Watson v J-FIVE Enterprises Pty Ltd

[2001] WADC 241

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   WATSON -v- J-FIVE ENTERPRISES PTY LTD & ANOR [2001] WADC 241

CORAM:   NISBET DCJ

HEARD:   8 OCTOBER 2001

DELIVERED          :   16 OCTOBER 2001

FILE NO/S:   CIV 1576 of 1999

BETWEEN:   ANN WATSON

Plaintiff

AND

J-FIVE ENTERPRISES PTY LTD
First Defendant

MINISTER FOR HEALTH
Second Defendant

Catchwords:

Practice and procedure - Appeal from decision of Registrar - Application for examination of witness before trial pursuant to O 38 r 1 - Witness neither absent from jurisdiction nor in ill health - Principles

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr J R Johnson

First Defendant             :     Ms P E Cahill

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Ilberys

First Defendant             :     Basile Hawkins

Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Case(s) also cited:

De Garis Kendenup (WA) Development Co Ltd v Courtis (1925) 28 WALR 54

Hardie Rubber Co Pty Ltd v The General Tire & Rubber Co (1973) 129 CLR 521

1. NISBET DCJ:  On 12 July 2001 a Registrar refused the plaintiff's application by summons dated 19 June 2001 for orders relating to the examination of a witness before trial.  The plaintiff appeals from the order refusing the application.  An appeal from a decision of a Registrar is, of course, a hearing de novo: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.

2. The plaintiff pleads that on 7 August 1996 she was employed by the second defendant as a nurse at Hawthorn Hospital and was working with a Ms Christine Vye, another nurse, who was contracted to the second defendant by the first defendant.  At about 8.00 am on that day the plaintiff says that she was required to transfer a patient from a bed to a commode assisted by Ms Vye.  The pleading continues:

   "5.Whilst the plaintiff attempted to lift and transfer the patient from the bed to the commode Nurse Vye failed to assist the plaintiff by carrying and lifting the patient.

   6.As a result of Nurse Vye's failure to assist the plaintiff in lifting and carrying the patient the plaintiff sustained an injury to the lumbar spine ('the accident').

   7.The accident was caused by the negligence of the first defendant, its servants and/or agents.

   PARTICULARS OF FIRST DEFENDANT'S NEGLIGENCE

   (a)Supplying Nurse Vye to the second defendant for the purpose of providing additional nursing personnel at the premises when the first defendant knew or ought to have known that Nurse Vye suffered from a pre‑existing lumbar condition;

   …"

3. Further particulars follow to much the same effect.  Ms Vye's failure to assist in the lift of the patient was attributed to a pre‑existing condition of the lumbar spine of which the first defendant knew or ought to have known, the plaintiff says.

4. In getting the case ready for trial the plaintiff was naturally anxious to obtain details of Ms Vye's medical condition in the face of a denial by the first defendant either that Ms Vye had a pre‑existing condition of her lumbar spine which precluded her from lifting patients or that it knew of it.  The plaintiff through her solicitors made a direct inquiry of Ms Vye as to whether she had a pre‑existing problem with her lumbar spine, which she denied.  Attempts by the plaintiff's solicitors to obtain discovery of medical records through the Health Insurance Commission and the like failed because of the privacy provisions of the relevant Commonwealth legislation.

5. Finally, frustrated by her inability to obtain any evidence of Ms Vye's medical condition, the plaintiff took out a summons under O 38 r 1 for the examination of Ms Vye prior to trial. This was resisted by the first defendant and, strangely it might seem, at least to me, by Ms Vye, who would not be able to resist a subpoena requiring her attendance at trial to be there examined about her medical history (notwithstanding the submissions of the first defendant that she would only be able to be examined about any pre‑existing condition of her lumbar spine, this being the issue limited by the pleadings). For its part the defendant claimed that its position would be gravely prejudiced if such a procedure was put in place in respect of Ms Vye. I am unable to see any prejudice to the first defendant. If it was the case that Ms Vye was going overseas and was unlikely to be present at the trial for example, the case in which evidence is more usually taken by way of an examination of a witness before trial, Ms Vye properly subpoenaed and served with conduct money could have no objection and neither would the defendant have suffered any prejudice. But I have a very real difficulty with the appropriateness of this procedure being used in the manner sought by the plaintiff. Under the former Rules of the Supreme Court of England (Rules of the Supreme Court 1965) O 39 r 1 was in almost precisely the same form as O 38 r 1 of the Supreme Court Rules of Western Australia.  As the commentary in the White Book discloses, the circumstances in which this rule of court was used to enable the examination of witnesses before trial were somewhat restricted:

   "The exercise of the power is discretionary (see Warner v Mosses (1880) 16 Ch D 100 CA p 102) but the usual grounds on which the order is made for examination in this country are (and always have been) that the witness is too old and decrepit to attend a trial or might die before the trial, or so ill that there is no prospect of his being able to attend the trial, or, if a female, is pregnant and likely to be delivered about the time of the trial, or if the witness intends to leave the country before trial; and orders are often made in such cases by consent." (The Supreme Court Practice 1985 Vol 1 39/1/3.)  (My emphasis.)

6. The English Rules have since been considerably revised to meet the exigencies of what are popularly called "caseflow management" principles.  They are now called the Civil Procedure Rules 1998.  The new rule in England is 34.8 which is in wider terms than the rule it replaced but nevertheless, as the commentary in the White Book notes, it is still a procedure to be used:

   "If a witness cannot attend trial …" [Civil Procedure Vol 1 Autumn 2000 at 34.8.1].

7. An examination of other jurisdictions with similar rules (ie Victoria) discloses too that the rule permitting the examination of a witness before trial has only ever been used in circumstances where it is thought that the witness may not be able to attend a trial by reason of ill health or infirmity of some description.  The rule as far as I can tell has never been used in the way in which it is used in some States and Federal jurisdictions of the United States of America where pre‑trial depositions are commonplace.

8. In the absence of a specific power conferred by the Rules and of any higher authority suggesting that O 38 r 1 may be used  in the manner proposed by the plaintiff in this case, I do not propose to be the first to permit its use in this fashion as this would involve a radical departure from the way in which evidence may be gathered before trial such that parties unable to obtain sufficient evidence could fish for evidence that might support a case without the limits imposed by the natural fetter on litigation, namely the risk of being ordered to pay the costs of the action.

9. For these reasons the plaintiff's appeal will be dismissed.