Polsen v Harrison (No 6)

1. [1]

   The plaintiff, Ms Katrina Polsen, by Further Amended Statement of Claim filed on 18 December 2020, brings proceedings against the defendant, Dr Richard Harrison, alleging negligence and breach of contract in respect of a surgical procedure conducted on 22 July 2013 (a gastric sleeve gastrectomy), and the care afforded to the plaintiff post-operatively.

2. [2]

   On 3 February 2021, the plaintiff directed a subpoena to produce to “Services Australia” seeking:

3. [3]

   The same subpoena required identical production in respect of Dr Nicholas Williams in par 2 of the subpoena but this is no longer pressed by the plaintiff.

4. [4]

   The defendant, by Notice of Motion filed on 4 May 2021, seeks an order setting aside the subpoena on the basis that it lacks a legitimate forensic purpose and that the documents sought have no relevance to the issues in the proceedings.

5. [5]

   The plaintiff asserts that the documents sought would shed light on the veracity or otherwise of assertions made in pars 5 and 8 of his evidentiary statement dated 20 November 2020.

6. [6]

   For the reasons that follow, I order that the subpoena be set aside with costs.

Relevant principles – Legitimate Forensic Purpose

1. [7]

   Rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) provides that the Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, provided that notice is given to the issuing party.

2. [8]

   The principles are not complex. In Carroll v Attorney General (NSW) (1993) 70 A Crim R 162, Mahoney AP said (at 181-182):

3. [9]

   As stated by Beazley JA (as she then was) in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at [64]:

4. [10]

   In Fantakis v Local Court of New South Wales [2020] NSWSC 931, Hoeben CJ at CL stated the following in relation the requirements for establishing a legitimate forensic purpose at [35]:

5. [11]

   In Mann v Commissioner of Police [2020] NSWSC 369, Adamson J at [25] said:

6. [12]

   The parties agree these further statements of principle as set out in the defendant’s written submissions are also apposite:

Plaintiff’s submissions and the asserted legitimate forensic purpose

1. [13]

   Ms Hillier submitted that the documents sought arose from an entitlement to test whether or not:

2. [14]

   Ms Hillier submitted that these “issues” arose from what Dr Harrison asserted in his written statement at pars 5, 8 and 29:

3. [15]

   Ms Hillier submitted that this means that the question of the truth or otherwise of these assertions, is “on the cards” at the trial.

Defendant’s submissions

1. [16]

   Mr Hutchings submitted that the approach of the plaintiff is entirely misconceived. It is evident par 5 is an introductory paragraph that sets out the nature and extent of the growth of the practice since 2003. There is nothing at all that confines itself to what Dr Harrison personally was doing in July 2013.

2. [17]

   The second aspect, that Ms Hillier argued arises from par 8 of Dr Harrison’s statement, is also misconceived. Dr Harrison did not say he made no claims on Medicare, he simply outlined the approach in respect of the normal course for patients in the first two years of their treatment.

3. [18]

   In respect of par 29 of the statement, Dr Harrison stated that Medicare bills will arise in the context of being bulk billed. Again, there is no assertion that Medicare will not be charged; quite the opposite.

4. [19]

   There is quite an obvious lack of apparent relevance, even applying a low bar for relevance.

Decision

1. [20]

   The subpoena is misconceived. It appears to arise from a mistaken interpretation of background matters referred to in the statement of Dr Harrison.

2. [21]

   Even if the documents sought were confined to production of records only in relation to the plaintiff, it still is not directed to any issue for consideration or determination in the proceedings.

3. [22]

   The case made by the plaintiff is that Dr Harrison failed to competently perform gastric sleeve surgery in July 2013 and failed to adequately treat her post operative complications in a timely manner.

4. [23]

   What surgeries he performed on others between July 2012 and 2014 is not an issue for determination in this trial, nor is whether Medicare made payments in respect of such surgery.

5. [24]

   There is no legitimate forensic purpose articulated. There is no apparent relevance to the documents sought.

Costs

1. [25]

   Costs follow the event. The plaintiff pressed for par 1 of the subpoena to be answered. The arguments stated for that position failed. The plaintiff is to pay the defendant’s costs of the motion.

Orders

1. [26]

   I make the following orders:

   1. (1)

      The subpoena to produce filed on 3 February 2021 directed to Services Australia is set aside.

   2. (2)

      The plaintiff is to pay the defendant’s costs of the Notice of Motion filed on 4 May 2021.