Mizen v Berrigan - [2000] WADC 227

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MIZEN -v- BERRIGAN & ANOR [2000] WADC 227

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 31 AUGUST 2000

DELIVERED : 15 SEPTEMBER 2000

FILE NO/S: CIV 265 of 2000

BETWEEN: DIANE RAE MIZEN
Plaintiff
AND
THOMAS BERRIGAN
First Defendant
ST JOHN OF GOD HOSPITAL SUBIACO INCORPORATED
Second Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for subpoena duces tecum

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     No appearance
Second Defendant         :     Ms Morgan Hobbs

Solicitors:

Plaintiff:     Hoffmans
First Defendant             :     Clayton Utz
Second Defendant         :     Freehills

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

Nil

Case(s) also cited:

Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350
Di Nuzzo v Action Food Barns (WA) Pty Ltd & Anor (1999) 21 SR (WA) 282

DEPUTY REGISTRAR HARMAN: The second defendant ("the applicant") has issued an ex parte application seeking leave to issue a subpoena pursuant to O 36 r 12 of the Rules of the Supreme Court. That application was before me on 21 August 2000 when I made some observations concerning the lack of precision in the description of the documents the subject of the proposed subpoena.
Its relevant terms are as follows: -
“… and bring with you and produce 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 any consultation by the plaintiff at any time with you, relating to:
(1)any urological condition of whatsoever nature suffered by the plaintiff including but not limited to an injury allegedly occurring on 9 March 1995 and;
(2)any history of depression suffered by the plaintiff, including but not limited to treatment following the alleged injury on 9 March 1995.”
The applicant’s solicitor sought to have the application adjourned until 31 August 2000. On that day no better description was provided. I was provided with copies of two reported decisions upon which the applicant sought to rely. I undertook to read those decisions prior to finally determining the application.
Perhaps before I go any further I ought to indicate that I have no difficulty with any aspect of the application save for the identification of the documents proposed to be the subject of the process.
The first appropriate consideration is to reflect upon the authority which the Court exercises within the community; not only its power to issue orders requiring a party to act or refrain from acting but also the penalties which it may impose in the event of breach.
It is not only in recognition of those impacts but also as a consequence of the mode of its expression of its determinations to parties not present at the hearing of a determination that it chooses to express itself in clear unambiguous terms. In my opinion that consideration is both fundamental and inviolable.
And so it is that it is appropriate to consider that where a party is called upon to produce a particular document, that document be adequately described not only to accord with the appropriate manner of expression of the Court's determination but also for the benefit of the party called upon to obey.
Before I move on I should note that prior to inclusion of r 12 it was only on rare occasions that the Court considered the terms of subpoena duces tecum. It is easy come to an understanding that over a period of some considerable time a practice may have developed and practitioners may have formed an impression that the Court was prepared to issue subpoena duces tecum in terms which describe the content of a document or category of documents rather than discrete documents by their identifying features.
Turning to the applicant's case, I understand that the applicant may be unable to better identify the particular documents the production of which it seeks and that it would consider that it would be disadvantaged in the action if it was either necessary to identify particular documents or proceed without access to them.
I am not aware of any principle which is to the effect that where a party to litigation is in difficulty or may be disadvantaged that the principles which otherwise would apply are properly ignored, rendered less significant or fall away. In my opinion the fact that a party may be in some position of relative disadvantage during the course of litigation has no particular consequence. It simply provides a basis to consider an exercise of discretion in its favour to alleviate that disadvantage. The onus remains with the applicant to satisfy the court that it is appropriate to do so in the manner proposed.
There is no evidence to suggest that the applicant has been in contact with the proposed witness and sought to have relevant documents identified. It is not evident that the applicant has sought non-party discovery against the proposed witness.
I accept that the prospects of success under the first course may not be great. In any event the applicant may not wish to leave it to the witness to express the terms of the proposed subpoena. I would respond that it would be preferable for the subpoena to refer to limited discrete documents identified by the witness rather than by the description of the content of unidentified documents as the applicant proposes.
I also accept that to expect a party to be in a position to otherwise identify particular documents in the possession of a third party may occasion considerable expense which would allow the applicant to represent the prospect of obtaining an order along the lines sought as a saving.
In my opinion, neither consideration amounts to a good reason to exercise discretion in the terms sought by the applicant. Simply because the applicant may have some difficulty does not mean that it is appropriate that the Court should come to its assistance. There is nothing unusual, indeed it would be the norm for a party to come to Court armed with more or less knowledge or information than its opponent. To some limited extent beyond the process of pleading the rules provide a basis for the court to redress that imbalance. However there remain proper limits and appropriate standards.
Finally the Court is not unfamiliar with the prospect that there may be a degree of oppression found in many interlocutory orders. Hopefully on each such occasion preserving fairness is a more significant consideration. A feature of both considerations is the fact that invariably the adverse party is a party to the action and must accept some harsh treatment along the way. That is not a feature in this instance. In my opinion the witness is entitled to be told what it is that is required of him.
The authorities which the applicant provided to the Court were of no assistance. Neither case deals either with the process of the issue of subpoenas or their terms, but rather with considerations which arose upon service. I could find no comment as to their terms.
In my opinion unless the applicant wishes to amend the terms of the proposed subpoena the only proper determination is that it be dismissed.