Medicare Records Admissibility: Carter v Australian Air League

Carter (a pseudonym) v Australian Air League Incorporated & Anor [2024] VSC 95

In the recent matter of Carter (a pseudonym) v Australian Air League Incorporated & Anor [2024] VSC 95, the plaintiff, Carter (a pseudonym), filed proceedings against the defendants in relation to historical abuse suffered by the plaintiff which he alleges has resulted in a personal injuries.

In this matter, the plaintiff objected to a subpoena issued by the first defendant, Australian Air League Incorporated, for his entire Department of Human Services (trading as Medicare Australia) history and records.

The Victorian Supreme Court noted that although a substantial volume of medical records had already been produced by the parties, there were gaps in the evidence. A number of examples were given (at [5]) such as the names of various doctors and the treatment they provided to the plaintiff. The Victorian Supreme Court noted at [9]:

The dispute between the parties is whether Australian Air League Incorporated has a legitimate forensic purpose in issuing the subpoena directed at Medicare seeking, in effect, the plaintiff’s entire medical history (‘Medicare records’). Australian Air League Incorporated says that the Medicare records will be relevant to both causation and quantum of loss. In relation to causation, details of the plaintiff’s medical history will shed light upon the question of whether the alleged abuse was the sole or primary cause of the plaintiff’s psychiatric injuries. The Medicare records will also assist Australian Air League Incorporated to evaluate the plaintiff’s claim for past and future medical expenses, and past and future economic loss.

The plaintiff submitted that the scope of the subpoena was impermissibly broad, and that Australian Air League Incorporated is merely speculating that the Medicare Australia records might assist its case against the plaintiff. While accepting that the subpoena is expressed in broad terms, the Victorian Supreme Court noted that there is evidence to suggest that the plaintiff was suffering from mental health problems since about the mid 1980s, such that the Medicare Australia records may disclose treatment and further relevant information from that time.

At [22], the Victorian Supreme Court held:

I consider that, in the circumstances of this case, there is a legitimate forensic purpose in issuing a subpoena directed at obtaining access to the Medicare records, which will in turn assist Australian Air League Incorporated to identify further documents which, if obtained, will either support or undermine the plaintiff’s case.

The plaintiff’s claim, like many others, involves a claim that the consequences of the abuse were significant and lifechanging, with his claim for damages based upon a contention that the trajectory of his life and career has been fundamentally changed, for the worse, as a consequence of the alleged abuse. Claims of this nature necessarily open a plaintiff’s medical history up to some degree of scrutiny (at [24]).

Ultimately, in March 2024, the Victorian Supreme Court dismissed the plaintiff’s objection to a subpoena issued by Australian Air League Incorporated for the plaintiff’s entire Medicare Australia history and records. The full publication of this hearing and decision is yet to be provided by the Victorian Supreme Court.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

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