Martin v Amaca Pty Ltd

[2023] VSC 165

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S ECI 2020 03744

LEIGH MARTIN	Plaintiff
and
AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP)	Defendant
and
THE SCOUT ASSOCIATION OF AUSTRALIA & ANOR (according to the attached schedule)	First Third Party

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2023
DATE OF RULING:	29 March 2023 (Revised 4 April 2023)
CASE MAY BE CITED AS:	Martin v Amaca Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 165

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PRACTICE AND PROCEDURE – Subpoena – Application to set aside – Witness a terminally ill plaintiff whose evidence is required to resolve contested contribution proceedings between the defendant and third parties – Whether witness competent to give evidence – Evidence Act 2008 (Vic) ss 12, 13.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Perilli of counsel	Maurice Blackburn
For the Defendant	Mr C Blanden KC, with Mr J Angenent	Mills Oakley
For the First Third Party	Mr M Clarke of counsel	Gilchrist Connell
For the Second Third Party	Ms K Bradey	Colin Biggers & Paisley

HIS HONOUR:

1. On 23 March 2023, Ierodiaconou AsJ permitted service of a subpoena on the plaintiff, requiring him to attend court this morning and give evidence in the trial of contribution proceedings remaining before the court; the plaintiff's claims against the defendant have been compromised. The plaintiff has mesothelioma from exposure to asbestos. The subpoena was served on the plaintiff's solicitors on 24 March 2023. 

1. The plaintiff applied, by email to my chambers as the allocated judge, for an interim order that he be excused from attending to answer the subpoena today in order to attend a medical appointment and to make an application to set aside the subpoena.  The precise nature of that application, having regard to the fact that the subpoena was served pursuant to the order of an associate judge, was not made clear but it is not necessary in the circumstances to further examine that particular question.

1. The question of what evidence the plaintiff might give in relation to the contribution proceeding had been the subject of ongoing negotiations between the parties' solicitors and further information had been provided by that avenue of communication. The detail of these prior communications between the parties was not made clear to my chambers at the time the interim order was made. The defendant informed me that the subpoena was issued as a precaution to ensure the plaintiff's attendance. 

1. It does appear, however, that in seeking his attendance at the hearing, little assessment of his ongoing treatment requirements and commitments was made because this afternoon he has an appointment with his oncologist concerning the resumption of radiotherapy treatment this coming Friday. 

1. The plaintiff relied upon a report from Dr Jonathan Burdon, a consultant respiratory physician, who examined the plaintiff on 27 March 2023. 

1. The plaintiff submitted that he was not competent to give evidence by reason of his medical condition, which is as described in Dr Burdon's report. Section 12 of the Evidence Act 2008 (Vic) provides that every person is competent to give evidence and a person who is competent to give evidence about a fact is compellable to give that evidence. Section 13 provides that a person is not competent to give evidence about a fact if for any reason, including a physical disability, the person does not have the capacity to understand a question about the fact or the person does not have the capacity to give an answer that can be understood to a question about the fact and that capacity cannot be overcome.

1. Dr Burdon opined that the plaintiff is in the late stages of the very serious disease of mesothelioma and is receiving very substantial and significantly debilitating treatment for that disease.  He experiences physical and psychological stress which impacts on him, there has been some deterioration in his memory and he has some impediment of his cognitive thinking and concentration processes, particularly when under emotional stress.  Dr Burdon opined that these consequences are recognised as side effects persons with his condition can suffer. It is colloquially known as 'chemo brain'.  Mr Martin also has difficulties with breathing and has fainted at times when under stress, including in his doctor's waiting room. 

1. Mr Burdon described his significant concern for Mr Martin's immediate physical health if he attends the court to give evidence and is subject to cross-examination.  He reasoned that it was the stress of giving evidence that may provoke dizziness and fainting.  He expressed a further view that because Mr Martin has psychological and cognitive impairment, a reduction in his ability to concentrate and memory impairment, he is incompetent to give ‘completely accurate’ evidence. 

1. The test under s 13 of the Evidence Act is not framed in terms of the accuracy of the evidence but rather by reference to the capacity of a person to understand a question or the capacity for the person's response to the question to be understood.  Dr Burdon does not address that issue and his opinion that Mr Martin is incompetent to give completely accurate evidence focuses on a matter that is one for the court; namely, to what extent his evidence is accurate, reliable and credible and to what extent the court should rely upon it. 

1. I am not persuaded that Mr Martin is incompetent to give evidence (whether that evidence be described as ‘completely accurate’ or otherwise). Rather, he is an important witness in the case and the overarching purpose of civil litigation can only be reasonably achieved by taking his evidence.  He is compellable to do so and, of course, arrangements are regularly made to ensure that persons with illness are appropriately accommodated. In the circumstances, I am not persuaded that the arrangements that have been made for him to give evidence are unfair or inappropriate – except in the following sense. 

1. Mr Martin is a very seriously ill person and allowances must be made.  While Dr Burdon has expressed his opinion about Mr Martin attending the court to give evidence, the parties suggested, and I agree, that it is a different circumstance if he is to give evidence over Zoom from his own home and is not required to either travel or otherwise deal with the circumstance of coming to this court. 

1. I consider it appropriate that particular conditions be placed on the subpoena to govern how Mr Martin will give evidence. The conditions are these: 

(a)   First, Mr Martin may answer the subpoena by giving his evidence in a Zoom hearing from his own home.  The Zoom hearing is to be conducted by Mr Martin's solicitors, and the court expects that Mr Martin will have representation present at the hearing, to look after his interests and to intervene if it is necessary for Mr Martin to have a break, or to otherwise rest or receive some other different form of consideration for his condition and the experience of giving evidence.

(b)  Secondly, because the defendant and the third parties have indicated that his evidence, while critical, is confined, in the first instance I will limit the effective time of his evidence to no more than one hour, subject to review if necessary, having regard to what actually occurs during the course of taking the evidence.

(c)   There are further procedural matters to be resolved.  The transcript can be taken by the transcript provider from the Zoom hearing.  I expect the plaintiff’s solicitors to make the appropriate arrangements with the parties to have any documents to be shown to Mr Martin in cross-examination available to the plaintiff’s solicitor at Mr Martin's home.

(d)  I will permit Mr Martin's evidence-in-chief to be given primarily by the statements that he has previously provided, subject to two matters.  I will permit further clarification questions and I will deal with any objections to the content of statements at some point during the course of today. 

(e)   Finally, it is appropriate in the circumstances that rather than providing the usual remuneration in the form of conduct money, I will order that the defendant pay the costs incurred by the plaintiff’s solicitors in compliance with the subpoena and these directions on an indemnity basis.

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SCHEDULE OF PARTIES

S ECI 2020 03744

LEIGH MARTIN	Plaintiff
and
AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP)	Defendant
and
THE SCOUT ASSOCIATION OF AUSTRALIA	First Third Party
and
MELBOURNE ARCHIOCESE CATHOLIC SCHOOLS LTD	Second Third Party