Christodoulou v Tunstall Square Fruit and Vegetables Pty Ltd

[2010] VCC 1564

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-01179

MARIA CHRISTODOULOU	Plaintiff
v
TUNSTALL SQUARE FRUIT & VEGETABLES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11,12 November 2010
DATE OF RULING:	12 November 2010
CASE MAY BE CITED AS:	Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1564

RULING

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Catchwords: Further application for admissibility of document – no discovery – prohibition upon use of documents in s.134AB(8) of the Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC with	Zaparas Lawyers
Ms P R Riddell
For the Defendant	Mr P A Scanlon QC with	Thompson Lawyers
Ms H Donmez
HIS HONOUR:

1          In the course of this trial, I made a Ruling[1] as to the admissibility and use of a document produced by the defendant several days into the trial. I ruled the document was not admissible, that Counsel was not permitted to cross- examine the plaintiff as to the document, and refused an adjournment for a re- trial.

[1] Ruling of 11 November 2010 – [2010] VCC 1563

2          Despite clear concessions by Counsel for the defendant that the document was discoverable, and by Counsel for the plaintiff that the document ought to have been discovered, examination of the files of each of the respective solicitors disclose that there has been no Notice for Discovery served by the plaintiff’s solicitors upon the defendant’s solicitors, and as a result, no affidavit as to documents provided by the defendant. By Order of her Honour Judge Davis of 29 June 2010, the parties were offered the opportunity to undertake discovery, but, I am advised, at least in the case of the plaintiff, the opportunity was not taken up.

3          It is clear then, there was no obligation on the part of the defendant to discover the document.

4 Section 134AB(11) of the Accident Compensation Act 1985 provides a sanction against the use of a document not disclosed in the exchange process prescribed s.134AB(8). I am informed that, prior to this trial, the Victorian WorkCover Authority or its authorised insurer, pursuant to s.134AB(16)(a), was satisfied the plaintiff’s injury was a ‘serious injury’, and issued a certificate to that effect. It is clear from the decision of the Victorian Court of Appeal in Pravidur v Scental Pacific Pty Ltd,[2] that in such circumstances, the sanction imposed by s.134AB(11) does not apply.

[2] [2010] VSCA 144 at paragraphs 63-65

5          Mr Richards, on behalf of the plaintiff, raised no other issue as the basis upon which it could be said the relevant document could not be used for the purpose of cross-examination, or tendered in evidence.

6          Given these matters, then the restriction imposed by my earlier Ruling no longer applies.

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