Bart v AIA Australia Limited (Ruling)
[2016] VCC 1364
•19 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-16-01710
| SHARON BART | Plaintiff |
| v | |
| AIA AUSTRALIA LIMITED (formerly AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LTD) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2016 | |
DATE OF RULING: | 19 September 2016 | |
CASE MAY BE CITED AS: | Bart v AIA Australia Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1364 | |
RULING
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Subject: SUBPOENAS
Catchwords: Issue of subpoena to former employer seeking employment records – whether documents “relevant” to the issues in the trial – whether subpoena issued for legitimate forensic purpose
Legislation Cited: County Court Civil Procedure Rules 2008, Order 42A.04
Cases Cited:Woolworths Ltd v Svajcer [2013] VSCA 270; Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Ruling: Validity of the subpoena is upheld.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Bingham | Maurice Blackburn |
| For the Defendant | Ms N Hassan | Moray & Agnew |
HIS HONOUR:
1 The plaintiff, Ms Bart, was employed as special counsel by a large Melbourne legal firm (“the legal firm”) over the period from 4 October 2010 to 31 July 2015.
2 At all relevant times, there was in operation a “Lawyer and Manager Group Salary Continuance Insurance Policy” (“the policy”). Ms Bart was an insured person and had a right to recover under the policy in respect of, inter alia, disability. The policy commenced on 1 July 2013.
3 The policy provided that in the event of total disability, Ms Bart would be entitled to be paid a monthly sum. There were various provisions of the policy which defined total disability.
4 It is alleged that on 31 July 2015, Ms Bart part became totally disabled within the meaning of the policy, as a result of psychological illness. In these circumstances, the Statement of Claim alleges Ms Bart was entitled to be paid the monthly benefit under the policy to date and continuing.
5 The defendant, AIA Australia Limited, formerly American International Assurance Company (Australia) Ltd (“AIA”), has refused to pay the monthly benefit. In short compass, AIA says Ms Bart was made redundant at the legal firm on 31 July 2015. It was that redundancy, and not any psychological illness, which was the reason she left employment. As such, she was not totally disabled within the meaning of the policy on 31 July 2015. Further, AIA says there was a term of the policy that required Ms Bart to be under the care of a medical practitioner over a certain period of time in order to satisfy the definition of total disablement. It alleges she was not under the care of a medical practitioner. AIA otherwise denies various allegations in the Statement of Claim.
6 The proceeding is at an early stage. Discovery and interrogation has not yet taken place. On 5 July 2016, solicitors for AIA issued a subpoena to the legal firm for production of documents, pursuant to Order 42A.04(2) of the County Court Civil Procedure Rules 2008 (“the Rules”). The documents sought were:
“The complete personnel file, position descriptions, wage records, rosters, leave records and other document or thing relating to the employment of Sharon Bart.”
7 The legal firm has produced subpoenaed documents to the Court.
8 Mr Bingham, on behalf of Ms Bart, resisted inspection of the subpoenaed material on the following grounds:
· the subpoena was not issued for a legitimate forensic purpose
· the general nature of the subpoena constituted a “fishing expedition”
· the process was used as a substitute for proper discovery
· The purpose of an Order 42A subpoena was to gather evidence in anticipation of trial.
9 Ms Hassan, on behalf of AIA, made the following submissions:
· the test for the production and inspection of subpoenaed documents is one of “relevance”. The authorities have defined that word to mean that the documents could rationally affect an issue in the proceedings or that it is “on the cards” that a document may assist a party on such an issue.
· It was not only a question of the state of Ms Bart’s health as at 31 July 2015, but what occurred in the course of her employment over the years before that.
· It was important to establish the nature and extent of the legal duties Ms Bart was required to undertake. The documentation sort ought reasonably to set out those duties and, importantly, the extent to which Ms Bart was able to perform them. That was a matter relevant to the issue of whether she left employment as being incapable or unable to perform those duties, and thus made redundant, rather than as a result of any psychological illness.
· The records of the legal firm could reasonably be expected to detail any recorded absences from work as a result of illness, or any recording of medical certificates and the like.
· If there was an absence in the materials of any reference to psychological illness, then that, of itself, would be a matter relevant to the proceeding. Likewise, if there was an absence of any reference to Ms Bart being unable to perform her duties, that would be relevant.
· The material could be expected to reveal wage records, performance reviews, rosters indicating the hours worked and Ms Bart’s position description, all matters relevant to determine the issues in dispute in the proceeding.
10 The principles as to whether or not a party is entitled to access documents which have been subpoenaed are, relevantly, set forth in Woolworths Ltd v Svajcer:[1]
[1][2013] VSCA 270 at paragraph [16]
“(a)it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c)the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena will ‘materially assist the defence’;
(d)a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;
(e)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 to obtain documents to see whether they may be of relevance or of assistance in his or her defence;
(f)a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough — the criteria set out in (c) must be satisfied;
(g)… .;
(h)where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.”
11 The documents sought must be specified with reasonable particularity. A request to produce all documents which may be in a party’s power or possession is impermissible.[2] The scope of the documents sought is expressed in general terms. The complete personnel file is sought, although that description is somewhat refined by the words that follow, including “position descriptions, wage records, rosters, leave records ...”. The request includes “and any other document or thing relating to the employment of Sharon Bart”. The request for the complete personnel file, and any other document relating to Ms Bart’s employment, is too wide. In the course of argument, Ms Bart somewhat refined what was being sought by specifying:
[2]Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573
· wage records
· position description
· rosters
· leave records, in particular sickness leave records
· any documents relating to Ms Bart’s termination
· records of any complaints or concerns about Ms Bart’s work performance
· performance reviews.
12 In my view, wage records are not relevant as they can be obtained through discovery. Likewise documents relating to her position description can also be obtained through discovery.
13 In relation to rosters, Ms Hassan’s point is that those rosters would give an indication of the hours she worked. If she was working long hours, that would tend to mitigate against a person suffering psychological illness.
14 Sickness records, documents relating to termination, recorded complaints and performance reviews were all matters, said Ms Hassan, specifically relevant to whether on the one hand, she was made redundant for want of performance, or on the other hand, by reason of her illness.
15 In my view, Ms Hassan’s submissions should be accepted. I am satisfied that a real issue in the proceeding is the circumstances under which employment was terminated. Performance reviews and complaints or lack of them about Ms Bart’s work are relevant. Certainly any documents which reflect upon what occurred at the time of her termination are relevant. Sickness records, or lack of them, are clear pointers towards issues with Ms Bart’s psychological health.
16 Mr Bingham submitted only those documents relevant to the commencement of the total disability on and around 31 July 2015 are relevant. However, I am of the view that documents relating to the areas which I have identified over the whole period of Ms Bart’s employment should be disclosed. For instance, if she were able to perform all of her duties, with glowing reviews over that whole period, it would suggest the proposition that she was terminated for want of ability. On the other hand, were she regularly absent from work over the years from 2010 on some form of sickness leave, that would point towards her leaving employment because of psychological incapacity.
17 It should be borne in mind that a personnel file kept by an employer may contain sensitive and private documents. A person’s reputation in the employment community, in particular the legal community, should be protected wherever possible. A personnel file may contain documents which, for a number of reasons, including privilege, should thus not be disclosed. Accepting Ms Hassan’s submission that is appropriate for the personnel file to be produced to the parties, I propose to allow Ms Bart’s solicitors to first inspect the file, and identify any documents which may fall into that category.
18 I will uphold the validity of the subpoena confined to the areas to which I have referred, with liberty to the plaintiff to apply if there are any documents which should be excluded from inspection.
19 I will hear from the parties as to appropriate orders.
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