White v McKenzie - [2002] WADC 97

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WHITE -v- MCKENZIE [2002] WADC 97

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 19 APRIL 2002

DELIVERED : 16 MAY 2002

FILE NO/S: CIV 2869 of 2001

BETWEEN: BREA ANNE WHITE
Plaintiff
AND
MARK STEVEN MCKENZIE
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - O 36 r 12(4) - Application for leave to issue a subpoena to be returnable prior to trial

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Dismissed

Representation:

Counsel:

Plaintiff: No appearance
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Messrs Edwards
Defendant: K N Allan

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

Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: By the action the plaintiff seeks damages for personal injury sustained in a motor vehicle accident.
The defendant has made an application in the following terms under O 36 r 12(4):
"Leave be granted to the defendant to issue a subpoena duces tecum returnable at 9.30 am. on Thursday 9 May 2002 at level 12, 32 St. Georges Terrace before any Registrar, on:
(a)     The Commissioner of Police
(Attention Officer in Charge of Records)
Police Traffic Branch
Wellington Street
EAST PERTH
for the production of the complete file relating to the following motor vehicle accident:
Date of accident        :     20 April 2000
Place of accident       :     20 Robertson Court, Kingsley
Driver of vehicles      :     The abovenamed defendant.
Pedestrian                 :     The abovenamed plaintiff.
Reference No.           :     2000A204932
(b)     The Administrator
Joondalup Health Campus
Shenton Avenue
JOONDALUP
for the production of the complete file relating to the admission to hospital of the abovenamed plaintiff for injuries received in a motor vehicle accident which occurred on 20 April 2000."
Rule 12(4) is in the following terms:
"With the leave of the Court a writ of subpoena duces tecum may require the person to produce the document or object concerned to the Court on a date before the date of the trial so that the person suing out the writ may inspect the document or object."
The discretion provided by the rule is unfettered. Accordingly, ultimately it is a matter of whether the court is persuaded that it is appropriate to grant leave in the terms proposed. The onus is on the applicant.
The application was before me on 19 April 2002 at which time I indicated that the only difficulty that I had with it was the terms in which the order was sought. I expressed my view that it would be appropriate for the subpoena to inform the witness of the identity of the documents required to be produced. The defendant sought to have the application dismissed and written reasons for my determination.
It is fundamental that the court will not make an order unless it is satisfied that the person to whom it was directed could comply with its terms. It is only where the documents to be produced are somehow identified that the court would be in a position to consider whether they may exist and be satisfied that they are within the capacity of the witness to produce them to the court.
It is also fundamental that in the process of exercising its authority the court will choose to express itself in terms capable of being understood by the person to whom that authority is addressed. To do so not only reflects the significance of that authority within the community but also the fact that disobedience raises the prospect of sanction.
The appropriate standard of expression of orders in the context of the issue of subpoenas for the production of documents involves an assessment of the class or classes of persons to which that witness may belong. Accordingly where documents are sought from an engineer it is appropriate that the court be satisfied that an engineer would understand the terminology used by the court in identifying the documents it requires that witness to produce.
Otherwise a standard of more general application may reflect the standard that pertains in the context of discovery. And I might add, for the same reason.
It is in response to the interests of justice that the court will require a witness to produce documents to the court. Since the advent of the rule upon which the applicant relies there is scope for the perception that there is some greater flexibility in that process. In my opinion the only scope for flexibility lies in recognising the interests of the applicant and the witness in considering a convenient time for compliance with the terms of the subpoena.
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 573 contains the classical exposition of the principles relation to subpoenas for production.
"A subpoena duces tecum is a writ which is issued by the Court as of course upon application by praecipe by or on behalf of a party to a cause or matter commanding some person or persons to attend before the Court to give evidence, and also to search for, bring and produce to the Court some document or documents relating to the cause or matter.
In form, it is a writ of subpoena ad test., with an addendum directing the production of documents. The Court has undoubted jurisdiction to issue such a writ: Amey v Long 9 East. 473 at 483-6; and disobedience to the writ is punishable by fine or attachment or both: R v Daye [1908] 2 KB 333.
A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.
It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery.
A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant. …
And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside.
If duly served with such a writ and provided with the proper conduct money, the person served must obey it and bring to the Court the documents mentioned in the subpoena if he has them, unless he procures the writ to be set aside as oppressive; …"
The only qualification I would make in relation to that comment is that in the event that the court considers it appropriate to do so it may require a stranger to make discovery. No such order has been made against the proposed witnesses.
It is evident from that passage that the court was not considering the issue of leave. Nonetheless it does illustrate that the terms of the subpoena, the prospect of oppression and the consequences of default are live issues in the context of the witness seeking to set aside a subpoena and to the extent that those issues are canvassed they indicate what the court may properly consider to be the interests of the proposed witness.
It is inappropriate for the court to consider that the issue of oppression only arises for consideration when raised by the witness. In part that is the case because the court properly recognises that a witness will be reluctant to raise an issue before the court. Such reluctance reflects the ordinary aversion which most people have to the uncertainties of litigation particularly in relation to costs. For most the consumption of time, the allocation of resources and especially, those considerations would be compounded by the prospect that the witness would be motivated by goodwill and a sense of justice to allocate resources to simply "doing his best" and rely upon that fact in defending the consequence of any alleged default. The court ought to recognise that the appropriate level of disruption or oppression imposed upon a witness is close to the minimum required to ensure a just result in the determination of issues between the parties.
I accept that in the event that the application is successful each witness would have the opportunity to seek to set aside the subpoena. It is a matter of considering whether the proposals are not patently oppressive.
In Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681 the Court of Criminal Appeal set aside a subpoena on the application of the witness as it was able to determine that the party had issued the subpoena merely because he wished to see whether the documents sought contained relevant material. In that case it was considered that the party must show that it is "on the cards" that the documents will serve some forensic purpose.
Although those comments were made in the context of an application brought by a witness, in my opinion they have some impact in considering an application for leave. The applicant seeks production of unidentified documents from each of the parties. Because those documents cannot be identified it is not possible to determine whether "on the cards"’ that they will serve any forensic purpose.
In relation to the first witness I accept that in all probability the documents held on any file of the witness would be likely to relate directly to the circumstances of the accident the subject of the action. That does not mean that the witness is properly ordered to comply in the terms that the applicant proposed. It ought not be left to the witness to determine what constitutes the complete file relating to the accident.
In relation to the second witness in all probability the witness would have all sorts of documents or records which relate to and may mention the plaintiff. Such broad categories of documents would include what I would imagine would be records generated for the "business" purposes of the witness. There is nothing which would suggest that there is likely to be any forensic benefit arising from an examination of documents of that nature.
I am not satisfied that it would be appropriate to exercise discretion in favour of the applicant in the terms proposed.
Since the application was dismissed I have on the application of the same solicitor in similar circumstances given leave to issue a subpoena to the first named witness in somewhat similar terms. In that case I did not have evidence but was informed by the practitioner appearing for the applicant as to the terms of a conversation between herself and an officer of the witness such that I was satisfied that leave be granted to issue a subpoena for the content of its identified file. I suspect that had that information or perhaps evidence been provided in this application and the terms of the proposed subpoena been so limited then the same result may have been obtained against the first witness.
The only reason for raising the matter is that it is not inappropriate that I draw the reason for the different result in the other case to the attention of the applicant’s solicitor.