Dernee v Zondagh [2023] NSWDC 192

Dernee v Zondagh [2023] NSWDC 192

The documents sought from the Veterinary Practitioners Board of New South Wales could possibly throw light upon and assist the plaintiff's response to the defendant's s 50 Civil Liability Act defence and the foreshadowed tendency and credit issues, particularly given the defendant's reliance on his asserted usual practice and the absence of notes or records supporting the detail of his treatment. The subpoena therefore had a legitimate forensic purpose, was not oppressive, and was not an impermissible fishing exercise, so the motion to set it aside was dismissed.

Jurisdiction
Australia
Judgment Date
09 June 2023
Procedural Posture
Civil Professional Negligence and Breach of Contract Proceedings Concerning Veterinary Treatment; Contested Interlocutory Application to Set Aside a Subpoena for Non Party Production of Documents / Notice of Motion Filed 29 March 2023 Heard on 7 June 2023 and Determined on 9 June 2023
Outcome
The defendant applicant's notice of motion to set aside the subpoena was dismissed.
Legal Topics
['subpoena for Non Party Production' 'legitimate Forensic Purpose' 'oppression' 'fishing' 'civil Liability Act Professional Practice Defence' 'tendency Evidence']
['practice and Procedure' 'professional Negligence' 'veterinary Negligence' 'evidence'] ['subpoena for Non Party Production' 'legitimate Forensic Purpose' 'oppression' 'fishing' 'civil Liability Act Professional Practice Defence' 'tendency Evidence']

Case Brief

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Procedural Posture

Civil Professional Negligence and Breach of Contract Proceedings Concerning Veterinary Treatment; Contested Interlocutory Application to Set Aside a Subpoena for Non Party Production of Documents / Notice of Motion Filed 29 March 2023 Heard on 7 June 2023 and Determined on 9 June 2023

Legal Issues

  1. 1 ['Whether the subpoena addressed to the Proper Officer of the Veterinary Practitioners Board of New South Wales should be set aside under Rule 33.4 of the Uniform Civil Procedures Rules 2005 (NSW).' "Whether the subpoena had a legitimate forensic purpose relating to the defendant's pleaded defence under s 50 of the Civil Liability Act 2005 (NSW)." 'Whether the subpoena was oppressive or amounted to impermissible fishing for evidence.']

Ratio Decidendi

The documents sought from the Veterinary Practitioners Board of New South Wales could possibly throw light upon and assist the plaintiff's response to the defendant's s 50 Civil Liability Act defence and the foreshadowed tendency and credit issues, particularly given the defendant's reliance on his asserted usual practice and the absence of notes or records supporting the detail of his treatment. The subpoena therefore had a legitimate forensic purpose, was not oppressive, and was not an impermissible fishing exercise, so the motion to set it aside was dismissed.

Court Disposition

The defendant applicant's notice of motion to set aside the subpoena was dismissed.

Orders

  • ["The defendant applicant's notice of motion filed on 29 March 2023 seeking to set aside a subpoena for non-party production of documents is dismissed." 'The costs of the dismissed motion are to be costs in the cause.' 'The case management orders made in the course of the hearing of the motion are confirmed.'...