Salveson v Woolworths (Victoria) Pty Ltd
[1999] TASSC 109
•22 October 1999
[1999] TASSC 109
CITATION: Salveson v Woolworths (Victoria) Pty Ltd [1999] TASSC 109
PARTIES: SALVESON, Raymond
v
WOOLWORTHS (VICTORIA) PTY LTD
ACN 004 177 155
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 522/1998
DELIVERED ON: 22 October 1999
DELIVERED AT: Hobart
HEARING DATES: 5 October 1999
JUDGMENT OF: The Master
CATCHWORDS:
Pre-trial Procedures - Evidence Act 1910, s26 - Production of documents by non-party - Proof of existence and materiality of documents - Exercise of discretion.
Evidence Act 1910 (Tas), s26.
Nathan v M J F Constructions [1986] VR 75; Rank Film Distributors v ENT Ltd (1994) 4 Tas R 281, applied.
REPRESENTATION:
Counsel:
Applicant: A B Walker
Respondent: B R McTaggart
Minister for Health and Human Services: L Neasey
Solicitors:
Applicant: Dobson Mitchell & Allport
Respondent: Jennings Elliott
Minister for Health and Human Services: Director of Public Prosecutions
Judgment Number: [1999] TASSC 109
Number of Paragraphs: 13
Serial No 109/1999
File No 522/1998
RAYMOND SALVESON v WOOLWORTHS (VICTORIA) PTY LTD
REASONS FOR JUDGMENT THE MASTER
22 October 1999
The applicant (the defendant in proceedings in which the plaintiff claims damages for personal injuries) has applied for an order requiring the Minister for Health and Human Services, who is not a party to the action, to produce certain documents for inspection. Notice of the application was given to the Minister who was represented by counsel at the hearing, who advised that the application for inspection was not opposed and that if an order is made, the documents, the subject of the order, will be produced by the Minister for inspection and, upon request, photocopying.
An affidavit sworn by counsel for the applicant, was read into evidence without objection and the pleadings and particulars were made available to me.
By a writ filed in March 1998, the respondent claimed damages for personal injuries suffered by him on 16 December 1995 at the Purity Supermarket, Cole Street, Sorell. In the statement of claim, the respondent alleges that he was in the supermarket selecting cheese from a refrigerator when he was struck by a bicycle which fell from a shelf above the refrigerator. Particulars of negligence alleged included a failure by the applicant to properly secure the bicycle and the placement by the applicant of the bicycle on a shelf above an area where customers would be shopping. None of the allegations in the statement of claim have been admitted.
The respondent provided particulars of his injuries and his claim for damages in September 1999. The respondent claims that as a result of the injuries, he experiences neck and right upper limb discomfort. As part of the general background, the particulars included the following:
"The Plaintiff has a history of neck problems dating back to 1985 when he suffered a compression fracture of C6 after diving into a swimming pool. He spent six weeks in traction in the Royal Hobart Hospital. He was able to return to work approximately three months post injury. However, in about 1994, he began having further problems with his neck. This led to a cervical fusion C5/6 at the Royal Hobart Hospital on 4 October 1995. Following that procedure the Plaintiff was pain free. The Plaintiff ceased all medication."
The respondent claims that as a result of the incident on 16 December 1995, he has been restricted in a number of day to day activities and in a number of his recreational activities. He also claims damages in respect of lost earning capacity. The relevant part of the particulars reads:
"The plaintiff claims that his symptoms are such that there is a strong possibility that he will not be able to continue with his employment with Community & Rural Health. If that was the case given his education, vocational experience and qualifications he is unlikely to find further employment.
The plaintiff claims that a broadbrush approach should be taken by the Court. The plaintiff claims that a reasonable assessment under this head of damage including consequential loss of superannuation contributions is $100,000.00."
The affidavit contains evidence that the respondent has been employed in the Department of Health and Human Services as a home maintenance support officer for approximately seven years. The application seeks inspection of:
"… the following documents or any documents which are of a similar description to the following documents, concerning the employment of the plaintiff by the Department of Health and Human Services for the State of Tasmania;
1 Job definition and position description;
2 Application for Employment;
3 Employment application assessment form;
4 Health Questionnaires;
5 Applications for sick leave;
6 Sick leave medical certificates;
7 Performance review and development assessment;
8 Documents evidencing any training undertaken by the plaintiff;
9 Claims for workers compensation, supporting medical certificates;
10 Invoices or accounts relevant to workers compensation claims;"
The application was expressed to be made "pursuant to s26 of the Evidence Act 1910" which provides, in subs(1):
"(1) Any party to any proceeding shall be at liberty to apply to a court or judge, or person acting judicially, for a rule or order for the inspection by himself, or by his witnesses, or by the jury, of any real or personal property the inspection of which may be material to the proper determination of the question in dispute or the making of any inquiry. It shall be lawful for the court or a judge, or such person as aforesaid, if it or he think fit, to make such rule or order upon such terms as to costs and otherwise as such court, judge, or person may direct. Provided always, that nothing in this section contained shall affect the provisions of any Act as to obtaining a view by jury."
The section applies to personal property, including documents held by third parties and enables the inspection to be undertaken by a party's counsel or solicitor, Nathan v M J F Constructions [1986] VR 75 at 82 and Rank Film Distributors v ENT Ltd (1994) 4 Tas R 281 at 285 and 286.
The respondent's employment duties and his ability to perform them prior to, and following, the alleged incident on 16 December 1995, will be relevant to the assessment of the respondent's claim for loss of earning capacity and the contrary was not submitted. Counsel for the respondent, however, submitted that I should not make the orders sought because I could not be satisfied that the documents specified in the application actually exist and, in any event, I could not be satisfied that the documents are sufficiently material to warrant the making of the order. Finally, it was submitted that the scope of the request was too wide and any inspection which I authorised should be confined to the period following the date upon which the respondent alleged in his particulars, he recovered completely from his earlier neck injury, namely after the cervical fusion on 4 October 1995. It was not suggested that any of the documents sought to be inspected were the subject of privilege, nor was it suggested that the application for inspection was for a collateral purpose or that permitting the inspection would cause some oppression or prejudice. Counsel for the respondent did not suggest that the Department's file was not accessible to him upon request, nor did he specify any particular documents which were, or might be, on the file, the inspection of which was subject to specific objection. In fact, the evidence was that employees of the Department can view their files under the supervision of Human Resources personnel and take copies of documents contained on their files. The applicant's counsel submitted that if I was to decline to make the orders sought and relevant documents contained on the Department's file were first produced at a hearing in answer to a subpoena duces tecum, there would be a risk that the hearing would need to be adjourned with consequential inconvenience and cost to the parties.
Firstly, I find, based upon the information contained in the affidavit, that it is likely that the Department holds a file relating to the respondent's employment which may contain some or all of the documents of the classes described in the application. I do not consider it necessary, in the circumstances of the present application, for me to be satisfied that documents actually exist within each specified class which is the subject of the proposed order.
I am satisfied that documents of the classes specified in the application, within the meaning of the section "may be material to the proper determination of the question in dispute". The documents relate to the respondent's employment with the Department of Health and Human Services. The particulars allege that the future of that employment may have been jeopardised by the injuries allegedly sustained on 16 December 1995. It may be that some documents on the file are irrelevant, or that their connection with the subject matter of the dispute is tenuous. However, having regard to the fact that the documents are accessible to the respondent and the respondent has not specifically objected to any particular document being inspected or claimed prejudice and, having regard to the fact that the Minister does not oppose the order, I would not exercise a discretion to decline to order inspection because some of the documents may be irrelevant or only remotely connected with the dispute.
I do not consider that any order made should be limited to documents coming into existence after 4 October 1995 (being the date upon which the respondent underwent a cervical fusion which he said resulted in him being free of pain from the 1985 diving accident). Documents predating 4 October 1995 may well be material to an appraisal of the impact of the alleged injury on 16 December 1995 on the respondent's earning capacity.
There will be an order that the Minister for Health and Human Services make available for inspection by the applicant's solicitors, the documents, if any, in his power which concern the employment of the respondent by the Department of Health and Human Services and are of the following or similar description:
"1 Job definition and position description;
2 Application for Employment;
3 Employment application assessment form;
4 Health Questionnaires;
5 Applications for sick leave;
6 Sick leave medical certificates;
7 Performance review and development assessment;
8 Documents evidencing any training undertaken by the plaintiff;
9 Claims for workers compensation, supporting medical certificates;
10 Invoices or accounts relevant to workers compensation claims;"
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