Svajcer v Woolworths Limited (Ruling)

[2012] VCC 1496

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-07-03521

MARK SVAJCER	Plaintiff
v
WOOLWORTHS LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2012
DATE OF RULING:	5 October 2012
CASE MAY BE CITED AS:	Svajcer v Woolworths Limited (Ruling)
MEDIUM NEUTRAL CITATION:	[2012] VCC 1496

RULING

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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Subpoena to Director of Public Prosecutions pursuant to Order 42A of the County Court Civil Procedure Rules 2008 – objection by plaintiff to the production of documents to the defendant - relevance
LEGISLATION CITED – Accident Compensation Act 1985, s134AB, County Court Civil Procedure Rules 2008
CASES CITED – Messade v Baires Contracting Pty Ltd [2011] VSC 56
RULING – The plaintiff’s objection to the disclosure of the relevant materials in the subpoena is upheld.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Belmar	Maurice Blackburn Cashman
For the Defendant	Ms K Footner	Spark Helmore

HIS HONOUR:

1       The plaintiff alleges he suffered injury to his lumbar spine in the course of his employment with the defendant on or about 3 September 2003.

2 An Originating Motion was issued on 7 September 2007 seeking leave of the Court to bring common law proceedings pursuant to s135AB of the Accident Compensation Act 1985 (“the Act”).

3 According to the plaintiff’s “Particulars of Injury”, the application is brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act for an impairment or loss of the body function of the spine, and in addition, pursuant to ss(c) of that section, for a severe mental or behavioural disturbance or disorder.

4       On 9 May 2012, the defendant issued a subpoena directed to the Director of Public Prosecutions (“DPP”) seeking the following documents:

“Copies of all documents from all files relating to Mr Mark Svajcer … including, but not limited to, all pleadings, medical evidence, briefs of evidence, correspondence, statements, exhibits and transcripts of evidence.”

5 The subpoena was issued pursuant to Order 42A of the County Court Civil Procedure Rules 2008 (“the Rules”). The plaintiff has objected to the inspection by the defendant of those subpoenaed documents pursuant to Order 42A.08 of the Rules.

6       Following the workplace injury of October 2003, the plaintiff underwent an L5‑S1 decompression and fusion carried out by Mr Michael Johnson, orthopaedic surgeon, in November 2004.

7       The contents of the documents supplied by the DPP concern allegations against the plaintiff that over the period from 2003 to 2005, he committed a number of indecent acts and sexual penetration of a victim, Miss SC, when she was under sixteen years of age.  There would appear to be nine counts of these charges in all.  Further, the plaintiff was charged with one count of rape of Miss SC when she was sixteen years of age.  Further, the plaintiff was charged with a number of accounts of assault of Miss SC over the period April to June 2006.  In all, there appear to be:

·        eight counts of indecent act or sexual penetration of a child under sixteen

·        one count of rape

·        three counts of assault

·        one count of threat to kill.

8       Of the documents produced under subpoena by the DPP, the defendant seeks production of statements of the following persons:

·        Miss SC, the victim

·        Ms SH, the victim’s mother

·        Ms NJ

·        Mr SP

·        Mr PD.

9       The statement of Miss SC, the victim, concerns the allegation of sexual assault and various physical assaults.  The statements of the other persons referred to were in one way or another witnesses to some of the assaults.

10      I was informed by Ms Footner that the relevance of the statements which the defendant seeks to inspect is as follows:

·        In the course of material filed in support of the plaintiff’s serious injury application, there was reference to the back injury causing difficulty with sexual intercourse, and the commission of the indecent assaults and rape was inconsistent with that claim.

·        At times, including over the period when the assaults took place, the plaintiff was in a wheelchair; alternatively, on crutches, and the allegations of assault, in particular, that the plaintiff threw the victim across a room and into a wall, were inconsistent with the plaintiff’s alleged physical condition.

·        Generally, the activities relating to the assaults were inconsistent with the plaintiff’s claimed physical condition from the lower spine injury.

·        The plaintiff claimed in the materials in support of his serious injury application that he had become suicidal as a result of the consequences of the lumbar spine injury; in particular, pain and disability suffered as a result.  It was said this claim was inconsistent with reference in the statements to the plaintiff suffering mental distress and anguish as a result of the charges being brought.

·        Generally, the contents of the statements would go towards the plaintiff’s credit.

11      Although it was not clear from the materials provided by the DPP, I was informed that the plaintiff had been subsequently convicted of some or all of the charges, and incarcerated.

12      The principles relevant to determining whether a party is required to produce documents under subpoena was set forth by J Forrest J in Messade v Baires Contracting Pty Ltd.[1]  Those principles are:

[1][2011] VSC 56 at paragraph 6

“(a)it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;

(c)  the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena “will materially assist the defence”.

(d)a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;

(e)the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.

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(h)  where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.”

13      In that case, the subpoena related to photographs of the plaintiff taken in the course of overseas travel over a number of years.  Counsel for the defendant said that the legitimate forensic purpose was to provide those photographs to doctors to determine whether the activities depicted were consistent with the medical condition claimed and, in addition, that the plaintiff had failed to disclose his overseas trip to those doctors.  His Honour said the following:

“In my view, this notice fails at the first hurdle — its purpose is neither legitimate nor forensically specific.  It is far too wide.  To endeavour to attack histories given to particular doctors would only be a legitimate forensic exercise if Baires identified precisely in what way Mr Messade’s account to such doctors was inconsistent with the photographic evidence — assuming it exists.  Baires’ submission did not descend to this detail — it was general, not limited to specific assertions made by Mr Messade to the doctors (such as what he was and was not capable of doing on the trip, or as another example, whether he was or was not working whilst away).  The authorities demonstrate that the forensic purpose must be identified with precision.  It has not been.”[2]

[2]Messade v Baires Contracting Pty Ltd (supra) at paragraph 9

14      Likewise, in the present case, the defendant has not identified with precision the specific forensic purpose for which the statements are sought.  The actions of the plaintiff in performing the assaults, or sexual assaults referred to, may or may not be consistent with accounts given by him in his affidavit, or to doctors as part of the history.  I was not provided with any material to suggest the criminal activities of the plaintiff were inconsistent with any allegation made in the serious injury application.  In my view, by subpoenaing the documents, the defendant is seeking to cast a wide net hoping to hook some aspect of the plaintiff’s conduct during the course of the criminal activities as being inconsistent with the claims he makes.

15      It would be a different matter entirely if the plaintiff was, in the course of those documents, found to be working when he had told doctors he was not.  That is not the case here.

16      Insofar as it is alleged that the criminal activities of the plaintiff would affect his credit, a balance needs to be struck.  No part of the criminal activities makes allegations of dishonesty.  They are allegations of assault and sexual assault. While the charges are serious, and it would appear the plaintiff was incarcerated as a result, it does not mean necessarily his credit is to be impeached.  There would be a risk in the course of a serious injury application, or, more importantly, before a jury in a civil trial, of such allegations being able to sway the Court against the plaintiff.

17      As J Forrest J said in Messade:[3]

“This is the casting of a line with the hope that something may be caught in a very large pond.  … .”

[3]Messade v Baires Contracting Pty Ltd (supra) at paragraph 10

18      The plaintiff’s objection to the disclosure of the relevant materials in the subpoena is upheld.

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