IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04161

JAMES NIEDERLE	Plaintiff	
		
v  		
		
GUY MCINTOSH	First Defendant	
		
MAGISTRATES’ COURT OF VICTORIA	Second Defendant	

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JUDGE:	Gorton J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	4 June 2021	
DATE OF JUDGMENT:	5 August 2021	
CASE MAY BE CITED AS:	Niederle v McIntosh	
MEDIUM NEUTRAL CITATION:	[2021] VSC 462	

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ADMINISTRATIVE LAW – Judicial review – Where Magistrate set aside subpoena for release of medical records in intervention order proceeding – Where Magistrate erroneously relied on Health Records Act (Vic) s 26 – Application successful.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Self-represented litigant		
			
For the Defendant	Mr A McCowan	Goulburn Valley Community Legal Centre	

TABLE OF CONTENTS

A.  Background	1
B.  Clarification of the issues in the course of hearing	3
C.  Ground 2 – Health Records Act 2001 (Vic) s 26	4
D.  Observations on the other grounds	6
E.  Disposition	7

HIS HONOUR:
A.  Background
1	On 10 February 2020, Mr McIntosh applied in the Magistrates’ Court of Victoria for an intervention order under the Family Violence Protection Act 2008 against his nephew, Mr Niederle.  The application is in the following terms:
The resp is my nephew. In November 2019 the respondent created a photoshopped crime scene photo with myself in it stating that I am a murderer and that I am moving around Shepparton. The respondent has then posted this photo on Facebook. The photo was created by the respondent and is not legitimate. As of January 2020 the post was still up on Facebook. The posting of this photo has made me very stressed and I have become very anxious and depressed. This has lead to me being admitted as a mental health inpatient unit. I have been diagnosed with paranoid schitzophrenia. Last week the respondent threatened my mother saying he is going to continue to post more material like he has previously doing. This has again made me anxious and worried that my mental health is going to decline. I am requesting an order be made preventing the respondent from posting further material about myself and to take the current post of the crime scene down as it is all affecting my mental health.
2	Mr Niederle, who is a law student, is representing himself.  He filed a subpoena addressed to Goulbourn Valley Mental Health in which he sought the production of:
Documents relating to Guy McIntosh’s psychiatric condition or triage on appox date 15/01/2020
3	Mr McIntosh applied to set aside the subpoena on the basis that it was an abuse of process.  Mr McIntosh also filed an affidavit in support sworn by his solicitor in which it was contended that he would self-harm if Mr Niederle were supplied with his health records.  The affidavit exhibited a letter headed ‘To Whom it may concern’ signed by Mr McIntosh’s treating psychiatrist and adult mental health clinician.  The letter contained the following assertions (and the reference to ‘Guy’ is a reference to Mr McIntosh):
Guy has a diagnosis of Paranoid Schizophreina that was initially diagnosed in the year 2000 …
His symptoms has been worsening in late November/December 2019 due to stressors related to internet facebook posting by his nephew James which placed Guy at a great deal of emotional distress, making him anxious, paranoid and attempting to take his own life in January 2020 …
There is a risk of Guy’s information being abused and misused putting Guy at risk of attempting to take his own life, we are extremely concerned that a wider publication of Guy’s medical information is going to put Guy at greater risk of Suicide, with decline in his Psychiatric Symptoms.
4	The application to strike out the subpoena was heard on 13 August 2020.  Mr Niederlie objected to the reliance on the letter from Mr McIntosh’s doctors.  The Magistrate rejected this objection.  The Magistrate accepted that the material sought in the subpoena was ‘directly relevant to an assertion by [Mr McIntosh] that [Mr Niederlie’s] behaviours resulted in an inpatient mental health admission’, but nonetheless set aside the subpoena. 
5	Mr Niederle has applied for judicial review of that decision.  He contended, by his grounds of appeal, that:
(a)	The Magistrate erred by relying on the letter from the doctors, which was not admissible (Ground 1);
(b)	The Magistrate erred by having regard to s 26 of the Health Records Act 2001 (Ground 2);
(c)	The Magistrate erred by not concluding that Mr McIntosh had waived privilege in his medical material by making the allegations he did in the application (Ground 3); and
(d)	The Magistrate erred by failing to consider whether risk of injury to Mr McIntosh could be mitigated with appropriate undertakings or conditions (Ground 4).
6	Following the hearing in this Court on 4 June 2021, I made orders granting Mr Niederle further time to file an amended originating motion to include the Magistrates’ Court of Victoria as a second defendant, and to file a further affidavit exhibiting a copy of the order of the Magistrates’ Court that he seeks to have set aside.  In accordance with the usual practice, the Magistrates’ Court has informed this Court that it does not wish to appear in the proceeding and will abide by this Court’s decision.  The certified extract filed merely refers to an interlocutory application being refused.  However, the comprehensive and carefully written reasons published by the learned Magistrate dated 3 September 2020 make it clear that she ordered that the subpoena be set aside as an abuse of process, and I proceed on that basis.
B.  Clarification of the issues in the course of hearing
7	In the course of the hearing, Mr Niederle advised that:
(a)	He disputed that his Facebook post was a cause of Mr McIntosh requiring hospitalisation.  He thought it likely that Mr McIntosh had not even seen it.  He sought access to the material surrounding the admission of Mr McIntosh to hospital so that he could test, by reference to the contemporaneous records, the assertion made against him in the application that it was his conduct that had led to the hospital admission.  In this respect, I note that he had earlier asserted in correspondence to Mr McIntosh’s solicitors that he considered that Mr McIntosh was ‘using suicide threats as a way to coerce family members’;
(b)	He appreciated that documents produced in response to a subpoena were confidential and received subject to an implied undertaking that they not be made public or otherwise used other than for the purpose of the proceeding.  He disputed that he had ever published any material on Facebook that was not already in the public domain, and stated that he had no intention of breaching the confidentiality in any material received in answer to the subpoena and did not intend to use it in any Facebook post.  He was and would have been willing to give an oral undertaking to the Court to that effect; and
(c)	His objection to the letter from Mr McIntosh’s doctors was based on his reading that the doctors were opining in the last paragraph set out at para 3 above that he, Mr Niederle, was likely to or might abuse or misuse the medical information that might be produced in response to the subpoena.  
8	Mr Niederle also said that if the application below were amended such that Mr McIntosh did not seek to prove in the proceeding that Mr Niederle’s conduct was a cause of his hospital admission, then the subpoena would not be pursued.  Counsel for Mr McIntosh indicated that it may be that it is not necessary for Mr McIntosh to make or to prove such an allegation in order for him to be able to obtain an intervention order under the Family Violence Protection Act 2008.  He nevertheless agreed that I should determine this proceeding on the application as currently formulated and on the basis that Mr McIntosh alleged and would be seeking to prove that Mr Niederle’s conduct was a cause of Mr McIntosh’s hospital admission in January 2020.
C.  Ground 2 – Health Records Act 2001 (Vic) s 26
9	The Magistrate did not refer to (and no one referred her to) s 28 of the Evidence (Miscellaneous Provisions) Act 1958, which is the source of what is routinely called ‘medical privilege’.  Her Honour was instead referred to, and asked to rely on, s 26 of the Health Records Act 2001.  That section provides as follows:
No access to health information where threat to life or health of individual or another person
An organisation must not give an individual access under this Act to his or her health information, or part of his or her health information, if the organisation believes on reasonable grounds … that the provision of the health information, or that part of the health information, would pose a serious threat to the life or health of the individual or any other person.
10	As the words indicate, this provision is directed at a situation where a patient may be denied access to his or her own medical records where the provision of those records to that patient might result in harm to that patient.  That was not the case here, where the issue was whether a subpoena requiring production of records to a Court at the request of a respondent to a proceeding is an abuse of process.
11	Further, s 14 of the Health Records Act 2001 provides:
Courts, tribunals, etc.
Nothing in this Act … applies in respect of the collection, holding, management, use, disclosure or transfer of health information— 
(a) 	in relation to its or his or her judicial or quasi-judicial functions, by— 
(i) 	a court or tribunal …
12	In these circumstances, it seems to me that s 26 of the Health Records Act 2001 was not a relevant consideration when deciding whether or not the subpoena should be set aside.
13	Her Honour found as follows:
Rule 7.05 of the MC(FVP) Rules specifies a broad power to the Court to set aside a subpoena in whole or in part. The Rules do not seek to limit or fetter the Court’s power to do so. In considering whether I should set aside part or whole of the Respondent's subpoena of the Affected Family Member's health records, I have regard to the aforestated purposes of the Health Records Act and its provisions. I have regard to its protective provisions at Section 26 which preclude the disclosure of health information of an individual where there is a serious threat to the life or health of an individual. In these circumstances, I place weight upon the co-signed letters of the AFM’s treating medical practitioners who express serious concern about a decline in the AFM’s mental health symptoms and suicide risk if the health records were to be released.
14	With respect to her Honour, I consider that, in placing reliance on s 26 of the Health Records Act 2001, her Honour’s conclusion that the subpoena should be set aside was infected with error.
15	That is sufficient reason to grant the plaintiff relief and to quash the decision of the learned Magistrate below.
16	Further, although the parties below seem not to have presented argument in this way, it seems to me that the Court below was conflating two concepts: the circumstances in which an entity will be obliged to produce documents to a Court; and the circumstances in which a party will be granted access to inspect those documents.  These two steps are distinct.  This application concerned the first step — whether the subpoena should be set aside — rather than the second.  If the subpoena were considered not to be an abuse of process, then the documents would have to be produced to the Court.  The Court would then consider whether to allow inspection of those documents by Mr Niederle.  Any question of privilege, or the waiver of privilege, or the relevance of certain parts of the documents, or whether explicit undertakings in relation to the use of or maintenance of confidentiality in the documents would be required, would then be considered in the course of this second step.
D.  Observations on the other grounds
17	Having regard to my conclusion on Ground 2, it is not necessary for me to determine Mr Niederle’s other grounds.  However, I make the following observations.
(a)	There would be something in Mr Niederle’s objection to the letter from Mr McIntosh’s doctors if, as he thought they were, those doctors were purporting to opine as to his motives or likely behaviour.  That is not how I read their letter.  They were instead, it seems to me, opining in substance that, if the medical material were misused, then it could cause harm to Mr McIntosh.  Read that way, there could be no exception to the Magistrate having regard to that opinion when deciding what protections should be imposed if the subpoena is answered and the documents made available for inspection.
(b)	Mr Niederle’s arguments under his other grounds reflect the conflation of issues that I have referred to in para 16 above.  The question of whether or not privilege has been waived is a matter to do with inspection of documents, rather than their production.  Having said that, her Honour’s conclusions in relation to waiver played no role in her conclusion that the subpoena should be set aside, and her Honour only referred to this issue in the final paragraph of her reasons, which was after she had already expressed her conclusion that the subpoena should be set aside.
(c)	Similarly, the issue as to whether, and if so what, undertakings should be required or conditions imposed before Mr Niederle is permitted to inspect the documents is also a matter to do with the inspection of documents, rather than their production.  Further,  in circumstances where Mr Niederle did not suggest any particular undertaking or condition to the Magistrate, it would be difficult for him to contend that the Magistrate erred by failing to have regard to the issue of conditions or undertakings, as a concept at large, when determining whether or not to set aside the subpoena.
E.  Disposition 
18	The decision of the learned Magistrate should be set aside, and the issue of whether or not the subpoena is an abuse of process should be remitted for re-determination.
19	Nothing in this judgment should be read as foreclosing such arguments as the parties wish to make on that point, or, if the subpoena is not set aside, on the issue of waiver or conditions on which the documents may be provided for inspection.