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

1. 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."

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 to the date of the report in which the plaintiff suffered a "whiplash injury" which took some two years to settle.  Reference is also made to the content of a report of Dr Rowland Gaebler dated 3 June 1999.  That report also attached refers to the plaintiff having suffered migraines prior to the material date.

7. All of that information is hearsay.  There is not even hearsay which would support the proposition that the plaintiff was injured on or about 5 December 1995.

8. There is not even hearsay to suggest that any of the documents nominated in the first part of the order are likely to be in the possession of the proposed witness.

9. There is at best hearsay to support the proposition that the plaintiff suffered migraine headaches prior to 3 December 1998.

10. In my opinion a witness confronted with an order in terms of part 2 would have some difficulty in understanding what it was that the Court required him to produce.

11. The terms of the proposed subpoena to one side, the generality of the proposed subpoena calls for comment.

12. The power of the Court to issue subpoenas to witnesses should be exercised with a degree of circumspection.  The terms of any subpoena duces tecum issued should be expressed in clear and precise language which identifies particular documents.  It is fundamental that no person the subject of an order of the Court ought to be in any doubt as to what is required of him by the Court.  If that proposition is capable of qualification, in the case of a non-party there ought be no scope for interpretation.  It ought not be for the witness to determine whether a particular document is the subject of subpoena.  The witness ought not be oppressed even if only to the extent of anxiety as to whether there has been proper compliance.  It should not be open to the witness to choose not to produce a document.  Conversely the witness ought not consider that he is placed in the position where it is considered that all records ought be produced simply for the sake of safety.

13. In my opinion those considerations flow not only from the prospect of an inappropriate exercise of the power of the Court but also the consequences which may flow from breach.

14. I accept that a party seeking to issue a subpoena in relation to documents, the identity of which are unknown to that party, confronts a difficult task.  There may be avenues open to a party to seek to alleviate those difficulties.  One of those avenues is not to impose upon the Court to issue a subpoena in such general terms.