Newitt v Transport Accident Commission

[2013] VSC 323

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2013 00217

CRAIG NEWITT	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2013
DATE OF JUDGMENT:	1 March 2013
CASE MAY BE CITED AS:	Newitt v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2013] VSC 323

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ACCIDENT COMPENSATION – Plaintiff seeking injunction or order restraining the Commission from using depositions obtained in a criminal proceeding for any purposes other than the purpose for which they were obtained – Multiplicity of proceedings – Proper forum for debate about the admissibility of evidence – Undesirability of interfering with existing interlocutory processes in Court and VCAT proceedings – Not appropriate to issue fresh proceedings seeking to determine issues which can be raised within existing proceedings – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden	Robinson Gill
For the Defendant	Mr N Robinson SC with Mr P Matthews	Solicitor to the Transport Accident Commission

HIS HONOUR:

1. This is the return of an originating motion filed on 18 January 2013 on behalf of Craig Newitt as plaintiff against the Transport Accident Commission (“the Commission”) as defendant.[1]

   [1]This is a compilation of oral reasons delivered on 1 March 2013.

1. The originating motion was returnable before Ferguson J on 23 January 2013. It was set down for hearing and directions given for the filing of affidavits and submissions. Various agreements were given by the Commission and by the plaintiff in essence preserving the situation until the hearing and determination of this originating motion.

1. The originating motion seeks an injunction restraining the Commission from using depositions obtained in a criminal proceeding number CR-12-01044 in the County Court for any purposes other than the purpose for which they were obtained. Alternatively an order is sought restraining the Commission from using depositions obtained in the criminal proceeding in any civil proceedings between the plaintiff and the Commission.

1. The originating motion is supported by the affidavit of Sarah Alice Grant sworn on 18 January 2013. Ms Grant is an employee lawyer in the sole employ of the plaintiff’s solicitors. She deposes to the fact that the plaintiff was involved in a motor vehicle collision on 11 December 2005 and suffered injuries to his shoulder, ribs and back. He has subsequently undergone numerous medical procedures, including partial shoulder replacement surgery.

1. From 17 January 2006, the plaintiff was assessed by the Commission as entitled to receive loss of earnings benefits consequent upon the production of various medical certificates indicating that he was fully incapacitated for work. Loss of earning capacity benefits were subsequently paid until about 15 December 2008 when they ceased. The plaintiff has not received any benefit since that date.

1. On 6 October 2009, the plaintiff instituted proceedings under s 93 of the Transport Accident Act 1986 (Vic) (“the TAC Act”) for damages. This is proceeding SC-2009-09417. This proceeding was listed or a directions hearing on 5 February 2013 and was adjourned.

1. On or about 31 May 2011, the plaintiff was charged by the Commission with obtaining a financial advantage by deception and in attempting to pervert the course of justice. In or about June 2011, the plaintiff commenced proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”) for ongoing physiotherapy benefits, being VCAT proceeding number G1054/2011. This proceeding has been adjourned for mention on 8 April 2013.

1. On 14 June 2012, the plaintiff was committed to stand trial in the County Court of Victoria following a contested committal hearing. The trial has been set down to commence on 1 July 2013. In or about September 2012, the Commission made application to the County Court for an order releasing it from the Harman undertaking (if it existed) so that documents obtained for the criminal prosecution could be released for use in the civil proceedings. The application was heard by Her Honour Judge Cotterell on 10 October 2012 and 26 October 2012.

1. Both parties filed written submissions. Her Honour held that no implied undertaking attached to the criminal depositions before the County Court. I am provided with a record of orders made by the County Court in matter CR-12-01044 dated 18 December 2012 which certifies that Her Honour held that there was no implied undertaking and made orders accordingly. During the course of argument before Judge Cotterell, counsel for the plaintiff submitted that there was an alternative restriction on the use of prosecution material by the Commission due to it having been obtained coercively.

1. On 19 December 2012, the Commission’s Prosecution Department wrote to the plaintiff’s solicitors and advised them of the Commission’s intention to release the prosecution material to the Commission’s civil solicitor. As a result there is now a multiplicity of proceedings, namely, the VCAT proceeding which is listed for administrative mention in April 2013, the Supreme Court proceeding listed for directions in August 2013, the criminal proceeding listed for trial on 1 July 2013 and the present proceeding which is by originating motion without pleadings and with the only supporting material provided by the plaintiff’s solicitor.

1. Objection is taken by senior counsel for the Commission that the proper forum for a debate about the admissibility of evidence such as might be contained in the depositions is not the present proceeding but the court or tribunal hearing the substantive matter. It would then be a matter for the court or tribunal hearing the matter to decide whether the evidence is admissible and to arrive at a decision and exercise such discretions under the Evidence Act 2008 (Vic) as may be desirable in the interests of justice.

1. Senior counsel for the Commission submits that the present proceeding is not the way to proceed and that the usual and most appropriate forum for determining the issue in dispute is the forum in which the claim for damages or benefits was issued. Further, it is submitted that the existence of the capacity of a trial judge to decide on the admissibility of evidence and, if required, exercise discretion as to the admission of evidence tells against the existence of any discretion to grant the injunction sought by the plaintiff. The proper remedy is for the trial court or VCAT member hearing the particular matter to decide on the admissibility of evidence. A further submission is that the orders sought by the plaintiff are too wide and vague and should be rejected as unenforceable or unreasonably placing the Commission at risk of inadvertent breach. Finally, it is submitted that there is no proper basis for the grant of an injunction in the present proceedings.

1. I am of the opinion that the objections advanced by the Commission are well made and should be upheld for a number of reasons.

1. First, the injunction sought in this proceeding is described in vague and general terms. No specific documents are produced or identified as the subject of this application. Presumably the term “depositions” takes the meaning described in s 3 of the Criminal Procedure Act 2009 (Vic), although this is not stated, and means the transcript of evidence given in a committal proceeding and any statements admitted in evidence in the committal proceeding. It is apparent that this is a different and wider class of documents than those that might be obtained under s 127A of the TAC Act. Depositions and documents obtained under s 127A of the TAC Act are different classes of documents although the classes may well overlap.

1. I have no evidence from the plaintiff as to how statements made by him came to be given. I have no evidence confirming that there was in fact coercion or that the Commission relied on any and, if so, what statutory powers. I do not know from the evidence what notices or letters may have been given and what conversations occurred between the plaintiff and Commission officers. In the absence of any sworn material as to what happened from the plaintiff’s point of view, the Commission has had no opportunity to respond to such material. The court simply does not have evidence as to what happened or as to what is being alleged.

1. To make matters worse there are no pleadings in the current proceeding which might define the factual allegations advanced by the respective parties. There are, I expect, pleadings in the matter in the court and documents filed or required to be filed in the VCAT proceeding. I do not have either the Supreme Court or the VCAT files before me, nor is it appropriate that I second-guess what directions should be made in these proceedings. In my view it is undesirable and unwise to seek in this application to interfere in the interlocutory processes in the proceedings in the court or the proceedings in VCAT.

1. In Osland v Secretary to the Department of Justice (No 2),[2] French CJ, Gummow and Bell JJ pointed out the undesirability of the court usurping the powers of an administrative tribunal when a matter was remitted and the desirability in the ordinary case that the decision be made by the body established by Parliament for the purpose of making the decision, especially if it involved factual, evaluative or ministerial judgements. This decision has been followed in many cases in this court.

   [2](2010) 241 CLR 320, 332-3 [19]-[20].

1. In the case of VCAT, it is not bound by the rules of evidence but is bound by the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“the VCAT Act”). VCAT is expressly not bound by the rules of evidence,[3] or to any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures.[4] Under s 98(1)(c), VCAT may inform itself on any matter as it sees fit and under s 98(1)(d) must conduct each proceeding with as little formality and technicality as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit.

   [3]VCAT Act, s 98(1)(a).

   [4]Ibid, s 98(1)(b).

1. Section 49(1)(b) of the VCAT Act provides for documents in the Commission’s possession to be filed with the tribunal and under s 49(5) this operates despite any rule of law relating to privilege or public interest.

1. At the final hearings of the proceedings in this court and in VCAT, objection may be taken by the plaintiff to the use of the material contained in the depositions. A voir dire or separate factual investigation of the circumstances relating to the obtaining of some or all of the material contained in the depositions may be necessary. This can only be conducted by the court or tribunal empowered by legislation to hear the substantive matters. This is the court or tribunal that will receive all of the relevant documents and be responsible for determining the issues in dispute. All of this serves to demonstrate that the Commission’s objections to the use of the present proceedings as a vehicle to determine the issues desired to be raised by the plaintiff is well-founded.

1. If the plaintiff desires to pursue his objections to the use of the depositions then it is incumbent on the plaintiff to raise his concerns in the appropriate proceedings whether before the court or the VCAT. It is not appropriate to issue fresh proceedings to seek to determine issues which can be raised for hearing and determination in the existing proceedings. This has led to multiplicity of proceedings and the incurrence of unnecessary costs by both parties.

1. I have considered whether the proceedings are better adjourned or dismissed. In my view the state of affairs, particularly relating to the jurisdiction of the court and the tribunal, will not improve with an adjournment or postponement. I consider that no proper basis for the issue of the present proceedings has been shown as to which see s 18(d) of the Civil Procedure Act 2010 (Vic). The proceedings should be dismissed for the reasons that I have given. Accordingly I will order that the proceedings commenced by originating motion filed on 18 January 2013 be dismissed. I will order that the matters listed in other matters in the order of Ferguson J dated 23 January 2013 be discharged.