Tadros v Chittick
[2022] WADC 46
•23 MAY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: TADROS -v- CHITTICK [2022] WADC 46
CORAM: REGISTRAR KINGSLEY
HEARD: ON THE PAPERS
DELIVERED : 23 MAY 2022
FILE NO/S: CIV 1971 of 2018
BETWEEN: TIMOTHY GALAL EMIL TADROS
Plaintiff
AND
OLIVIA MAY CHITTICK
Defendant
Catchwords:
Practice - Objection to subpoena
Legislation:
Nil
Result:
Objection disallowed
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Stanley v Layne Christensen Company [2004] WASCA 50
REGISTRAR KINGSLEY:
The plaintiff was injured in a motor vehicle accident on 14 February 2017. At par 4 of the statement of claim the plaintiff alleges sprain injuries to his cervical spine, lumbar spine, forearm, wrists and alleges a psychological injury. As a consequence of those injuries, the plaintiff pleads he sustained partial disabilities and as a result the plaintiff has suffered economic loss and loss of perimeter of employment.
At par 9 of the statement of claim, the plaintiff alleges that prior to the date of the accident he was earning approximately $1,018.71 gross and was absent from work for approximately 17.2 weeks. The plaintiff further alleges that he was forced to reduce his hours worked for a period of time and that he has suffered a reduced perimeter of employment. All of this sounds in a claim for past economic loss and future economic loss.
The defendant whilst admitting the accident and admitting the plaintiff was injured, denies the injuries and symptoms as pleaded and denies the various statements of fact and allegations supporting the claim for past economic loss and future economic loss.
The plaintiff filed amended particulars of damage in July 2021 where the plaintiff claimed that his pre-accident income was approximately $1,275 gross and that he was completely absent from work for a period of 141.6 weeks.
In November 2020, the defendant, obviously considering the plaintiff had not provided sufficient discovery, brought an application for specific discovery seeking his individual tax returns, PAYG summaries and also documents relating to Tadros Engineering Pty Ltd (Tadros Engineering). It appears to be that the plaintiff is the principal civil engineer for Tadros Engineering and the plaintiff's wife is the sole director and shareholder of the company (affidavit of Erica Claire Filby sworn 7 April 2021). The application did not progress to a hearing as the plaintiff discovered a significant portion of the documents that had been requested in the chamber summons. The plaintiff filed an affidavit (Timothy Galal Emil Tadros sworn 7 April 2021) stating he was not a director of Tadros Engineering and therefore did not have access to the documents sought from Tadros Engineering.
As a consequence, the defendant issued a subpoena directed to Tadros Engineering originally issued 4 May 2021 and apparently re‑issued on 18 August 2021 seeking the following documents:
1.Personnel and employment documents, whether in electronic or paper form, including any application for employment, resumes, references, attendance records, correspondence, wage records, PAYG payment summaries and performance appraisal documents (the documents) relating to the employment of Timothy Galal Emil Tadros (date of birth: 29 March 1982); and
2.All invoices issued to Tadros Engineering Pty Ltd by subcontractors for the financial years ending 2014 to 2020, all invoices issued by Tadros Engineering Pty Ltd to its clients/customers for the financial year ending 2020, the Tadros Engineering Pty Ltd financial report and tax return for the financial year ending June 2020.
The plaintiff has objected to the subpoena to produce. The grounds of objection are that the subpoena is an abuse of process as it addresses a previously set aside subpoena, it is oppressive in relation to item 1 of the schedule and is oppressive and/or an abuse of process in relation to item 2 of the schedule.
Principles
I have the benefit of written submissions from plaintiff's counsel dated 23 September 2021 and from the defendant's counsel dated 22 November 2021. In Stanley v Layne Christensen Company [2004] WASCA 50 the Full Court approved Master Sanderson's identification of the principles required in making a decision in relation to whether a party had a legitimate forensic purpose for issuing a subpoena. Those principles are:
1.A legitimate forensic purpose will be established if a document gives rise to a line of inquiry relevant to the issues including for the purpose of meeting the opposing case by way of cross‑examination.
2.In assessing whether a legitimate forensic purpose exists, the necessity of a document to fairly dispose of the issues might not be apparent before trial. Thus, whether a document is necessary, is to be understood in a broad sense even if it might not readily be seen at the pre-inspection stage necessarily to be admissible in evidence.
3.At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage and hence, no narrow view as to the legitimate purpose of a subpoena ought to be taken.
4.In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available and there is no requirement to avoid the stigma of fishing that a party must already be in possession of some evidence before issuing a subpoena.
Abuse of process re-addressing a previously set aside subpoena
It was Tadros Engineering's understanding that a subpoena in identical terms to the subpoena in question had been set aside as oppressive. As the defendant points out, this understanding is incorrect. The plaintiff was the respondent to an application for specific discovery which had been dealt with by way of a process of conferral. The documents in the application for specific discovery directed to documents held by Tadros Engineering was not pursued.
I therefore find there is no matter of oppression under this heading.
Oppressiveness - item 1 of the schedule
The plaintiff submits that this item, which seeks production of personnel and employment documents relating to the employment of the plaintiff is oppressive as it will require consideration of the breadth of the subpoena, the definition of documents involved and the type and degree of burden placed on the subpoenaed party. The defendant submits that the documents requested in part 1 of the subpoena are relevant to the plaintiff's claim for past economic loss in that they go to the work performed by the plaintiff before and after the accident, the income earned by the plaintiff before and after the accident and periods of absence from work after the accident.
In my opinion, on the pleaded issue, the documents in item 1 of the subpoena are for a legitimate forensic purpose. They give rise to that line of inquiry as to the work done by the plaintiff for Tadros Engineering. In my opinion, it is clear that the documents do have a relevance to the economic loss component of the plaintiff's claims.
The documents are confined in time and on the evidence (affidavit of Filby) Tadros Engineering is a relatively small business. The task of locating the documents would not be onerous. The documents are well described and do not require Tadros Engineering to form a judgment as to what documents need to be produced.
This objection is dismissed.
Objection due to oppressiveness/abuse of process - item 2 of the schedule
Item 2 of the schedule refers to invoices issued to Tadros Engineering or invoices issued by Tadros Engineering. Further, item 2 requires Tadros Engineering to produce its financial report and tax returns.
Tadros Engineering submits the plaintiff is a salaried employee of Tadros Engineering and therefore the classes of documents are irrelevant to the plaintiff's claim for loss of earning capacity. The plaintiff does not issue invoices in the name of Tadros Engineering nor do subcontractors of Tadros Engineering invoice the plaintiff.
The defendant submits that the documents sought in item 2, give rise to a line of inquiry identifying the nature of the engineering work required to be performed and the type of work being performed and the job title of the person performing the work. The documents could identify who was performing the work at Tadros Engineering and providing services to its customers in the relevant timeframe.
I am reminded that the threshold for a legitimate forensic purpose is low and that admissibility is not a bar to production. In my opinion, the production of documents in item 2 do lead to the train of inquiry as to the nature of engineering work performed by Tadros Engineering and who performed that work. Further, the documents will enable both plaintiff and defendant to assess the relative strength and weaknesses of their cases.
The production of the documents is not oppressive to Tadros Engineering in that the documents sought are for a period of six years. There is no evidence that Tadros Engineering would be exposed to significant time and cost in complying with the subpoena.
Tadros Engineering submits that at best item 2 of the schedule might relate to an issue that is peripheral to the main issues in dispute on the pleadings. This then would amount to an abuse of process.
I have found that the documents sought do have a legitimate forensic purpose in that they lead, certainly for the defendant, on a further train of inquiry going to the issues of economic loss of the plaintiff, a central issue in the plaintiff's claim.
In my opinion, the objection in relation to item 2 of the schedule is disallowed.
Conclusion
Having regard to these reasons, the objection by Tadros Engineering is disallowed. I will hear counsel on the form of orders and on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Court Officer
23 MAY 2022
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