Haragli v Tan  NSWSC 1581 (on Caselaw).
Ophelia Haragli sued Dr Clifford Tan, her treating general practitioner, for damages alleging, in short compass, that he failed to diagnose and treat her properly when she presented to him in 2008 expressing concern about the condition of her left breast. In the events that occurred, Ms Haragli was later diagnosed with breast cancer and she ultimately underwent a double mastectomy in 2011. She alleged that her condition should have been detected and diagnosed much earlier and that the injuries and disabilities from which she now suffers could have been avoided by the exercise of reasonable care. Dr Tan has denied that he was negligent. He also claims that he acted at all times in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice.
This interlocutory decision addressed an application by the claimant to set aside the defendant’s subpoena for her diaries, journals, yearly planners and calendars kept by [her] from 1 January 2010 to date. That application was dismissed, as explained in the following passages  – :
It seems to me that the documents sought by paragraph 4 of the subpoena have an apparent relevance. It does not matter that the documents may include or contain additional entries that have no relevance, or are unrelated, to the issues in the present proceedings. Written recordings by a plaintiff of matters personal to her in proceedings of this type might reasonably be expected to contain entries dealing with her physical and psychological conditions, among other things. It would also appear that there may be a dispute between Ms Haragli and Dr Tan with respect to what passed between them at the consultations about which Ms Haragli complains. The prospect that the documents contain no reference to such material or subject matter when examined in due course does not mean that they do not at the point of issuing the subpoena have some apparent relevance.
Moreover, Dr Tan has pleaded in his amended defence that Ms Haragli’s claim is barred by operation of s 50C of the Limitation Act 1969 as it was commenced more than three years from the date upon which her cause of action was discoverable. No submissions were directed to this issue but it may well be that this pleading also reliably informs the existence of a legitimate forensic purpose.
The breadth of paragraph 4 of the subpoena is not something about which Ms Haragli can in my view legitimately complain. The diaries and journals to which Dr Tan seeks access appear more or less to correspond to the period from when Ms Haragli’s diagnosis was made up until the present time. On one view, having regard to the fact that Ms Haragli first consulted Dr Tan in 2008, an argument could possibly be mounted that the period covering the documents was generously constrained.
Mr Stone referred, when asked by me for authority dealing with the proposition that privacy was a reliable indicator of the legitimacy of a subpoena, to a single line in the judgment of Basten JA in Lowery v Insurance Australia Ltd  NSWCA 303 at . That paragraph is in these terms:
“ Decisions as to access to material produced under subpoena should be addressed by reference to two factors, which may not be adequately reflected in earlier decisions. First, the mass creation of electronic records of transactions provides new and growing sources of information about individuals with a high degree of particularity as to place and time. Relevantly for present purposes, electronic records of mobile communications fall into this category. (Records of electronic payments fall into a similar category.) This consideration has, in its turn, spawned concern as to unjustifiable intrusions on individual privacy. Secondly, whether a forensic purpose is legitimate or not must depend on matters of practice and procedure governing a trial. While that has always been so, the rules of evidence have changed over time. Some rules are directed against the production of documents recording ‘protected confidences’. There are general constraints on admission of ‘credibility evidence’. Cross-examination as to credibility is now governed by s 103 of the Evidence Act. Evidence in rebuttal of answers given by a witness under cross-examination is governed by the terms of s 106 of the Evidence Act.” (Emphasis added.)
With respect to Mr Stone’s proposition, this line does no more than state the problem: it does not in my opinion assist him to advance an answer.
At the heart of Mr Stone’s analysis is that it would be inimical to Ms Haragli’s right to privacy to require her to surrender material potentially of the most private nature which may also be unrelated to any issue in the current proceedings. The latter qualification would in the normal course exclude such material from evidence that might in due course be received in the trial. To the extent that private matters of an intimate or personal nature retained relevance to those issues, the claim that they may also be embarrassing or confidential would not appear to me, without more, to be a factor that precludes their production.
Mr Stone makes the point that confidential medical records that are produced in response to a subpoena are in effect voluntarily produced by a plaintiff because he or she must be taken to have consented to the possibility, if not the inevitability, that such otherwise privileged communications would ultimately be exposed to the scrutiny of the trial process. On his argument, documents such as diaries or journals of private recollections ought not to be treated in the same way, as their production is not the inevitable consequence of the commencement of proceedings and is accordingly involuntary. As attractive as that argument appears at first sight, it does not in my view withstand scrutiny. It seems to me that in a case in which a plaintiff’s contemporaneous recollections of events are or may be relevant to an issue in the proceedings, the documents are in the first instance amenable to production. It is in my view not correct that the issue of the production of medical records is to be treated differently because they are produced voluntarily. Having regard to the privilege attaching to medical confidences, they are no less private than matters recorded in a personal diary.
Finally, there does not appear to me to be any issue of practicality involved in the production of the documents in question. The issue of whether or not some of the material that they might contain is relevant or admissible may in due course require a detailed examination and itemisation. That, however, is an issue for the trial, or perhaps even before that if access is sought earlier, but does not arise at the point of production.
In my opinion, Ms Haragli’s application to set aside paragraph 4 of Dr Tan’s subpoena should be dismissed. The costs of the motion should be Dr Tan’s costs in the proceedings.