McAlister v Hunter New England Local Health District

JOHNSON J: By Summons filed on 28 March 2022, the Plaintiff, Rebecca McAlister, seeks certain relief with respect to the Defendant, Hunter New England Local Health District.

Read at the hearing of the Summons on behalf of the Plaintiff is the affidavit of Emma Jade Fitzpatrick, Solicitor, dated 28 March 2022 and the affidavit of Glenn McAlister dated 11 May 2022. Read on behalf of the Defendant is the affidavit of Benjamin Ferguson dated 11 May 2022.

The application made to this Court is a limited one. It arises in the following circumstances.

The Plaintiff has commenced proceedings by Statement of Claim in the District Court of New South Wales against the Defendant by way of a nervous shock claim.

In 2019, proceedings were commenced in this Court by the husband of the Plaintiff, Glenn McAlister, against the same Defendant. In the Supreme Court proceedings it was alleged that, arising from events at the John Hunter Hospital, the Defendant failed to appropriately examine, investigate and diagnose Mr McAlister’s presenting health condition. Certain other aspects were also relied upon in that claim. The Supreme Court claim by Mr McAlister was resolved by the parties at mediation in June 2021.

The Plaintiff in the present District Court proceedings, Rebecca McAlister, commenced proceedings in the District Court by Statement of Claim filed on 20 October 2021. Amongst other things in support of her nervous shock claim, reliance is placed upon the profound impact on her mental health and wellbeing of the events affecting her husband which gave rise to the Supreme Court proceedings.

Viewed in this way, there is a significant overlap between the now completed Supreme Court proceedings brought by Glenn McAlister and the still current District Court proceedings, brought by his wife, Rebecca McAlister.

The direct context giving rise to the present application concerns medical reports which were relied upon in the Supreme Court proceedings which are sought to be relied upon once again in the District Court proceedings.

Because of the operation of the Harman principle, as explained in the decision of the High Court of Australia in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, an understandable question arose as to the need to clear the way of any possible legal complication where medical reports relied upon in one set of proceedings in the Supreme Court were sought to be relied upon again in separate proceedings in the District Court.

The Court has been informed that an application was sought to be made in the District Court, but the Judge of the District Court took the view that it was a matter for the Supreme Court to deal with the present application. Accordingly, the Summons filed in this Court seeks an order that the parties in the District Court proceedings be granted leave to rely on expert medical reports served in the Supreme Court proceedings.

The Court has been assisted by submissions made by the legal representatives for the Plaintiff and the Defendant. Both seek that the Court make the order contained in the Summons. In some circumstances, there can be a need for close analysis of what has happened, and what may happen, for the purpose of determining whether some more calibrated order is required to clear the way with respect to possible problems. I do not consider that that is the position in this case. Amongst other things, having regard to the affidavits of Glenn McAlister and Benjamin Ferguson, it is clear that the parties affected by this application (being the parties in the Supreme Court proceedings) consent to the use of the reports in any event.

The rationale for the Harman principle, as explained in Hearne v Street, has regard to policy issues including the right of an individual to keep his or her documents private. In this case, the parties to the Supreme Court proceedings have no difficulty whatsoever with the documents being utilised in the District Court proceedings. That is entirely understandable in circumstances where there is a relationship between the two proceedings as the Plaintiff in the Supreme Court and the Plaintiff in the District Court are, in fact, married.

The application to this Court is an appropriate one to make to ensure that there is no present or future difficulty for the District Court proceedings. The District Court is entitled to know that this Court has determined that there is no potential or actual legal impediment to the use of material, in the form of expert medical reports, relied upon in the Supreme Court proceedings.

Both the Plaintiff and the Defendant seek that the order in the Summons be made. In my view, an order in those terms will be sufficient to overcome any possible difficulty which may arise in these proceedings.

I note that the parties agree that there should be no order as to costs of the proceedings in this Court. The proceedings in this Court are limited to the relief sought in the Summons. The Supreme Court proceedings, which I am dealing with in this judgment, will be brought to an end very shortly with the orders to be made.

I make Order 1 as contained in the Summons filed on 28 March 2022 to the following effect. The parties in District Court proceedings 2021/00297554 (Rebecca McAlister v Hunter New England Local Health District) are granted leave to rely on expert medical reports served in the Supreme Court matter 2019/00350138 (Glenn McAlister v Hunter New England Local Health District).

I make no order as to the costs of the Summons.