O'Callaghan v Birdwood Enterprises Pty Ltd (in Liquidation) - [2000] WADC 298

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: O'CALLAGHAN -v- BIRDWOOD ENTERPRISES PTY LTD (IN LIQUIDATION) & ORS [2000] WADC 298

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 15 NOVEMBER 2000

DELIVERED : 20 NOVEMBER 2000

FILE NO/S: CIV 1200 of 2000

BETWEEN: DESIREE O'CALLAGHAN
Plaintiff
AND
BIRDWOOD ENTERPRISES PTY LTD (IN LIQUIDATION)
First Defendant
IAN DONALD THOMAS
Second Defendant
BARBARA FRANCES THOMAS
Third Defendant

Catchwords:

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

Legislation:

Rules of the Supreme Court

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     No Appearance
First Defendant             :     Mr D G Price
Second Defendant         :     Mr D G Price
Third Defendant           :     Mr D G Price

Solicitors:

Plaintiff:     Leonard Cohen & Co
First Defendant             :     D G Price & Co
Second Defendant         :     D G Price & Co
Third Defendant           :     D G Price & Co

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The defendants application seeks leave to issue a subpoena pursuant to O 36 r 12 of the Rules of the Supreme Court. That application was before me on 15 October 2000 when I made some observations concerning the lack of precision in the description of the documents the subject of the proposed subpoena. After canvassing those difficulties the applicants invited me to deal with the application. It was dismissed whereupon I was asked to provide written reasons.
The terms of the proposed subpoena are as follows:
"… and bring with you and produce … all practice notes, hospital, medical and clinical notes, reports, letters, facsimiles, memorandum (sic), 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 any right foot or lower back or left shoulder or neck of left knee or left hip or right fourth toe injury or condition of whatsoever nature suffered by the plaintiff".
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 the subject of the proposed process.
The first appropriate consideration is to reflect upon the authority which the Court exercises within the community and the import of its determinations. The orders made by the Court are conveyed in written form. By such an order the court may require an individual to act or refrain from acting. For breach of the terms of an order the court may impose sanctions including deprivation of liberty.
It follows that it is appropriate to consider that the court would choose to express orders in clear unambiguous terms. In my opinion that consideration is both fundamental and inviolable. Even if that was not the case, in my opinion it would be the appropriate standard in a case such as this where the court seeks to engage involuntary compliance by a party not present at the time the order was made and who is not a party to the action.
And so it is that it is appropriate to consider that where a party is ordered to produce a particular document, that document be identified not only to record that such is the court's determination but also for the benefit of the party required to obey the order.
Before I move on I should note that prior to inclusion of r 12 it was only on rare occasions that the court was called upon to consider the terms of subpoenas duces tecum. It is easy to 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 subpoenas duces tecum in terms which describe either the content of a document or category of documents rather than discrete documents by their identifying features.
Turning to the applicants case, I understand that the applicants may presently be unable to better identify the particular documents the production of which they seek and that they would consider that they would be disadvantaged in the action if it was either necessary to identify particular documents or proceed to trial 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 to a process 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. Such recognition 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 applicants have 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 from the proposed witness.
I accept that the prospects of success under the first course may not be great. In any event the applicants may not wish to leave it to the witness to dictate 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 the applicants propose.
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 applicants. 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. In my opinion for a party to seek to enlist the assistance of the court it is appropriate that it first exhaust the options available to it, which do not involve recourse to the court. Cost may be considered to be an inhibiting feature when it comes to a consideration of other options. None the less, it is my opinion that as much as it is inappropriate for a party to seek the assistance of its opponent in getting up its case for trial so too it is inappropriate for a party to seek the assistance of the court unless it can be demonstrated that it is necessary so to do. By following that course the impartiality of the court is not eroded.
Counsel also submitted that in his experience medical practitioners have no difficulty in complying with the broadly framed terms of subpoenas duces tecum. That may be his experience but even if it represented the reality when measured against the considerations to which I have referred, it is of little significance.
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 establishing or preserving the prospect of a fair trial would have been the overwhelming motivation for the making of the order. Invariably the adverse party is a party to the action and consequently is taken to have accepted that he may be exposed to some harsh treatment during the process of the litigation. That prospect ought not to be permitted in this instance, the witness is entitled to be told exactly what it is that is required of him.