Perks v Amaca Pty Ltd

[2001] NSWDDT 10

Dust Diseases Tribunal

of New South Wales

CITATION:	Perks v Amaca Pty Ltd & Ors [2001] NSWDDT 10
PARTIES:	Donald Perks Amaca Pty Ltd Seltsam Pty Ltd The State of New South Wales
MATTER NUMBER(S):	149 of 1999
JUDGMENT OF:	Armitage J at 1
CATCHWORDS:	Miscellaneous Matters :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	20/11/01
EX TEMPORE JUDGMENT DATE :	11/20/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF:Mr D R J Toomey instructed by Turner Freeman FOR DEFENDANT: Mr J J Feeney instructed by Holman Webb .

JUDGMENT:

1. This is an application by the defendant Amaca Pty Ltd to deny the plaintiff, Donald Perks, access to documents produced by the Commonwealth Bank of Australia, the Administrative Appeals Tribunal, the Roads and Traffic Authority and the Department of Immigration and Multicultural Affairs, and to be produced (if subpoenas are complied with) by Telstra Corporation Limited and New South Wales and South Australian Police Services and the Victorian Police and the Federal Police Headquarters.

2. It is not suggested by either the plaintiff or the defendant that privilege under s 118 or s 119 of the Evidence Act 1995 or pursuant to the common law attaches to these documents. The sole question for decision is whether in my discretion the plaintiff ought be denied access to them, notwithstanding that they are not privileged.

3. Mr Feeney for the defendant Amaca Pty Ltd asserts that access to the documents ought not be granted so that the plaintiff's credit can properly be tested. He says that if the plaintiff has access to the documents on subpoena from the bodies mentioned above, he will have the opportunity to tailor his evidence according to their contents and that the defendant will therefore be impeded in testing his evidence properly. Mr Feeney refers me first to what was said by Moffitt P. in National Employers Mutual General Insurance Association Ltd v Waind and Hill (1978) 1 NSWLR 372 at 383. There his Honour remarked in relation to subpoenaed documents:

At this point documents are in the control of the court, pursuant to the valid order of the subpoena. As pointed out in Small's case (1938) 38 SR (NSW) 564 at 574, at this time the witness may state he objects to their being handed to the parties for inspection. If he states he does not object to the parties inspecting the documents, or by lack of objection is taken to have no objection, no doubt normally there would be little reason not to permit inspection by either party. However, the documents are under the control of the judge, and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other. Indeed, no doubt, he will normally defer inspection by a party who is not issued a subpoena until his opponent has an opportunity to use the documents in cross-examination.

4. Mr Feeney then takes me to Markus v Provincial Insurance Co Ltd unreported, no. 17241/82, a decision of Clarke J in the Commercial Division of the Supreme Court, unreported and decided on 11 May 1983. That rather brief decision has been referred to in many subsequent authorities. It is usually regarded as authority for the proposition that a court may in its discretion deny access to documents to which legal privilege does not attach, where to grant such access would be to deprive a defendant of the opportunity to test a plaintiff's credit by reference to the contents of investigators’ reports on his or her activities, such reports having been obtained by the opposing party or its insurer by engaging the investigator.

5. Mr Toomey for the plaintiff takes me to other passages in Waind’s case. Mr Toomey points first to what was said by Moffitt P at 381 where his Honour pointed out that as Sir Frederick Jordan had said in Small's case at 574, there are at least two steps in the procedure of having a third party to bring documents to court and in their use thereafter, and that indeed on the correct view there are three steps. Moffitt P said there:

The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is in the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part,; or the use of it in the process of evidence being put before the court in cross-examination or otherwise.

Mr Toomey then takes me to what was said by Moffitt P at 385 as follows:

The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issue. It is at the third step that questions between the parties of relevance in fact where admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issue. Once the judge has that opinion, inspection will normally be allowed , notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination. [emphasis added]

6. Mr Toomey then takes me to Wilson v Camden Plumbing Pty Ltd an unreported decision of Master Malpas in the Common Law Division of the Supreme Court given on 1 November 1995, and in particular to what was said by the Master at p 3 of his decision where he said:

It may be trite to observe that great care should be exercised by the court in denying access to relevant documents. Generally speaking, it may be that only in rare cases will it be in the interests of justice to deny access merely because there may be some loss of forensic advantage. The rules should not be seen by parties as a ready instrument for the protection of a forensic advantage.

7. It seems to me that whether or not that decision is binding upon me as a matter of strict stare decisis, it should form a guide for me in the exercise of my discretion. I drew Mr Feeney's attention to the fact that in recent years, rules have been introduced in the Supreme and District Courts and in this Court for the service of medical reports before they are admissible in evidence, and in the Supreme and District Courts, though not in the Compensation Court, for the substance of a doctor's oral evidence to be disclosed in a served report before such evidence is ordinarily admissible. The Tribunal of course employs the Rules of the Supreme Court. When I was a young barrister, as I told Mr Feeney, the culture of the Supreme and District Courts and indeed of the Compensation Court was that the contents of medical reports were not disclosed, but were lovingly hugged to the breast of the party who commissioned them for the purpose of surprising or ambushing the other party, particularly in cross-examination. That forensic advantage has been readily dispensed with by the rules to which I have referred. Other instances could be multiplied, such as the requirement that statements be served before oral evidence is given in the commercial list of the Equity Division of the Supreme Court, previously the Commercial Division of the Supreme Court. The trend nowadays is against trial by ambush.

8. What Mr Feeney would have me do is to deny the plaintiff access to documents to which in large part he is entitled as a matter of law anyway. This is particularly so in relation, for example, to bank statements and other financial records relating to him (Commonwealth Bank of Australia), the transcript and exhibits in proceedings in which he was a respondent (the Administrative Appeals Tribunal), licence and traffic record documents (the Roads and Traffic Authority), and statements made by him to police officers (the New South Wales and other police services). If the plaintiff was entitled to copies of those documents at the time they were created, whether or not he exercised that right, I fail to see why I should deprive him of access to them at a later time when they are subpoenaed by the defendant in these proceedings. Those documents are in a completely different category to an investigator's report, for example, which was the subject of Markus' case, where the investigator had been engaged by the opposing party and paid by it for the very purpose of testing the plaintiff's credibility by ascertaining his activities when he believed himself to be unobserved. The unfairness of depriving that opposing party of the forensic advantage created by the investigator's report if read by the plaintiff is obvious. It is not obvious at all in this case where the plaintiff is entitled as a matter of law in large part to the documents to which the defendant would have me restrict his access. Even if strictly the plaintiff is not entitled to access to the documents on subpoena as a matter of law (as with, for example, the documents to be produced from Telstra Corporation Ltd) those documents relate to the plaintiff's personal affairs and there seems to me no good reason as a matter of fairness to deprive the plaintiff of access to them.

9. I refuse the application of the defendant to restrict the plaintiff's access to the documents from the bodies specified above until he has been cross-examined by the defendant Amaca Pty Limited.

10. The plaintiff seeks his costs of this application and, having regard to the result, the defendant Amaca Pty Ltd does not oppose such an order, so I order that the defendant Amaca Pty Ltd pay the plaintiff's costs of this application.

Mr D R J Toomey instructed by Turner Freeman appeared for the plaintiff

Mr J J Feeney instructed by Holman Webb appeared for the defendant