Patane v Bidvest (Vic) Pty Ltd (Ruling)

[2016] VCC 517

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-03778

MICHAEL PITANE	Plaintiff
v
BIDVEST (VIC) PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2016
DATE OF RULING:	3 May 2016
CASE MAY BE CITED AS:	Patane v Bidvest (Vic) Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VCC 517

RULING
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Subject:  PRACTICE AND PROCEDURE

Catchwords:             Objection to inspection of documents produced under subpoena – relevance of documents produced under subpoena – economic loss – loss of earning capacity – previous employment records

Legislation Cited:     Accident Compensation Act 1985
Ruling:  Objection to subpoena partly upheld.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person	-
For the Defendant	Mr D Daly	Hall & Wilcox

HIS HONOUR:

1 In this matter, which involves an application made by the plaintiff pursuant to the provisions of s134AB of the Accident Compensation Act (1985) (“the Act”) for leave to commence a proceeding claiming damages for injury suffered by him in the course of his employment, the defendant has issued a subpoena to the plaintiff’s previous employer, the Australian and New Zealand Banking Group Limited (“the ANZ Bank”), for the production of the records held by that organisation relevant to the plaintiff’s period of employment with it.

2       The plaintiff takes issue with the defendant’s entitlement to have access to those records essentially on the grounds that they have no relevance to the plaintiff’s current application.

3       In the application the plaintiff seeks leave to commence a proceeding claiming damages for both the pain and suffering and economic loss consequences of an injury sustained by him to his left lower limb.

4       There can be no issue that in assessing the application by the plaintiff for leave to commence a proceeding in which he seeks damages in respect of loss of income or lost earning capacity arising from his subject injury, an issue which arises for the Court in assessing that claim involves the issue as to whether the plaintiff has established that the effect of the impairment  arising from his subject  injury has been to preclude him from generating income in  suitable employment which does not exceed 60 percent of  the income which he –

“… was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred.”[1]

[1]See s134AB(38)(f)(ii) of the Act

5       Notwithstanding the fact that the plaintiff ceased employment with the ANZ Bank in 1999, I am satisfied that any documents held by the ANZ Bank attesting to:

(i)    the plaintiff’s qualifications for employment;

(ii)   the plaintiff’s work history; or

(iii)   the plaintiff’s competence and capacity to undertake the tasks required of him in the course of his employment with the ANZ Bank

may have some relevance upon the issue of the plaintiff’s current capacity to generate income in suitable employment, subject of course to the weight accorded by the trial judge to such assessments when account is taken of the fact that the plaintiff ceased employment with the ANZ Bank some seventeen odd years ago.

6       Having examined the totality of the file, however, I am satisfied that there are a number of documents which fall into the category of personal documents which can be characterised as falling into one or other of the following headings:

(i)    Applications for loans; or

(ii)   Negotiations with respect to leave and redundancy payments.

7       I am satisfied that the defendant should not have access to those documents on the ground that they do not possess sufficient relevance to the issues which arise in the current proceeding.

8       The documents which fall into this category may be identified as follows:

·        Pages 14 – 23

·        Pages 91 – 93

·        Pages 99 – 103

·        Pages 128 – 129

·        Pages 149 – 152

·        Pages 206 – 207

·        Pages 216 – 220

9       I am satisfied that other than the pages identified above, the defendant should have access to the file produced by the ANZ Bank.

10      I am further satisfied, notwithstanding my finding that the documents the subject of this Order should be accessed by the defendant by reason of their potential for relevance in this proceeding, that it should be a matter for the determination of the trial judge in this instance as to whether any of the documents should be admitted as evidence and if so admitted, the weight which should be given to those documents.

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