Pre-litigation discovery: Medical records

Bentvelzen v Wyndham-Plus Pty Ltd [2016] VCC 1240 considered an application for pre-litigation discovery so as to obtain medical records of the late de-facto partner of the applicant, who wished to pursue a mental harm claim arising from her death.

The de-facto partner had died without leaving a will, so (absent letters of administration) there was no legal representative with formal entitlement to access the records.

The court considered various issues arising from the application, holding firstly that granting access would not give rise to public harm sufficient to outweigh this potential right to sue: [18]. The court noted a potential forensic disadvantage in not having access to the records, relevant to the administration of justice: [24].

To permit further consideration of the exercise of the court’s discretion, the matter was stood so that the applicant could provide more evidence as to his potential claim, being evidence as to how the treatment (referred to in the records) may have related to the death and whether the applicant had suffered mental harm: [37].

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