Carter (a pseudonym) v Australian Air League Incorporated & Anor [2024] VSC 95

11 June 2024

In Carter (a pseudonym) v Australian Air League Incorporated & Anor [2024] VSC 95, the Victorian Supreme court discussed a range of principles relevant to the breadth and contents of issuing subpoenas for records held by Medicare.

Facts

The Plaintiff brought proceedings against Australian Air League Incorporated (AAL) in respect of allegations of sexual abuse occurring between 1978 to 1980, resulting in the Plaintiff suffering psychiatric injuries including Bipolar Affective Disorder Type II and Post-traumatic stress disorder.

The Plaintiff claimed compensation in the form of both past and future economic and medical expenses. While he made a modest claim for past medical expenses, the Plaintiff claimed approximately $50,000 in future medical expenses for professional treatment and medications.

A substantial number of clinical records had been provided to AAL, however AAL was unable to identify the treating practitioners of the Plaintiff for significant periods relevant to the claim, including in relation to the Plaintiff’s psychiatric treatment.

The subpoena issued to Medicare by AAL comprised, in effect, the Plaintiff’s entire medical history. The Plaintiff objected to the production of Medicare’s records.

Relevant principles

AAL identified two well-established principles that must be satisfied for production under a subpoena. The issuing party must:

  1. identify precisely a legitimate forensic purpose for the categories of documents sought pursuant to the subpoena, bearing in mind that both the production of documents or the absence of produced documents may assist a forensic purpose; and
  2. demonstrate that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents will ‘materially assist’ the issuing party’s case.

The principles governing when a subpoena may be set aside, summarised in Walters v Perton,1 was also outlined and relied on by the Plaintiff.

Legitimate forensic purpose

The Plaintiff disputed whether AAL had a legitimate forensic purpose in issuing the subpoena to Medicare, pointing to the principle that ‘a mere suspicion that the subpoenaed documents will or may assist the subpoenaing party will not be enough to satisfy this test.’2

AAL asserted that the Medicare records were relevant to provide insight into whether the abuse was the sole or primary cause of the Plaintiff’s loss, and to evaluate the Plaintiff’s claim for past and future medical expenses and economic loss.

While previous cases with similar circumstances had considered this a fishing expedition,3 the nature of the proceedings involving historical sexual abuse allegations were considered qualitatively distinguishable. Daly AsJ stated that investigations involving circumstances such as workplace injuries would necessarily be limited to a more confined timeframe in terms of the period in which records are relevant.

Reasonable possibility of material assistance

AAL further put forward that the Medicare records will of themselves disclose the duration and frequency of the Plaintiff’s psychiatric treatment, which will affect the assessment of his future treatment needs and its cost.4

The Plaintiff submitted that the scope of the subpoena was impermissibly broad and that AAL was speculating as to the utility of the records. He also raised concerns as to delay in proceedings that may be caused by the issue of further subpoenas in this matter at a later date.

Decision

While the subpoena was expressed in broad terms, Daly AsJ accepted that there was evidence that the Plaintiff received treatment for mental health issues across his life which the Medicare records may reveal. He also noted the difficulty for Medicare if subpoenas were expressed in more confined terms, stating that it was easier for Medicare to provide entire records as opposed to those from a specified time period.

Daly AsJ was unconvinced by the Plaintiff’s argument that proceeding delays by further subpoenas was a determinative consideration, stating that AAL could seek leave to issue further subpoenas and any privacy concerns could be addressed by limiting the inspection of Medicare records to the legal representatives of the parties.

Noting that issues of causation and quantum were at the forefront of this claim, the production of Medicare records was considered likely to address key gaps in the Plaintiff’s psychiatric diagnoses and treatment. Daly AsJ accepted that documents which expose the weaknesses in a party’s case may be of as much forensic value to that party as documents which demonstrate the strengths of their case.5

Ultimately, the Plaintiff’s objection to the production of Medicare records was dismissed.

Implications

Daly AsJ considered whether legitimate forensic purpose extended to seeking documents such as Medicare records which may not be of themselves probative evidence in relation to the proceeding but will guide further inquiries that are likely to produce probative evidence, including the issue of further subpoenas.

In considering this, Daly AsJ stated that there was a legitimate forensic purpose in issuing a subpoena for Medicare records to in turn assist AAL to identify further relevant documents.

A key takeaway here was Daly AsJ’s statement that ‘it is the legitimate forensic purpose of obtaining access to the documents to be produced upon subpoena which is important, not necessarily the contents and admissibility of the documents themselves.’6

It was sufficient that the Medicare records would provide a comprehensive and reliable record of the Plaintiff’s medical history and treating practitioners.

In assessing whether the subpoena was too broad, Daly AsJ stated that the breadth of a subpoena must be viewed in the context of the Plaintiff’s allegations in a proceeding. Given the broad nature of the allegations and their far-reaching consequences across the Plaintiff’s lifespan, the nature of the claim opened the plaintiff’s medical history up to scrutiny.

This article was written by Rob Muir, Partner, and Sigourney Goss, Solicitor.


1[2019] VSC 356.
2Commissioner of Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3 [28].
3Such as Semi v VWA [2022] VCC 714.
4[14].
5[20].
6[22].

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