PAUL -v- ROGERS [2026] WADC 67

[2026] WADC 67 [2026] WADC 67 (PC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : PAUL -v- ROGERS [2026] WADC 67 CORAM : STAUDE DCJ HEARD : 9 JUNE 2026 DELIVERED : 31 JULY 2026 FILE NO/S : CIV 4128 of 2023 BETWEEN : CHRISTOPHER SUNITH PAUL First Plaintiff LOUISE PAUL Second Plaintiff AND ANDREW SCOTT ROGERS First Defendant REBEKAH PASSMORE Second Defendant Catchwords: Appeal from registrar's decision - Discovery and inspection - Personal injury action for intentional torts - Medical records of each plaintiff discovered - Whether plaintiffs entitled under Rules of the Supreme Court 1971 (WA) O 36 r 1B(1) to mask details of their medical history they consider to be irrelevant to the matters in issue - Role of Harman undertaking in protecting -- 1 of 19 -- [2026] WADC 67 [2026] WADC 67 (PC) Page 2 confidentiality of medical records Legislation: District Court Rules 2005 (WA) Rules of the Supreme Court 1970 (WA) Result: Appeal dismissed Representation: Counsel: First Plaintiff : Mr A J Tharby Second Plaintiff : Mr A J Tharby First Defendant : Mr A Mason Second Defendant : Mr A Mason Solicitors: First Plaintiff : Bennett Second Plaintiff : Bennett First Defendant : Hay Street Legal Second Defendant : Hay Street Legal Case(s) referred to in decision(s): Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67 Atlas Copco Australia Ltd v Oxair Gases Pty Ltd [2013] WASCA 43 AW v Rayney [2010] WASCA 161 Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123 Cazaly Iron Pty Ltd v Minister for Resources [No 2] [2007] WASCA 60 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 52 LJQB 181 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 -- 2 of 19 -- [2026] WADC 67 [2026] WADC 67 (PC) Page 3 Maek Pty Ltd v Ibrahim [2022] WASC 285 Minetec Pty Ltd v Frost [2011] WASC 145 Mulley v Manifold (1959) 103 CLR 341 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Roe v The State of Western Australia [2013] WASC 130 Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2025] WASC 35 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 -- 3 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 4 STAUDE DCJ: 1 The issue in this appeal is whether the plaintiffs can maintain an objection to the production of parts of certain discovered medical records that have been redacted in part to hide information the plaintiffs say is irrelevant to any matter in question in the proceedings. 2 The answer in this case is no, which is the answer the learned deputy registrar rightly gave at first instance albeit to a differently framed, but similar, question. Background 3 In an incident that occurred at Eagle Bay on 12 August 2023 the plaintiffs allege that the first defendant trespassed upon their property, both defendants verbally assaulted each of them, and the first defendant physically assaulted the first plaintiff. 4 The plaintiffs claim damages for the torts of trespass, assault and battery. The Amended Particulars of Damages dated 18 July 2025 plead the plaintiffs' injuries as follows: A. GENERAL DAMAGES The first plaintiff, Dr Paul 1 The Physical Assault and Battery caused Dr Paul physical pain and injury to his head, neck and torso. 2 The Physical Assault and Battery and the Verbal Assault (as defined in the plaintiff's Statement of Claim filed 29 September 2023) have caused Dr Paul to suffer from post-traumatic stress disorder, nervous shock and depression. 3 Dr Paul has experienced and, in most instances, continues to experience: 3.1 pain; 3.2 bruising; 3.3 stiffness; 3.4 anxiety and feelings of being 'on edge' and 'on guard'. 3.5 difficulty falling asleep and disrupted sleep; 3.6 recurrent nightmares; -- 4 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 5 3.7 flashbacks; 3.8 a general sense of insecurity, fear and dread; 3.9 panic attacks; 3.10 depressed mental state; 3.11 cardiac hypertension; 3.12 lack of concentration including when performing complex dental procedures such as oral surgery and implantology 3.13 increased consumption of alcohol; 3.14 fear of being in public and avoidance of social situations. The second plaintiff, Mrs Louise Paul 4 The Verbal Assault and Trespass have caused Mrs Paul to suffer from post-traumatic stress disorder, nervous shock and depression. 5 Mrs Paul has experienced and, in most instances, continues to experience: 5.1 anxiety and feelings of being 'on edge' and 'on guard' when at home; 5.2 fear of being in public and avoidance of social situations; 3 117454 (2983143) 5.3 a general sense of insecurity, fear and dread; 5.4 difficulty falling asleep and disrupted sleep; 5.5 recurrent nightmares; 5.6 flashbacks; 5.7 panic attacks; and 5.8 depressed mental state. 5 The first plaintiff also claims damages for past loss of earning capacity in the period 12 August 2023 - 11 November 2023. There are no claims for past or future medical expenses or future economic loss. There is a claim for the cost of installing additional security cameras at the plaintiff's property and at the first plaintiff's dental practice in Dunsborough and for the costs of installation of security fencing. -- 5 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 6 Discovery - principles 6 Rule 46(1) of the District Court Rules 2005 (DCR) provides that, subject to that rule, O 26 of the Rules of the Supreme Court 1970 (RSC) applies to an action commenced by writ. Rule 46(2) provides, subject to any order of the court, that each party must give discovery of 'all documents that are or have been in the party's possession, custody or power relating to any matter in question in the action'. 7 A document is discoverable if it is reasonable to suppose that it contains information which may directly or indirectly enable the party seeking discovery to either advance their case or damage their adversary's case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 52 LJQB 181 (Peruvian Guano). A document is discoverable if it may lead to a train of enquiry that may have those effects: Mulley v Manifold (1959) 103 CLR 341, 345. 8 The matters in issue in an action are generally determined by reference to the pleadings, but regard must be had to the conduct and admissions of the parties and the nature of the action: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178, 186. 9 RSC O 26 r 7(3) empowers the court to limit discovery in order to satisfy the case management objectives prescribed in O 1 r 4A: Roe v The State of Western Australia [2013] WASC 130 [10] (Martin CJ), Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [27] (Quinlan CJ). 10 It follows that absent an order limiting the scope of discovery, the test in Peruvian Guano applies. Plainly the nature of this case is not such as to give rise to any case management considerations affecting the scope of discovery, and none has been suggested. 11 Relevance in the sense of 'relating to a matter in question' is broader than, and is to be distinguished from, relevance in the evidential sense. In the materials before me and in submissions the words 'relevant' and 'irrelevant' have been used in the sense of 'relating to' or 'not relating to'. Where those words are used in these reasons it is in that sense. Plaintiffs' discovery 12 Each plaintiff has sworn five affidavits of discovery. 13 This appeal arises from the redaction on the grounds of relevance of six of 10 medical documents in part 1A of the list annexed to each -- 6 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 7 plaintiff's fourth affidavit of discovery dated 2 September 2025 as follows: • P-105 - letter from Dr Kara Whittaker dated 21 February 2022 (redacted for relevance) • P-107 - letter from Dr Ata Doost dated 6 September 2022 (redacted for relevance) • P-108 - letter from Dr Kara Whittaker dated 26 June 2023 (redacted for relevance) • P-111 - letter from Dr Rafal Francikiewiez dated 22 July 2023 (redacted for relevance) • P-113 - Dunsborough Medical Centre - C Paul subpoena export dated 31 July 2025 (redacted for relevance) • P-114 - Dunsborough Medical Centre - L Paul subpoena export dated 31 July 2025 (redacted for relevance) 14 Neither plaintiff deposed to the reasons for the redaction of the above documents. Yet in part 1B of each list of documents each plaintiff stated as grounds for objecting to producing all 10 documents: • P-105 - P-114 - the plaintiffs object to production of these documents subject to agreeing a suitable confidential regime due to the sensitivity of the plaintiff's personal medical information contained within. 15 By chamber summons dated 30 September 2025 the defendants sought an order as follows: An order pursuant to Order 26 rule 6, alternatively rule 7 of the Rules of the Supreme Court 1971 (WA) that within 14 days of the date of these orders, the plaintiffs give discovery to the defendants, in an unredacted form, of the documents listed in the affidavits of discovery filed by the plaintiffs on 2 September 2025. 16 The application was supported by an affidavit by Mr Damien Cripps dated 1 October 2025. Mr Cripps deposed to the parties having agreed to a confidentiality regime on 27 August 2025, the defendants' counsel and solicitors signing confidentiality undertakings relating to the discovered documents that the plaintiffs objected to produce. The confidentiality regime which is annexed to the affidavit of Mr Cripps provided that inspection of the plaintiffs' personal medical -- 7 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 8 records would be limited to the 'solicitors, counsel and expert witnesses retained on behalf of the parties', described as 'authorised persons' and otherwise provided that such authorised persons sign a confidentiality undertaking that among other things prevented the disclosure of the records to any other person and sought to minimise the extent to which the confidential documents would be referred to in court and ensure that they would be tendered on a confidential basis (as if that were possible). 17 It suffices to say, without reproducing the confidentiality regime in full, that it is extremely strict. It prevents the defendants themselves from viewing the records. Its terms go well beyond the implied Harman undertaking (Harman v Secretary of State for the Home Department [1983] 1 AC 280) that applies in every case to information and documents provided in litigation. While agreed confidentiality regimes may be justified occasionally in commercial cases in order to deal with issues between, say, trade rivals, the court is not aware of their use in personal injury litigation in this jurisdiction. 18 It is frankly surprising that the defendants should have instructed their solicitors to agree to a regime that would deny them the right to see documents that the plaintiffs are bound to discover pursuant to DCR 46(2) and that may go to the merits of the action. A party to an action has a prima facie right to inspect a document that has been discovered except where the party giving discovery has a positive substantive right to withhold a document from production: Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 [57] (McLure P). 19 Also, the rules provide for documents, including medical records, to be produced under subpoena: RSC O 36B, DCR r 48AA, r 48AF. Routinely in this jurisdiction, in actions for damages for personal injuries, subpoenas to produce medical records are issued and returned as a matter of course. By r 48AF(2) the parties are entitled to copy documents produced thereby unless the court orders otherwise. It is somewhat ironic that the issue in this appeal would likely have been avoided if that procedure had been employed. The appeal 20 On 11 February 2026 on hearing the defendants' application the learned deputy registrar allowed the defendants' application and ordered the plaintiffs to give discovery on oath of each of the redacted discovered documents. -- 8 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 9 21 This appeal is from that decision. DCR r 15(6) provides that an appeal from a decision of a registrar is 'by way of a new hearing' of the application on which the decision was made. The court is to treat the application as if it were before the court for the first time. The appellant does not have to show error: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28. 22 After the lodgement of the notice of appeal and just one day prior to the hearing of the appeal each of the plaintiffs swore a further affidavit verifying a list of documents, their fifth such affidavit, in which they listed the six documents previously described as redacted, without that description (further discovered documents). In part 1B of the list each plaintiff objected to produce the further discovered documents in unredacted form as follows: The plaintiffs object to production of these documents in unredacted form because they contain sensitive personal medical information concerning the plaintiffs that is irrelevant to the issues in the proceedings. The plaintiffs consent to production of these documents in a form where the irrelevant information is redacted, pursuant to Order 26 r 1B of the Rules of the Supreme Court 1971 (WA), namely in form of documents P-105, P-107, P-108, P-111, P-113 and P-114 as discovered and listed in the plaintiffs' affidavits sworn on 2 September 2026 [sic] which have previously been provided to the defendants by way of giving inspection. 23 By filing their fifth affidavits of discovery listing the further discovered documents in unredacted form the plaintiffs have complied with the order of the learned deputy registrar which in a strict sense renders the appeal otiose. 24 It was open to the defendants to move that the appeal be dismissed with costs the plaintiffs having complied with the order appealed from. At the hearing of the appeal however each counsel made submissions in line with their respective written outlines (filed prior to the plaintiffs' fifth affidavits of discovery) addressing the question of whether the plaintiffs can redact what they say are irrelevant parts of their medical records pursuant to RSC O 26 r 1B(1). 25 As I pointed out above, an appeal from a registrar is a new hearing of the application. The plaintiffs have submitted that the court should deal with the appeal as though the issue was the objection to produce for inspection the proposed redacted parts of the further discovered -- 9 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 10 documents. As the defendants have raised no objection I will in the circumstances and at some risk of procedural irregularity deal with the appeal on that basis. 26 It is not in issue that the further discovered documents which record the plaintiffs' medical histories are relevant in the broad sense defined in Peruvian Guano. The plaintiffs' position is that there are some aspects of their respective medical records however that are not relevant in that sense and that RSC O 26 r 1B permits the redaction of those parts for the purpose of production for inspection. The defendants maintain that they are entitled to inspect the plaintiffs' medical records in their entirety. 27 RSC O 26 r 1B provides: (1) If under this Order a party in a cause or matter is required to give discovery of a document - (a) the party must discover the document even if it contains - (i) information that is not related to a matter in question in a cause or matter; or (ii) information that the party objects to producing, as well as information relating to a matter in question in the cause or matter that the party may be required to produce; but (b) if the party has possession, custody or power of the document, the party may edit the document to hide the information referred to in paragraph (a)(i) and (ii). (2) If a party edits a document under subrule (1), the party must do the following - (a) in Part 1B of its list of documents (Form No. 17) - (i) list the document; and (ii) identify the document as one that contains hidden information; and (iii) state why the information is hidden; and -- 10 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 11 (iv) if the party objects to producing any of the hidden information, state the grounds for objecting; and (b) modify Form No. 17 for the purposes of complying with paragraph (a); and (c) if an affidavit verifying the list of documents is required, modify Form No. 18 for the purpose of complying with paragraph (a). (3) If a party edits a document under subrule (1), the party is not required - (a) to produce the hidden information to another party; or (b) to allow another party to inspect or copy the hidden information, unless the Court orders otherwise. 28 It is well established that a party giving inspection of a discovered document may seal up or mask parts of the document that are irrelevant if there is a legitimate basis for doing so: AW v Rayney [2010] WASCA 161, [142]. Where there is a dispute as to the entitlement of a party to redact part of a discovered document, the court may examine the document, in its unredacted form, in order to determine the propriety of the redaction: AW v Rayney [144]. 29 RSC O 26 r 10 provides that the court may order that a document be produced to the court. That power may be exercised for the purpose of determining a claim of privilege. RSC O 26 r 11 states that no order for production to a court of a document should be made unless it is necessary other for disposing fairly of the matter or saving costs. 30 During the hearing of the appeal the court ordered pursuant to RSC O 26 r 10 that the further discovered documents be produced to the court in unredacted form for the purpose of determining whether the redacted parts should be produced. Because the objection to production was based on relevance the court had less reason for hesitation in doing so than it may have had if the objection were grounded on a claim for privilege. Although I have inspected the documents in question, the issue in the appeal is capable of being determined without necessarily knowing what is proposed to be hidden. -- 11 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 12 Affidavit evidence 31 The defendants' application was supported by the affidavit of Mr Cripps to which reference has been made. The affidavit is said to be made on a confidential basis as it annexes documents that are the subject of the agreed confidentiality regime. Mr Cripps has deposed to having inspected a number of documents that were disclosed in the plaintiffs' second affidavits of discovery. These documents were unredacted. On the basis of the contents of these documents Mr Cripps sought further and better discovery by letter dated 14 January 2025, which by letter dated 20 January 2025 the plaintiffs' solicitors said they would provide. 32 The plaintiffs' solicitors subsequently declined to give the requested further discovery. 33 On 6 August 2025 Mr Cripps received an email from the plaintiffs' solicitors saying that the plaintiffs would provide further discovery subject to the defendants entering into a suitable confidentiality agreement and that the plaintiffs proposed to redact portions of the further discovered documents on the basis that they contained irrelevant information. 34 On 27 August 2025 Mr Cripps sent an email to the plaintiffs' solicitors attaching the signed confidentiality regime document and undertakings by himself, senior counsel for the defendants and another solicitor. In his email he reserved the defendants' right to bring an application in respect of any redactions made to the further discovered documents. 35 On 20 September 2025 Mr Cripps received the plaintiffs' further affidavits of discovery and electronic copies of the documents listed therein which were not redacted. It emerged subsequently that the documents provided by way of inspection had inadvertently not been redacted. Electronic copies of the documents with redactions were then provided. The defendants' solicitors deleted the unredacted documents that had been provided in error. 36 On 17 September 2025 the defendants' solicitors by email sought an explanation for the redactions and their consent to an order requiring the plaintiffs to each file a further affidavit explaining the redactions, alternatively their consent to an extension of the time limit for an application by the defendants. -- 12 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 13 37 On 19 September 2025 the defendants' solicitors were informed that the plaintiffs would not provide a further affidavit and would seek to have the matter listed for trial at a listing conference on 22 September 2025. 38 Mr Cripps has deposed to his belief that information contained in the redacted portions of the further discovered documents is likely to advance the defendants' case or lead to a train of inquiry that would advance the defendants' case 'such as the issuing of subpoenas to the plaintiffs' treating practitioners, the plaintiffs' health insurers or other third parties who may hold documents relevant to the plaintiffs' pre-existing medical conditions'. 39 In opposition to the defendants' application the plaintiffs' solicitors filed an affidavit by Mr Thomas Coltrona sworn 23 January 2025. Mr Coltrona is employed by the plaintiffs' solicitors. He deposed to having read Mr Cripps' affidavit and to conducting a review of documents provided by the plaintiffs for the purpose of giving further discovery of their medical records to the defendants. In par 6 of his affidavit he states: Using the program Adobe Acrobat, I reviewed the plaintiffs' medical records against the amended plaintiffs' particulars of damages filed 18 July 2025 and marked up proposed redactions on the material contained within the records that I considered did not relate to the matters of health set out in the amended particulars (or otherwise to the matters in issue in the proceedings). This exercise included some general research into certain health conditions and the purpose of certain medications prescribed to the plaintiffs. 40 When he completed his review he sent copies of their records with proposed redactions to the plaintiffs seeking confirmation that the material he proposed to redact was irrelevant. The plaintiffs agreed with his proposed redactions and informed him of additional matters that they thought ought to be redacted. Some of these matters were then redacted; others were not. Mr Coltrona then prepared the list of documents that was verified by each of the plaintiffs in their affidavits sworn 2 September 2025. 41 At par 10 of his affidavit, Mr Coltrona states: Based on the matters set out in this affidavit, I verily believe that the information redacted in documents P-105, 107, 108, 111, 113 and 114 (as set out in the plaintiffs' affidavits sworn and filed on 2 September 2025) is information concerning the plaintiffs' health that does not relate to the matters of health contained in the amended particulars (or otherwise to matters in issue in the proceedings). -- 13 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 14 Plaintiffs' submissions 42 The plaintiffs contend that they are permitted by RSC O 26 r 1B to redact parts of the further discovered documents that are not relevant. These parts contain details of their respective medical histories that they consider do not relate to the injuries and disabilities pleaded in the statement of claim and particulars of damage or to any other matter in issue in the proceedings. 43 The stated basis of the plaintiffs' objection to produce the proposed redacted parts as expressed in part 1B of the list annexed to each of their fifth affidavits is that 'they contain sensitive personal medical information concerning the plaintiffs that is irrelevant to the issues'. 44 The plaintiffs invite the court to take the approach set out by Corboy J in Minetec Pty Ltd v Frost [2011] WASC 145 at [25] where his Honour stated: In an application of this kind, the court is required to balance the fact that discovery 'constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs' (Harman v Secretary of State for the Home Department [1983] 1 AC 280, 308 (Lord Keith of Kinkel)) and the interests of the parties and the public in ensuring justice is done between the parties by permitting each party open access to all material that may be relevant to the matters being litigated. Consequently, an application for production of documents containing confidential information requires both parties to address in their evidence and submissions the various factors that the court must weigh up in striking the appropriate balance in the circumstances of the particular matter. Evidence that does not satisfactorily establish the confidentiality or irrelevance of edited information or an inadequate explanation of how the disclosure of the hidden information is required to do justice between the parties may tip the balance either way. 45 The plaintiffs submit that it is for the defendants to show that production of the further discovered documents in unredacted form is required to do justice between the parties, 'so as to tip the balance' in their favour. The plaintiffs say that: 1. the defendants do not require all of the plaintiffs' medical histories in order to deal with their claims for loss and damage; 2. they have not demonstrated the relevance of the material proposed to be redacted; -- 14 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 15 3. the proposed redactions have not been shown to be inappropriate; and 4. no error or inconsistency has been identified in the process identifying the parts to be redacted. 46 On the question of relevance the plaintiffs referred to Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2025] WASC 35 (Lundberg J). Dealing with the approach to be taken to determine relevance in that case at [62] his Honour considered it would be wrong to construe the words in RSC O 26 r 1B(1) solely by reference to the Peruvian Guano test. His Honour cited Roe v The State of Western Australia and other cases that show that case management considerations are relevant to the court's power to order discovery and production of documents in commercial litigation. 47 The plaintiffs have not referred to the court to any decisions involving the application of O 26 r 1B(1) in cases involving claims for damages for personal injuries. 48 The plaintiffs contend that the defendants have not shown that the information sought to be redacted from their medical records is relevant (though clearly the defendants are not in a position to do so). It is submitted moreover that the defendants have presented no evidence from a proposed medical expert that a complete medical history would be required in order to opine on the matters the subject of the plaintiffs' claims. 49 The plaintiffs contend that it is sufficient that they have made their own determination according to what they consider is relevant. They submit on the basis of the evidence of Mr Coltrona that the information proposed to be redacted to unidentified in collaboration with the assistance of Mr Coltrona's advice 'taking a careful approach to ensure that redactions have been made in accordance with the matters in issue in the case'. Defendants' submissions 50 The defendants submit that the plaintiffs bear the onus of proving that the information proposed to be redacted is irrelevant: Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67 (Martin CJ). That decision departed from what was decided by Le Miere J in Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259, but it was not considered to be -- 15 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 16 wrongly decided by Corboy J in Minetec Pty Ltd v Frost [26]. In Atlas Copco Australia Ltd v Oxair Gases Pty Ltd [2013] WASCA 43 at 16, Pullin and Newnes JJA, having pointed out the conflict of opinion between members of the court as to whether the party redacting bears the onus of satisfying the court that masking is appropriate, considered it was unnecessary to determine the issue because the document in question was produced to and examined by the Master: [15] - [18]. 51 The defendants identify as issues in the case of the first plaintiff that he has, as alleged in the plaintiffs' amended particulars of damage, suffered physical pain and injury to his head, neck and torso and post-traumatic stress disorder, nervous shock and depression that have caused him to experience and to continue to experience various symptoms and residual disabilities, and to have caused him to take time off work and to confine his clinical practice as a dentist resulting in financial loss. In relation to the second plaintiff the issue identified is whether the alleged torts of assault and trespass caused post-traumatic stress disorder and nervous shock and depression and associated ongoing symptoms and disabilities. 52 The defendants submit that the process of identifying what information of the plaintiffs' medical records related to their alleged injuries, symptoms and disabilities as explained in Mr Coltrona's affidavit is unsatisfactory in that there is no explanation given as to why the proposed redacted material is said to be irrelevant. The six objections to the process employed by Mr Coltrona are, in summary: 1. that the irrelevance of the proposed redacted material is a mere assertion; 2. that there is no evidence that Mr Coltrona did more than conduct general research to inform himself of the medical matters in question and consult with the plaintiff before determining for himself what parts of the documents should be redacted; 3. that the onus of proving that parts of a documents are irrelevant and cannot be determined by a party's solicitor in circumstances where it precludes the defendant's opportunity to obtain medical advice in relation to the significance of the plaintiff's medical history; -- 16 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 17 4. that Mr Coltrona is not qualified to determine which aspects of the plaintiff's medical records do not relate to a determination of the cause of the plaintiffs' alleged loss; 5. that the first named plaintiff is not qualified to say what medical records are or are not relevant; and 6. that the proposed redacted material cannot be said to be irrelevant simply because the defendants cannot prove that it is. Resolution 53 Each of the plaintiffs claims damages for personal injuries allegedly suffered by reason of the alleged wrongful acts of the defendants. Those injuries are alleged to have caused symptoms and disabilities and in the case of the first plaintiff, financial loss. 54 At common law the burden of proving loss and damage for wrongful injury is on the plaintiff: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160. Evidence of a change in the plaintiff's condition after the incident of injury would ordinarily amount to prima facie proof that it was caused thereby: Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. An evidential onus is placed on a defendant who disputes causation of harm from a wrongful injury is wholly or in part the result of some pre-existing illness or condition, or that the plaintiff's incapacity would in any event have resulted from a pre-existing condition, but at the end of the day it is for the plaintiff to prove their loss. 55 Where a plaintiff asserts that they have suffered loss as a consequence of wrongful injury caused by the defendant in an action for damages the claim for loss and damage will generally put in issue the plaintiff's state of health before the incident in question and afterwards. 56 In this case it is pleaded that the plaintiffs and the defendants were not acquainted. It follows that it is only by the processes of discovery permitted by the rules - discovery of documents, interrogatories (where leave is given), production of documents under subpoena, and medical examination - that the defendants are able to obtain information that would enable them to dispute the pleaded effects of the injuries that they are alleged to have caused. These procedures operate in the interests of justice: they promote 'a cards on the table' approach to litigation: Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123. -- 17 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 18 Inspection of the further discovered documents may lead to a train of enquiry with respect to causation or contribution, or it may not, but is a matter for the defendants. Inspection will serve an important forensic purpose in a case such as this if it has the effect of closing a potential line of enquiry. 57 As to the means by which the plaintiffs have identified what particular records do and do not relate to matters in question in the proceedings, the process outlined in the affidavit of Mr Coltrona involved a cross-referencing of the plaintiffs' medical records and their respective particulars of damages. How Adobe Acrobat was used in this regard is not explained, but Mr Coltrona deposes to having marked up proposed redactions of medical records that he considered did not relate to the matters of health set out in the amended particulars of damage, or otherwise to the matters in issue in the proceedings. This included researching health conditions and the purpose of certain prescribed medications. According to his affidavit he then consulted the plaintiffs who instructed him as to proposed redactions. 58 It is not for the plaintiffs or their solicitors to decide what aspects of their respective medical histories do or do not relate to their claims. It is each plaintiff's medical history as a whole that has relevance, not the particular details of it that can be seen by them to bear some relationship to their alleged loss and damage. For that reason the piecemeal redaction of medical records attempted by the plaintiffs in this case is liable to obstruct the doing of justice between the parties by denying the defendants the discovery of relevant facts. 59 The plaintiffs' submissions emphasise the confidential nature of the medical records. That the further discovered documents are confidential goes without saying. That label applies to all medical records and potentially many other documents that fall to be discovered. But the issue is one of relevance not confidentiality. Confidentiality does not answer the question of whether the information the plaintiffs wish to hide can be redacted. Unlike privilege, confidentiality is not ordinarily a sufficient reason for denying inspection as the implied Harman undertaking affords sufficient protection: Cazaly Iron Pty Ltd v Minister for Resources [No 2] [2007] WASCA 60 [8] - [9]. In the present case the agreed confidentiality regime also serves this purpose. As I have observed, the Harman undertaking ensures that any information obtained by way of discovery, and subpoena for that matter, is not used for any purpose other than the proceedings. -- 18 of 19 -- [2026] WADC 67 STAUDE DCJ [2026] WADC 67 (PC) Page 19 60 If parties see fit to agree to a confidentiality regime as an extra measure of protection of the confidentiality of the further discovered documents it is a matter for them, but as I have observed the court has no experience of the use of such a regime in other personal injury cases. Given the availability of subpoenas to produce medical records it is difficult to see why a confidentiality regime has been employed at all. The fact, however, that the protection of the confidentiality of the further discovered documents has been agreed in this way as a condition of their discovery renders the proposed redactions unnecessary. 61 The defendants are entitled to production of the further discovered documents in unredacted form. The appeal should be dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DC Associate to Judge Staude 28 JULY 2026 -- 19 of 19 --