Dr Maureen Allem Inc v Baard (44725/2016) [2019] ZAGPJHC 441 (30 October 2019)

Dr Maureen Allem Inc v Baard (44725/2016) [2019] ZAGPJHC 441 (30 October 2019)

The court found that the respondent's response to the Rule 35(3) and (6) notice was inadequate and did not comply with the Rules, as she failed to state the whereabouts of documents not in her possession and provided contradictory reasons for refusal. The grounds of confidentiality, privilege, and privacy were rejected, as the documents sought did not infringe doctor-patient privilege and disclosure is permitted by law when ordered by a court. The information requested was found to be relevant to the determination of liability and quantum in the main action. The respondent's counter-application for separation of issues was dismissed, as she failed to demonstrate that separation would be...

Citation
[2019] ZAGPJHC 441
Parties
Applicant: Dr Maureen Allem Inc; Respondent: Dr Elsa Susanna Cecelia Baard
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 October 2019
Case Number
44725/2016
Procedural Posture
Interlocutory Application / Application to Compel Discovery and Opposition With Counter Application for Separation of Issues
Outcome
Application to compel discovery granted; counter-application for separation of issues dismissed.
Judges
T MTATI
Legal Topics
Discovery and Inspection, Restraint of Trade, Confidential Information, Separation of Issues, Doctor Patient Privilege
Civil Procedure Commercial and Corporate Discovery and Inspection Restraint of Trade Confidential Information Separation of Issues Doctor Patient Privilege

Case Brief

Summary, issues, holding and outcome

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Parties

Dr Maureen Allem Inc

Applicant

Dr Elsa Susanna Cecelia Baard

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Discovery and Opposition With Counter Application for Separation of Issues

Legal Issues

  1. 1 Whether the respondent is obliged to deliver a full and complete response to the applicant's Rule 35(3) and (6) notice and make documents available for inspection.
  2. 2 Whether the respondent's refusal to provide documents on grounds of confidentiality, privilege, and relevance is valid under the Rules.
  3. 3 Whether the counter-application for separation of issues in terms of Rule 33(4) should be granted.

Ratio Decidendi

The court found that the respondent's response to the Rule 35(3) and (6) notice was inadequate and did not comply with the Rules, as she failed to state the whereabouts of documents not in her possession and provided contradictory reasons for refusal. The grounds of confidentiality, privilege, and privacy were rejected, as the documents sought did not infringe doctor-patient privilege and disclosure is permitted by law when ordered by a court. The information requested was found to be relevant to the determination of liability and quantum in the main action. The respondent's counter-application for separation of issues was dismissed, as she failed to demonstrate that separation would be...

Court Disposition

Application to compel discovery granted; counter-application for separation of issues dismissed.

Orders

  • The respondent is ordered to deliver a full and complete response to the applicant’s notice in terms of Rule 35(3) and (6) dated 15 November 2018 and to make the documents listed in the notice available for inspection within ten days from the date of granting of this order.
  • In the event of the respondent failing to comply with order 1 above, the applicant is authorised, on papers duly supplemented, to apply for the respondent’s plea to be struck out and for judgment to be entered in favour of the applicant.