Application to Set Aside Subpoena Directed to Plea of Usual Practice

Not infrequently, in civil litigation, a plaintiff or defendant – bereft of the ability to adduce direct evidence of the making of a statement or the engagement in certain conduct – pleads the usual practice of that party to make such statement or engage in such conduct.

Ordinarily such evidence would be adduced by oral testimony of those engaged in such practice.  In turn the opposing party would seek to impugn the adoption of such practice, including – if possible – of occasions of non-adherence to such practice. The decision in McLure v Lam [2025] NSWSC 1272 (25 October 2025) is an example of a plaintiff – confronting a usual practice plea by a defendant in a medical negligence case – seeking to elicit documents in respect of other instances of treatment for similar procedures, so as to discern whether the pleaded practice was adopted.  In that case the documents were sought by subpoena – as is the practice in New South Wales – but in Queensland the likely course would be that the applying party would make application for further and better disclosure of documents from the pleading party, albeit by subpoena in the event the relevant documents are held by a non-party. Bill Madden – in his excellent ‘Bill Madden’s WordPress’ online publication – has written a useful case note concerning the decision of Garling J in McLure. That appears below. Bill addresses not just by reference to relevance of the pleaded issues but also by reference to – on the facts of that case – a contention of oppression obviating such disclosure. Hearsay thanks Bill for permission to publish the same.

McClure v Lam [2025] NSWSC 1272

This litigation included a focus on whether the defendant failed to give appropriate advice with respect to the plaintiff’s condition, including advice that she should accept a conservative line of treatment for her condition, rather than to undergo surgery. The defendant served an evidentiary statement stating that he had no independent recollection of any discussion with the plaintiff, so referred to his asserted usual practice.

The plaintiff served a subpoena seeking patient files in respect of similar procedures (TVT, Elevate and prolapse procedures) which the defendant sought to set aside. In the interlocutory consideration of that application there were two issues.

Legitimate forensic purpose

The defendant’s submission that the subpoena had no legitimate forensic purpose was rejected. The court said at [13]:

Given that the defendant relies upon his usual practice as a basis for describing, in his evidence, what occurred, I am satisfied that the subpoenas which seek to test the existence of a usual practice and what the content of that usual practice was, by reference to the clinical records of other patients, demonstrates a legitimate forensic purpose. That is the more so because there is a real factual issue in this case between the plaintiff’s account of what occurred when she saw the defendant as to what she was actually told, when, and in what detail, and the defendant’s statement.

Oppression

The unchallenged evidence of the defendant’s solicitor was that there is no search function (in the software used by the defendant) which can automatically identify the symptom, or symptoms, or condition with which a patient presented to the defendant, or the nature of advice which was provided to each defendant. Nor, apparently, was there any search function that, of itself and without more, can automatically identify whether or not a particular mesh, known as “Elevate Mesh”, was in fact used in the vaginal repair procedure. However, the evidence was that the practice management software is capable of identifying patients who have been the subject of a procedure described by a particular Medicare Item Number. It was possible to identify 467 patients who had been subjected to a repair for pelvic organ prolapse in procedures undertaken by the defendant using, or which could potentially involve the use of, Elevate Mesh.

Leaving aside those patients who may be identified in that way, by reference to Medicare item numbers, the evidence was that there would need to be a manual review of the records of 1,338 patients who had engaged in 2,299 consultations in the period during which advice may have been given about procedures or consultations in which the particular procedures were discussed.

The court held at [24]:

I cannot be satisfied, presently, that the task could be undertaken without some degree of oppression, given the breadth of the documents which are sought. Put differently, I am satisfied that, based on the terms of the subpoena presently pressed, including the use of the phrase “prolapse procedures”, it would not be anything other than oppressive.

The court went on to suggest that a subpoena in different terms (framed by reference to a date range and certain Medicare numbers) would not be oppressive. The current subpoena was set aside, with the matter adjourned for later consideration should the plaintiff choose to issue a differently worded subpoena.