Hansen v UEZZELL
[2007] WADC 188
•22 October 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : YEATS DCJ | ||
| HEARD |
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| DELIVERED |
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| PUBLISHED |
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| FILE NO/S |
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| BETWEEN |
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AND
GRAHAM MARTIN UEZZELL
Defendant
| FILE NO/S | : | CIV 505 of 2007 |
| BETWEEN | : DANIEL ABDEL-MESSEH |
Plaintiff
AND
JANET WILLIAMSON
Defendant
Catchwords:
Appeal - Review of decision to refuse leave - Early return of subpoenas
[2007] WADC 188
Legislation:
District Court Rules 2005, O 15
Rules of the Supreme Court 1971, O 36B.3(6)
Result:
Appeals allowed
Leave granted for defendants to issue subpoenas
Representation:
CIV 414 of 2007
Counsel:
| Plaintiff | : | No Appearance |
| Defendant | : | Ms B A Mangan |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Lavan Legal |
CIV 505 of 2007
Counsel:
| Plaintiff | : | No Appearance |
| Defendant | : | Ms B A Mangan |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Lavan Legal |
[2007] WADC 188
Case(s) referred to in judgment(s):
Australian Gaslight Co v Australian Competition & Consumer Commission
(2003) ATPR 41-956
Heggie v CSR Ltd [2001] WADC 77
Iddles v QED (Australia) Pty Ltd & Anor [2002] WADC 146
Khanna v Lovell White Durrant (A Firm) [1995] 1 WLR 121
Raymond v Tapson (1882) 22 Ch D 430
[2007] WADC 188
YEATS DCJ: This is an appeal by the defendants against the decisions of Deputy Registrar Harman to refuse leave to issue subpoenas returnable prior to trial. The two civil matters – Hansen v Uezzell, civil matter 414 of 2007, and Abdel-Messeh v Williamson, civil matter number 505 of 2007, were heard together because the decisions of the Deputy Registrar were based on the same reasoning in each case. In each case, the learned Deputy Registrar refused the defendants' applications for leave to issue a writ of subpoena duces tecum for the early return of documents in the custody of the plaintiffs' doctors. The defendants in each case seek orders that it have leave to issue the subpoenas to each of the doctors referred to in the cases. Medical reports relating to the plaintiffs' medical history and pre-accident condition are sought.
2 An appeal against a decision of a Registrar is governed by O 15 of
the District Court Rules. That order provides that, if a party is dissatisfied with a decision of a Registrar, the party may appeal to a Judge. The order provides that the appeal is by way of a new hearing of the matter, that is, a hearing de novo.
Hansen's case
3 In Hansen's case the plaintiff's action is a claim for damages for personal injuries as a result of a motor vehicle accident in 2005. In its defence, in par 3.3, the defendant pleaded:
"At the material time, the plaintiff suffered the following
pre-existing conditions:
3.31 spondylolisthesis at L5/S1 and nerve root impingement
on the right L5 nerve;
3.32 back injury in 1990; 3.33 sciatic pain in the three to four weeks prior to the
accident."
4 The defendant applied by Chamber Summons for early return of a
subpoena duces tecum and the matter came on before Deputy Registrar Harman on 16 July and again on 13 August. There was no transcript of those proceedings but I have an affidavit of Josephine Rose Caine, sworn on 18 September 2007, who was an articled clerk at that time employed by the solicitors for the defendant; the affidavit provided information as to what happened at those hearings.
[2007] WADC 188
5 At the first hearing an affidavit was tendered before Deputy Registrar
Harman in support, and submissions were made to the Deputy Registrar showing that the plaintiff claimed in par 4 of his statement of claim for pain, soft tissue and ligamentous injuries to the shoulders and back. It was submitted that it was necessary to determine in the assessment of damages the extent to which the plaintiff's pre-existing injuries contributed to his pleaded injuries. It was submitted to Deputy Registrar Harman that it would assist case management and the settlement of the matter if the documents sought could be provided prior to trial. The documents sought in this case according to the schedule to the Chamber Summons were the files of the Gumnut Family Practice and documents relating to the plaintiff's medical history and condition, disability and capacity for employment and self-care including clinical notes, correspondence, medical and paramedical reports. The subpoena was to be addressed to Dr Louis Du Plessis at the Gumnut Family Practice.
6 On the first appearance Ms Caine reports that the Deputy Registrar
said he would not allow the application because he thought that applications for early return of documents should be made closer to trial and not before the pre-trial conference. He went on to say that the Court's job was not to assist parties to collate evidence and he did not wish to inconvenience the witnesses. Further submissions were made and the application was adjourned sine die.
7 It was brought on again before Deputy Registrar Harman on
13 August. The Deputy Registrar asked if there were any further developments and as there were none, he did not want to hear any further submissions from the Articled Clerk and indicated he would not allow the application. He asked whether the application should be dismissed or adjourned and the Articled Clerk requested it be dismissed, which was done that day.
Abdel-Messeh's case
8 In the case of Abdel-Messeh, the plaintiff's action was again an action for damages for negligence relating to a motor vehicle accident and in its defence the defendant pleaded in par 4 as follows:
"The plaintiff:
4.1 has a pre-existing degenerative condition in his thoracic
spine;
[2007] WADC 188
4.2 has pre-existing rotator cuff disease or other degenerative
condition in his right shoulder;4.3 has cuff tendinopathy in his left shoulder caused by the
manual work he has undertaken over a number of years;4.4 has bilateral ulnar nerve irritation and right median nerve entrapment or carpal tunnel syndrome which is unrelated to the accident."
9 Again the defendant brought a Chamber Summons for early return of
documents. The schedule indicated that the documents were the treatment file, including clinical notes, in relation to the plaintiff. The subpoena duces tecum was addressed to Dr Jasphal Sembi of Stirling, of Brentwood Village Medical Centre in Brentwood.
10 The Chamber Summons came on before the learned Deputy
Registrar on 23 July and 13 August. Again there was no transcript and the defendant relies on the affidavit of Josephine Rose Caine sworn on 18 September 2007. The defendant sought the documents in order to ascertain whether the plaintiff's pre-existing shoulder injury was contributing to the pleaded injuries. Deputy Registrar Harman considered the application and stated that he believed that it was too early to issue a subpoena for the early return of documents. The Articled Clerk again made submissions that this view was inconsistent with decisions of other Registrars who had granted similar applications and drew to the learned Deputy Registrar's attention that Dr Sembi had advised that he was not opposed to providing the documents. On this occasion Deputy Registrar Harman said he would like to "sway the opinion of the Court". Deputy Registrar Harman is reported to have said that although the application was "merited", he would not allow the application.
11 The Articled Clerk agreed that the Chamber Summons could be
adjourned sine die and had it re-listed on 13 August. She was asked whether there were any further developments and as there were none and as it had come on again before Deputy Registrar Harman, he indicated his attitude had not changed. The application was dismissed.
The law governing the early return of subpoenas
12 The defendant submits that the provisions of O 36B r 3 subrule (6)
allow a Court by leave to order the production of documents prior to trial. The defendant relied extensively on the decision of the Court of Appeal in Commonwealth of Australia v Albany Port Authority [2006]
[2007] WADC 188
WASCA 185. In that case Steytler P set out the law relating to the issue of subpoenas in [16] and [18] of his judgment. He indicated that:
"… a subpoena requiring a witness to appear or give evidence at trial of an action may be sealed as of right, although the court will exercise control over the privilege to prevent abuse."
13 He referred to Raymond v Tapson (1882) 22 Ch D 430 but went on to say that the Court may set aside a subpoena in the exercise of its inherent jurisdiction. He confirmed that for the issue of a subpoena duces tecum prior to trial, the leave of the Court was required and he set out what had to be considered referring in his decision to a decision of French J. In Australian Gaslight Co v Australian Competition & Consumer Commission (2003) ATPR 41-956 at [8] French J said:
"It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant."
14 The Court went on to discuss the four points of principle related to
the determination of whether there is a legitimate forensic purpose and set those out. First, a legitimate forensic purpose will be established if a document gives rise to a line of inquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination (Albany Port Authority at [18]).
15 I comment here that it is clear that in both of the cases before me the
documents are reports or notes by the relevant doctor or medical practice and are directly relevant to an issue pleaded by the defendant. They are not merely a line of inquiry but part of the defendant's case.
16 The second condition in assessing whether a legitimate forensic
purpose exists in relation of documents sought on an early return of subpoena is that it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial (Albany Port Authority at [18]). I comment in this case, however, that this issue is clearly a point in issue between the parties and has been pleaded.
[2007] WADC 188
17 The third point was that the Court in Albany Port Authority at [18] urged that no narrow view as to the legitimate purposes of a subpoena ought to be taken, and referred to an English decision, Khanna v Lovell White Durrant (A Firm) [1995] 1 WLR 121 at 123.
The fourth point of principle relates to "fishing" and is of no concern in this case because the documents relate to a pleaded defence.
19 In this case I have heard submissions from counsel for both
defendants; the plaintiff in both cases has not appeared and has indicated it will abide by the decision of this Court. In this case I am satisfied in each of the civil matters that the documents sought to be produced prior to trial were clearly relevant to a matter in issue in the litigation, an issue on which the parties were joined in pleadings.
20 In a personal injuries claim doctors need to receive a subpoena to
enable them to provide documents to one of the parties, but normally doctors do not resist the production of such documents. The documents provide the basis for medical evidence at trial, but prior to trial documents such as these would enable the defendant in each case to assess the degree to which pre-existing conditions or illnesses or injuries on the part of a plaintiff might reduce the amount of damages that could be awarded. That assessment would be very useful in the early settlement of the cases.
21 Under our case management rules there is no magic in the pre-trial
conference date. It is part of the milestones leading to trial but if a matter could be settled between the parties prior to the pre-trial conference, I believe that would be in the interests of justice and very much in the interest of reducing costs as between the plaintiff and the defendant.
22 For that reason, Deputy Registrar Harman's refusal to issue those
subpoenas is inconsistent with case management principles. Since case management became part of our civil procedures the Court has consistently required parties to confer, to have before them all of the relevant information and to attempt to settle civil claims without involving either a Registrar in a pre-trial conference or a Judge sitting at trial. The earlier claims are settled the more costs are saved and the more court time is saved.
23 I was surprised to learn of the decisions of the Deputy Registrar in
these two cases and to hear from the bar table that Articled Clerks are so concerned about this attitude of Deputy Registrar Harman that they attempt to have their matters listed in another Registrar's chambers. That is completely inappropriate. Registrars of the District Court should deal
[2007] WADC 188
with these applications for leave according to law as that law is set out in the decision of the Court of Appeal in Commonwealth of Australia v Albany Port Authority which I have previously referred to. There are clearly matters that need to be carefully considered by the Court as I did in earlier appeals related to the issue of subpoenas duces tecum in Heggie v CSR Ltd [2001] WADC 77 and in Iddles v QED (Australia) Pty Ltd & Anor [2002] WADC 146, but there should be no arbitrary refusal to grant leave for a pre-trial issue of subpoena duces tecum based only on a return prior to the pre-trial conference so long as the subpoena itself meets the requirements that it not be too broad in scope so as to improperly burden a stranger, and to ensure that issues such as confidentiality are addressed. There should be no cut-off date to say that leave will not be granted prior to a pre-trial conference. That is an error of law and should not continue to be done by any Registrar of this Court.
24 For these reasons the appeals are allowed and leave is granted in
each case for the defendants to issue the subpoenas for the return of the
documents prior to trial and I make orders accordingly.
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