A copy of the LIV s previous letter addressed to the Honourable Chief Judge Rozenes dated 22 December 2008 is attached by way of background.

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1 6 April 2011 The Honourable Judge O Neill County Court of Victoria 250 William Street MELBOURNE VIC 3000 Dear Judge O Neill Re: Order 42A.08(2) The Law Institute of Victoria (LIV) thanks Your Honour and the Court for the opportunity to contribute to addressing the challenges brought about by the production of documents pursuant to subpoenae issued under Order 42A. The LIV notes that at the most recent meeting with the Court on 24 March 2011, the process for inspection of and objection to hospital and medical records relating to the Plaintiff produced under Order 42A.08(2) arose, and Your Honour invited the LIV to put in writing any concerns relating to this procedure. The LIV thanks Your Honour for this opportunity. The LIV understands that the Rules Committee of the County Court is currently seeking to harmonise the County Court Rules with those of the Supreme Court, hence the timeliness of such a discussion. A copy of the LIV s previous letter addressed to the Honourable Chief Judge Rozenes dated 22 December 2008 is attached by way of background. The letter dated 22 December 2008 raised a number of concerns including: the seven day period allowed for inspection and objection; the need for two attendances by Plaintiffs representatives: one to inspect and one to copy records; and the limited allowance by the Registry for Plaintiffs representatives to remove documents for the purpose of copying and returning to the Court under Order 42A.11. The LIV now wishes to highlight the matters it considers to be most pressing with its proposals for change. The seven day period for inspection and objection It is often exceedingly difficult for medical and hospital records to be inspected within seven days of the date for production. As a result of the business of the Court and the limited number of appointment times available, let alone the various commitments of the Plaintiffs representatives, inspection often cannot take place until the latter part of the seven day period.

2 Of course, matters are further compounded when documents are actually not produced by the return date as happens from time to time. With inspections occurring so often in the latter part of the seven day period, the ability for Plaintiffs representatives to obtain meaningful instructions and to lodge an objection within the seven day period is a further area of difficulty; this is outlined on page 3 of the LIV s letter of 22 December A likely ground of objection to the other parties inspecting records is that they are protected by medical privilege. Working through these issues, and obtaining instructions from clients in a time frame of between one to a few days, is unnecessarily burdensome. Need for clarity around ability of Plaintiffs representatives to copy during inspection The process would also be greatly assisted if Plaintiffs representatives were able to make copies of documents during their inspection. Currently, the commentary available on the Court s website titled Order 42A Subpoena for Production before Registrar An outline of practice and procedure for practitioners provides that: the plaintiff cannot take copies of any documents at this inspection. (that is, the inspection within seven days of the date of production). The LIV understands that there is no such equivalent restriction on copying records in the Supreme Court. The LIV understands that over the last 12 to 18 months an informal procedure has developed in the County Court where the Registry may allow for copying of the records during the seven day period to speed up and streamline the process. If copying is actually now allowed, the LIV respectfully suggests that written notification should be provided to the legal profession to make this clear rather than it being allowed on an ad hoc basis. The ability to copy records at the time of the inspection allowed for under Order 42A.08(2) enhances the process of obtaining instructions in relation to whether a claim of privilege is appropriate, particularly in cases where Counsel s opinion needs to be obtained as to whether an objection ought to be lodged. The ability to copy would also have the added desirable effect of avoiding two attendances by Plaintiffs representatives to the Court. Indeed, it is also possible that where a Plaintiff s representative has inspected and copied the records and no objection is to be made, in the spirit of co-operation between the parties, the Plaintiff s representative may offer to make a copy of the subpoenaed records thereby saving an attendance on the Court by other parties. It is acknowledged that in many cases other parties will wish to personally attend and inspect the produced documents but the opportunity for such co-operation should be available and encouraged. Proposals In light of the above and the matters set out in the LIV s previous letter of 22 December 2008, the LIV requests that the Rules Committee of the County Court amend Order 42A.08(2) to allow for inspection and notification of an objection within fourteen days of the day specified in the subpoena for production of the file or records or the actual day of production of the records to the Court, whichever day is the later.

3 Order 42A.08(2) is reproduced below with the proposed amendment: If a party other than the Plaintiff seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or his or her condition, the plaintiff may, before taking objection under paragraph (1), inspect the file or record produced to the Prothonotary [Registrar] and notify the Prothonotary [Registrar] thereafter of any objection the plaintiff has to inspection by any other party, provided that the plaintiff makes that inspection and notifies that objection and the grounds of that objection in writing within seven fourteen days after the day specified in the subpoena for production of the file or record to the Prothonotary [Registrar] or the day the file or record is produced to the Prothonotary [Registrar], whichever day is the later. In addition, the LIV submits that the Commentary to Practitioners about Order 42A should be amended to make clear that copying of records is permitted at the time of the inspection by Plaintiffs representatives. The LIV looks forward to the opportunity of discussing these matters with you at our next meeting on 6 April If you have any queries please do not hesitate to contact Irene Chrisafis, LIV Litigation Lawyers Section, Lawyer on or ichrisafis@liv.asn.au. Yours sincerely Caroline Counsel President Law Institute of Victoria Encl

4 22 December 2008 The Honourable Chief Judge Rozenes County Court of Victoria 250 William Street Melbourne VIC 3000 Dear Chief Judge Rozenes, Re: Order 42A Subpoenae Medical and Hospital Records The Law Institute of Victoria (LIV) wishes to raise some concerns about the operation of Order 42A subpoenae relating to medical and hospital records. These issues have been raised by members of the LIV s Litigation Lawyers Section. Order 42A (formerly Rule 42.10) was introduced to allow the early, full and frank exchange of information with the aim of facilitating early resolution of proceedings. However, members of the LIV s Litigation Lawyers Section have reported that a number of practices have evolved in relation to medical and hospital records that have made the process cost ineffective and time consuming, thereby increasing the cost of litigation. We set out the issues below and our proposals to increase the effectiveness of the process. 1. Notification that there has been compliance with a subpoena There are often multiple subpoenae issued in proceedings by a party with compliance over multiple dates. Often, subpoenaed medical records are not produced by the date for compliance. Plaintiff practitioners wishing to inspect the documents must therefore monitor the compliance to ascertain whether the documents have been produced. In many instances this requires numerous attendances, adding to the costs in the proceedings. Blanket objections are often lodged if the subpoenae are not complied with within seven days of the compliance date due to the time constraints and the issues dealt with below. This results in additional and potentially unnecessary objection hearings being listed, which again increases the cost of litigation. Proposal: The party who issues a subpoena be required to notify all other parties when a document has been produced in accordance with that subpoena. Alternatively, a computer generated or facsimile be sent by the court to all the parties representatives when a document has been produced in accordance with a subpoena.

5 2. Time for inspection of documents As the situation currently stands, plaintiffs have seven days from the compliance date to inspect documents, provide instructions to their legal representatives, obtain advice and lodge any objections. In many instances an inspection cannot be arranged until the sixth or seventh day from the compliance date. This leaves insufficient time for the plaintiffs legal representatives to obtain instructions from and provide advice to their client. Blanket objections are often lodged if there is insufficient time to inspect the documents and obtain proper instructions after practitioners are aware that documents have been produced in accordance with a subpoena. This results in potentially unnecessary objection hearings being listed, which again increases the cost of litigation. Proposal: The time for inspection of documents should start from the date of receipt of a notice that documents have been produced and be changed to fourteen days. 3. Inspection and copying of documents It would appear that according to current registry practice a plaintiff is unable to inspect and copy the documents during one attendance. Often the time period between inspection and copying is seven days. This arises because of apparent time constraints of registry staff. This adds to the difficulties and costs associated with inspecting documents, obtaining instructions, and being in a position to adequately consider whether an objection should be lodged. The medical material subpoenaed often contains long and detailed medical histories and can be voluminous. Meaningful instructions cannot be obtained and meaningful advice cannot be given until the legal representative has had an opportunity to discuss the contents of the documents with the client (preferably in person). Further, as the documents may be placed in evidence at the hearing of a matter, it may be prudent on some occasions to seek counsel s opinion about whether an objection should be lodged and privilege claimed. The current practice enables inspection within seven days, with a second attendance at the registry being required for the purpose of copying documents. This is time consuming, and involves duplicate attendances. It is cost ineffective. It hinders the obtaining of meaningful instructions from plaintiffs during the period within which an objection needs to be lodged, and may lead to blanket objections being lodged. Proposal: The court to allow inspection and copying of subpoenaed documents to take place during the one attendance at the registry. 4. Release of documents by the court Currently Order 42A.11 provides that documents produced in compliance with a subpoena are not to be removed from the Office of the Registrar except upon application in writing signed by the solicitor for a party. The removal of documents requires an undertaking by the solicitor that they will be kept in the solicitor s personal custody and that the documents will be returned to the registrar in the same condition, order and packaging in which they were removed. The registrar may in his or her discretion refuse to accede to any application requesting permission to remove the documents. It is understood that the court has only been prepared to release a file where the file is voluminous. It is the experience of some LIV Litigation Lawyers Section members that in matters where multiple subpoenae have been issued, and there are a number of small files, the court has not been prepared to release those files. It is submitted that the approach of the registry should be consistent notwithstanding the size of the file. Given that the court is prepared to rely on a solicitor s undertaking in matters involving voluminous files, there would seem to be no reason why such undertakings could not be relied upon in other instances.

6 Further, the cost of photocopying a file in the registry is higher than if the file was to be photocopied in a legal practitioners office. The cost of photocopying in the registry is approximately $2.00 per page. This is on top of the time the legal practitioner spends doing the photocopying in the registry. As noted previously, a copy of a file is required if meaningful instructions are to be obtained. The cost of photocopying increases the cost of litigation. Proposal: Upon the provision of an undertaking from a legal practitioner, the court to permit subpoenaed documents to be released to that legal practitioner irrespective of the size of the file containing those documents. 5. Time for lodging an objection The plaintiff currently has seven days from the date for compliance with a subpoena to lodge an objection. It is submitted that this is often not sufficient time for the following reasons: (a) (b) (c) (d) (e) Often inspection cannot take place within the seven day period for the reasons previously noted; To obtain meaningful instructions, it is important that the plaintiff s solicitors have an opportunity to discuss the contents of the documents with the plaintiff (preferably in person); Copies of the documents need to be obtained. Currently, this cannot be done at the time of inspection; Medical records can be voluminous. They often contain detailed and complex medical histories, or cover a significant period of time. Plaintiffs are not professional litigants and they may be poorly educated or from a non-english speaking background. The assistance of an interpreter may be required; and As these documents may be used in evidence at a hearing, it may be prudent to obtain counsel s opinion about whether an objection ought to be lodged. It is submitted that undertaking the above within seven days is a significant challenge. Conclusion Proposal: The time for lodging an objection should be fourteen days from the date of inspection or release of the documents to the legal practitioner, with an option of seeking an extension of time should it be required. It is submitted that the current procedures in respect of Order 42A subpoenae are cost ineffective and time consuming, and would benefit from review. The LIV urges the court to consider the proposals outlined above as a means of addressing the concerns raised. Representatives of the LIV s Litigation Lawyers Section would be pleased to meet with you to discuss the above concerns and proposals. Please do not hesitate to contact Irene Chrisafis, LIV Litigation Lawyers Section Lawyer, on (03) or ichrisafis@liv.asn.au. Yours sincerely Tony Burke President Law Institute of Victoria