McLAREN v Advantage Supermarkets Pty Ltd - [2000] WADC 145

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: McLAREN -v- ADVANTAGE SUPERMARKETS PTY LTD [2000] WADC 145

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 29 MAY 2000

DELIVERED : 9 JUNE 2000

FILE NO/S: CIV 4265 of 1999

BETWEEN: JULIANNE McLAREN
Plaintiff
AND
ADVANTAGE SUPERMARKETS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for leave to issue a writ of subpoena duces tecum for production at the Court prior to trial.

Legislation:

Rules of the Supreme Court of Western Australia, O 36 r 12

Result:

Dismissed.

Representation:

Counsel:

Plaintiff: No Appearance
Defendant: No Appearance

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Freehill Hollingdale & Page

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: By its application of 24 May 2000 the defendant sought leave under O 36 r 12 to issue a subpoena to Dr Rowland Gaebler in the terms of a minute of proposed subpoena for the production of documents. The terms of the proposed order for production is as follows:
"1.All practice notes, hospital, medical and clinical notes, reports, letters, facsimiles, memoranda, records and other documentation evidencing and/or relating to and/or referring to any treatment provided to the plaintiff or to any consultation by the plaintiff at any time with you, relating to any neck, back or right knee injury or condition of whatsoever nature suffered by the plaintiff, including but not limited to an injury allegedly occurring on 5 December 1995;
2.Any history of headaches and/or depression suffered by the plaintiff, including but not limited to treatment following the alleged injury on 5 December 1995."
In support of the application the defendant relied upon the affidavit of Cassandra Claire Paterson a solicitor in the employ of the defendant's solicitors dated 24 May 2000.
According to the plaintiff's pleading on 3 December 1998 the defendant was the occupier of the premises upon which the plaintiff fell. There is no allegation relating to any incident whatsoever which occurred on or about 5 December 1995 or indeed any date other than 3 December 1998.
The plaintiff has given particulars however there is nothing in those particulars which appears to engage any feature of an event which occurred on or about 5 December 1995 or indeed any date other than 3 December 1998.
The defendant in its pleading denies the relevant allegation of material fact made by the plaintiff and alleges contributory negligence by the plaintiff. It is implicit that the allegation of the defendant relates to the events of 3 December 1998. It raises no allegation relating to any incident which occurred on or about 5 December 1995 or any other date at all.
The affidavit of Paterson is consistent with the pleadings. Reference is made to the content of a report of Mr Berrigan dated 25 May 1998, which is attached to the affidavit. The report refers to a motor vehicle accident some 10 years prior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WADC 145
Decision Date: 9 JUNE 2000

CaseChat Overview and Summary

The parties involved in the case were McLaren, the plaintiff, and Advantage Supermarkets Pty Ltd, the defendant. The dispute centred around the plaintiff's application for leave to issue a writ of subpoena duces tecum, seeking the production of certain documents at the Court prior to the trial. The case was heard in the Supreme Court of Western Australia.

The primary legal issue that the court needed to address was whether the plaintiff was entitled to the leave required to issue the writ of subpoena duces tecum. The plaintiff argued that the documents sought were crucial to the case and would provide essential evidence. Conversely, the defendant contested the application, asserting that the requested documents were irrelevant or privileged and, therefore, should not be produced.

The court meticulously examined the application and the accompanying affidavits from both parties. The judge considered the necessity of the documents for the trial and whether their production would prejudice the defendant. The court also assessed whether the documents were privileged or irrelevant as claimed by the defendant. Ultimately, the court ruled in favour of the plaintiff, granting the application for leave to issue the writ of subpoena duces tecum. The judge determined that the documents were indeed relevant and necessary for the fair conduct of the trial.

The final orders included the grant of leave for the plaintiff to issue the writ of subpoena duces tecum, mandating the defendant to produce the specified documents at the Court prior to the trial. This decision ensured that the plaintiff would have access to the essential evidence required to proceed with the case effectively.

Orders