Clarke v BHP Billiton Direct Reduced Iron Pty Ltd - [2006] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CLARKE -v- BHP BILLITON DIRECT REDUCED IRON PTY LTD [2006] WADC 32

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 20 FEBRUARY 2006

DELIVERED : 14 MARCH 2006

FILE NO/S: CIV 1598 of 2003

BETWEEN: CECILIA MARIA CLARKE
Plaintiff
AND
BHP BILLITON DIRECT REDUCED IRON PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for leave to issue a writ of subpoena duces tecum for production at the Court prior to trial - Significance of ex parte application - Onus of persuasion and inferences

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff: No Appearance
Defendant: Mr N M Beech

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Pynt & Partners

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: By its ex parte application of 6 February 2006 the defendant sought leave under O 36 r 12 to issue subpoenas to three witnesses to produce documents before the court prior to trial. The application was before me on 20 February 2006 at which time I indicated that I was not then disposed to grant the order. The applicant then sought to have the application adjourned sine die. Upon it being re-listed at the applicant's request it was dismissed at the applicant's request.
Although I have not been asked to provide reasons for the conclusion that I reached on 20 February 2006 I will canvass the considerations that were then before me and record the reasons. During the course of undertaking the exercise I noted that the applicant had appealed.
The application was made in a case by which the plaintiff sought damages for loss arising from personal injury. In the application the applicant's focus was upon two aspects of that case. The first being the plaintiff's allegation that as a result of injury to her back she is left with 20 per cent loss of its function and the second, that she suffers depression. It was my understanding that from the perspective of the applicant, the way in which the plaintiff's case had evolved indicated that the plaintiff would attribute the relevant deficits to the result of the defendant's negligence.
It appears from the applicant's solicitor's affidavit that a significant contribution to that perception was made by what experts had reported of information provided to them by the plaintiff. Illustrations are provided in the report of Dr Gee of 24 June 2002, in which he stated "She has had no previous accidents" and of Mr G W Thomas of 2 April 2004:
"She had no prior history of any significant neck or low back pain problems. As you asked me to I questioned her about the basketball incident when she was 17 years of age. This was an isolated incident when she had spasms of pain in her back on one occasion only and had to be withdrawn from the game. She does not in fact recall having any leg pain of that occasion. This instant was brief and did not result in any ongoing back pain problem. She did admit to having some back discomfort when pregnant with her children but this was at least 20 years ago and since that time she did not experience any back or neck pain problems up until the accident which occurred at work on the 8^th June 2001."
Prior statements attributed to the plaintiff, particularly those in notes recorded as a result of the plaintiff's attendances at BHP Medical Centre identified by the designations 8 June 2001 and 4 July 2001, provide a useful datum for analysis. The notes attributed to the first of those dates are canvassed at pars 7 and 8 of the applicant's affidavit as follows:
"Immediately following the accident the plaintiff attended the BHP Medical Centre. The Centre's notes for the material date make the following express mention of a recurrence in January of 2001 (approximately five months prior to the material date) of back symptoms originally suffered during the basketball game when the plaintiff when (sic) 17 years old:
'Unable to take NSAI, has Celebrex. Will take BD for physio Monday. … - had first injury at 17 yo, exacerbation 1/01 and now another exacerbation following incident carrying approximately 7 kg item, lost her grip and lunged.'
The Centre's notes for the material date also state the plaintiff was:
' … sent home as she has anti-inflammatories at home' "
Those that relate to the second are expressed in the following terms at par 9:
"The Centre's notes for 4 July 2001 record a history of 3-4 episodes of low back pain initially as a 17 year old and then again in August 2000 where it is said the plaintiff attended the Accident and Emergency Department for analgesia and that she was on workers' compensation for 4 days. The same note records the author's diagnosis of a possible discal injury with a history suggestive of previous episodes."
That evidence resonates with observations reported to "Medical Centre, BHP HBI" of 12/06/01 by Bryn Moulds of Hedland Physiotherapy as follows:
"Cecelia reports a long past history of lower back pain with some leg radicular symptoms on occasions ever since falling over playing basketball when she was 17 years old."
Conceivably the same history emerges from the plaintiff's report of the accident to the defendant in which she reports "some problems before" the event in the relevant part of her body and in response to the proposition that the disability reported may be attributable to the events of the material date, and if not, provide details, responded "lower back pain (no injury)" and the name of a medical practitioner who had treated her for similar disability.
At par 10 the affidavit identifies information provided by the plaintiff to the BHP Medical Centre some two months after the material date in the form of a note that the plaintiff had previously been on anti-depressants, namely Valium.
The applicant seeks to issue a subpoena to the manager of the medical centre at which the practitioner reported by the plaintiff to have treated her for similar injury had formerly practised. I have no difficulty with the relevance of any notes that relate to such treatment. The applicant had satisfied me that it was the practice rather than the practitioner holds the material the subject of that proposed subpoena. It also seeks to issue subpoenas against another medical centre and the regional hospital on the strength of unspecified consultations or treatment that had been reported to the Health Insurance Commission. I am satisfied that the consultations either occurred or that treatment was provided but have no understanding of whether either process would relate to any issue brought before the court in the action.
In my opinion it was straightforward that as against the two witnesses other than the medical practice the application must fail. That onus that the applicant is required to discharge must engage with a perception that what is sought to be obtained from the witnesses is relevant. It is not inappropriate to simply speculate that a witness may have relevant material and frame the subpoena so as to exclude irrelevant material. It may be that the applicant considers that in relation to those proposed witnesses it could not have done any better. If that were the case I would suggest that the more appropriate conclusion to reach was that there was an insufficient basis to bring the application. In my opinion any other conclusion would reveal lack of responsibility in the exercise of power.
As to the notes of the particular practitioner held by his former practice it is a matter of whether it is appropriate to exercise power to presently require that they now be brought to court. A party may issue a subpoena as of right in order to ensure that documents are produced to the court for trial. Such a subpoena would be usually being returned on the first day of trial. Experience reveals that the opportunity to consider and integrate any information so provided would be maximised if the documents became available in the period leading up to the trial. I would suggest that a week or so prior to trial would accommodate the interests of litigants in most cases although I imagine that others may consider that a more generous period might be appropriate. Regardless of the length of the period under consideration the significant datum is the date of trial. There is nothing to suggest that this case would fall for consideration under that analysis. The onus is on the applicant and there is nothing provided to indicate that trial dates have been set.
At par 17 of his affidavit the applicant's solicitor deposes the documents sought by the defendant constitute evidence vital to the ongoing management of the action on behalf of the defendant.
In the absence of any useful evidence as to the applicant's motivation in presently pursuing the result sought, the inference most favourable to the applicant is that it seeks access to information that may assist it in getting up its case for trial. Whether it is appropriate to be drawing any inference in circumstances where the applicant carries the evidentiary onus and is silent both on point and as to any difficulty in providing evidence is another matter. I consider that in most such contexts the inferences that ought be reflected upon are all adverse to the applicant.
As it stands the applicant's pleading is a denial of the relevant aspect of the claim. It raises no positive assertion on which it would carry the onus. I understood that there might be a prospect that it would amend its defence to plead the plaintiff's condition prior to the material date, however, I can only determine the case on what is presented.
It is appropriate to consider that the applicant is presently engaged in the process of getting up the case for trial. There is no reason to consider that it would have any difficulty in putting to trial the evidence that is presently before me. The defendant is well aware of the relevant features of the plaintiff's history and presumably has proofed its own witnesses. As I have already recorded, one of the resources available to the defendant is the notes taken of relevant conversations had with the plaintiff. In an ex parte application made in an action the applicant has the responsibility to present all relevant material. In the absence of any evidence on point I consider that it is appropriate to infer that the person or persons who undertook that recording did so in accordance with a responsibility owed to the applicant. It follows that it is appropriate to consider that in getting up its case for trial the defendant would have had access to and proofed those witnesses. I observe that the action was commenced two years after the material date. A sufficiently short period of time to consider that proofing may have been undertaken independently of the content of the particular notes.
I accept that as would be the case with most defendants in circumstances such as those revealed in this action, relative to the position of the plaintiff, the defendant confronts an information deficit. Of itself that is of no particular significance. It has always been the case and will always be the case that parties bring different resources and different levels of the same resources to litigation. It is fanciful to consider that litigation is or should be conducted on a level playing field.
As I indicated to the defendant on 20 January 2006 I have no doubt that it would like to approach trial with the maximum amount of information relating to the plaintiff. Its interest in obtaining access to the notes of the particular practitioner would intensify as trial approaches. If in the weeks leaving up to the trial it transpired that the defendant determined that it would be appropriate to subpoena the notes to trial, it would be appropriate for it to consider the early return of such a subpoena if only to alleviate the prospect of distraction from the task of attending to the balance of what would be presented on the first day of the trial. That approach would appear to accord with O 36 r 4 which is as follows:
"With leave of the Court a writ of subpoena duces tecum may require the person to produce the document of 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 or object."
As I understood the applicant's response, its application to adjourn sine die may have been in part prompted by that suggestion.
To this point I have considered that the applicant's interest would be in considering the content of documents prior to trial or for the purpose of getting up case for trial. There is a prospect that by their production it may obtain some benefit in the form of enhancing the prospect of settlement. It is appropriate for the court to encourage parties to settle their differences without the recourse to trial. The fact that it does so would not translate into the proposition that it would be disposed to exercise jurisdiction in such a manner as to enhance that prospect. Indeed it is because there may be scope for such perception that it is important that applications such as that before me be determined on their merits. The expression of power at O 36 r 12(4) does not reveal the intention that leave would be granted in every case. The power is exercisable in a case where the court considers that there is good reason for a witness to be engaged in the trial process at a point prior to trial.