Morrison v Evans and Anor (Ruling)
[2011] VCC 1190
•12 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02680
| DARREN MORRISON | Plaintiff |
| v | |
| STEVEN EVANS | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 July 2011 |
| DATE OF RULING: | 12 July 2011 |
| CASE MAY BE CITED AS: | Morrison v Evans & Anor (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1190 |
RULING
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Catchwords: PRACTICE AND PROCEDURE – Originating Motion – application for serious injury pursuant to the Transport Accident Act 1986 – plaintiff sustained injury as a result of an assault – claim for compensation pursuant to the Victims of Crime Assistance Act 1986 – subpoena to Victims of Crime Assistance Tribunal to produce its file – whether Tribunal obliged to answer the subpoena – sections 42A and 43 – whether application for inspection of the Tribunal file should be made to the Tribunal: sections 42A and 43 Victims of Crime Assistance Act 1986.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No Appearance | Clark Toop & Taylor |
| For the Defendants | Ms H Donmez | Solicitor to the Transport Accident Commission |
| HIS HONOUR: |
Introduction
1 The plaintiff was injured in a transport accident which resulted in him suffering injuries which included an injury to his lower back and a secondary psychiatric injury described as depression.
2 The plaintiff filed an Originating Motion on 22 June 2010 seeking leave of the Court pursuant to section 93(4)(d) of the Transport Accident Act 1986 to bring a proceeding to recover damages for the injuries he sustained in the transport accident.
3 The defendants issued a subpoena which they served on the Victims of Crime Assistance Tribunal (“VOCAT”) requiring it to produce a file relevant to an application made by the plaintiff for criminal injuries compensation which he submitted he was entitled to as a result of suffering injuries resulting from an assault.
4 The issue which came before me at a Directions Hearing concerned whether the defendants could validly subpoena a VOCAT file or whether the Victims of Crime Assistance Act 1996 (“VOCAT Act”) prescribed a procedure by which inspection of the VOCAT file must be undertaken.
5 I was informed by the Registry that VOCAT has expressed a concern regarding a large volume of subpoenas which have been served upon it to produce files relevant to applications for criminal injuries compensation. The Registrar wrote to the Court expressing that concern by a letter dated 16 May 2011.
6 At my direction, the Registry wrote to VOCAT and the defendants, indicating that it was my intention to make a ruling in relation to one proceeding in which such a subpoena had been served upon VOCAT to determine whether VOCAT is obliged to comply with the subpoena, or whether the VOCAT Act provides a basis upon which the subpoena should be set aside.
7 The instant proceeding was considered to be a suitable vehicle for me to consider the question referred to above. Ms H Donmez of Counsel appeared for the defendants. VOCAT did not appear, indicating that it would abide with the result of my ruling. However, I indicated that if I considered it was necessary for VOCAT to be represented, I would provide an interim ruling before ruling finally in order to give both VOCAT and the defendants time to consider their respective positions.
The Facts
8 Ms Donmez informed me that the plaintiff suffered an injury to his lower back and subsequently a psychiatric injury described as a depressive illness as a result of the transport accident.
9 Subsequent to the occurrence of the transport accident, the plaintiff was assaulted, which resulted in him suffering a skull fracture and an ensuing psychiatric condition described as a Post-Traumatic Stress Disorder.
10 Ms Donmez submitted that the defendants were concerned to understand what injuries the plaintiff suffered which resulted from the assault in order to properly test the plaintiff's case for serious injury. She informed me that the medical reports which the defendants had received made some references to the assault, but insufficient to permit the defendants to understand the full physical and mental ramifications of the assault as they affected the plaintiff.
11 It was on that footing that Ms Donmez submitted that the service of the subpoena on VOCAT was entirely appropriate. If it were not for the provisions of the VOCAT Act, I would have been in complete agreement with that submission.
The VOCAT Act
12 The legislature provided a mechanism for inspection of documents filed in an application for criminal injuries compensation. Section 42A is the relevant section. It is in the following terms:
“(1) When the office of the Tribunal is open, the applicant in the proceeding and, on payment of the prescribed fee (if any) any other person, may inspect and obtain a copy of any document filed in a proceeding in the Tribunal. (2) Despite subsection (1)—
(a) a person may not inspect or obtain a copy of a document which the Tribunal has ordered remain confidential; (b) a person, not being the applicant in the proceeding, may not, without the leave of the Tribunal, inspect or obtain a copy of a document which in the opinion of a registrar of the Tribunal ought to remain confidential. (3) The Tribunal may, if satisfied that it is in the public interest to do
so, order that—
(a) a document filed in a proceeding in the Tribunal remain confidential; or (b) a person have leave to inspect or obtain a copy of a document filed in a proceeding in the Tribunal. (4) An order under this section may be made on the application of a
party or on the Tribunal's own initiative.”
13 Subsection (1) permits the applicant, or any other person, to inspect and obtain a copy of any document filed in the proceeding with VOCAT upon payment of the prescribed fee (if any). So much is very clear.
14 However, subsection (2) provides that inspection and obtaining a copy of any document is subject to whether VOCAT has ordered that the document remain confidential, or where the Registrar of VOCAT is of the opinion that the document ought to remain confidential.
15 If such an order is made, or such an opinion is formed by the Registrar, then subsection (3) provides that despite such an order or opinion, VOCAT may exercise a discretion to order that the document remain confidential, or that a person have leave to inspect and/or obtain a copy of the document.
16 Presumably subsection (3) comes into play only when an application is made to VOCAT by the applicant or any other person to inspect and/or copy a document. It occurs to me that what the legislature had in mind is that if such an application is made, VOCAT may nonetheless consider refusing the application and order that the document remain confidential, but it may also order that the applicant have leave to inspect and/or obtain a copy of the document.
17 The guiding principle to whether VOCAT exercises its discretion one way or the other, pursuant to subsection (3), is based upon whether VOCAT, in giving due consideration to the application, considers that it is in the public interest to find one way or the other.
18 Ultimately what is in the public interest will entirely depend upon the subject matter of the evidence adduced before VOCAT in support of the application.
19 Subsection (4) provides that an order of the kind referred to above can be made upon the application of a party or on VOCAT’s own motion.
20 If VOCAT exercises the discretion in favour of the applicant, then section 43, and in particular, subsection (1), provides the guiding principles upon which VOCAT is to exercise its discretion to permit inspection and/or copying of a document. It provides, among other things, for the extent to which such inspection and/or copying will be ordered.
21 It occurs to me that the purpose served by sections 42A and 43 is to restrict the publication of documents filed in support of an application for criminal injuries compensation. Indeed, section 43(3) makes it abundantly clear that the legislature considered that when VOCAT considers an application to allow inspection and/or copying of a document, that it can restrict the basis upon which the publication of the document is to occur.
The Subpoena
22 The standard orders which the Court expects the parties will utilise provides for the service of subpoenas pursuant to Order 42A. In the instant proceeding, perusal of the file reveals that the defendants have served subpoenas on medical practitioners, hospitals and on a number of non- medical persons and organisations. I will assume that the defendants, in serving the subpoenas, are concerned to understand what material might be contained in the files maintained by the recipients of the subpoenas to determine whether any is relevant to the issues in the hearing of the serious injury application.
23 The foregoing procedure is a well worn route taken by the parties to a serious injury application using the subpoena process as a means of discovery. It is that very procedure which the defendants have used here in relation to VOCAT. However, it is clear enough to me that the VOCAT Act has very specific provisions designed to enable VOCAT to control the publication of documents filed in an application for criminal injuries compensation.
24 A subpoena is an order of the Court which, if there is non-compliance, provides for a significant penalty which may be imposed upon a recalcitrant. Ms Donmez submitted that despite sections 42A and 43, that I should order that VOCAT comply with the subpoena and that I should also order that the defendants be permitted to inspect the VOCAT file subject to any objection by the plaintiff.
25 After considering the submissions made by Ms Donmez, and the provisions of the VOCAT Act, I have come to the conclusion that the use of a subpoena is misconceived. I consider that I should set it aside.
26 The defendants should have made an application pursuant to section 42A(1), or subsection (3) if there was an order that the documents in the VOCAT file were the subject of an order that they remain confidential or there was an opinion expressed by the Registrar that the documents ought to remain confidential.
27 It would have been a simple matter for the defendants to submit, in either case, that the public interest is served by a statutory authority (the second defendant) being permitted to mount a proper defence to the application for serious injury by having before it material from the VOCAT file to determine whether any or all of the consequences submitted by the plaintiff in support of his application for serious injury resulted from the transport accident or were caused or contributed to by the injuries he suffered resulting from the assault.
28 Although the following observation is an aside to the central issue which I am to determine, it would be surprising if VOCAT did not conclude that inspection of the VOCAT file in those circumstances was not in the public interest. However, I will say no more about that matter, because it is not my intention to in any way fetter the exercise of the undoubted discretion in VOCAT to give due consideration if and when such an application is made by the defendants.
Conclusion
29 I propose to publish this ruling to the defendants and to VOCAT and to refix the matter for further submissions on a date convenient to the parties.
30 It occurs to me that if there are a number of proceedings of a similar kind which involve the service of a subpoena on VOCAT, that they cannot be dealt with in a sensible manner by VOCAT liaising with statutory authorities like the second defendant for the purpose of the creation of a Practice Note directly relevant to a situation like this. This would enable the defendants to apply for inspection and copying of documents by the submission of material which goes directly to the question of the public interest in the publication of such documents.
31 In any event, how the publication of such documents is dealt with in the future is a matter for VOCAT and the statutory authorities such as the second defendant, and of course each plaintiff.
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