Czerniecki v TAFE NSW [2017] NSWCATAD 278

Czerniecki v TAFE NSW [2017] NSWCATAD 278

The Tribunal refused Ms Czerniecki's application because it was not satisfied that evidence of Dr Hekel's documents could not be adduced in proceedings before a NSW court by reason of professional confidential relationship privilege. Although some documents contained a protected confidence, the harm relied on by Ms Czerniecki arose mainly from her inability to warn her doctor about the summons and the perceived damage to that relationship, not from adducing or disclosing the evidence. The Tribunal was also not satisfied that the summons was oppressive, because the records were apparently relevant to whether Ms Czerniecki had a disability and to TAFE NSW's asserted unjustifiable hardship...

Jurisdiction
Australia
Judgment Date
15 September 2017
Procedural Posture
Anti Discrimination Application Concerning Alleged Disability Discrimination in Education / Preliminary Issue/interlocutory Ruling on Summons to Applicant's General Practitioner
Outcome
Application refused
Legal Topics
['professional Confidential Relationship Privilege' 'doctor/patient Communications' 'summons to Produce Medical Records' 'oppressive Summons' 'legitimate Forensic Purpose' 'disability Discrimination in Education' 'unjustifiable Hardship']
['administrative Law' 'anti Discrimination Law' 'evidence' 'civil Procedure'] ['professional Confidential Relationship Privilege' 'doctor/patient Communications' 'summons to Produce Medical Records' 'oppressive Summons' 'legitimate Forensic Purpose' 'disability Discrimination in Education' 'unjustifiable Hardship']

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Procedural Posture

Anti Discrimination Application Concerning Alleged Disability Discrimination in Education / Preliminary Issue/interlocutory Ruling on Summons to Applicant's General Practitioner

Legal Issues

  1. 1 ["Whether TAFE NSW should be given access to documents produced by Ms Czerniecki's general practitioner under summons despite a claim of professional confidential relationship privilege." 'Whether evidence of the documents could not be adduced in proceedings before a NSW court by reason of Part 3.10 of the Evidence Act 1995 (NSW).' 'Whether disclosure or adducing of the documents would or might cause harm to Ms Czerniecki within s 126B(3) of the Evidence Act 1995 (NSW).' 'Whether the summons should be set aside as oppressive or too wide for lack of a legitimate forensic purpose.']

Ratio Decidendi

The Tribunal refused Ms Czerniecki's application because it was not satisfied that evidence of Dr Hekel's documents could not be adduced in proceedings before a NSW court by reason of professional confidential relationship privilege. Although some documents contained a protected confidence, the harm relied on by Ms Czerniecki arose mainly from her inability to warn her doctor about the summons and the perceived damage to that relationship, not from adducing or disclosing the evidence. The Tribunal was also not satisfied that the summons was oppressive, because the records were apparently relevant to whether Ms Czerniecki had a disability and to TAFE NSW's asserted unjustifiable hardship...

Court Disposition

Application refused

Orders

  • ["Ms Czerniecki's application for the summons to Dr Hekel to be set aside or for TAFE NSW not to be given access to those documents is refused."]