychological or psychiatric perspective at any time was in a served report from Dr Jungfer, the plaintiff's consultant psychiatrist, of 2 March 2012 in the following terms:

She also reported that her husband had noted a change in her emotional relationships with both him and her children. She also described herself as tending to be more emotional and irritable, suggesting difficulties with regards to frontal executive functioning consistent with neurocognitive changes following acquired brain injury...

20 Her current psychological functioning and general mental health, on the other hand, is supported by reports from Dr Beech, her general practitioner, and Dr Wilcox.

21 The jurisdiction conferred on the Federal Circuit Court is concurrent with that of the Family Court and the Federal Court. The Federal Circuit Court has jurisdiction under the Family Law Act and can determine all parenting orders including those providing for where a child lives; and how a child is cared for and maintained and other issues. Parenting proceedings are child focused with the child's best interests being the paramount consideration and the dominant focus. Proposed parenting orders are considered in light of this paramount principle.

22 The plaintiff submitted that the enquiry into the question of the care of children in parenting proceedings and the plaintiff's ability to provide that care is materially distinct from the enquiry into that question in the context of the common law claim for damages. While that is a fair observation, I am not persuaded that the questions are so unconnected and discrete that the plaintiff's affidavit sworn for the purposes of securing access to and ultimately full-time custody of her children does not bear relevantly on the question whether her claim for past and future costs of care is maintainable in whole, or in part, or that the relevance of the documents is a matter of speculation.

23 In the result, I do not propose to set the subpoena aside but to adopt the refinement to the schedule proposed by the defendant's counsel.

24 Accordingly, the notice of motion is dismissed.

25 I direct that the plaintiff produce, as if under a subpoena properly served in accordance with the Supreme Court Rules, the following documents:

Any affidavits or statements sworn or made by the plaintiff, filed and/or read in any court proceedings from 1 January 2012 in respect of any application for parenting orders/custody of the plaintiff's children and/or any dispute relating to parenting orders/custody of the children that relate to the plaintiff's capacity to care for her children.

**********

Amendments

13 October 2014 - Parties' names anonymised per order of Hidden J on 8 October 2014
Amended paragraphs: Coversheet and [2]

Decision last updated: 13 October 2014