Skrijel v Mengler - [2003] VSC 55

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
v
JOHN CARL MENGLER	Firstnamed Defendant
COMMONWEALTH OF AUSTRALIA	Secondnamed Defendant
GARY WESTON COOK	Thirdnamed Defendant
STATE OF VICTORIA	Fourthnamed Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2003
DATE OF RULING:	3 March 2003
CASE MAY BE CITED AS:	Skrijel v Mengler and ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 55

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Firstnamed Defendant	Mr M. Tovey QC with Mr P. Marzella	Hardham Dalton & Sunberg
For the Secondnamed Defendant	Mr B. Walters SC with Mr K. Mueller	Australian Government Solicitors
For the Thirdnamed Defendant	Mr J. Santamaria QC with Mr M. Gindberg	Victorian Government Solicitors
For the Fourthnamed Defendant	Mr R. Gipp	Ebsworth & Ebsworth

HIS HONOUR:

Two subpoenas for production of documents directed to the Australian Government Solicitor, dated 25 and 26 February 2003 respectively, have been called on to be answered and the production of the documents listed in the schedules to both subpoenas is opposed by Mr Walters SC on behalf of the second defendant.

Dealing first with the subpoena dated 25 February 2003, it is submitted on behalf of the second defendant that the documents described in paragraph 1 of the schedule - namely, original Victoria Police video tapes, 735/85 tapes 1, 2 and 3 - have already been the subject of an order for specific discovery and it has been complied with.

I accept that submission. I do not propose to make any further order at this stage of the proceeding for the production of the tapes by the second defendant.

It is submitted on behalf of the second defendant that it ought not be required to produce the documents listed in paragraph 2 in the schedule until the plaintiff has demonstrated a legitimate forensic purpose for the production of the documents and that, as the matter stands, the requirement for production ought be seen as too broad and in the nature of fishing or, as in effect, requiring an exercise in discovery.

I do not accept that submission. I consider that the test to be applied in determining whether documents may be the subject of a subpoena duces tecum is whether, having regard to the issues as defined in the pleadings, the documents are either directly relevant to matters in issue or might come within the second leg of the test in Peruvian Guano[1] as documents that could lead the plaintiff upon a path of inquiry, either to advance his own case or to impeach the case which is made against him[2]. I will require the production of the documents which are listed in paragraph 2 in the schedule to the subpoena of 25 February 2003.
[1]Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 62 and 63
[2]see Waind v Hill [1978]1 NSWLR 372 at 383

The documents described…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skrijel v Mengler

Details

AGLC: Skrijel v Mengler [2003] VSC 55
Case: [2003] VSC 55
Decision Date: 3 March 2003

CaseChat Overview and Summary

The plaintiff, Mehmed Skrijel, has filed a lawsuit against the defendants, which include John Carl Mengler, the Commonwealth of Australia, Gary Weston Cook, and the State of Victoria. The nature of the dispute revolves around subpoenas for the production of documents directed to the Australian Government Solicitor. The case was heard in the Supreme Court of Victoria, Common Law Division. The defendants, represented by counsel, opposed the plaintiff's subpoenas for the production of certain documents, leading to the court's decision on the matter.

The primary legal issues the court was required to decide were whether the documents listed in the subpoenas were directly relevant to the matters in issue or could potentially lead the plaintiff on a path of inquiry to advance his case or impeach the case against him. The court also needed to determine if the requirement for production was too broad, akin to fishing or requiring an exercise in discovery.

The court, Nettle J, accepted that the original Victoria Police video tapes had already been the subject of an order for specific discovery and had been complied with. However, the court disagreed with the defendant's submission that the plaintiff had to demonstrate a legitimate forensic purpose for the production of the documents before requiring their production. The court applied the test established in Peruvian Guano, which states that documents may be the subject of a subpoena duces tecum if they are either directly relevant to matters in issue or might lead the plaintiff upon a path of inquiry to advance their own case or impeach the case against them. The court required the production of certain documents, while others were not ordered to be produced at that stage of the proceeding.

In summary, the court ruled that the second defendant must produce the relevant documents listed in the subpoenas, except for those that had not yet been demonstrated to have a legitimate forensic purpose. The court's decision was based on the relevance of the documents to the matters in issue and their potential to lead the plaintiff upon a path of inquiry.

Orders