Jones v Player

[2019] WADC 166

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   JONES -v- PLAYER  [2019] WADC 166

CORAM:   REGISTRAR KINGSLEY

HEARD:   ON THE PAPERS

DELIVERED          :   28 NOVEMBER 2019

FILE NO/S:   CIV 3905 of 2017

BETWEEN:   NIGEL JONES

Plaintiff

AND

GAIL FRANCES  PLAYER

Defendant

Catchwords:

Practice - Objection to supboena - No new principles

Legislation:

Nil

Result:

Objection dismissed

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance
Objector	:	No appearance

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Not applicable
Objector	:	Minter Ellison

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

Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498

Stanley v Layne Christensen Co [2004] WASCA 50

REGISTRAR KINGSLEY:

1. By a subpoena issued 31 January 2019 the defendant's solicitors sought production from the Australian Health Practitioner Regulation Agency (AHPRA) of all documents in relation to: Nigel Vincent Jones (DOB: 10/06/1964) (Registration number: PSY0001579985) including but not limited to copies of registration documents, correspondence, emails, file notes, complaints, investigation reports, minutes, memorandums, photographs, audio recordings and meta data for the period 15 November 2009 to present.

2. By letter dated 1 May 2019 solicitor's for AHPRA advise that, in accordance with O 36B r 8A and O 36B r 8B Rules of the Supreme Court 1971 (WA) (RSC), they make a request to the court to set aside the subpoena in whole or part on the grounds of lack of legitimate forensic purpose. The solicitors for AHPRA in the letter dated 1 May 2019 give detailed submissions on the basis for objection.

3. The plaintiff's claim arises out of a motor vehicle accident on or about 15 November 2014.  The defendant has not denied liability in negligence. 

4. The plaintiff suffered a number of injuries which are categorised as:

   (a)closed head injury;

   (b)left wrist injury;

   (c)right hand/finger injuries;

   (d)left and right shoulder injury;

   (e)neck injury;

   (f)low back injury;

   (g)central vestibular/labyrinth injury; and

   (h)left ear lobe.

5. Some particulars of the injuries have been detailed under each heading.

6. In its defence, the defendant admits the plaintiff sustained a distal radial fracture but otherwise denies the plaintiff sustained injuries in the accident as alleged and, apart from one particular of treatment, denies the plaintiff required treatment as a result of the accident as pleaded. 

7. The defendant goes on to plead that if the plaintiff suffered injuries, loss or damage, they were caused or alternatively contributed to by pre-existing and unrelated causes.  The defendant goes on to particularise the pre-existing and unrelated issues which include:

   (a)seizure-like non epileptiform events;

   (b)impaired cognition;

   (c)difficulty working due to his inability to concentrate;

   (d)anxiety;

   (e)insomnia; and

   (f)sleep apnoea.

8. The solicitors for AHPRA submit that a subpoena must only be used for a legitimate forensic purpose and there must be a reasonable possibility that the document sought will materially assist in the presentation of a case.  The solicitors for AHPRA submit that the description of the documents as stated in the schedule to the subpoena is broad and has the effect of covering all documents held by AHPRA in connection with the plaintiff.

9. The solicitors for AHPRA submit that AHPRA is willing to produce documents insofar as they will be of assistance to the court in relation to the matters in dispute in the proceedings.  The solicitors for AHPRA acknowledge that information relating to the plaintiff's physical, mental and psychological health prior to and subsequent to the motor vehicle accident are relevant.  However, as the solicitors for AHPRA submit, the subpoena does not specify the particular type of documents to be produced, and accordingly the broad scope is tantamount to a fishing expedition and submits that those documents are unlikely to contain information that is relevant and of material evidentiary value to the issues in the proceedings.

10. In determining the objection to the subpoena, I have considered the statements of the Court of Appeal in Stanley v Layne Christensen Co [2004] WASCA 50 [9] and Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] - [21]. In essence, a legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the court. However, it may only be apparent at trial that a particular document is necessary to fairly dispose of issues that have arisen in evidence in chief. Thus no narrow view as to the legitimate purpose of a subpoena ought to be taken. Ultimately, the relevance of documents produced will be a question for determination at trial.

11. If a document is apparently relevant, inspection will usually be permitted, even though it is not admissible in evidence as the document presently stands.  Confidentiality is not of itself, a ground to refuse inspection of an apparently relevant document.  However, confidentiality can be taken into account, together with the extent of the documents apparent relevance, in the exercise of discretion whether to permit inspection and whether any conditions ought to be imposed on inspection. 

12. Having regard to the pleaded case of the plaintiff and the pleas in defence, in my opinion, no narrow view ought to be taken to the subpoena.  The defendants have articulated a case against the plaintiff and consider that the documents held by AHPRA are relevant and will assist in a train of enquiry.  It is not appropriate at this stage to embark on a detailed enquiry involving evidence:  the apparent relevance of the documents arise from the plaintiff's occupation and the pleas by the defendant as to pre-existing causes.

13. For these reasons, I dismiss the objection and order production by AHPRA. 

14. I have not received submissions on the issue of costs.  I am mindful that in the majority of cases, it is unjust to award costs against a non-party.  The authorities are clear that the circumstances in which the discretion to award costs against a non-party should be confined, and orders made only in very clear cases.  Words like 'rarely appropriate' and 'exceptional' have been used, though it may be that the threshold for the exercise of curial discretion may be no more than the matter being outside of the ordinary run of cases.

15. In this case, the non-party AHPRA raised an objection to the production of documents under a subpoena, made submissions in writing and was then content to abide the decision of the court.

16. In my opinion, the appropriate costs order would be no order as to costs.  However, I am prepared to entertain submissions from any party who seeks to promote a different conclusion.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

TS
Court Officer

28 NOVEMBER 2019