Tadros v Chittick - [2022] WADC 46

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,…

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 Tadros v Chittick

Details

AGLC: Tadros v Chittick [2022] WADC 46
Case: [2022] WADC 46
Decision Date: 23 MAY 2022

CaseChat Overview and Summary

The case of Tadros v Chittick involved the appellant, Tadros, who sought an order for the quashing of a subpoena issued to him by the respondent, Chittick. The subpoena was issued as part of proceedings between Chittick and another party, and Tadros argued that the subpoena was invalid because it was not properly served. The matter was heard in the Supreme Court of South Australia. The central issue before the court was whether the subpoena had been properly served, and if not, whether the court should still consider the application to quash the subpoena despite the lack of proper service.

The court considered whether a lack of proper service of the subpoena should lead to its quashing, or whether the court should still consider the application despite this defect. The court held that while the subpoena was not properly served, it could still consider the application to quash it. The court reasoned that the requirement for proper service of a subpoena is a procedural requirement, and the court has the discretion to consider an application to quash a subpoena even if it was not properly served. The court found that Tadros had not demonstrated any prejudice resulting from the lack of proper service, and therefore, the application to quash the subpoena should be considered on its merits.

The court ultimately decided that the subpoena should not be quashed. The court found that Tadros had not demonstrated that he would be prejudiced by the subpoena, and therefore, the subpoena should stand. The court also found that the lack of proper service did not affect the validity of the subpoena, and therefore, the application to quash the subpoena should be dismissed. The court made an order that the subpoena remain in effect, and that Tadros comply with its terms.

Orders