Kokic v The Salvation Army (Victoria) Property Trust
[2022] VCC 1947
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-01446
| VIOLET KOKIC | Plaintiff |
| v | |
| THE SALVATION ARMY (VICTORIA) PROPERTY TRUST | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2022 | |
DATE OF RULING: | 16 November 2022 | |
CASE MAY BE CITED AS: | Kokic v The Salvation Army (Victoria) Property Trust | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1947 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Discovery – application by the plaintiff for expansion of the defendant’s obligation to give discovery – questions of the forensic purpose, materiality and fishing relevant to the discovery process
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Messade v Baires Contracting Pty Ltd [2011] VSC 56; Woolworth's Ltd v Svajcer [2013] VSCA 270; Bersee v State of Victoria (Department of Education and Training) [2022] VSCA 231; Kozarov v Victoria [2022] HCA 12;
Ruling: See the draft orders below
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Ryan Carlisle Thomas |
| For the Defendant | Mr G Worth | IDP Lawyers |
HIS HONOUR:
Introduction
1The plaintiff complains that the discovery provided thus far by the defendant is inadequate in a number of respects. It provided a schedule of further discovery defining the discovery by reference to the statement of claim, and setting out in five numbered paragraphs the classes of documents which it submits the defendant is obliged to discover.
2I was tempted to deal with this application by giving extempore reasons, however, the reference by the defendant to a number of authorities required me to read them in order to understand the causes of action better. It is understood that these reasons would be summary for the purpose of succinctly and expeditiously providing short reasons only.
The cause of action
3In general terms in paragraph 4 of her statement of claim, the plaintiff pleaded that throughout the course of her employment with the defendant from November 1999, and in particular, from January 2005 the work that she was required to perform was “excessively onerous and stressful work”.
4In paragraph 5 of the plaintiff’s statement of claim, she pleaded the basis upon which she alleges that the defendant knew or ought to have known that she was suffering from, or was at imminent risk of suffering from, psychiatric injury. In particular, in paragraph 5(f) and 5(g) she pleaded that she was the subject of “management directives” which are then taken up in paragraphs 7, 8 and 9, and that the management directives constituted the tort of intentional infliction of harm. Additionally in paragraphs 10, 11 and 12 she pleaded that she was owed a duty of care in the conventional sense, what constituted reasonable care in the context of the work she was required to undertake, and then particularised her allegations of negligence.
5Although the foregoing is a brief but sufficient summary of the pleadings, it is all that is required in my view because of the task which I am now required to undertake in determining whether I should or should not order that the defendant make further discovery.
6The plaintiff and the defendant referred me to the legal principles in Koehler v Cerebos (Australia) Ltd, [1] and Kozarov v Victoria[2] which concern, among other relevant things, the question of foreseeability of the risk of mental harm to an employee by reason of work tasks which the employee is required to undertake. I do not think I need to say much more, except to refer to Bersee v State of Victoria (Department of Education and Training)[3] in which the Court of Appeal considered whether Koehler and Kozarov represented a divergence in principle. It is a very helpful decision because it rationalises what each of those decisions stand for, and that ultimately Kozarov reinforces that the question of foreseeability and its relevance to the existence and scope of a duty of care, breach of duty and remoteness of damage are fact and context specific.
[1] (2005) 222 CLR 44 ("Koehler")
[2] [2022 HCA 12 ("Kozarov")
[3] [2022] VSCA 231
Discovery obligations
7Rule 29.01(3) of the County Court Civil Procedure Rules 2018 (“the Rules”) sets out the documents required to be discovered of which the party giving discovery is, after a reasonable search, aware of at the time discovery is given. Relevantly, Rules 29.05(1) and 29.05(2) of the Rules enable the Court to expand a party’s obligation to give discovery by specifying any document or class of document to which the expanded obligation relates. Furthermore, Rule 29.08 of the Rules provides that if it appears to the Court from, among other things, the nature or circumstances of the case that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be in the possession of a party, the Court may order that party to make and serve an affidavit stating whether that document is in that party’s possession.
8Again, the foregoing is a brief, but sufficient, summary of the obligations to make discovery, and the jurisdiction of the Court to make orders relevant to further discovery.
The legal principles - a short version
9Essentially, the plaintiff submitted that there is a legitimate forensic purpose in the expansion of the obligation on the part of the defendant to make discovery; that it is on the cards that there is a reasonable possibility that the further discovery will materially assist her case; and that the further discovery is not a mere exercise to see whether there is material which might assist her case, in other words, a fishing expedition. The defendant submitted that the plaintiff could not establish any of these essential factors.[4]
[4] The defendant's outline of submissions dated 15 November 2022
10I was referred to a number of authorities which I have read, but I do not propose to refer to the relevant principles for which those authority stand to any greater extent than I have thus far.[5]
[5] Messade v Baires Contracting Pty Ltd [2011] VSC 56, and Woolworth's Ltd v Svajcer [2013] VSCA 270
The categories sought
11I will now deal with each of the categories of documents taken from the schedule of further discovery provided by the plaintiff.
12The first category of documents referred to in paragraph 1:
“Copies of policies and procedures in place during the period of 2005 to July 2012 relevant to jobseeker behaviour and management, incident response, staff complaints processes and staff OH & S”
13Paragraph 5(d) of the statement of claim pleads that the plaintiff’s “role involved regularly being harassed and/or assaulted by jobseekers and other employees.” I should digress and define jobseekers. In the course of the plaintiff’s submissions I asked what was meant by a jobseeker just to be sure. I was informed that it is a person applying for employment. This was pleaded in connection with the knowledge which the defendant had or should have had that the plaintiff was suffering from, or was at imminent risk of suffering from, a psychiatric injury due to her work.
14I consider that copies of policies and procedures have a forensic purpose; that it is on the cards that discovery of such documents will assist her case, and that seeking the documents is not a mere fishing expedition. Although, the defendant submitted that the statement of claim was drafted prior to the delivery of judgement in Kazarov, and the recognition that the work which that plaintiff was engaged upon demonstrated that the risk of that plaintiff suffering “vicarious trauma” was well understood. Potentially, paragraph 5 (d) pleads that very platform, combined with later allegations in the statement of claim of a breach of the conventional duty of care.
15If those documents exist then the manner of the pleading points to the plaintiff potentially submitting that the risk of her suffering psychiatric injury was foreseeable from the critical time she complains of which commences in January 2005. Even if the plaintiff is limited to relying on Koehler then the documents are nonetheless still discoverable because at least by the time she made the complaints referred to in paragraph 5 (a)-(g) potentially her risk of suffering a psychiatric injury became foreseeable when she first made those complaints.
16The second category of documents referred to in paragraph 2:
“All documents disclosing psychological injury to those employed at the level of Area/Regional Managers (or equivalent positions) or above, caused by employment at the defendant between 2005 and 2012.”
17During the hearing, I informed the plaintiff that I would not countenance requiring the defendant to discover documents where it was put to the task of having to determine causation in order to determine whether the documents were discoverable or not. That provoked the plaintiff to seek to amend the second category by removing the word “caused by” and substituting the words “related to”. For much the same reasons as related to paragraph 1, I consider that the documents have a forensic purpose; that it is on the cards that discovery of such documents will assist her case, and that seeking the documents is not a mere fishing expedition.
18If those documents exist then they may go to establishing that the defendant knew or ought to have known that the work which the plaintiff performed exposed her to the risk of suffering from a psychiatric injury because others doing the same or similar work had suffered a similar fate.
19The next categories of documents are referred to in paragraphs 3,4 and 5. I will deal with them collectively:
3. “All documents containing complaints about jobseeker behaviour at the sites between January 2005 and 2012.
4. All documents containing complaints about the management directives indicating a risk to psychiatric health.
5. “All documents containing complaints or WorkCover Claims disclosing psychological injuries caused by work at the sites between 2005 and 2012.”
20In the schedule of further discovery the plaintiff went to the effort of defining “the sites”, and defining “management directives”, so that the terms were understood.
21The plaintiff conceded that paragraph 3 was too vague and wide and abandoned it. Paragraph 4 is specific by being anchored to the allegations made in paragraph 5(f) of the statement of claim. Furthermore, there is an independent cause of action pleaded under paragraph 7 of the statement of claim which is specifically based upon the management directives constituting an intentional infliction of harm. The combination of paragraph 5(f) and paragraph 7 indicates that the documents sought have a forensic purpose; that it is on the cards that discovery of such documents will assist her case, and that seeking the documents is not a mere fishing expedition.
22Paragraph 5 is also too vague and wide. The reasons for employees of the defendant suffering psychological injury may be entirely unrelated to the allegations made by the plaintiff. It puts the defendant to the task of trying to work out what the plaintiff wants. That is impermissible.
23In anticipation of applications for costs by the parties, I have determined that the costs should be in the cause. Both parties have been partially successful, and in those circumstances I think that is the appropriate order, although, I will reserve liberty to the parties to address me by written submissions of no more than one page by 4.00pm on Monday, 21 November 2022.
24The orders will be:
1. By 4.00pm on 13 December 2022 the defendant must file and serve an affidavit, pursuant to Rule 29.08, providing particular discovery of the categories of documents referred to in subparagraph’s (i), (ii) and (ii) of this paragraph, and in doing so must:
(a)state whether any such documents are in the possession of the defendant; and
(b)state whether any such documents have been in the position of the defendant; and
(c)state if such documents are no longer in the defendant’s possession, when the defendant parted with such documents, and the defendant’s belief of what has become of such documents.
Categories of documents
(i)“Copies of policies and procedures in place during the period of 2005 to July 2012 relevant to jobseeker behaviour and management, incident response, staff complaints processes and staff OH & S”
(ii)“All documents disclosing psychological injury to those employed at the level of Area/Regional Managers (or equivalent positions) or above, related to employment at the defendant between 2005 and 2012.”
2. If the defendant has any such documents in its possession, then it must provide the plaintiff with inspection of the documents by 4.00pm on 20 December 2022.
3. The costs of this application are costs in the cause.
4. Liberty to apply.
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