Baldock v Howell - [2006] WADC 26

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BALDOCK -v- HOWELL [2006] WADC 26

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 9 & 16 JANUARY 2006, 10 & 24 FEBRUARY 2006

DELIVERED : 1 MARCH 2006

FILE NO/S: CIV 2375 of 2005

BETWEEN: DAMIAN LEIGH BALDOCK
Plaintiff
AND
DANIEL JOHN HOWELL
Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for leave to issue subpoena duces tecum returnable prior to trial - O 36 r 12(4)

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr A J Klein
Defendant: No Appearance

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: Edward John Myers

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff sought leave to issue a subpoena pursuant to O 36 r 12(4) of the Rules of the Supreme Court against the Commissioner of Police requiring the production of all documents held by him relating to the motor vehicle accident as a result of which he was injured. That application was before me on four occasions including 23 February 2006 at which time I was not persuaded that the applicant had discharged the onus. I indicated that I would either dismiss the application or if requested, adjourn it to a later date.
Proposing the latter course was consistent with my observation that the plaintiff would be free to issue a subpoena to the Commissioner returnable at trial and that the determination to do so may provide justification for granting leave in the terms proposed. It seemed to me that to follow that course would at least save the cost of bringing a fresh application. The applicant chose to have the application dismissed. Although reasons were not sought I determined that I would provide reasons in order to present the issues canvassed during the course of the application.
The focus of the plaintiff's interest in the content of the documents was what they would reveal about the defendant's blood alcohol content at the time of the accident. The evidence in support of the application reveals that the defendant was convicted of an offence of driving with a blood alcohol level in excess of .02 percent at the time of the accident.
The relevance of the document or documents that would record the defendant's blood alcohol reading is assessed upon the terms of the defendant's defence. At par 13 he pleads the plaintiff's negligence, voluntary assumption of risk and the basis for denial of the duty of care asserted by the plaintiff. In the form of either particulars or allegations of material fact the text of par 13 refers to the fact that the plaintiff knew or ought to have known that the defendant's capacity to drive and control a motor vehicle was impaired. Upon seeking further particulars of such knowledge the defendant responded as follows:
"The plaintiff attended a party with the defendant and others prior to the crash and he had been in the company of the defendant since about 7pm on the night of the crash. The plaintiff observed the defendant consuming alcohol and the defendant's speech, appearance, demeanour and behaviour and he formed the opinion that the defendant was under the influence of alcohol."
Taking into account the impact of authority as to the limiting effect of particulars on pleadings I appreciate that the defendant's case is that the plaintiff had knowledge of the defendant being under the influence of alcohol.
The plaintiff also received a response to his request for particulars of the defendant's impaired capacity to drive or control the vehicle.
The defendant responded as follows:
"The defendant had consumed alcohol prior to driving and prior to the defendant driving the defendant appeared to be under the influence of alcohol…"
There was no reason to consider that the plaintiff's interest in the content of the documents extended to the prospect that he would seek to have the defendant's blood alcohol reading or his conviction admitted as evidence at trial. The strength of the plaintiff's submission was that access to the documents held by the Commissioner would facilitate informed advice being provided to the plaintiff prior to the pre trial conference. The plaintiff's solicitor conceded that the defendant's solicitor had written to him and advised him that his client's conviction had been founded on a blood alcohol reading of .049 percent. I would add that there might be some additional scope for satisfaction with the fact that the reading was no higher in that had it been the case that it had exceeded .05 percent in all probability the defendant would have been charged with and convicted of a different offence.
The discretion that would be engaged by an application under the rule is not expressed to be limited. The onus upon the plaintiff was to persuade the court that it would be appropriate to exercise discretion in his favour. I indicated to the plaintiff during the course of submissions that relevance was not an issue in obtaining the leave sought and that the applicant's interest in seeking the result could be measured by the fact that he had gone to the trouble and expense to apply.
The datum for the exercise of jurisdiction is that the court does not provide leave as a matter of course. The effect of an order being made is that the freedom of a witness to go about his business would be disturbed and that the actual cost of such disruption may not be recoverable. In any particular case there may be scope to consider that the witness would be troubled to a greater extent than would be the case if the documents were either simply subpoenaed to trial or in the period immediately prior to trial. The fact that a witness has indicated that if ordered to comply he would do so is of no consequence. The fact that he may have procedures in place to respond to any such order efficiently is relevant but a minor consideration.
In my opinion the first significant consideration was that the defendant's case is founded upon the plaintiff's knowledge that the defendant was under the influence of alcohol. The defendant's blood alcohol reading at the time is not a feature of that case. The second was that the reason for presently seeking the reading was neither for the purposes of getting up the case for trial nor trial but rather, considering the prospect and terms of settlement. That perception may reduce the prospect that the witness would be disturbed more than once during the course of the action. The more significant point is that it reveals that the application does not sit comfortably within the scope of the rule. It provides:
"With leave of the Court a writ of subpoena duces tecum may require the person to produce the document or object concerned to the Court on a date before the date of the trial so that the party suing out the writ may inspect the document of object."
Practitioners and litigants may apprehend that the court encourages parties to accommodate their differences in order to reach a compromise. The benefits to all interests need not be repeated. The fact that such encouragement is given ought not carry with it the result that the court would relax the considerations that ought properly apply in considering the impact of judicial power. Especially so where one of the interests before the court include those of the community and a non-party. Embellishing that point, the process sought to be engaged by the application is one in which the court would take the primary role. Although the particular power is expressed as a rule of court, in my opinion it is useful to consider that its exercise would accord with a community expectation that its members would not be inconvenienced other than by the need to attend at the trial of issues between litigants or by the need to provide documents for the court for the purposes of trial. I am not persuaded that it is appropriate for the court to trouble a witness prior to trial without good reason for doing so. In this instance it is proposed that a person who presently is no more than a potential witness at a trial, the date of which has not been set ought be subjected to the jurisdiction of the court. The only justification for that exposure is that the applicant seeks to have information at his fingertips on an occasion where the parties are required to confer in order to consider whether they can reach agreement. In my opinion the prospect that a document or documents held by the witness may assist the plaintiff in reaching a compromise is an insufficient justification for the exercise of power.