Devon v TAC (Ruling)

[2011] VCC 487

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-06016

PRISCILLA DEVON	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2011
DATE OF RULING:	13 April 2011
CASE MAY BE CITED AS:	Devon v TAC (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VCC 487

RULING

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – inspection of subpoenaed documents – prejudice

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Garnham of Counsel	Slater & Gordon
For the Defendant	Ms Boyce of Counsel	Solicitors for the Transport Accident Commission
HER HONOUR:

1 This is an application pursuant to Section 93 of the Transport Accident Act 1986 whereby the plaintiff seeks leave to bring proceedings for damages.

2          At the time she suffered injury, the plaintiff was employed at the Wesley Mission Melbourne (“the employer”). The defendant has subpoenaed the plaintiff’s personnel file from the employer.

3          At a Directions Hearing held on 18 March 2011, counsel for the plaintiff objected to inspection of the employer’s file by the defendant. In particular, counsel for the plaintiff sought to have certain documents withheld from inspection on the basis that their probative value was substantially outweighed by the danger that they may be unfairly prejudicial to the plaintiff. Such documents were described as those relating to alleged criminal behaviour on the part of the plaintiff.

4 During the hearing I was advised by counsel for the plaintiff that it will be alleged at the hearing of the Section 93 application that the plaintiff’s employment capacity has been affected by the injury suffered in the transport accident.

5          The objection to inspection of the employer’s file was withdrawn, save and except for certain documents relating to any alleged criminal behaviour of the plaintiff which the Court ruled were confidential.

6          Having perused those documents, namely an internal memorandum dated 30 April 2009 and four pages of file notes, after the hearing, I do not consider that their probative value is substantially outweighed by any unfair prejudice to the plaintiff as argued by the plaintiff’s counsel at the Directions Hearing.

7 They are documents relevant to the issue of loss of earning capacity which the plaintiff intends to pursue within her Section 93 application.

8          In these circumstances, at pre-trial stage, I am prepared to release the file in its entirety for inspection by the solicitors for the defendant in accordance with Order 42A.

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