Mubarak v Kelly
[2020] WADC 136
•23 OCTOBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MUBARAK -v- KELLY [2020] WADC 136
CORAM: SHEPHERD DCJ
HEARD: 7 AUGUST 2020
DELIVERED : 23 OCTOBER 2020
FILE NO/S: CIV 3183 of 2018
BETWEEN: KIDIMA MUBARAK
Plaintiff
AND
GEORGIA ROSE KELLY
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Application for specific discovery - Centrelink records - Documents in the 'power' of a person - The requirement for the discovering party to take all reasonable steps to obtain documents relevant to the matters in issue within the party's power to obtain - The obligation to particularise special damages
Legislation:
Rules of the District Court 2005 (WA)
Rules of the Supreme Court 1974 (WA)
Social Security (Administration) Act 1999 (Cth)
Result:
Application allowed in part
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | No appearance |
| Second Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | Not applicable |
| Second Defendant | : | HBA Legal |
Case(s) referred to in decision(s):
Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259
Ali v Khan [2015] NSWSC 1961
Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218
Australian Railway Group Pty Ltd v Rowan [2004] WASC 165
B v B [1979] 1 All ER 801
Beecham Group Pty Ltd v Bristol-Myers Co [1979] VR 273
Biltoft Holdings Pty Ltd v Casselan Pty Ltd (Unreported, WASC, Library No 940252, 20 May 1994)
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Built Pty Ltd v C & L Ceilings Pty Ltd [2019] WADC 52
Chavarria v Rodman [2006] WADC 42
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Cristovao v Butcher Paull & Calder (2008) 58 SR (WA) 64
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe (No 2) (1992) 8 WAR 96
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
In the Marriage of Barro (1983) 47 ALR 338
Integrated Management Services Pty Ltd v Inches [2009] WADC 41; (2009) 61 SR (WA) 114
Kezic v St John of God Health Care Inc [2015] WASCA 220
Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1980] 1 WLR 627
Lopresti v Ford Motor Company of Australia Ltd [2007] WASC 206
Midalco Pty Ltd v Simpson (Unreported, WASC, Library No 6747, 5 June 1987)
Midalco Pty Ltd v Simpson (Unreported, WASC, Library No 940252, 20 May 1994)
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Mulley v Manifold (1959) 103 CLR 341
Neil v Nott [1994] HCA 23
Nobarani v Mariconte [2018] HCA 36
Palmdale Insurance Ltd (in liq) v L Grollo & Co Ltd [1987] VR 113
Pollard v Endale Pty Ltd (2009) 66 SR (WA) 1
Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18
Re Attorney-General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321
Reed v Amaca Pty Ptd Formerly James Hardie & Co Pty Ltd [2010] WASC 14
Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178
Smart v Prisoner Review Board (WA) [2012] WASC 48
SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) (2006) 155 FCR 150
Taylor v Santos Ltd (1998) 71 SASR 434
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 200 149
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [No 4] [2005] WASC 60
SHEPHERD DCJ:
Introduction
By notice of appeal dated 18 June 2020 the plaintiff appealed against the decision of Registrar Kubacz made on 9 June 2020.
The relevant orders (the Orders) against which the plaintiff appeals are:
1.That the stay of proceedings be lifted.
2.That the plaintiff do give specific discovery of:
(a)his taxation for the financial years 2016, 2017 and 2018;
(b)all bank statements and credit card statements evidencing income received from and expenses related to his Uber Eats delivery business for the financial years 2017 and 2018;
(c)the purchase invoice relating to his purchase of the health massage chair; and
(d)his Centrelink file.
3.That the plaintiff do provide a full list particularising all expenses claimed by him (and referred to by him) as taxi travel expenses describing in respect of each item:
(a)the details of any journey undertaken (from where to where); and
(b)the purpose of the journey and otherwise all information as described in the schedule of expenses forwarded to the plaintiff from the second defendant's solicitors dated 3 April 2020.
4.The parties have liberty to apply.
The appeal relates to Orders 2(a), 2(b), 2(d) and 3; Orders 1 and 2(c), having being resolved prior to, or during the appeal.
Nature of the appeal
The appeal is by way of a new hearing of the matter that was before the registrar.[1] It involves a complete de novo review.[2] In essence I am to treat the second defendant's application and the plaintiff's application as if each was before the court for the first time, save that the plaintiff as the party appealing has the right as well as the obligation to open the appeal.[3]
[1] District Court Rules 2005 (DCR), r 15(6).
[2] Briggs v Glentham Pty Ltd (1992) 8 WAR 339, 349 - 350 (Malcolm CJ, with whom Pidgeon & Rowland JJ agreed); Hunt v Knabe (No 2) (1992) 8 WAR 96, 109 - 110; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28; Liebherr‑Australia Pty Ltd v Bloomfield [2006] WASCA 128 [8]; Kezic v St John of God Health Care Inc [2015] WASCA 220 [42].
[3] Hazart Pty Ltd v Rademaker (28).
There is no requirement on the plaintiff, as the party who lodged the appeal, to show that the registrar made an error in any of the decisions under appeal.
In person litigant
In dealing with these issues, I recognise that the plaintiff is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[4] I approach the documents in which he articulates his claim with some flexibility.[5]
[4] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[5] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
I need to be astute to ensure that, in poorly expressed or unstructured documents in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[6] I must also approach the plaintiff's oral submissions made in the same context, providing him with the opportunity to express his position in respect of the application under consideration.
[6] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
A 'frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[7] In Re Attorney‑General; Ex parte Skyring, Kirby J stated:[8]
[I]t is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.
[7] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim v The Honourable Justice Carolyn Martin [21]; Glew v Frank Jasper Pty Ltd [10]; Tobin v Dodd [14].
[8] Re Attorney-General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321, 323 (Kirby J).
At the same time, I also need to ensure that any latitude given to the plaintiff as a litigant in person does not deprive the second defendant of its rights to procedural fairness and a fair hearing.[9]
[9] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 200 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
The plaintiff did not attend the original hearing before the registrar having advised the court in writing that he would not attend. This is a hearing de novo and there is no obligation on the plaintiff to establish any error on the part of the registrar or to otherwise articulate grounds of appeal. The plaintiff during the course of the hearing de novo on 7 August 2020 read into the transcript 45 grounds of appeal or reasons why the plaintiff says that the Orders should not have been made.
Many of those grounds or reasons do not relate to the issues necessary for me to deal with the second defendant's application for the Orders outlined above. It is unnecessary for me to deal with the plaintiff's grounds of appeal except insofar as they are relevant to the issues in this hearing and I proceed on that basis.
Issues for determination
There are 10 issues for determination as follows:
1.What are the plaintiff's Centrelink documents being sought?
2.What are the principles relating to further and better discovery?
3.Are those Centrelink documents relevant to a matter in question in this action?
4.Are any of the Centrelink documents within the plaintiff's possession, custody or power?
5.Are the Centrelink documents (physically held by Centrelink) within the plaintiff's possession, custody or power?
6.Does the court have the power to order the plaintiff to take steps to obtain access to the Centrelink documents?
(i)the obligation of reasonable enquiry;
(ii)the DCR; and
(iii)should the plaintiff be ordered to sign the authority to release form?
7.Are the plaintiff's taxation documents for the financial years 2016, 2017 and 2018 relevant to an issue in this matter?
8.Are the plaintiff's bank statements and credit card statements evidencing income and expenses of his Uber Eats delivery business for the financial years 2017 and 2018 relevant to an issue in this matter?
9.What are the obligations of the plaintiff to particularise a claim for special damages?
10.What final orders are appropriate?
Background and issues arising in the substantive action
In order to determine the relevance of the second defendant's request for documents, it is necessary to have regard to the background to this matter and to the issues that the pleadings and the conduct of the parties raise.
This action arises out of a motor vehicle accident that occurred on 22 December 2017 in which the plaintiff sustained personal injuries.
The proceedings were instituted by writ dated 23 August 2018 which named the first defendant as the sole defendant.
The plaintiff's statement of claim[10] pleads that on 22 December 2017 he was travelling along Beach Road in Hamersley. Whilst part way through a green traffic signal at the intersection of Beach Road waiting to turn right into Glendale Road the first defendant driving a Kawasaki motorcycle drove through a red traffic light on Glendale Road thereby colliding with the right side of the plaintiff's vehicle.
[10] Statement of claim dated 31 October 2018.
The plaintiff pleads that the collision was caused wholly by the first defendant's negligence in her failure to stop at a red light[11] and as a result the plaintiff suffered new, or sustained an aggravation of existing, injuries.[12] The plaintiff had previously been involved in an accident in or around 2011 in which he suffered injuries.
[11] Statement of claim, par 3
[12] Statement of claim, par 4(a).
The plaintiff has pleaded that as a result of the injuries he sustained or, by reason of the injuries aggravated by the accident, he has incurred medical expenses in respect of which he seeks reimbursement by the second defendant. To this end the plaintiff seeks reimbursement of various taxi travel vouchers and expenses arising out of his treatment needs. He also seeks reimbursement for a health massage chair.
The plaintiff further pleads a past loss of income;[13] loss of future earning capacity or 'a reduction in the parameters of his employment'.[14] The plaintiff argues that by reason of the first defendant's negligence he has lost the ability to work as an Uber Eats driver, an occupation he was engaged in for some months prior to the accident.
[13] Statement of claim, par 6.
[14] Statement of claim, par 7.
The first defendant lost a leg in the accident with the plaintiff.
The first defendant filed a defence dated 20 November 2018 in which the allegations of the plaintiff were denied or, to the extent that the first defendant's negligence caused the accident, the plaintiff's own negligence contributed to the accident such any relief sought by the plaintiff ought to be denied.
The Insurance Commission of Western Australia was joined as the second defendant to the proceedings in October 2019. The second defendant pleaded that the plaintiff's own negligence contributed to the accident[15] and in its pleadings did not admit that by reason of the accident the plaintiff suffered from new injuries, or sustained an exacerbation of existing injuries requiring medical treatment.[16]
[15] Defence of the second defendant dated 8 November 2019, par 5.
[16] Defence of the second defendant dated 8 November 2019, par 4.
The second defendant in the course of oral submissions on 7 August 2020 indicated that the likely position will be that the second defendant will admit liability.
The second defendant asserts that the plaintiff's injuries, the requirement for treatment and expenses alleged, the loss of earnings, loss of future earning capacity and the need for assistance past and or future as alleged by the plaintiff have been caused or contributed to by the plaintiff's longstanding medical conditions which rendered the plaintiff unfit for work or study and in receipt of a Commonwealth Government pension from around 2011.[17]
[17] Defence of the second defendant dated 8 November 2019, par 5.
What are the plaintiff's Centrelink documents being sought?
The application by the second defendant sought in the first instance the plaintiff's Centrelink file in its entirety.
In the course of oral submissions on 7 August 2020 the second defendant narrowed the scope of its request to applications made by the plaintiff for Centrelink benefits to include applications submitted by the plaintiff, medical certificates submitted in support of those applications and any medical reports and other documents that evidence the plaintiff's injuries prior to the 22 December 2017 accident and that evidence the plaintiff's work history or inability to work prior to that time.
The second defendant submitted that Centrelink documents evidencing the plaintiff's earlier accident in or around 2011 and the injuries that flowed from that accident and his work history before and after the earlier accident are sought.
The second defendant did not particularise the precise documents sought from the plaintiff's Centrelink file, however, I proceed on the basis that the scope of the specific discovery sought applies to documents evidencing these issues.
What are the principles relating to further and better discovery?
The principles relating to further and better discovery were summarised by Master Newnes, as he then was, in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [No 4].[18]
[18] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [No 4] [2005] WASC 60.
These are:
(i)In determining whether to make an order for further discovery there must be reasonable grounds for the court to be fairly certain that there are other relevant documents which ought to have been discovered.[19]
(ii)The court must be able to infer from the nature of the document in question that it is relevant and it will not speculate as to its relevance.
(iii)Relevance may either appear from the nature of the document or its contents and if the latter, there must be a prima facie case as to the contents before an order for further discovery will be made.[20]
(iv)Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is also relevant.
(v)In determining whether a document relates to a matter in question the relevant test is that applied in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (the Peruvian Guano test), which is as follows:[21]
It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words 'either directly or indirectly', because as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.
(vi)The matters in issue are to be determined by reference to the pleadings[22] but regard must also be had to the conduct and admissions of the parties and the nature of the action.[23]
(vii)There is no strict entitlement to an order for discovery, including an order for further discovery and amendments to the Rules emphasise the need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery.
[19] Beecham Group Pty Ltd v Bristol-Myers Co [1979] VR 273.
[20] Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218, 219.
[21] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55.
[22] Mulley v Manifold (1959) 103 CLR 341, 345 (Menzies J).
[23] Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178, 186.
A party obliged to make discovery should search diligently to identify all discernible documents in the party's possession, custody or power. What are reasonable inquiries will depend on the circumstances of each case.[24] It is not necessary to go to such lengths as would be oppressive.[25]
[24] Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18 [34].
[25] Reed v Amaca Pty Ptd Formerly James Hardie & Co Pty Ltd [2010] WASC 14 [10].
Additionally, a party obliged to give discovery is obliged to take all reasonable steps to obtain documents or copies of documents relevant to the matters in issue which it is in the party's power to obtain.[26]
[26] Integrated Management Services Pty Ltd v Inches [2009] WADC 41; (2009) 61 SR (WA) 114.
If a relevant document is in possession of a third party who will surrender it for inspection or copying on request of the party who is under the obligation to give discovery, then the party under the obligation to give discovery ought to make that request.[27]
[27] Integrated Management Services Pty Ltd v Inches (2009) 114.
Are the Centrelink documents sought relevant to a matter in question in this action?
If the plaintiff has applied for and received a sickness allowance or a disability support pension or other benefit that arises out of a pre‑existing injury or illness it is likely that the plaintiff has submitted documents to Centrelink containing information about his medical condition.
The documents sought by the second defendant comprising certificates from the doctors who put the plaintiff onto a disability or other pension will set out the reasons why the doctor certified that the plaintiff was unable to work and ought to receive the benefit. If the plaintiff has applied and/or received unemployment benefits it is likely that he has submitted documents to Centrelink that contain information about the nature and extent of his endeavours to find employment.
In my view it is reasonable to suppose that whatever type of benefit has been applied for and/or granted, the documents in question may directly or indirectly enable the second defendant to assess the plaintiff's claim.
Those documents might reasonably inform the second defendant as to the extent and duration of the plaintiff's incapacity to work, the extent to which future medical treatment is properly payable and to assess the plaintiff's claims in respect of past and future economic loss.
I am satisfied that the documents sought by the second defendant are relevant as set out in the Peruvian Guano test.
Are any of the Centrelink documents sought currently within the plaintiff's possession, custody or power?
The discovery provided to date has not included evidence on affidavit that the documents sought by the second defendant are physically in possession of the plaintiff.
Given the nature of the documents sought, comprising applications made by the plaintiff for Centrelink benefits and any medical certificates in support of their applications, it is reasonable to require the plaintiff to file an affidavit deposing to those documents sought by the second defendant that the plaintiff currently has in his possession.
These may include copies of applications submitted by the plaintiff for Centrelink benefits, copies of medical certificates or other medical reports submitted in support of any such applications which are relevant to the issues in this matter.
Are the Centrelink documents (physically held by Centrelink) within the plaintiff's possession, custody or power?
The second defendant seeks specific discovery of documents physically held by Centrelink. That is, documents not physically in the plaintiff's possession.
A consideration of what documents are discoverable begins with Rules of the Supreme Court 1971 (RSC) O 26 r 1(1). The obligation rests on a party to give discovery of all documents which have been in his possession, custody or power relating to any matter in question in the action. Gething DCJ examined the authorities in this respect in Chavarria v Rodman.[28]
[28] Chavarria v Rodman [2006] WADC 42.
The words 'possession', 'custody' and 'power' were defined by Dunn J, in B v B in the following terms:[29]
For this purpose 'possession' means, the right to the possession of a document. 'Custody' means the actual, physical or corporeal holding of a document regardless of the right to its possession, for example, a holding of a document by a party as servant or agent of the true owner. 'Power' means, an enforceable right to inspect the document or to obtain possession or control of the document from the person who ordinarily has it in fact. The requirements of the rules are disjunctive in their operation, so far as possession, custody and power are concerned.
[29] B v B [1979] 1 All ER 801, 805; Chavarria v Rodman [10] – [16].
This formulation was adopted by the Full Court of the Family Court in In the Marriage of Barro.[30]
[30] In the Marriage of Barro (1983) 47 ALR 338, 345 - 346.
The concept of 'power' over a document was considered by the House of Lords in Lonrho Ltd v Shell Petroleum Co Ltd(No 2) in the judgment of Lord Diplock (with whom the other members of the House of Lords agreed). Lord Diplock said the following:[31]
The phrase, as the Court of Appeal pointed out, looks to the present and the past, not to the future. As a first stage in discovery, which is the stage with which the subsidiaries appeal is concerned, it requires a party to provide a list, identifying documents relating to any matter in question in the cause of matter in which discovery is ordered. Identification of documents requires that they must be or have at one time been available to be looked at by the person upon whom the duty lies to provide the list. Such is the case when they are or have been in the possession or custody of that person; and in the context of the phrase 'possession, custody or power' the expression 'power' must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future.
[31] Lonrho Ltd v Shell Petroleum Co Ltd(No 2) [1980] 1 WLR 627, 635.
Lord Diplock's definition was cited with approval by Le Miere J in Australian Railway Group Pty Ltdv Rowan[32] and by Burt CJ and Pidgeon J in Midalco Pty Ltd v Simpson.[33]
[32] Australian Railway Group Pty Ltdv Rowan [2004] WASC 165 [30].
[33] Midalco Pty Ltd v Simpson (Unreported, WASC, Library No 6747, 5 June 1987).
The issue of what constitutes 'power' over a document was also considered by the Full Court of the Supreme Court of South Australia in Taylor v Santos Ltd.[34] In that case, the Full Court unanimously held that the defendant did not have 'power' over certain documents in the possession and custody of a company that was a wholly owned subsidiary of another company that was itself a wholly owned subsidiary of the defendant. The court accepted the comments referred to above from Lord Diplock in Lonrho as the starting point in the analysis of the authorities. Doyle CJ made the following comments that are relevant for present purposes:[35]
In my opinion the court should be cautious in extending the concept of power beyond the concept of presently enforceable legal right, even though it may be appropriate to do so. Reading r 58 as a whole, my view is that the obligation to discover a document is limited to a document that the person in question has the legal power or (I can think of no better expression) actual and immediate ability to inspect, even though the document is the property of or is held by another person. That power or ability might exist in relation to a document that a person is not able to produce for inspection to a third person, eg a document in which a person has joint property with another person. But, in my opinion, the obligation to discover hinges upon having a right or actual and immediate ability to examine the document. A person does not have that right or actual immediate ability if the person is able to inspect the document only if a third person, who has control of the document, agrees to permit inspection, or agrees to refrain from so exercising that person's control as to prevent inspection. I add, at the risk of speaking too generally, that in considering these issues the court is not concerned with issues of practicality. For example, a document might be in the power of a person in the sense just explained, but be thousands of kilometres away and difficult to get to, or it might be close at hand but stored in a warehouse and very difficult to locate.
The point I wish to emphasise is that to the extent that the concept of power extends beyond a presently enforceable legal right, it should be held to so extend only when the court can say that the person in question does have the actual immediate ability to inspect the document. Otherwise, I consider, the law would place an impossible obligation upon a party.
[34] Taylor v Santos Ltd (1998) 71 SASR 434.
[35] Taylor v Santos Ltd (437) - (438).
A document is in the power of a party when it has a presently enforceable right to obtain inspection of it from whoever actually holds it without obtaining the consent of anyone else.[36]
[36] Lonrho (635); (Le Miere J) Lopresti v Ford Motor Company of Australia Ltd [2007] WASC 206 [32].
The authorities make it clear, however, that a document held by a third party is not within the 'power' of a party under the obligation to provide discovery unless that party has a 'presently enforceable legal right' to obtain the document or a copy of it without the need to obtain the consent of anyone else.[37]
[37] Midalco Pty Ltd v Simpson (Unreported, WASC, Library No 940252, 20 May 1994); Biltoft Holdings Pty Ltd v Casselan Pty Ltd (Unreported, WASC, Library No 940252, 20 May 1994); Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 [21] ‑ [25].
If the third party has the legal right to refuse to deal with the document at the request of a party to the action, this means that the power with respect to the document remains with the third party.[38]
[38] Biltoft Holdings Pty Ltd v Casselan Pty Ltd (Anderson J).
The fact that the third party is likely to comply voluntarily with a request to give a party to the action access to a document does not mean that the document is within that party's 'power'.[39]
Application to the facts
[39] Absolute Analogue Inc v Sundance Resources Ltd [23].
The Centrelink documents physically held by Centrelink (as opposed to being physically held by the plaintiff) are not documents within the power, possession of control of the plaintiff in that he has no presently enforceable legal right to obtain the documents or copies of the documents.
The fact that Centrelink provides an Authority to Release Form which evidences that Centrelink will comply voluntarily with a request by the plaintiff to access certain documents does not bring those documents within the plaintiff's possession, custody and power so as to make them discoverable. Production of the documents from Centrelink would still require Centrelink's consent for their release.
I reach this conclusion because there is no evidence that the plaintiff has any enforceable legal right to compel the production of the documents from Centrelink.
The concept of 'power' over a document in RSC O 26 r 1(1) must also be read in the context of O 26 generally which provides a duty to make the discoverable documents available within seven days for inspection (O 26 r 8(1)). This includes the power of the inspecting party to make copies of the documents produced for inspection (O 26 r 8(5)). Thus the power required over a document appears to necessarily include a power that enables the opposing party to both inspect and take copies of the relevant documents.[40]
[40] Chararria v Rodman [16].
It cannot be said that the plaintiff has power in these circumstances over the Centrelink documents.
The question then falls to be examined as to whether there is a mechanism for the plaintiff to obtain the Centrelink documents and, if so, whether the plaintiff ought to be directed to take those steps?
Does the court have the power to order the plaintiff to take steps to obtain access to the Centrelink documents?
The obligation of reasonably enquiry
The second defendant submits that if the Centrelink documents are not within the power or possession or custody of the plaintiff that the court should order that the plaintiff take steps to obtain access to the documents sought.
It is relevant to a consideration of what is a reasonable enquiry to be made by the plaintiff that Centrelink has a specific mechanism to allow for a party to provide authorisation to Centrelink for the release of their documents to a third party. The fact that that mechanism exists and is effected simply by the plaintiff signing the authority form is a relevant fact to be taken into account in the determination of this application.
The Supreme Court has the power to direct a party to make reasonable efforts to obtain access to and discover documents which are in the possession, power or control of a third party where there is a real likelihood that the party to the action would be given access to the documents upon request.[41]
[41] Pursuant to RSC O 4A r 5(1), r 2(1) and O 1 r 4B (1)(a) and r 4B(2); Reed v Amaca Pty Ptd Formerly James Hardie & Co Pty Ltd [27].
The rule confers upon the court the power to make such orders or give such directions to lead to the efficient and timely disposal of proceedings as it may consider just and expedient.[42]
[42] Reed [27]; Absolute Analogue Inc [32].
This includes the power to direct a party to take steps to obtain access to and discover documents which are in the possession, power or control of a third party where there is a real likelihood that the party to the proceeding would be given access to the documents upon request.[43]
[43] Absolute Analogue Inc [32] (Le Miere J).
An order to disclose the existence of payroll tax and income tax returns lodged with and held by tax authorities and to do what was reasonable to obtain them was made in Palmdale Insurance Ltd (in liq) v L Grollo & Co Ltd.[44] Marks J held that the power to make such orders pursuant to the then O 14 r 5(3) of the Rules of the Supreme Court 1985 (Vic). Those rules provided that upon the hearing of a summons for directions in a commercial list the judge may give such directions with respect to any interlocutory step of proceeding and otherwise as in his opinion are expedient for the just and speedy determination of the matters in issue in the action.
[44] Palmdale Insurance Ltd (in liq) v L Grollo & Co Ltd [1987] VR 113, 117.
Le Miere J in Lopresti v Ford Motor Company of Australia determined that the RSC (WA) O 29 r 2(1) (as it then was), was in similar terms. That rule provided that in any proceedings the court may at any time of its own motion on notice to the parties or upon hearing of a summons for directions or other application review the progress of the proceedings and make such orders or give such directions to lead to their efficient and timely disposal as it may consider just and expedient.
Le Miere J read that rule together with O 26 r 7 and the court's inherent jurisdiction to confer upon the court sufficient power to make orders for discovery, or in aid of discovery, including order that a defendant take such steps, make such requests and do such things as may reasonably be necessary to obtain documents or information concerning documents that were, but are no longer, in the possession, custody or power of the party against whom the order is made.[45]
[45] Lopresti v Ford Motor Company of Australia [2007] WASC 206 [33].
In Lopresti Le Miere J declined to make orders directing that the defendant made further investigations about documents transmitted to the defendant by Ford US or Ford UK that are no longer in the possession, custody or power of the defendant.
His Honour so declined because there was no evidence that either Ford US or Ford UK had a record of documents transmitted to the defendant before the date on which the defendant suspended it records management policy. Secondly, there was no evidence that Ford US or Ford UK was likely to search its records and provide the information sought and thirdly there was no evidence of identifiable documents or classes of documents that were but were no longer in the possession, custody or power of the defendant or which Ford US or Ford UK had a copy or a record of having sent to the defendant.[46]
[46] Loprestiv Ford Motor Company of Australia [34] - [36].
Le Miere J in Rafferty v Amaca Pty Ltd Formerly James Hardie & Co Pty Ltd) considered that the Supreme Court had the power to make an order for the discovering party to make reasonable efforts to procure the documents from an associated body that holds them and an ancillary order to discover documents received if the outcome of the first order is a success: a 'Sabre order.'
Le Miere J considered that similar orders have been made in the Supreme Court of NSW in the exercise of its powers under s 61(1) of the Civil Procedure Act 2005 (NSW) that the court may by order give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings.[47] His Honour held that the Supreme Court of WA had power to make such orders pursuant to the RSC.[48]
[47] Ali v Khan [2015] NSWSC 1961.
[48] See also Absolute Analogue Inc [32]. See now RSC O 4A r 5(1), r 2(1) and O 1 r 4B(1)(a) and r 4B(2).
The circumstances in which the court should make such an order are not closed but before making such an order the court should consider:
(a)Whether there is a real likelihood that the party against whom the order is sought would be given access to the documents upon request.
(b)It must be likely that the documents sought are in fact in existence in the possession of the third party; and
(c)The order must be restricted to require the person against whom it is made to take all reasonable steps to obtain the documents.[49]
The District Court Rules 2005
[49] SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) (2006) 155 FCR 150 [31] - [33]; Rafferty v Amaca (Formerly James Hardie & Co Pty Ltd) [63].
Rule 46 of the District Court Rules 2005 (DCR) provides that O 26 of the RSC applies to an action commenced in the District Court by writ subject to DCR r 46.
DCR r 46(2) provides that subject any order made by the court each party to the action must give each other party discovery of all documents that are or have been in the party's possession, custody or power relating to any matter in question in the action.
The District Court has an inherent power arising from DCR r 46 to order further discovery.[50] The District Court has its own case management regime pursuant to the DCR.[51]
[50] Pollard v Endale Pty Ltd (2009) 66 SR (WA) 1.
[51] Built Pty Ltd v C & L Ceilings Pty Ltd [2019] WADC 52; Cristovao v Butcher Paull & Calder(2008) 58 SR (WA) 64; RSC 29A O 2 has no application to proceedings commenced in the District Court; O 1 r 7 DCR.
The court has the power to issue case management directions pursuant to DCR r 24(1). That rule provides that a case management direction is any procedural direction that in the court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously.
An order directing a party to take steps to obtain access to and discover documents which are in the possession, power or control or a third party where there is a real likelihood that the party to the proceedings would be given the documents upon request is such a case management order.[52]
[52] Integrated Management Services Pty Ltd v Inches (2009) (114.
I am satisfied that the court has the power to direct the plaintiff to take steps to obtain access to the Centrelink documents sought by the second defendant.
Should the plaintiff be ordered to sign the Centrelink Authority to release form?
Centrelink is an agency of the Department of Human Services Australia which is governed by the Human Services (Centrelink) Act 1997 (Cth) and the Social Security (Administration) Act 1999 (Cth) (SSA). Part 5, div 3 of the SSA is headed 'Confidentiality' and governs the protection of personal information. Section 207 provides that an officer must not except for the purposes of the social security law be required to produce any document in his or her possession to a court, tribunal, an authority or to a person having power to require the production of documents or the answering of questions.
That provision makes it clear that the second defendant is unable to access the Centrelink documents by issuing a subpoena or summons to produce documents. However, the Secretary may, despite the provisions of s 204 and s 207, disclose any information to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it.
A person seeking the release of their personal information held at Centrelink may sign an Authority to release personal information form Si039 - personal injury, insurance, superannuation or other matter (the Authority to Release Form).
That form specifically provides a mechanism by which a person may consent for Services Australia to provide certain information about the applicant to a third party organisation where the information sought can be disclosed under the administrative access scheme. The notes on that form specifically provides that such third party organisations may include law firms, insurance companies, superannuation funds or other government agencies.
The notes 'when to use this form' specifically state that Centrelink will provide under the scheme payment tax summary information, earnings information, medical certificate information and medical, Job Capacity Assessment and Employment Services Assessment reports (and/or other specific information) or a combination of these items, for certain periods, as specified on the form. Not all personal information is disclosed in accordance with the general consent provisions contained in the social security law.[53]
[53] Centrelink Authority to release personal information – personal injury, insurance, superannuation or other matter (Si039) form.
It is relevant to consider in making a determination of whether the plaintiff ought to be ordered to sign the Authority to Release Form the following matters:
1.The relevance and importance of the documents in question.
2.The likelihood that the documents sought are in fact in existence in the possession of Centrelink.
3.Whether there is a real likelihood that the plaintiff would be given access to the documents upon request
4.Whether the steps required of the plaintiff are reasonable.
5.What alternative option is available to the second defendant to obtain the documents sought.
The relevance and importance of the documents in question has already been addressed previously. The documents are directly relevant to a final determination of the issues between the parties in so far as they relate to, or may relate to, issues of past and future economic loss, future medical treatment and an assessment of damages generally.
Without the documents that evidence the plaintiff's pre-existing injuries and work history, the second defendant is not in a position to settle this matter; in the event that this matter cannot be settled a judge will not be in a position to properly and fairly to both parties assess those aspects of the plaintiff's claim.
The documents sought are likely to be retained by Centrelink and the existence of the Authority to Release Form suggest that there is a real likelihood that the plaintiff and the second defendant will be given access to the documents upon request. That is the very purpose of the form.
The documents itemised on the Authority to Release Form as being documents provided under the scheme include precisely those classes of documents the second defendant seeks from the plaintiff by way of specific discovery. Those documents include 'payment tax summary information, earning information, medical certificate information and medical, Job Capacity Assessment and Employment Services Assessment reports (and/or other specific information) or a combination of these items, for certain periods, as specified on this form'.
There is no alternative mechanism by reason of the confidentiality provisions of the SSA for the second defendant to obtain the documents sought.
I am satisfied that the relevance and importance of the documents would justify the court making a case management order directing the plaintiff to sign the Authority to Release Form if the steps involved are reasonable, they do not place an unnecessary burden on the plaintiff, the documents are likely to be in existence at Centrelink and they are likely to be provided upon request.
I consider that the steps required of the plaintiff in signing the Authority to Release Form are simple and reasonable in all of the circumstances.
In my opinion it is necessary and expedient to give the plaintiff a direction requiring him to sign and lodge the Authority to Release Form.
Are the plaintiff's taxation documents for the financial years 2016, 2017, and 2018 relevant to an issue in this matter?
The plaintiff's taxation records for the financial years ending 2016, 2017 and 2018 are clearly relevant to his claim for past and future economic loss.
DCR 46(2a) provides that if a plaintiff in a personal injuries action is required under subrule (2) to give discovery of income tax returns the plaintiff must discover the returns lodged by the plaintiff for at least:
(a)the financial year during which the incident pleaded as the cause of the personal injuries occurred; and
(b)each of the preceding financial years.
Order 2(a) as made by the Registrar is appropriate.
Are the plaintiff's bank statements and credit card statements evidencing income and expenses of his Uber Eats delivery business for the financial years 2017 and 2018 relevant to an issue in this matter?
Given that the plaintiff claims damages for future economic loss I am satisfied that the plaintiff's bank statements documenting his income from his Uber eats delivery business for 2017 and 2018 are relevant.
Similarly the bank statements and credit card statements that document the cost of running the plaintiff's Uber Eats delivery business are also relevant to the question of damages for future economic loss.
Order 2(b) as made by the Registrar is appropriate.
The obligations of a party to particularise a claim for special damages. Rule 45C(3) - reimbursement of taxi travel vouchers and other expenses
The plaintiff has claimed reimbursement of his taxi travel vouchers and seeks payment by way of special damages.
The plaintiff has submitted numerous receipts on which he has made notations as to what the taxi travel related to. On other receipts it is unclear what the purpose of the travel was for.
The second defendant asserts that the plaintiff has failed to properly particularise his claim for special damages in so far as the taxi travel vouchers are concerned. The second defendant maintains that it is unable to reasonably assess whether the taxi travel vouchers are causally connected to injuries the plaintiff sustained out of the accident or otherwise reasonably incurred.
Having reviewed the taxi vouchers and receipts submitted by the plaintiff to the court I determine that many of those vouchers are not capable of being assessed in their current form. It is not clear in respect of all of the vouchers submitted what they related to, the purpose of the trip and therefore why they fall to be paid by the second defendant.
The second defendant through its solicitors has prepared a document headed 'Schedule of Expenses' provided to the plaintiff by letter dated 3 April 2020.
The schedule has been prepared to assist the plaintiff in particularising the details of each claim for reimbursement.
Order 45C of the DCR applies to every party to a case who claims damages in the case. That rule provides that in a personal injuries action the particulars of damage must set out in detail the amount of money claimed for each of the categories, including special damages (r 45C(3)(c)), past gratuitous services (r 45C(3)(d)), and other discrete item of damages (r 45C(3)(g)).
The onus is on the plaintiff to particularise the receipts in sufficient detail to enable the second defendant to assess whether they are payable. The information can only be provided by the plaintiff. Only he knows where he travelled to on any particular day and the reason for that travel, such as an appointment with a specified doctor or other medical professional.
The plaintiff in the course of his oral submissions has maintained that all of the information required has been provided to the court and that the second defendant ought to be in a position to work out each claim.
The plaintiff has obligations in bringing this action and in seeking reimbursement of expenses to provide all the necessary information in order for the second defendant to answer the case against it in this regard.
The obligation is on the plaintiff to demonstrate that the expenses he now seeks to have reimbursed were in fact reasonably incurred.
I consider that he has not done so in the format in which the receipts have been provided in this action. It is appropriate that the plaintiff particularise his claim for special damages arising from the taxi travel vouchers as he is required to do under DCR r 45C.
The schedule of expenses prepared by the second defendant provides a template which the plaintiff could simply complete with the required information in respect of each taxi travel voucher he is claiming by way of special damages.
It is appropriate in my view for the plaintiff to particularise the expenses he claims by way of taxi travel expenses by completing the schedule of expenses.
It is also noted that the plaintiff has continued to send taxi receipts to the court purportedly as part of his claim for special damages.
The plaintiff is required to particularise his claim for damages and it the court will not accept receipts filed by the plaintiff in this way.
Given the need for the all parties including the court to have all of the special damages itemised as outlined, the plaintiff will not be entitled to claim any special damages that are not itemised in the particulars of damage schedule to be provided.
Orders 3(a) and (b) as made by the registrar are appropriate.
Final orders
1.The plaintiff is to file an affidavit of specific discovery identifying all of the Centrelink documents and medical records from January 2010 to date that are currently in his possession, custody and power.
2.The plaintiff is to file the affidavit within 14 days of this Order.
3.The plaintiff is to sign the Centrelink Authority to release Personal Information Form - personal injury, insurance, superannuation or other matter (Si039) for the release of the following documents from January 2010 to December 2018:
(i)all applications for any Centrelink benefits from January 2010 to present together with copies of any supporting documentation submitted with those applications;
(ii)all Centrelink medical certificates and/or forms completed by a medical practitioner in respect of any application by the plaintiff for Centrelink benefits; and
(iii)all medical reports in respect of the plaintiff.
4.The plaintiff must sign and submit to Centrelink the form in Order 3 within 14 days of the date of this Order.
5.The plaintiff is to file an affidavit of compliance with Orders 3 and 4 within 21 days of the date of this Order.
6.The plaintiff is to file particulars of the damages he seeks by way of taxi travel vouchers.
7.The particulars of damages is to be provided in the pro forma schedule of expenses attached to this Order.
8.The plaintiff is ordered not to file any further receipts to the court.
9.Unless otherwise ordered, the plaintiff is not entitled to claim any special damages not itemised in the particulars of damage in Order 7.
10.The second defendant have liberty to apply in the event of non-compliance.
Costs
I will hear from the parties on the question of final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate23 OCTOBER 2020
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