Creighton Charles Chand v Madeline Claire Worsley

[2019] NSWDC 136

District Court

New South Wales

Medium Neutral Citation:	Creighton Charles Chand v Madeline Claire Worsley [2019] NSWDC 136
Hearing dates:	12 April 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Civil
Before:	Strathdee, DCJ
Decision:	(1)   The Crown Solicitor has standing to appear for the Respondents on their motions to set the subpoenas aside. (2)   The subpoenas are set aside. (3)   The plaintiff is to pay the Crown Solicitor’s costs of the motions. (4)   No order as to the defendant’s costs of the motions.
Catchwords:	CIVIL – practice and procedure – subpoenas – setting aside – proper approach – two-step process – relevant considerations MOTOR ACCIDENTS COMPENSATION ACT – bias – independence of assessors – competent but not compellable – jurisdiction of District Court – prospective challenge to constitution of review panel
Legislation Cited:	Legal Profession Uniform Law Application Act 2014 (NSW) Motor Accidents Compensation Act 1999 Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	AG (NSW) v Chidgey [2008] NSWCCA 65 Attorney General for New South Wales v Dylan Chidgey (2008) 182 A Crim R 536 [2008] NSWCCA 65 Carroll v AG (NSW) (1993) 70 A CrimR 162 ICAP Australia v BGC Partners (Australia) [2009] NSWCA 307 Regina v Saleam [1999] NSWCCA 86 Rinehart v Rinehart [2018] NSWSC 1102 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710
Category:	Procedural and other rulings
Parties:	Creighton Charles Chand (Plaintiff) Madeline Claire Worsley (Defendant) NSW Crown Solicitor
Representation:	Counsel: Mr R O’Keefe appeared for the Plaintiff Ms J Lucy appeared for the Defendant Mr J Emmett appeared for the NSW Crown Solicitor   Solicitors: Shine Lawyers (Plaintiff) Hall and Wilcox (Defendant) NSW Crown Solicitor’s Office
File Number(s):	2016/00339880
Publication restriction:	None

Judgment

1. By way of Notices of Motion filed in this Court on 1 March 2019 the applicant on the motion, Crown Solicitor for NSW, seeks the following relief or orders:

1. That leave be granted to file this Notice of Motion in Court.

2. The plaintiff’s subpoenas issued to the subpoenaed parties returnable on 1 March 2019 be set aside generally pursuant to Part 33.4 of the Uniform Civil Procedure Rules 2005 (‘the UCPR’) as an abuse of process on the grounds that it lacks a legitimate forensic purpose and/or represents an impermissible fishing expedition.

3. In relation to paragraph 4 of the schedule to the subpoena, s 59A(2) of the Motor Accidents Compensation Act 1999 (‘the MACA’) applies and the Subpoenaed party is not compellable to produce documents.

4. Time for service be abridged to 1 March 2019.

5. The plaintiff pay the costs of this motion.

6. Such further or other order as the Court may deem fit.

2. By way of Notice of Motion filed in this Court on 7 March 2019, the plaintiff seeks a the following orders:

1. A declaration that, pursuant to s 44 of the Legal Profession Uniform Law Application Act 2014 (NSW) (‘the LPULA Act’) and having regard to regulations 7.1(6) and 7.24(2) of the UCPR, the Crown Solicitor has no standing to represent the respondents on hearing of the respondent’s motion to set aside subpoenas issued by the plaintiff to each respondent.

2. That the Crown Solicitor’s Office or alternatively each of the respondents pay the costs of this motion.

BACKGROUND

3. The plaintiff, Creighton Charles Chand, who was born on 22 January 1969, claims damages in this Court for personal injuries sustained in a motor vehicle accident which occurred on 26 January 2016 in St Ives in the State of New South Wales at the intersection of Mona Vale Road and Link Road.

4. The defendant, Madeline Claire Worsley, was driving a motor vehicle registration COQ 93A. The front near side of her vehicle collided with the plaintiff’s motorcycle registration AKH 35 within the dedicated right turn lane from Mona Vale Road into Link Road.

5. The plaintiff alleges that whilst he remained stationary the defendant drove her motor vehicle into the rear of the motor cycle, causing him to brace to keep the motorcycle from falling over.

6. The resulting injuries principally being aggravations to pre-existing degenerative changes in the both knees, the right ankle and the left shoulder.

7. The defendant denies breach of duty, and consequently the matter was exempted pursuant to s 92(1) of the MACA and proceedings were commenced in this Court by way of Statement of Claim filed 11 November 2016.

8. If the plaintiff proves negligence the plaintiff will be entitled to non-economic loss because Dr Harvey-Sutton assessed the plaintiff’s Whole Person Impairment from physical injuries at 12% thus entitling him to damages for non-economic loss (s 131 MACA).

9. The defendant has applied for Dr Harvey-Sutton’s assessment to be reviewed by a Medical Panel. The panel comprises of Dr Clive Kenna, Dr Margaret Gibson and Dr Thomas Rosenthal.

10. The plaintiff has issued subpoenas to the members of the medical review panel to produce the following (in summary form):

1. Documents evidencing the number of medico legal assessments conducted over the 12 month period to 31 December 2018;

2. Documents evidencing the number of assessments conducted on behalf of the insurance companies or employers and on behalf of claimants and plaintiffs and specifically on behalf of Allianz Australia Insurance Limited.

STANDING OF THE CROWN SOLICITOR

11. The plaintiff disputes the Crown Solicitor’s capacity to appear on behalf of the subpoena recipients.

12. Section 44 (1)(f) of the LPULA Act provides as follows;

‘The Crown Solicitor may, in his or her official capacity, act as solicitor for a person holding office under an Act or other law of New South Wales or because of the person’s appointment to that office by the Governor or a Minister of the Crown.’

13. After receiving helpful written submissions from Counsel for the plaintiff and Counsel for the Crown Solicitor’s Office, and after hearing oral arguments, I ordered that the Crown Solicitor’s Office has standing to appear for the subpoena recipients pursuant to s 44 of the LPULA Act. The parties did not require reasons.

MEDICAL ASSESSMENTS AND REVIEWS UNDER MACA

14. Part 3.4 of the MACA applies to medical assessments when there is a disagreement between a claimant and an insurer about certain matters including the degree of impairment of the injured person as a consequence of an injury sustained in a motor vehicle accident is greater than 10%.

15. The appointment of a review panel has occurred at the defendant’s request. The review panel can either confirm or replace the current certificate pursuant to s 63(4), and the review panel certificate will prevail over any previous certificates as to the matter to the extent of any inconsistency pursuant to s62(2).

16. The plaintiff submits that to achieve a cheap and efficient process of assessment of a claim in accordance with the objects of MACA, it is necessary to for them to be satisfied that the assessors are compliant with the provision of documentation to establish that the proportion of work undertaken for insurance companies and claimants is in accordance with their stated guidelines. They submit that this documentation is relevant to the question of bias and procedural fairness, and that it can only be obtained by production of documents pursuant to a subpoena.

SETTING ASIDE OF SUBPOENAS

17. To determine whether a party is required to produce documents pursuant to a subpoena, a two-step process is undertaken. The applicant for production must:

1. Identify a legitimate forensic purpose for which access is sought; and

2. Establish that it is ‘on the cards’ that the documents will materially assist his or her case: (see Regina v Saleam [1999] NSWCCA 86).

18. In Attorney General for New South Wales v Dylan Chidgey (2008) 182 A Crim R 536 [2008] NSWCCA 65 at [11] Beazley JA (with whom James and Kirby JJ agreed) said:

‘The principles governing applications (for an order that documents not be produced) are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is “on the cards” that the documents will materially assist his case….

The genesis of the expression ‘on the cards’ is to be found in the Judgment of Gibbs CJ in Alister v R [1983] 154 CLR 404 at 414.’

19. A subpoena is liable to be set aside unless it has legitimate forensic purpose: ICAP Australia v BGC Partners (Australia) [2009] NSWCA 307 at [9]. This requires consideration of the relevance of the documents to the issues in the proceedings: (see Rinehart v Rinehart [2018] NSWSC 1102 at [47]). However, mere relevance is not enough: (see AG (NSW) v Chidgey [2008] NSWCCA 65 at [59]-[60]).

20. In Carroll v AG (NSW) (1993) 70 A CrimR 162 at 182, Mahoney AP stated as follows;

‘In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case….He must be able to indicate that the document is relevant in the sense that it may assist the case. IN the present case, that could not be claimed. Nor was it shown. At best, the claim was ‘I wish to see the document to see if it may assist my case’. That, in my opinion, is not sufficient.’

21. Subpoenas are also liable to be set aside if they are oppressive or unduly onerous. This requires balancing considerations including the reasonableness of the burden imposed by the subpoena and the relevance of the material sought: (see Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 at 719-720).

22. The plaintiff submits that the legitimate forensic purpose for which the documents are sought is to establish that the review panel as presently constituted contains medical assessors who are not capable of affording him a proper hearing by reason of bias. They submit that if the documents are produced, and they establish this fact, the plaintiff can then make an application in this court for a further assessment by a differently constituted panel. They rely on the provisions of s 62 (1)(b) of the MACA which confers a discretionary power on the Court.

23. However, it seems to me that the only power that this court has is to reject a certificate of assessment once the certificate has issued (s 61(4) MACA). That power only arises if there has been a denial of procedural fairness, and that the admission of the certificate would cause substantial injustice. It does not seem to me to allow a prospective challenge to the composition of the panel.

24. If a certificate had issued and an application to to this court was made to reject the certificate, this Court has only limited power to substitute its own determination, being on the question of whether or not the degree of permanent impairment is greater than 10%. Apart from that, this court may not substitute its own determination but may refer the matter again for assessment (s 61(5)-(8) MACA).

25. These provisions are not yet enlivened as the panel has not conducted its review of the plaintiff, nor decided whether it confirms the existing certificate of assessment, or revokes it and issues a new certificate. Accordingly, none of these considerations make the documents relevant.

26. The Crown solicitor submits that the documents which are sought by the plaintiff are not relevant to the issues in dispute in the District Court proceedings. They refer my attention to paragraph [32] of the plaintiff’s affidavit of 4 April 2019 (Exhibit B) which reads as follows:

‘I subsequently instructed my solicitors to challenge the composition of the panel and then issue subpoenas to proposed panel members; which subpoenas are now subject to challenge by Motions filed on behalf of proposed panel members by the Crown Solicitor’s Office.’

27. The Crown Solicitor’s Office submits that as the purpose of the plaintiff’s subpoenas is to challenge the composition of the panel and that the District Court has no jurisdiction to entertain such a challenge – that, they submit, would be a matter for the Supreme Court in its judicial review jurisdiction: (see s 69 of the Supreme Court Act 1970 (NSW)).

28. The Crown solicitors office also submit that the subpoenas are an attempt to circumvent the protection of the medical assessors as contained in s 59A(2) of the MACA, which provides that assessors are competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as a medical assessor.

29. I accept that if there is any legitimate forensic purpose to the subpoenas it is tenuous at best. I believe that the breadth of the documents sought renders the subpoenas oppressive and denies the assessors the express protection afforded by s 59A of the MACA.

30. The aim of the plaintiff in requesting these documents is to challenge the review by way of a challenge of the constitution of the review panel, before the review is conducted. I accept that this court does not have the jurisdiction to entertain such a challenge, and that the plaintiff has a remedy after the panel has provided its findings on the review, by way of an application to the administrative division of the Supreme Court.

31. As such, the subpoenaed parties’ motions to set aside the subpoenas are granted.

ORDERS

32. I make the following orders:

1. The Crown Solicitor has standing to appear for the Respondents on their motions to set the subpoenas aside.

2. The subpoenas are set aside.

3. The plaintiff is to pay the Crown Solicitor’s costs of the motions.

4. No order as to the defendant’s costs of the motions.

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Decision last updated: 18 April 2019