In Carter (a pseudonym) v Australian Air League Incorporated & Anor 1, the Supreme Court of Victoria outlined the principles that apply in relation to subpoenas seeking records from Medicare. The decision in Carter was consistent with the County Court of Victoria’s approach to Medicare subpoenas in Semi v Victorian WorkCover Authority 2 and provided further guidance to practitioners both issuing and objecting to Medicare subpoenas.
Carter (a pseudonym) v Australian Air League Incorporated & Anor [2024] VSC 95
Facts
This ruling was in relation to the plaintiff’s objection to a subpoena issued to Medicare by the Defendant.
The plaintiff’s claim was an institutional abuse claim against Australian Air League (First Defendant/AAL) and Mr Peter Diwell. The plaintiff alleged that Diwell had sexually abused him when he was 11 to 13 years old, when the plaintiff was a member of the AAL and Diwell was a squadron leader.
At the time of the proceeding, the plaintiff was a qualified accountant and had made a substantial claim for past and future economic loss, with an upper range figure claiming approximately $1.04 million. The plaintiff also made a substantial claim for future medical expenses, being approximately $29,000 for 3 years’ of treatment and $20,000 for medication for the remainder of his life.
The First Defendant issued a subpoena to Medicare seeking the plaintiff’s full medical history from the date that Medicare was introduced, being February 1984.
Issues
The issue for determination was whether the First Defendant had a legitimate forensic purpose in issuing a subpoena to Medicare which in effect sought the plaintiff’s entire medical history.
AAL submitted that the sought medical history was relevant to causation and quantum of loss. AAL distinguished the present facts from Semi (discussed below). AAL argued that while Semi concerned an alleged injury between 2013-2015 and sought documents from 2001 onwards, in the present case the alleged abuse happened between 1978-1980 (and thus the records sought were during the relevant period that the injury occurred).
The plaintiff submitted that the subpoena was impermissibly broad and that the First Defendant was merely speculating that the sought records would assist their case (i.e., engaging in a fishing expedition).
Decision
Her Honour dismissed the plaintiff’s objection to the subpoena to Medicare. In her reasoning, Her Honour made the following points in support of the decision:
- There was evidence of the plaintiff suffering mental health problems from approximately the 1980s, such that the Medicare records may disclose treatment from that time;
- Although the subpoena was expressed in broad terms, more targeted or confined terms would be difficult for Medicare to comply with;
- Although there was a substantial amount of medical evidence that had been provided by the plaintiff already, there were still a number of ‘gaps’ in the evidence.
Her Honour ultimately found that the subpoena had a legitimate forensic purpose, noting:
- While she was skeptical as to relevance of the plaintiff’s physical injuries and treatment of same to loss and damage, because the plaintiff was a professional doing largely sedentary work the documents had potential to impact either party’s case; and
- Although the First Defendant could use the documents obtained from the subpoena to seek further documents, the relevant legitimate forensic purpose is the purpose of obtaining access to documents, not necessarily the contents and admissibility of those documents themselves. The issuing of a subpoena to ‘set in motion a chain of inquiry’ in the context of Medicare records is a legitimate forensic purpose. Hence, while the First Defendant could not know what information the Medicare records would reveal, the nature of the issues in the proceeding and gaps in medical evidence were sufficient to establish the requisite legitimate forensic purpose.
- The breadth of the subpoena was acceptable given the nature of the plaintiff’s claim which related to historical sexual abuse from many decades ago.
Seyra Semi v Victorian WorkCover Authority [2022] VCC 714
Facts
This ruling was in relation to a subpoena issued by the Defendant to Medicare Australia seeking medical records from 2001 to 2022. The broader proceedings concerned a WorkCover claim by an aged care worker for a back injury sustained while employed between June 2014 and August 2015.
Importantly, the plaintiff’s medical records contained records of back pain that predated the date of injury in the WorkCover claim. The plaintiff had also sworn an affidavit that confirmed she had worked in the aged care industry for over 11 years before working at the workplace where the claimed injury occurred.
The plaintiff objected to the Medicare subpoena on various grounds, including that the subpoena constituted a fishing expedition, was unreasonably wide and oppressive and that the defendant failed to identify a legitimate forensic purpose for seeking approximately 21 years’ worth of the plaintiff’s medical records.
Decision
The plaintiff’s objection to the subpoena was upheld.
As later confirmed in Carter, the Court held that a defendant is required to establish ‘expressly and precisely’ a legitimate forensic purpose and that it is on the cards that material produced pursuant to the subpoena will materially assist the defence. If a subpoena is shown to be a fishing expedition, then it does not have the required legitimate forensic purpose.
In this case, the defendant did not have any evidence or basis that suggested the plaintiff sought treatment of a back injury except in the records that had already been produced. While the records that had been produced showed the plaintiff sought treatment of back aches/pains in 2013, there was nothing to suggest there was any further treatment.
The Court further found that in this case the period of 2001 to 2022 was ‘too broad and excessive’, and the large span itself demonstrated ‘that the defendant [was] merely acting on a suspicion’ and engaging in a fishing expedition.
Reconciling Carter and Semi
Carter confirms the position of the Court in Semi that the question of whether a subpoena to Medicare Australia has a legitimate forensic purpose is significantly informed by the facts of the proceeding, including the scope or content of any medical records already produced. Carter supported the key principles outlined in Semi that it is for a defendant to establish ‘expressly and precisely’ a legitimate forensic purpose and that it is on the cards material produced pursuant to the subpoena will materially assist the defence.
The differing outcomes in Carter and Semi were accordingly based on the facts of each case. In particular, they were determined by the issues in the proceeding and gaps in any medical evidence already produced. In Carter, the defendant was able to show that the sought Medicare records were of sufficient forensic value given the plaintiff was claiming significant loss of earnings damages such that causation was a key issue in the case. The defendant also established that there were ‘gaps’ in the medical material that had already been produced (in contrast to merely speculating that further records may exist). Finally, the defendant was able to show that the broad timeframe was appropriate, given the incident giving rise to the alleged injury occurred decades prior, and the plaintiff was claiming that his earning capacity was fundamentally changed because of the relevant incidents.
Alternatively, in Semi, the defendant was unable to establish gaps in available medical evidence. While the available evidence included records for back treatments prior to the relevant injury took place, they defendant did not evidence that there were missing records in relation to this. For example, there were no follow up ‘actions’ or ‘management’ noted in the records to indicate that other records would exist in relation to this treatment of back pain (such that it was clear there were ‘gaps’ in the evidence). Accordingly, the defendant’s failure to demonstrate these ‘gaps’, coupled with its seeking of such a large span of records with no apparent basis, led the Court to find the subpoena to Medicare was a mere fishing expedition lacking legitimate forensic purpose.
Key takeaways
Both Carter and Semi provide guidance on the circumstances where a plaintiff’s practitioner may be able to successfully object to a subpoena seeking their client’s Medicare records. Carter confirmed a party may issue a subpoena to Medicare for the purpose of obtaining records with details that could be used to seek additional medical records of a plaintiff. However, the Court was clear that there must still be a legitimate forensic purpose for pursuing a ‘chain of inquiry’ of this kind, such as obvious ‘gaps’ in the medical evidence produced by the plaintiff that would clearly go towards a key issue in the proceeding.
Practitioners objecting to Medicare subpoenas should ensure they have produced sufficient medical material in support of their client’s claim, and prudently review whether existing records evidence the potential existence of further relevant medical records. This will ensure a Defendant is unable to rely on ‘gaps’ in the exchanged medical evidence that could provide a basis for a broad Medicare subpoena. In any case, practitioners should steadfastly rely on the Court’s confirmation that it is for the issuing party to establish a legitimate forensic purpose for any subpoena, and note that a subpoena to Medicare seeking records over a very broad span of years with no apparent basis can of itself evidence an unpermitted fishing expedition.
Authors: Jeremy King and Ella Hadley
1 [2024] VSC 95 (‘Carter’).
2 [2022] VCC 714 (‘Semi’).
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy King is a Principal Lawyer and head of the Police and Prisons team at Robinson Gill. With an imposing track record of high-profile actions against the Victorian police, Jeremy is at the forefront of the fight for police oversight and accountability. Through both his landmark litigation and advocacy work, he has played a key role in shaping legislative reform across Australia.
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