Ostrowski v Gibson - [2001] WADC 229

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: OSTROWSKI -v- GIBSON [2001] WADC 229

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 20 AUGUST 2001 & 17 SEPTEMBER 2001

DELIVERED : 28 SEPTEMBER 2001

FILE NO/S: CIV 370 of 2000

BETWEEN: MACIEJ TOMAS OSTROWSKI
Plaintiff
AND
MARGIE GIBSON
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for leave to issue a subpoena to be returnable prior to trial

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Application refused

Representation:

Counsel:

Plaintiff: no appearance
Defendant: Mr B Lawrence

Solicitors:

Plaintiff: Bradford & Company
Defendant: Lawrence & Howell

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

Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564

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) 382

DEPUTY REGISTRAR HARMAN: By the action the plaintiff seeks damages for personal injury sustained in a motor vehicle accident.
The defendant has made an application in the following terms under O 36 r 12(4):
"Leave be given to the Defendant to issue and serve a Writ of Subpoena Duces Tecum on Dr Mikosza of 44 Victor Street, Hilton requiring such persons (sic) to produce all documents, records and clinical notes in his possession relating to the above named Plaintiff."
In the affidavit in support of the application the witness is described as the plaintiff’s original general practitioner.
Rule 12(4) is in the following terms:
"With the leave of the Court a writ of subpoena duces tecum may require the person to produce the document or object concerned to the Court on a date before the date of the trial so that the person suing out the writ may inspect the document or object."
The discretion provided by the rule is unfettered. Accordingly, ultimately it is a matter of whether the court is persuaded that it is appropriate to grant leave in the terms proposed. The onus is on the applicant.
The application was initially listed on 20 August 2001 at which time I indicated that I was not prepared to give grant leave in the terms proposed. After some further submissions counsel elected to adjourn the application in order that he could accumulate some detail of occasions when in similar circumstances Judges of this court had exercised discretion in favour of an applicant in circumstances where I had not done so.
On the further hearing on 17 September 2001 counsel provided details and transcripts of 4 such instances where Judges and a Commissioner have exercised discretion in favour of an applicant.
It is fundamental that the court will not make an order unless it is satisfied that the order could be complied with. It is only where the documents to be produced are somehow identified that the court would be in a position to consider whether they may exist and be satisfied that they are within the capacity of the witness to produce them to the court.
It is also fundamental that in the process of exercising its authority the court will choose to express itself in terms capable of being understood by the person to whom that authority is addressed. To do so not only reflects the significance of that authority within the community but also the fact that disobedience raises the prospect of sanction.
The appropriate standard of expression of its orders in the context of the issue of subpoenas for the production of documents involves an assessment of the class or classes of persons to which that witness may belong. Accordingly where documents are sought from an engineer it is appropriate that the court be satisfied that an engineer would understand the terminology used by the court in identifying the documents it requires that witness to produce.
Otherwise a standard of more general application may reflect the standard which pertains in the context of discovery. And I might add, for the same reason.
It is in response to the interests of justice that the court will require a witness to produce documents to the court. Since the advent of the rule upon which the applicant relies there is scope for the perception that there is some greater flexibility in that process. In my opinion the only scope for flexibility lies in recognising the interests of the applicant and the witness in considering a convenient time for compliance with the terms of the subpoena..
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 573 contains the classical exposition of the principles relation to subpoenas for production:
"A subpoena duces tecum is a writ which is issued by the court as of course upon application by praecipe by or on behalf of a party to a cause or matter commanding some person or persons to attend before the court to give evidence, and also to search for, bring and produce to the court some document or documents relating to the cause or matter.
In form, it is a writ of subpoena ad test, with an addendum directing the production of documents. The court has undoubted jurisdiction to issue such a writ: Amey v Long 9 East 473 at 483-6; and disobedience to the writ is punishable by fine or attachment or both: R v Dale [1908] 2 KB 333.
A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.
It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery.
A stranger to the cause ought not to be required to go trouble and perhaps expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant. …
And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the court to have it set aside.
If duly served with such a writ and provided with the proper conduct money, the person served must obey it and bring to the court the documents mentioned in the subpoena if he has them, unless he procures the writ to be set aside as oppressive:…"
The only qualification I would make in relation to that comment is that in the event that the court considers it appropriate to do so it may require a stranger to make discovery. No such order has been made against the proposed witness.
It is evident from that passage that the court was not considering the issue of leave. None the less it does illustrate that the terms of the subpoena and the prospect of oppression and the consequences of default are live issues in the context of the witness seeking to set aside a subpoena and to the extent that those issues are canvassed they indicate what the court may properly consider to be the interests of the proposed witness.
In this case however the onus is on the applicant. The issue of oppression should not be left to the witness to raise. The court ought to recognise that the appropriate level of disruption imposed upon a witness is close to the minimum required to ensure a just result in the determination of issues between the parties.
In Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681 the court of criminal appeal set aside a subpoena on the application of the witness as it was able to determine that the party had issued the subpoena merely because he wished to see whether the documents sought contained relevant material. In that case it was considered that the party must show that it is “on the cards” that the documents will serve some forensic purpose.
Although those comments were made in the context of an application brought by a witness. In my opinion they have some impact in considering an application for leave.
I accept that in the event that the application is successful the witness would have the opportunity to seek to set aside the subpoena. It is a matter of considering whether the proposal is not patently oppressive. In my opinion if it is obvious that the terms of a subpoena are too broad it is inappropriate that the issue ought only be considered within the context of an application the onus for the bringing of which would devolve to the witness.
The evidence is that the applicant has sought from the witness the date upon which the plaintiff first complained of lower back problems. I recall that the letter to that effect addressed to the witness has drawn no response. The applicant then informs the court that by the issue of the subpoena will have the full benefit of notations made by the witness following the accident. There is no suggestion that any effort has been made to isolate the date of alleged onset of the low back condition. Similarly so the date or dates of the consultations following the accident. According to the submissions and the terms of the application, the applicant seeks far more than the clinical notes which relate to the onset of the low back condition, the subject of the evidence. It seeks far more than the clinical notes which may respond to the benefit outlined. By the application the defendant seeks clinical records of any consultation with the plaintiff. It is not ‘on the cards’ that the documents sought will serve any forensic purpose.
Turning to the terms of the proposed subpoena, in my opinion the only class of document which is sufficiently identified is the clinical notes which I assume would be the notes generated by the witness as a result of the plaintiff’s attendances upon him. The terms of the proposed subpoena are not clear on that point. The term could be considered to include similar notes in the possession of the witness regardless of the author. As for the balance of the documents sought, in all probability the witness would have all sorts of documents or records which relate to and may indeed mention the plaintiff. Such broad categories of documents would include what I would imagine would be records generated more for ‘business’ purposes of the witness. There is nothing which would suggest that there is likely to be any forensic benefit arising from an examination of documents of that nature.
Counsel submitted that without leave, by the issue of a subpoena in the terms proposed he could obtain the production of documents at trial. That may be the case. Whether it would be appropriate for the applicant to issue such a subpoena is for counsel to consider. No doubt he would reflect upon the task set for the witness, whether the witness might seek to have the subpoena set aside as oppressive and the consequences which may flow in the event that counsel considered that the witness be in default. Counsel may also reflect upon the witness' and indeed the community's view of the court in the event that any such default is attributable to the generality of the terms of the proposed subpoena. Finally counsel may reflect upon the prospect that the court would not enforce such a subpoena, alternatively that it may be set aside.
Ultimately whether or not counsel would consider it appropriate to issue such a subpoena provides neither a useful criterion for judging the issue to be determined nor any useful basis for analysis. Whether such a subpoena would achieve any useful result may depend more upon whether the witness would be motivated to allocate resources to the process of seeking to set aside the subpoena or simply "do his best" and rely upon that fact in defending the consequence of any alleged default.
The fact that certain results may have been achieved in the absence of the application of a proper standard does not mean that the standard by which an application for leave is judged is thereby lowered. It only illustrates the extent to which practice has departed from principle.
In any event it is the fact that the applicant seeks to achieve something other than the production of documents at trial; he seeks to have the documents produced prior to trial. To achieve that result he can not simply issue a subpoena; he requires a grant of leave. He must engage the court in the process. The submission reflected a failure by counsel to appreciate that by the application he sought leave. In considering the question of leave it is appropriate for the court to consider more than the interests of the applicant. In determining the issue of leave proper consideration is given to the interests of the witness.
Implicit in counsel’s submission that he was unable to determine the identifying features of the documents of which production is sought may be a concession he recognised that the terms of the proposed subpoena may be oppressive. In all probability it was at that point that I suggested that an applicant labouring under such difficulties has the option of seeking non-party discovery by the proposed witness. I recall that at the re-listing of the application counsel sought to characterise that suggestion as some form of direction. It is not for the court to direct a party as to how to achieve any result. Any comment made by me was intended to convey no more than the prospect of fresh consideration being given to the applicant’s difficulty. Similarly so, I suppose that the applicant might obtain particulars of special damages. Those particulars would probably reveal dates of relevant consultations for which the applicant could seek the clinical notes of the witness.
It would appear that the rationale behind the applicant’s submission is that because the applicant has difficulties it is appropriate to seek to oppress a witness.
The applicant also submitted that to seek discovery would be an unreasonable burden in that it was not only unnecessary and time consuming but that in all likelihood the witness would be put to unnecessary trouble and expense in attending to discovery and further that the "public purse" was put at risk. My first response is that I accept that such may be the applicant's view. The applicant is evidently interested only in obtaining a particular result. It would appear that from the applicant's point of view, the more efficiency brought to the process of obtaining that result, the better.
It is a matter of reflecting upon whether any of those matters ought to have any impact upon the appropriate standard by which the court chooses to express its orders. In my opinion, an appropriate compromise of the standard is reached at the point that I have addressed above, that is where the witness would apprehend what it is that is required of him judged by the likely experience and understanding of the witness. As to matters of cost, it is more important that the issue of the identity of the documents is appropriately addressed than it is that costs are saved. The saving of cost is only an appropriate consideration after issues of principle have been dealt with on their own terms. The court ought not to exercise jurisdiction simply because it can.
The issue of the community interest in the form of the draining of the "public purse" arises in the context that the defendant is supported by the statutory insurer of motor drivers in this State. I accept that it has a proper interest in minimising recourse to its finances in all aspects of its operation. Whilst it is not inappropriate to seek to issue the subpoena and perhaps, press an application for leave, ultimately the insurer is in no better position to argue for a reduction of the standard than any other litigant.
The next issue raised by the applicant appeared to canvass counsel's success in litigation in instances where subpoenas have been issued to medical practitioners for all of their medical records relating to a party and those records having been supplied to counsel, examined by him and used to some significant effect at trial. Indeed he indicated that he would not go to trial without recourse to medical practitioner's notes and if necessary, would seek an adjournment at the commencement of a trial in order to reflect upon any notes then produced. Counsel suggested that the judgment of some medical practitioners appeared to become clouded by a sense of duty or responsibility to their patient. I can not help observing that the credibility of a party’s medical practitioner is hardly likely to be in issue to be determined in an action between the patient and a tortfeasor.
In my opinion there is only one issue that arises from counsel’s submission and that is that counsel would like to find himself in a position to issue a subpoena in such general terms returnable prior to trial and without leave. He is then able to portray the saving of allocated trial time as efficiency. I have no doubt that some trial judges may take a similar view. However others may question whether a party could expect to delay the progress of the trial pending its detailed examination of documents which would include clinical notes and other records some proportion of which would have no bearing upon the issues to be determined.
That is not to say that in the event that a party elects to go to trial with the solicitor acting as counsel a trial judge may not readily come to the view that the purpose of the process is to obviate the need for delay in the trial. The applicant’s submission has some superficial attraction, what it fails to address is the fact that by the necessity for a grant of leave the court intended to retain some control over the procedure. That control may respond to the real prospect that a witness may be inconvenienced twice during the course of the litigation. It may respond to the prospect that a party would compound that inconvenience as a matter of course by seeking to do exactly what the applicant seeks to do in this case. It may also respond to the prospect that a party could seek to obtain the early return of subpoenas for a vast array of documents simply as a matter of course. In the case of a personal injuries claim that could extend beyond documents relating to the plaintiff’s entire medical history to his educational and employment records. Any number of matters of interest may arise from all manner of documents which could be brought to the court by all manner of persons. In my opinion it was for good reason the court required the applicant to demonstrate that there is likely to be some forensic benefit that would accrue from the result sought. The applicant needs to show that he is more than a voyeur.
It is of interest that in counsel’s experience witnesses do not complain or take issue with the generality of subpoenas. The critical issue is that oppression is apparent and has been recognised as significant in the context of considering the exercise of discretion. It would be inappropriate to ignore it.
Counsel for the applicant submitted that in his all of his years of practice there had been no difficulties with witnesses responding to subpoenas expressed in broad terms and that other Registrars of the Court give leave to issue subpoenas in broad terms. That submission covers the same ground as the submission that I ought to be guided by a reading of and reflection upon the transcripts of other proceedings provided to me by the defendant. None of the discussions canvassed in those transcripts satisfy me that it is appropriate to compromise the considerations and standards to which I have referred to the extent that the applicant proposes.
In my opinion the submission and the material go no further than illustrate the extent to which practice and principle have departed.

As to whether there are countervailing considerations, the applicant canvassed his lack of information resources. I recognise that such may be his view. I have already canvassed non-party discovery and the prospect of analysing information which may identify special damages. The applicant has not sought leave subsequent to having followed either course. It is not inappropriate to consider that the defendant has the opportunity to have the plaintiff evaluated by medical practitioners of his choice. This is not a case where the defendant brings such a medical assessment before the court which would suggest that the plaintiff’s medical history is likely to be of any interest.
My primary concern with the terms of the proposed subpoena is to ensure that if documents are to be produced that some proper information is provided to the witness in order that he can identify the documents the subject of the subpoena.
The various submissions of the applicant reveal a failure to appreciate that in order to obtain production of documents prior to trial the applicant requires leave. I am not satisfied that it would be appropriate to exercise discretion in favour of the applicant.