Gebrehiwot (who sues by his Litigation Guardian Tamar Hopkins) v State of Victoria (Ruling No 1)
[2019] VCC 1028
•10 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-05267
| TADDIS GEBREHIWOT (who sues by his Litigation Guardian TAMAR HOPKINS) | Plaintiff |
| v | |
| THE STATE OF VICTORIA | Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2019 | |
DATE OF RULING: | 10 July 2019 | |
CASE MAY BE CITED AS: | Gebrehiwot (who sues by his Litigation Guardian Tamar Hopkins) v State of Victoria (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1028 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Subpoena to produce documents – whether legitimate forensic purpose established – whether ‘on the cards’ that material the subject of the subpoena would establish any matters relevant to the proceedings – whether defendant engaged in a ‘fishing expedition’
Legislation Cited: County Court Civil Procedure Rules 2008, r42A.08
Cases Cited:Woolworths Limited v Svajcer [2013] VSCA 270; Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 0003; Messade v Baires Contracting Pty Ltd [2011] VSC 56
Ruling: Plaintiff’s objection to the disclosure of the relevant material in the subpoena upheld.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Robinson Gill |
| For the Defendant | Mr P Lawrie | Russell Kennedy |
HIS HONOUR:
1 The plaintiff issued proceedings on 9 November 2017 with a General Indorsement of claim. The plaintiff alleged he suffered injury as a result of the conduct of employees, officers and or agents of the Victoria Police (“VicPol”) on 17 November 2014 when assaulted, battered and falsely imprisoned.
2 A Statement of Claim dated 15 December 2017 was filed pleading more specifically the allegations against the officers of VicPol. Three members were named, and the plaintiff alleged that at no time, any member told him he was under arrest or why he was under arrest. It was alleged he remained unlawfully arrested and falsely imprisoned until he was released from custody into the care of paramedics.
3 An application was made to the Court for the appointment of a litigation guardian by the plaintiff solicitors, and on 18 October 2018, the Court made appropriate Orders. The grounds for the appointment was that the plaintiff had been previously diagnosed with an intellectual disability.
4 In the Amended Defence dated 21 June 2019, it was pleaded one of the police officers had previously had multiple interactions with the plaintiff and knew the plaintiff’s identity. Further, the police were investigating an attempted robbery which had occurred in the area where the plaintiff had been located. It was also admitted that the plaintiff was not a person of interest to the police in relation to the attempted robbery or any other offence prior to their attendance at where he was located. However, it was pleaded that the plaintiff approached the investigating officer and other police members with other males at the scene and used aggressive and abusive language. The investigating officer pushed the plaintiff with an open hand and created a distance between himself and the plaintiff. Further, the plaintiff’s manner of speaking, walking and general demeanour caused the police members to form a belief that the plaintiff was drunk. The investigating officer alleged that he told the plaintiff he was under arrest for being drunk in a public place.
5 The proceeding is fixed for trial on 31 July 2019 as a jury, with an estimate of ten days.
6 On 29 March 2019, the defendant’s solicitors issued five Form 42AA subpoenas for production to registrar. Those subpoenas were addressed to:
(i) the proper officer of the Department of Health and Human Services (“DHHS”);
(ii) the Chief Commissioner of VicPol;
(iii) the proper officer of Australian Community Support Organisation;
(iv) Dr Anita Govindan of 275 Consulting; and
(v) the proper officer of Drug Health Services Adult & Specialist Programs.
7 The return date for all five subpoenas was 24 April 2019.
8 By letter dated 18 April 2019, the plaintiff’s solicitors objected to the defendant inspecting the documents on the grounds that:
(a) the documents had no legitimate forensic purpose; and
(b) the documents were not relevant to the proceedings.
9 It should be noted that at the time the objection was lodged, the plaintiff’s solicitor had not inspected the documents in question.
10 The plaintiff’s solicitors had, of course, pursuant to Rule 42A.08 of the County Court Civil Procedure Rules 2018, sub-rule (2), the right to inspect any hospital or medical file or record concerning the plaintiff or plaintiff’s condition before taking objection under paragraph (1) of the Rule.
11 The objections hearing was listed before me on 13 May 2019, when I was informed the objection was now limited to the subpoenas addressed to Australian Community Support Organisation, the Drug Health Services Adult & Specialist Programs and Dr Anita Govindan. The parties sought, by consent, orders granting leave for the plaintiff to view, inspect and copy the material produced for those subpoenas. I made other Orders granting leave to file and serve a further amended statement of claim and an amended defence to that further amended statement of claim. The objections hearing was adjourned to 25 June 2019.
12 On 25 June 2019, I was informed that the objection was now limited to the subpoenaed material received from the Chief Commissioner of VicPol and the proper officer of DHHS which is the subject of this Ruling.
13 The solicitor for the defendant, John Ernest Morcom, filed with the Court on 24 June 2019, an affidavit sworn that day. In that affidavit, he deposed to a previous affidavit sworn on 13 May 2019 which has not been filed with the Court. It was handed to the defendant’s counsel at the end of submissions to be provided to me.
14 The plaintiff’s solicitor, Yusur Al-Azzawi, filed an affidavit affirmed on 24 June 2019.
15 The schedule of documents sought in the subpoena to DHHS is as follows:
“The documents and things you must produce are as follows:
Copies of all notes, records, emails, letters, reports and other documents (including all computer records), whether original or copies, relating to the Plaintiff’s (Taddis Gebrehiwot, date of birth 25 June 1979) past:
1. Alcohol consumption.
2. Illicit drug/s consumption.
3. Psychological condition.
4. Psychological treatment.
5. Behavioural issues including violence or threatened violence to another person.
6. Offences he was convicted of involving at any time:
a.Assault, violence or threat of assault or violence to another person.
b.Resisting arrest by the Plaintiff.
c.Failing to follow a direction by a Police Officer.
d.The Plaintiff being under the influence of alcohol or illicit drugs.”
16 The Schedule of Documents sought in the subpoena to VicPol is as follows:
“The documents and things you must produce are as follows:
1. Criminal history record of the Plaintiff (date of birth: 25/06/1979) pertaining to offences committed by the Plaintiff that involved at any time, whether before, during or after the committing of the offence/s:
a. Assault or threat of assault to a Police Officer by the Plaintiff.
b. Resisting arrest by the Plaintiff.
c. The Plaintiff having to be physically restrained to arrest him.
d. Failing to follow a direction by a Police Officer.
e. Assault or threat of assault to another person.
f. The Plaintiff being under the influence of alcohol or illicit drugs.
2. The Police/criminal briefs pertaining to offences committed by the Plaintiff that involved at any time, whether before, during or after the committing of the offence/s:
a. Assault or threat of assault to a Police Officer by the Plaintiff.
b. Resisting arrest by the Plaintiff.
c. The Plaintiff having to be physically restrained to arrest him.
d. Failing to follow a direction by a Police Officer.
e. Assault or threat of assault to another person.
f. The Plaintiff being under the influence of alcohol or illicit drugs
3. Summonses, complaints, reports, Police statements and witness statements not part of Police/criminal briefs (whether because they are part of prosecutor’s file or otherwise), pertaining to offences committed by the Plaintiff that involved at any time, whether before, during or after the committing of the offence/s:
a. Assault or threat of assault to a Police Officer by the Plaintiff.
b. Resisting arrest by the Plaintiff.
c. The Plaintiff having to be physically restrained to arrest him.
d. Failing to follow a direction by a Police Officer.
e. Assault or threat of assault to another person.
f. The Plaintiff being under the influence of alcohol or illicit drugs.”
17 The Court of Appeal, in Woolworths Limited v Svajcer,[1] referred to the principles set out by J Forrest J in Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors,[2] and restated by his Honour in Messade v Baires Contracting Pty Ltd[3] relating to whether a party is entitled to access documents which have been subpoenaed. The principles were:
[1][2013] VSCA 270
[2][2011] VSC 0003
[3][2011] VSC 56
“(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)in criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(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.”
18 The plaintiff’s solicitor’s objection was expressed in correspondence of 18 April 2019 to the defendant’s solicitor, where it was stated:
“I submit that these documents are not relevant and do not have a legitimate forensic purpose for the following reasons:
(a)The documents sought do not go to any of the issues in dispute between the parties and are unrelated to the issues in dispute between the parties;
(b)The documents pertain purely to the plaintiff’s credit. In that regard, I draw your attention to the decision of Fried & Ors v National Bank Ltd & Ors [2000] FCA 911 and in particular the comments of Weinberg J, who states:
‘The Court should scrutinise carefully any subpoena directed towards the production of documents which are relevant to credit only, particularly when the documents are said to bear only upon matters which go to credit, and which are wholly unrelated to the issues in dispute.’
I submit that the court would be reluctant to uphold the subpoenas in these circumstances.”[4]
[4]Plaintiff’s solicitor’s affidavit of Yusur Al-Azzawi dated 24 June 2019, exhibit YA1
19 Counsel for the defendant referred to two medico-legal reports obtained by the plaintiff’s solicitors, and submitted that the material from VicPol and DHHS would assist the defendant when cross-examining these witnesses. They were reports of Associate Professor N Paoletti, psychiatrist, dated 17 August 2018, and Louise Vernieux, neuropsychologist, dated 28 May 2019. I was informed that the defendant had not arranged any medical examinations of the plaintiff.
20 What does not appear in dispute between the parties, is that the plaintiff has a pre-existing intellectual disability, a history of interaction with VicPol, alcohol abuse, depression and of having been assaulted. The plaintiff was born in Ethiopia and came to Australia with his father, stepmother, sister and two half-brothers. He had been in a refugee camp for a number of years.
21 I have read the reports of Professor Paoletti and Louise Vernieux which detail an extensive history of the plaintiff. That history has been obtained from material provided to the experts, from the plaintiff himself or an advocate who attended with him at the examination. Louise Vernieux noted, at page 2 of her report:
“Taddis was a poor historian so the following information is cobbled together from what he could tell me and the documents provided.”
22 I note that neither specialist refer to the need for additional material for the purpose of providing their opinion. In that regard, in Professor Paoletti’s report, at pages 8 and 9, having noted the pre-existing factors as reported by the plaintiff and from material provided, he said “on balance, while these background factors are also significant, the most salient fact in this man’s mind at present is the alleged incident with police on 17 November 2014”.
23 Exhibited in the plaintiff’s solicitor’s affidavit was correspondence dated 8 May 2019 from the defendant’s solicitor in reply to their letter of 18 April 2019. This letter expressed the grounds why the defendant maintained there was established, a legitimate forensic purpose for access to the material. The letter often summarised the history provided in the reports which was then followed by comment that the material requested would have forensic purpose. An example was at page 4, where reference was made to whether the plaintiff suffered from depression and or anxiety, and the extent to which it was attributable to the alleged assault. The defendant’s solicitors stated:
“… From my experience with past psychological injury claims, behaviour resulting from anger such as violence or threatened violence can be inconsistent with depression. On that basis we consider documents requested in paragraph 5 of the subpoenas to the Department of Health and Human Services, the Drug Health Services Adult & Specialist Programs, Dr Anita Govindan and Australian Community Support Organisation have forensic purpose.”
24 What is sought from the subpoenaed organisations is very wide. For the DHHS subpoena, material is requested relating to the plaintiff’s alcohol consumption, illicit drug consumption and treatment. Material sought at paragraph 5 of the schedule for example, included material on behavioural issues including violence or threatened violence to another person. At paragraph 6, material relating to any offences the plaintiff was convicted of “at any time” related to assault, resisting arrest, failing to follow a direction of a police officer or being under the influence of alcohol.
25 For the VicPol subpoena, the schedule requested a criminal history record of the plaintiff pertaining to offences committed by the plaintiff at “any time whether before, during, or after the committing of the offence/s”. Material was to include the full police and criminal briefs pertaining to such items and the full summons, complaints and reports, inclusive of witness statements not part of any police or criminal brief pertaining to those offences.
26 I have no expert evidence submitted on behalf of the defendant assisting in support of their arguments. At best I have submissions that this material would be useful for the purposes of cross-examination of the plaintiff’s expert witnesses. I am not convinced the defendant has established a legitimate forensic purpose, or that some of this material is relevant to these proceedings.
27 What is clear from the authorities as set out in Woolworths Limited,[5] is that the defendant needs to identify “expressly and precisely the legitimate forensic purpose”. Relevance of the document alone is not sufficient to establish a legitimate forensic purpose.
[5]Ibid
28 The authorities establish that a fishing expedition is not a legitimate forensic purpose, and I believe this is a fishing expedition. As J Forrest J said in Messade:[6]
“This is the casting of a line with a hope that something may be caught in a very large pond.”
[6]Supra
29 The plaintiff’s objection to the disclosure of the relevant material in the subpoena is upheld. I will make an order that the subpoenas addressed to VicPol and DHHS be set aside.
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