Annelise Emily Moller V Mark Adam Pigdon

[2018] VSC 670

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2017 1677

ANNELISE EMILY MOLLER	Plaintiff
v
MARK ADAM PIGDON	Defendant

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JUDICIAL REGISTRAR:	Clayton JR
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2018
DATE OF RULING:	8 November 2018
CASE MAY BE CITED AS:	Moller v Pigdon
MEDIUM NEUTRAL CITATION:	[2018] VSC 670

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PRACTICE AND PROCEDURE – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 42A.08 – Subpoena objection – Fishing expedition – Legitimate forensic purpose – ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor [2017] VSC 559 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Allan	Arnold Thomas & Becker
For the Defendant	Miss A Wood	Meridian Lawyers

JUDICIAL REGISTRAR CLAYTON:

Introduction

1. This is an objection by the plaintiff to inspection of subpoenaed documents by the defendant.  For the reasons that follow, the subpoenas will be dismissed.

Background

1. The defendant, Mr Pigdon, was the owner of a rental property in Brunswick Road (‘the house’) which was rented by Nick Baker, Jordan Crouch, Andrew Smith, and Jonathon Robin (‘the tenants’).

1. On 31 December 2016, Ms Moller and her friend, Ms Bella Chambers, were on the roof of the house watching the New Year’s Eve fireworks.

1. Whilst on the roof, Ms Moller fell through a skylight and sustained a number of injuries including head and brain injuries, multi-level spinal fractures, rib fractures,  a deflated lung and a psychological reaction.

1. Mr Pigdon filed subpoenas for production of documents from the tenants.  No subpoena was filed in relation to Ms Chambers.

1. The documents sought were:[1]

   [1]Subpoena for Production to Prothonotary filed on 23 May 2018.

(a)   all photographs and video footage taken/received by you, or otherwise in your possession, on 30 and 31 December 2016 taken at the premises located at 196 Brunswick Road, Brunswick, in the State of Victoria;

(b)   all SMS text messages or other electronic communications, between 30 December 2016 and 31 January 2017 (both dates inclusive) sent or received by you between any of the following persons:

(i)     the plaintiff, Ms Annelise Moller (DOB 16/02/97);

(ii)  Ms Bella Chambers;

(iii)             Mr Jonathon Robin;

(iv)Mr Jordan Crouch;

(v)   Mr Nick Baker; and

(vi)Mr Andrew Smith.

(c)    all photographs and video footage taken/received by you, or otherwise in your possession, taken on/from the roof of the premises located at 196 Brunswick Road, Brunswick, in the State of Victoria, between 21 December 2015 and 31 December 2016 (both dates inclusive).

1. In a letter dated 4 June 2018, the plaintiff objected to inspection of the subpoenaed documents, pursuant to r 42A.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), on the basis that the documents sought lacked a legitimate forensic purpose or relevance to any issues raised in the proceeding.

1. A Notice of Hearing of Objection was filed on 14 June 2018.

The Principles

1. Derham AsJ in ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor[2]  set out the principles to be considered.  Those relevant to this matter are:

   [2][2017] VSC 559.

(a)   the party who issues the subpoena must identify precisely and expressly the legitimate forensic purpose for which access to the documents is sought;

(b)   the Court must be satisfied that it is ‘on the cards’ or there is a ‘reasonable likelihood’ that the documents will materially assist the case of the party;

(c)    a fishing expedition is not a legitimate forensic purpose; and

(d)  the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.  There is no legitimate forensic purpose if the party is seeking documents to see whether they may be of relevance or assistance.

Defendant’s Submissions

1. Counsel for Mr Pigdon submitted that evidence surrounding the circumstances of Ms Moller’s ascension onto the roof and the incident itself are ‘irrefutably pertinent’ to the proceedings.[3]  In her answers to interrogatories, Ms Moller has sworn that to get onto the roof on the night of the incident she climbed onto a chair which was placed upon a table near the eastern wall abutting the patio decking.[4]  This raised the question of how she was able to access the roof, who was involved in access to the roof and whether the roof had been accessed on other occasions.

   [3]Submissions on behalf of the Defendant dated 1 August 2018 [11].

   [4]Ibid [2].

1. Counsel for Mr Pigdon submitted that photos, text messages and video footage taken prior to the day of the incident are relevant to a number of questions in issue including Ms Moller’s knowledge of the premises, her knowledge of the location of skylights in the house, whether the roof had been accessed on other occasions, whether Ms Moller was drinking or under the influence of alcohol, or was ‘skylarking’ around on the roof, whether the lights in the room immediately below the skylight were on and, if so, whether this would have illuminated the skylight when Ms Moller was on the roof.

1. Documents discovered by Ms Moller include text message exchanges between Ms Moller and Ms Chambers the day prior to the incident in which Ms Chambers says ‘We are going back to suss the brunny roof now’, ‘Jonny just climbed up n reckons it’ll be good’, ‘Only thing is it’s kinda tricky’.  There are also text messages between Ms Moller and Ms Chambers which indicate a possible use of alcohol: ‘Lets find a roof’, ‘and take roofies’, ‘sipping on something’, ‘can we make cocktails’, ‘get drunk there and kick on with us’, ‘yes that’s the plan’.

1. Counsel for Mr Pigdon submits that the defendant is entitled to ‘the totality of the discussions so as to ascertain what happened, how it happened, when it happened and why’.  Counsel says that the defendant knows that photographs were taken of Ms Moller prior to the incident and the defendant is entitled to the ‘totality of the photography’.

1. Counsel for Mr Pigdon submitted that Ms Moller ‘ought not be permitted to cherry-pick what communications and evidence the Defendant can and cannot have access to’,[5]   and that the defendant currently only has part of the picture of what happened on the night of the incident.  Counsel for Mr Pigdon submitted that the legitimate forensic purpose of the subpoenas is established because the defendant knows that the tenants ‘and/or’ Ms Chambers discussed the plan to access the roof and the defendant has possession of a photograph taken of Ms Moller and Ms Chambers whilst on the roof.

   [5]Ibid [13].

Plaintiff’s Submissions

1. Counsel for Ms Moller submits that the subpoenas are simply fishing expeditions.  There is no evidence that any of the tenants have any of the documents sought.  The text exchanges and photographs involve Ms Moller and Ms Chambers, not the tenants.  Counsel for Ms Moller submits that these subpoenas are an attempt to see whether any such material does exist, and if so, whether it would be of assistance to the defendant’s case.  Counsel submits that this is the very definition of a ‘fishing expedition’ and ought not be allowed.

1. Counsel for Ms Moller further submits that, if the real complaint is about the sufficiency of her discovery, as suggested by the defendant’s submission that she ought not be allowed to ‘cherry pick’ the documents she provides, then the appropriate course is an application for further and specific discovery.

Decision

1. To maintain the subpoenas, the defendant must, precisely and specifically, establish what the legitimate forensic purpose of the subpoenas is.  The possibility that documents may exist which may be relevant to the proceedings is insufficient to establish a legitimate forensic purpose.

1. There is nothing before the Court to establish that any of the tenants took or received photographs or video footage of the house taken on 30 or 31 December 2016.  There is nothing before the Court to establish that the roof of the house had ever been accessed before 30 December 2016, or that photographs or video footage exists of such access.  Indeed the evidence before the Court suggests that accessing the roof was not something that had occurred earlier, as Ms Chambers and ‘Jonny’ were going to ‘suss out the brunny roof’ on 30 December 2016.  This does not suggest that the roof had been accessed before, or that the way to access it was known to the tenants.

1. The possibility that one or more of the tenants have photographs which would show whether lights were on in the room below the skylight at the time of the incident is nothing more than speculation.  The defendant has not been able to point to any basis for the existence of such evidence.  Likewise there is nothing before the Court that suggests that additional photographs, video footage or electronic communications exist that would be relevant to Ms Moller’s use of alcohol around the time of her fall, or would tend to establish that she had been, or had not been, skylarking.  The fact that she was on the roof is not a matter of dispute between the parties.

1. Likewise there is no evidence that the tenants exchanged text messages, emails or otherwise electronically communicated with each other, or with Ms Moller or Ms Chambers between 30 December 2016 and 31 January 2017.  Whilst one might assume that some form of electronic communication occurred, those assumptions would be based on nothing more than speculation about the likely habits of young people living in a share house.  Even if such communications did exist, there is nothing before me to suggest that it would shed light on any of the issues raised by the defendant, or would otherwise be of relevance to the case.  The defendant cannot put it higher than that such material might exist and, if it does exist, it might be relevant to the claim.  The possible existence of such material does not make it relevant to the claim and does not, in my view, establish a legitimate forensic purpose. 

1. I find that the subpoenas have no legitimate forensic purpose and that each of them should be set aside.  The defendant is to pay the plaintiff’s costs of the application.