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Parties Dispute Usage of Subpoenaed Documents

Re Ramsay Health Care Australia Pty Ltd [2022] VSC 226 (10 May 2022)

The parties are in dispute over disclosure to Ramsay of documents which were used for the non-party's own purpose.  Ramsay asserts that he had no actual knowledge of the origin of documents at the time of use.  The Court, in resolving this dispute, assessed whether or not Ramsay was bound by an obligation to the Court to not use the subpoenaed documents. 

Facts:

Ramsay Health Care Australia (Ramsay) operates the Albury Wodonga Private Hospital (the hospital).  Dr Khoury (Khoury) and Dr Kolt (Kolt) are both orthopaedic surgeons practicing in Albury Wodonga and in 2019 were accredited to work at the hospital.  In 2019, Kolt was also the chair of the hospital’s Medical Advisory Committee (MAC).  MAC is the peak advisory body of medical practitioners at the hospital. 

Khoury sued another local orthopaedic surgeon, Dr Kirwan (Kirwan) for defamation in 2020.  In the course of that defamation proceeding a subpoena was issued for Kolt to produce documents.  Documents produced by Kolt to the Prothonotary in answer to the subpoena in May 2020 included 77 emails, largely between himself and Kirwan (the subpoenaed documents).  The content of the subpoenaed documents showed that Kolt had breached confidentiality requirements.

In late 2019, Khoury had complained to Ramsay that Kolt was publicly disparaging him and breaching confidentiality.  When this allegation was put to Kolt he had denied it and tendered his resignation as the chair of MAC in November 2019.  When he was provided with a copy of the subpoenaed documents by his solicitor, Khoury arranged for his wife Jessica Khoury to send them to the CEO of the hospital on 30 July 2020.  The hospital then used some of the subpoenaed documents forwarded to it to issue a show cause notice to Kolt dated 12 August 2020. The show cause notice was signed by the hospital CEO, Ms Sheryl Anne Keir (Keir).  The show cause notice referred to the obligations of privacy and confidentiality imposed by the Ramsay Health Care Facility Rules (the internal rules), made reference to the email correspondence between Kolt and Kirwan and required Kolt to show cause why his accreditation at the hospital should not be terminated in accordance with Rule 130 of the internal rules.

Kolt’s solicitors wrote to Ramsay asserting that six emails between Kolt and Kirwan specifically referred to in the show cause notice had been produced under subpoena in the defamation proceeding.   The letter asserted that Ramsay was in breach of a Harman undertaking and alleged that the use of the subpoenaed documents to issue the show cause notice may be a contempt of Court.  The letter in response, written by MinterEllison on behalf of Ramsay and dated 24 August 2020, advised that until receipt of the letter of 21 August 2020 Ramsay was unaware that the emails provided to it had been disclosed through a compulsory court process.  Both Kolt and Kirwan had issued summons within the defamation proceeding seeking that Khoury and Jessica Khoury be punished for contempt.  

Issue:

Whether or not Ramsay was bound by an obligation to the Court, as described in Hearne v Street, not to use the subpoenaed documents that came into its possession as it did.

Applicable law:

Harman v Secretary of State for the Home Department [1983] 1 AC 280 - accepts that the subpoenaed documents should not have been used as they were because they had been produced under subpoena and therefore subject to the obligation as identified by the High Court of Australia. 

Khoury v Kirwan (No 4) [2021] VSC 333 (‘Khoury v Kirwan’) - Justice John Dixon dealt with the admitted contempt (the Khoury contempt hearing). 

Grant-Taylor v Jamieson (2002) 11 BPR 21, 023 - provides that a contempt of court requires actual knowledge. 

Hearne v Street [2008] HCA 36(2008) 235 CLR 125 (‘Hearne’) - the High Court decided that a servant or agent of a party is directly bound by an implied undertaking and the extraneous use of documents was a breach of the undertaking and not merely the act of an accessory to a breach by a party.

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54[1996] 2 VR 34 - provides that documents obtained in these ways are not to be used for any purpose other than for the conduct of the proceeding in which they are produced.

Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31 - provides that the obligation addresses the need to protect a right of a person to keep one’s documents private and the competing need for parties and others involved in a proceeding to make full disclosure to ensure that justice is done between parties to a dispute. 

Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527[2014] VSCA 261 (‘CFMEU v Grocon’) - provides that in order that one is able to defend himself, the particulars must state what it is that the defendant did or omitted to do which constitutes the contempt.

Analysis:

On 24 August 2020, Keir received a phone call from Khoury in which she believed that a request was made not to use any of the emails sent by his wife.  Shortly after, Keir received an email from Jessica Khoury stating that she had ‘mistakenly’ sent 77 emails which she described as ‘only for the purpose of the court’.  Jessica Khoury pointed out that the Defamatory Email Book annexed to the statement of claim and documents received prior to the issue of proceedings (attaching 10 relevant documents) could be used. 

The "11.07 email" is the only one of the five emails that explicitly and unambiguously refers to the documents as being obtained under subpoena.  This case revolves around the simple proposition that if Keir had read that email, then she had actual notice that the production of the documents was in compliance with a subpoena.  There is no evidence that the 11.07 email was forwarded to or seen by any other person at Ramsay before the show cause notice was issued.  Ramsay made no inquiry as to why Jessica Khoury forwarded the documents to Ramsay or how Khoury came to be in possession of them.

Conclusion:

The Court determined that Ramsay did not have actual knowledge that the subpoenaed documents had been produced under a compulsory court process when it used them to issue the show cause notice to Kolt and its action is therefore not a contempt of court. 

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