Qalandari v Victorian WorkCover Authority (Ruling)
[2023] VCC 201
•23 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY List |
Case No. CI-22-03584
| RAHMATULLAH QALANDARI (also known as Rahmatullah Qalandari Zawarshah and Rahmatullah Zawarshah Rahmatullah) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2023 | |
DATE OF RULING: | 23 February 2023 | |
CASE MAY BE CITED AS: | Qalandari v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 201 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Application to set aside subpoena – fishing expedition – whether legitimate forensic purpose
Legislation Cited: Civil Procedure Act 2010, s26
Ruling: Plaintiff’s objection refused. Order for the release of the material produced in accordance with the schedule.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey | Zaparas Lawyers |
| For the Defendant | Ms S Manova | Hall & Wilcox |
HIS HONOUR:
Summary
1On 9 November 2022, the defendant’s solicitors issued a Form 42AA Subpoena for Production to Registrar to the Proper Officer, Department of Home Affairs. The production date for the subpoena was 30 November 2022.
2On 14 November 2022, the plaintiff’s solicitors filed an objection to the subpoena on the grounds that it was a fishing expedition with no legitimate forensic purpose.
3The objection hearing was heard on 3 February 2023. I am satisfied that there is a legitimate forensic purpose established for the subpoena and therefore the plaintiff’s objection is refused.
4The plaintiff issued an Originating Motion on 31 August 2022 for a serious injury certificate for pain and suffering and loss of earning capacity. The plaintiff’s application is under paragraphs (a) and (c). The plaintiff alleges that the serious injury arose when he was employed by Nu Tech Tiling Pty Ltd (“Nu Tech”).
5The proceeding is listed for hearing on 24 July 2023.
6On 19 December 2022, the defendant’s solicitor sent to the plaintiff a revised schedule of documents which, for the purpose of the objection hearing, is agreed by the plaintiff as the schedule. That schedule is:
“Documents relating Rahmatullah Qalandari, (also known as Rahmatullah Qalandari Zawarshah and Rahmatullah Zawarshah Rahmatullah), date of birth ## December 1986, ‘the plaintiff’), including but not limited to:
●records that relate to the plaintiff’s psychiatric / psychological history, medical conditions, and exposure to trauma, including but not limited to medical reports / assessments, medical records, medical certificates, visa applications and documents in support, and records of interviews with the plaintiff, and
● records on the plaintiff’s history of employment, income from personal exertion, education, literacy, and training, including but not limited to applications for visas, permanent residency, citizenship, and language test results.”
7I am informed that the addressee has produced documents in answer to the subpoena.
8For my assistance I had affidavits from the plaintiff and defendant’s solicitors, together with the plaintiff’s submissions dated 3 February 2023 and the defendant’s submissions dated 2 February 2023.
Submissions
9I thank counsel for providing the submissions to assist the Court. As I received written submissions, I will not provide a summary; however, the plaintiff accepted and adopted the defendant’s description of the relevant background and analysis of the applicable authorities and legal principles for this application as set out in the defendant’s submissions.
10The issue for my determination is whether there is a legitimate forensic purpose for the provision of the documents sought under subpoena.
11As the relevant authorities and legal principles are known to the parties, and as I consider they are correctly set out in the defendant’s submissions, I will not restate them.
Consideration
12The defendant sought, as has been categorised in the submissions, two types of documents. The first were documents in relation to the plaintiff’s medical condition which I refer to as “Health Documents”. The second were in relation to the plaintiff’s education and employment history referred to as “Employment History”.
Health Documents
13In the plaintiff’s Form of Application for Common Law Damages, referred to as a Form A, signed and dated by the plaintiff on 28 April 2022, the plaintiff, in answer to the particulars of the injury or injuries relied upon, specified:
“a.Back injury (including aggravation of lumbar spondylosis and pre-existing degenerative changes in his lumbar spine) with radiculopathy;
b. Left leg injury;
c. Psychiatric condition including depression and anxiety.”
14I note all medical records provided by the plaintiff and attached were dated from 3 May 2018.
15At paragraph 5 of the plaintiff’s affidavit in support of his serious injury application dated 28 April 2022 (“the SIA affidavit”), the plaintiff deposed he could not remember having any significant health problems with his back, nor compensation claims before injuring his back at work. At paragraph 6, he deposed:
“I suffered from depression and anxiety from trauma in Afghanistan, adjustment problems from moving to Australia, and my visa. I saw psychologist, Dr Kavianpour.”
16At paragraph 7, he deposed that he had right shoulder pain years ago, which had resolved.
17A report of Dr Kavianpour was attached to the Form A dated 28 March 2019, as was the clinical file of Dr Kavianpour. I am not provided with any information as to the contents of the report or records.
18The defendant submits the nature and extent of the plaintiff’s compensable psychiatric injury, and whether it is an aggravation of any pre-existing condition, is a key issue in dispute in the proceedings. It was therefore on the cards that records of the plaintiff’s prior psychiatric and medical problems before his commencement with this employer would materially assist the defendant.
19The plaintiff’s submission is that information regarding the attendance with Dr Kavianpour could be the subject of a subpoena directed to him, particularly given that the clinical records have been discovered. Further, there is no evidence that the Department would hold any documentation in relation to the plaintiff’s psychiatric health.
20It is common knowledge that the application process for residency and work visas in Australia is complicated and complex. Given the multitude of visas, it would be expected that the Department, when considering an application, would obtain material relevant to the application. For example with a work visa, an applicant’s qualifications and training, prior work history and material relevant to suitability for employment would appear to be the type of documents that may be obtained.
21I have not been provided evidence of the type of visa the plaintiff first obtained and may currently hold. Reference is made in the defendant’s submission to the plaintiff having told Dr Kavianpour on 28 March 2019 that he was on a bridging visa, waiting for a protection visa; however, it is clear from the material that he has been working in Australia prior to commencing with Nu Tech. The plaintiff admits he has suffered from medical conditions during the visa process and admits he experienced trauma before arriving in Australia for which he suffered depression and anxiety.
22The plaintiff, in his SIA affidavit, said he was born in December 1986 in Afghanistan and emigrated to Pakistan, Iran, and then emigrated to Australia in 2013. He was in a detention centre for a few months.
23Counsel for the plaintiff submitted, because there was no evidence of the existence of such documents, the request is a clear example of a fishing expedition.
24I do not accept that the absence of knowledge of whether documents exist is sufficient to say that this amounts to fishing. Often when a subpoena is issued there is uncertainty as to what the addressee may hold. If what the defendant sought was the “complete file” or “all documents” not referenced to any particular type of document, then that would be closer to fishing. In other words, let us see what is there and what we can catch. A broad-based request for all documents with no particularisation is fraught with danger of falling into the category of a fishing expedition.
25The defendant has been specific as to what it seeks in the schedule. The plaintiff has deposed to having suffered from pre-existing conditions of depression and anxiety from his experiences of trauma in Afghanistan. Importantly, he says a consequence of that condition is adjustment problems he had from moving to Australia and his visa. There was five years between when he arrived in Australia as an asylum seeker before he started with Nu Tech and three years before the first medical records provided are dated.
26The timetabling orders for serious injury matters require the parties to exchange medical reports and other documents relevant to the application which are to be relied upon at the hearing.
27Section 26 of the Civil Procedure Act 2010 is headed “Overarching obligation to disclose existence of documents”. Sub-section (1) states:
“(1)Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control—
…
(b)which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.”
28I understand the plaintiff says he has disclosed all documents he has on this issue.
29As the defendant seeks to obtain evidence on any pre-existing condition before arriving in Australia and between 2013 and May 2018, a Form 42AA subpoena is the appropriate step to be taken by the defendant.
30Order 42A is an alternative to production by subpoena at trial. It has the advantage that the parties, subject to objection, may inspect the documents prior to trial. Any objection can be dealt with before the trial date, thereby avoiding delay and inconvenience. It allows the party, upon obtaining material, to provide that material to experts and treating medical practitioners for comment so there are many forensic advantages with the correct use of a Form 42AA subpoena.
31Additionally, it must be remembered that the subpoena process is directed to obtain documents for evidence which may not be capable of being obtained through discovery.
32I am satisfied that the documents are relevant and that a legitimate forensic purpose has been established for the obtaining of the documents. The plaintiff’s pre-employment medical condition with Nu Tech is a significant issue in dispute between the parties. The defendant is specific in what it seeks. I am satisfied production of those documents would materially assist the defendant in its defence of the proceedings. Further, the documents would assist the trial judge and any medical experts asked to give an opinion on the plaintiff’s medical condition.
Employment history
33Under the heading “Education and work history”, in the SIA affidavit, the plaintiff stated that he went to school for two to three years in Afghanistan and worked in shops and construction overseas; however, he says nothing more.
34At paragraph 43 of the SIA affidavit, he said he had undertaken waterproofing and tiling when he came to Australia; however, he provided no particulars of that work. He further said, “I am told that Nu Tech says I started working with them on 10 April 2018”. Clearly, the plaintiff has provided little information regarding his work history, his training, and qualifications.
35I find significant the information provided for the plaintiff’s earnings in his Form A application. The plaintiff details his gross earnings for the financial years 2016 to 2020 inclusive. With the plaintiff commencing employment with Nu Tech as at 10 April 2018, it means the relevant taxation year for that employer would be the financial year ending 30 June 2018. For that year, he discloses a gross income of $46,036. For the financial year 2019, he discloses a gross income of only $1,947.
36However, in the financial year 2016, the plaintiff’s gross earnings were $24,944, and in the financial year 2017, $56,841.
37In the taxation return he lists tiling and carpeting services in those years and lists an ABN. The plaintiff, therefore, was operating his own business under the ABN.
38Only the taxation documents I have referred to have been disclosed.
39For the plaintiff to obtain an employment visa it would be expected that the Department had to be satisfied of the eligibility before granting the visa. Information may have been obtained to assess the eligibility and suitability for the grant.
40The plaintiff seeks a grant of a certificate for serious injury for loss of earnings, as well as pain and suffering. The plaintiff said he had stopped work with Nu Tech on or about 25 April 2018, only 15 days after he started work, and that he has not worked since. At paragraph 21 of the SIA affidavit, he said:
“At present, I don’t think I can do any job because of my back pain. My ability to read, write, and to speak English is poor.”
41At paragraph 22, he says:
“Work was part of my life and an essence of who I am. I am worried about my future now that I cannot work.”
42Prior to commencing with Nu Tech, the plaintiff had clearly established a capacity to work for at least two financial years under his own ABN. Given the significance of the claimed consequences, any material which goes to his training and qualifications is not only relevant but critical to the issues in dispute between the parties.
43I am therefore satisfied that the defendant has established a legitimate forensic purpose to seek material as outlined in the schedule for the employment history, and that material will materially assist the defendant in the defence of the proceedings. I am not satisfied this is fishing on the part of the defendant.
44The plaintiff’s objection is refused. I will make appropriate Orders for the release of the material produced in accordance with the schedule.
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