Parri (a pseudonym) v Victorian WorkCover Authority (Ruling)
[2018] VCC 1901
•23 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
| ROSELLA PARRI (A PSEUDONYM) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2018 | |
DATE OF RULING: | 23 November 2018 | |
CASE MAY BE CITED AS: | Parri (a pseudonym) v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1901 | |
RULING
---
Subject: PRACTICE AND PROCEDURE
Catchwords: Application by defendant pursuant to s32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) for leave to issue two subpoenas for production
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958 (Vic), s32C; Accident Compensation Act 1985 (Vic), s134AB; Civil Procedure Act 2010 (Vic)
Cases Cited:KR (a pseudonym) v BR (a pseudonym) & Anor (in liquidation) [2018] VSCA 159
Ruling: Court not satisfied on the balance of probabilities that the preconditions in s32D(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) have been met such that the material should be released to the defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Gladman | Arnold Thomas & Becker |
| For the Defendant | Ms S Manova | Hall & Wilcox |
JUDICIAL REGISTRAR GURRY:
1 This is an application by the defendant pursuant to s32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the EMPA”) for leave to issue two subpoenas for production. The subpoenas are addressed to:
· the Proper Officer of Davidson Trahaire Corpsych; and
· Julie Nicolaou of EACH Counselling.
2 The plaintiff issued an Originating Motion for leave pursuant to s134AB of the Accident Compensation Act 1985 (Vic) wherein she alleges she sustained a psychiatric injury in the course of her employment with the Wesley Mission Victoria.
3 The injuries listed in the plaintiff’s Particulars of Injury, dated 18 April 2018, are:
·Stress
·Anxiety
·Depression
·Post-Traumatic Stress Disorder
·Development of Diabetes
·Development of Psoriasis.
4 In the Draft Statement of Claim dated 24 October 2017, the plaintiff pleads that the injuries occurred:
“… in the course of her employment with the defendant in the period on and from December 2011 when she was exposed to and experienced frequent threats or acts of verbal and physical abuse, witnessed self-harm and suicidal behaviour and more particularly on 25 June 2014 when one of the residents held a pair of scissors to the plaintiff’s throat while holding the plaintiff in a headlock.”
5 It is important to set out the history of this application.
6 The defendant’s solicitors issued a subpoena on 29 March 2018 addressed to the Proper Officer of Davidson Trahaire Corpsych (“the DTC subpoena”).
7 Upon service of the DTC subpoena, the Registrar of the County Court received a letter dated 13 April 2018 from the addressee objecting to the inspection of the documents by any party on the following basis:
(a)the information contained in the documents has no relevance to the matters in dispute in the proceeding;
(b)the documentation requested contains confidential information regarding an alleged sexual offence or offences and production may not be compellable by the party issuing the subpoena without the Court’s prior intervention.
8 The addressee requested the Court to have regard to the relevant provisions contained in the appropriate Evidence Act.
9 It is agreed between the parties that at the time of the issuing of the DTC subpoena, no evidence had been presented to the defendant suggesting that the plaintiff had been the victim of any sexual abuse.
10 There are a number of matters pertaining to this subpoena which I am unable to explain. First, the plaintiff’s solicitors were granted access to the material without my knowledge despite the addressee’s communication to the Court. Second, at the hearing on 19 October 2018, when plaintiff’s counsel referred me to a page in the material which was copied by her instructing solicitors after examining and copying the material, I was unable to locate that page when I examined the Court file.
11 I also note that the plaintiff’s solicitors wrote to the Court on 2 May 2018 objecting to the release of the material on the grounds of privilege pursuant to the EMPA.
12 An objection hearing was listed before me on 22 June 2018. Counsel for the plaintiff informed me that she believed the material may contain “confidential communications” (as that term is defined in s32B of the EMPA). Coincidentally, this was the day the Court of Appeal delivered the decision in KR (a pseudonym) v BR (a pseudonym) & Anor (in liquidation)[1] (“KR”). I was unaware the decision was handed down whilst sitting; however, the parties agreed the objection hearing should be adjourned while the plaintiff’s solicitors approached the addressee to discuss the contents of the material.
[1][2018] VSCA 159
13 In an email to the Court on 7 August 2018, the defendant’s solicitors advised that the plaintiff’s solicitors had been in communication with Davidson Trahaire Corpsych, who consented to the release of the records subject to all confidential communications being redacted. The plaintiff’s and defendant’s solicitors submitted proposed consent orders in those terms.
14 Upon learning of the proposed consent orders, I instructed the Common Law Registry to notify the parties that, as the subpoenaed material may contain confidential communications, the proposed consent orders would not be made. I further advised that, as required pursuant to s32C of the EMPA, leave to issue a subpoena was required if it was believed the material may contain confidential communications. I referred to paragraph 41 of the Common Law Division Practice Note (PNCLD 2-2018) of 1 August 2018 and requested the defendant issue an application for leave to issue the subpoena.
15 On 16 August 2018, the plaintiff’s solicitors issued a subpoena for production to Registrar to Julie Nicolaou of EACH Counselling. The addressee responded to the subpoena and provided a copy of the plaintiff’s file in correspondence dated 27 August 2018. No objection to the release of the material was taken by the addressee. On that basis, the plaintiff’s solicitors were granted access to the material, and determined that the file may contain confidential communications.
16 As with the DTC subpoena, at the time of issue of this subpoena, the defendant’s solicitors had no knowledge that the material may contain confidential communications.
17 By correspondence to the Court dated 20 September 2018, the plaintiff’s solicitors objected to the release of the file, stating the following:
“We advise that we object to the release of the files Julie Nicolaou of EACH Counselling on grounds of privilege pursuant to Evidence (Miscellaneous Provisions) Act 1958.”
18 Given this objection, the defendant’s solicitors were requested to prepare an application for leave to issue a subpoena pursuant to s32C of the EMPA. That application was listed before me, together with the application for the DTC subpoena to be heard on 19 October 2018.
19 Despite having knowledge that the subpoenaed material may contain confidential communications, the defendant’s solicitors issued two new subpoenas: one directed to Davidson Trahaire Corpsych, dated 17 September 2018, and another directed to Julie Nicolaou, dated 27 September 2018. It was explained to me at the hearing that this was due to an administrative error. It is not disputed by the parties that the issuing of those subpoenas was done outside the provisions of s32C of the EMPA and should be set aside. I shall make the appropriate orders to that effect.
20 Returning to the current application, I have in support:
(a) the defendant’s submissions dated 26 September 2018;
(b) the plaintiff’s submissions, which are undated;
(c) the applications to issue a subpoena addressed to Davidson Trahaire Corpsych dated 14 September 2018 and Julie Nicolaou dated 1 October 2018; and
(d) an affidavit of service for the applications.
21 Counsel for the plaintiff identified four entries from the subpoenaed material that she submitted the provisions of the EMPA applied to and, on that basis, the material should not be provided to the defendant. Counsel for the defendant submitted that all the material should be released to them.
22 The relevant provisions of the EMPA were considered by the Court of Appeal in the decision of KR.[2] I will not restate the statutory provisions here; however, the Court of Appeal said, at paragraph [33], that:
“In turn, s 32C provides for the prima facie exclusion of evidence of confidential communications.”
[2]Supra
23 In considering s32D(1) of the EMPA, the Court of Appeal said, at paragraph [36], that this subsection requires the Court to be satisfied of three sequential preconditions before leave is granted. It said, at paragraphs [37]-[39]:
“The first requirement means that the Court must be satisfied that the evidence ‘will’ — not ‘may’ — have ‘substantial’ probative value to a fact in issue.
The second requirement means that the Court must be positively satisfied of a negative, namely that other evidence of similar or greater probative value is not available.
The third requirement makes clear that the statute is intended not only to recognise the individual rights of parties but to protect confidentiality of the proscribed class of evidence in the public interest.”
24 The Court stated, at paragraph [40], that:
“Section 32AB sets out guiding principles which indicate some of the underlying social factors which give rise to this public interest.”
25 And at paragraph [42]:
“Section 32D(2) elaborates matters which the court must take into account without limiting regard to other relevant matters.”
26 As the subpoenaed material from each of the addressees was before the Court, I exercised my discretion pursuant to s32C(6) of the EMPA to inspect it.
27 Having examined the subpoenaed material, I agree with the assessment by counsel for the plaintiff that those four entries are the only entries that would fall within the description of “confidential communications”.
28 I shall now consider the three sequential preconditions in ss32D(1)(a)-(c) which were discussed by the Court of Appeal in KR.[3]
[3]Supra
29 The first is whether the evidence will have substantial probative value to a fact in issue. Counsel for the plaintiff submitted that the entries “relate to historical, biographical details and events for which the plaintiff did not receive any, or any extensive, therapy or treatment during the treatment period”.[4] I note that the entries relate to a specific event which occurred many years earlier; however, given the alleged facts giving rise to the current proceedings against the employer, the passage of time, and what the plaintiff has done in those years, I cannot accept that those four entries will have substantial probative value.
[4]Paragraph [7] of Plaintiff’s Submissions (undated but emailed to the Court on 26 October 2018)
30 The second is whether other evidence of similar or greater probative value is not available. Again, I am not satisfied on this condition. I note that the plaintiff has not opposed the release of other relevant parts of the subpoenaed material. I further note that other subpoenas have been issued by the defendant’s solicitors. The defendant has had an opportunity to examine the plaintiff, and there is substantial material available to the examiner regarding the plaintiff’s past medical history. The defendant is not precluded from making a full defence by the non-release of the material.
31 The third condition requires me to consider the individual rights of the parties, and protect confidentiality of the proscribed class of evidence in the public interest. Here, I note that the plaintiff objects to the release of the four entries. I have considered the matters I must take into account for the purposes of determining whether the public interest in preserving the confidentiality of the communication is substantially outweighed by the public interest in omitting the evidence of substantive probative value.
32 I accept that there would be harm caused to the plaintiff by the release of the four entries. In the context in which the material was provided to the confider, it would be very much against the intended purpose of the EMPA if this material was released. The claim is brought for an injury alleged to have occurred at work and which did not involve a sexual assault. In those circumstances, the release of the four entries would be contrary to the expectations of the plaintiff that the statements would be confidential, and contrary to the intended purpose of the legislation.
33 Given that subpoenas had been issued and the material had been provided to the Court, at the hearing on 19 October 2018, I discussed with counsel, options for the best manner to proceed in the event that I found that the entries were confidential communications and should not be released. These discussions were not conclusive.
34 I consider it important to discuss some of the practical considerations that have arisen involving the Court, practitioners and addressees to subpoenas where confidential communications are concerned. There will be occasions when the prospect of the material containing confidential communications should be evident to the party intending to issue a subpoena at the time it is issued.
35 However, as occurred here, it may be that at the time a subpoena is issued, neither the issuing party nor the plaintiff’s solicitors were aware that the subpoenaed file contained confidential communications. Further, I envisage there may be situations where the addressees themselves may not be aware that the material subpoenaed contains confidential communications. The Court may not have knowledge of potential confidential communications prior to the issue of a subpoena and/or contained in subpoenaed material.
36 This will be a problem which I envisage the Court will be required to deal with more often in the future, particularly with the increased prosecution of historical sexual offences.
37 I have given consideration to two matters which I consider assist me in making my decision.
38 The first is the provisions of the EMPA itself. Section 32D(4) of the EMPA makes it clear that the Court must give reasons for its decision. This should provide a level of comfort to the parties that the material has not been made available to a party seeking to rely upon it without first being considered by the Court, and the Court being satisfied that its release and use is not contrary to the EMPA.
39 The second is the Civil Procedure Act 2010 (Vic) (“the CPA”). Section 7(1) of the CPA says:
“The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.”
40 Section 9(1) of the CPA says:
“In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
…
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
… .”
41 Part 4.2 of the CPA is headed “CASE MANAGEMENT”. It is central to the resolution of case management issues. Section 47, headed “Judicial powers of case management—overarching purpose and active case management”, broadly refers to judicial powers for the purposes of case management. Subsection 1 says:
“Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made—
(a) in the interests of the administration of justice; or
(b) in the public interest.”
42 Where a party has issued a subpoena without any knowledge that the material sought to be obtained may contain confidential communications, the Court must balance the intended purpose and the strict requirements set out in Division 2A of Part II of the EMPA with the overarching purposes of the CPA.
43 In some cases, the Court can do that by:
(a) setting aside the subpoenas already issued;
(b) requiring the party issuing the subpoena(s) to file an application for leave in accordance with the Common Law Division Practice Note (PNCLD 2-2018), and hearing that application;
(c) exercising its discretion under s32C(6) of the EMPA to inspect any documents that have already been produced to the Court;
(d) making appropriate orders under s32D(3) of the EMPA in relation to leave to issue subpoenas that pertain to any confidential communications;
(e) making appropriate orders in relation to the balance of material that does not contain confidential communications.
44 This is the approach I intend to follow in this case.
45 As noted above, in this case, I agree with the assessment by Counsel for the plaintiff that those four entries are the only entries that would fall within the description of “confidential communications”. The defendant has not satisfied me on the balance of probabilities that the preconditions in s32D(1) have been met such that the material should be released to the defendant.
46 I am conscious of the amount of time that is spent by both Court staff and addressees responding to subpoenas to produce material. It would be a further burden on both the Court and the addressees if, after having produced the material, it was returned to an addressee and they were then required to reproduce the material upon the issue of a further subpoena.
47 To avoid further costs and delay to the parties and, importantly for the addressee, the need to answer the service of a new subpoena by reproducing material to the Court, I propose in this instance that the following course be adopted:
(i)That I make orders setting aside:
(a) the DTC and Julie Nicolaou subpoenas dated 29 March 2018 and 16 August 208 respectively;
(b) the DTC and Julie Nicolaou subpoenas dated 17 September 2018 and 27 September 2018 respectively, which were issued due to an administrative error;
(ii)That the defendant reissue subpoenas to each of Davidson Trahaire Corpsych and Julie Nicolaou in relation to the material that is not the subject of this application;
(iii)That, pursuant to s32D(3) of the EMPA, the defendant be granted leave to issue subpoenas to each of Davidson Trahaire Corpsych and Julie Nicolaou in relation to the material that is the subject of this application;
(iv)That the addresses be instructed to respond to the subpoenas by way of letter, stating:
(a) any objections to production of any material the subject of the subpoenas;
(b) in accordance with an order from this Court, they otherwise do not have to reproduce any material to the Court to comply with the subpoenas;
(v)Subject to any further objections received from the addresses, that:
(a) from the subpoenaed material that has already been provided by the addressees, the four entries identified as “confidential communications” be redacted;
(b) that the redacted “confidential communications” and the balance of the subpoenaed material then be released to the defendant.
48 I shall make appropriate orders.
- - -
0