Woolworths Ltd v Svajcer
[2013] VSCA 270
•27 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0202
| WOOLWORTHS LTD | Appellant |
| v | |
| MARK SVAJCER | Respondent |
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| JUDGES | NETTLE, ASHLEY and NEAVE JJA | ||
| WHERE HELD | MELBOURNE | ||
| DATE OF HEARING | 15 May 2013 | ||
| DATE OF ORDERS | 15 May 2013 | ||
| DATE OF JUDGMENT | 27 May 2013 | ||
| MEDIUM NEUTRAL CITATION | [2013] VSCA 270 | ||
| JUDGMENT APPEALED FROM | Svajcer v Woolworths Limited (Ruling) [2012] VCC 1496 | ||
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Application for leave to appeal against refusal to permit inspection of documents subpoenaed from the Director of Public Prosecutions — Leave to appeal refused — No legitimate forensic purpose — Fishing expedition — Inspection of subpoenaed documents by judge — Order 42A of the County Court Civil Procedure Rules 2008 — Accident Compensation Act 1985, s 134AB — Messade v Baires Contracting Pty Ltd [2011] VSC 56 — Commissioner of Australian Federal Police v Magistrates Court of Victoria and Ors [2011] VSC 3.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Ms K E Foley | Sparke Helmore |
| For the Respondent | Mr J H Mighell S.C. with Mr D J N Purcell | Maurice Blackburn |
NETTLE JA:
ASHLEY JA:
NEAVE JA:
The applicant, Woolworths Limited, (‘Woolworths’) sought leave to appeal against interlocutory orders made by a County Court judge, refusing to allow it access to witness statements subpoenaed under Order 42A of the County Court Civil Procedure Rules2008. The witness statements were made by the complainant and other witnesses in a criminal trial of the respondent to this application, Mark Svajcer (‘Svajcer’).
The parties agreed that if leave was granted the Court should immediately decide the appeal. On 15 May 2013 the Court refused leave to appeal in this matter. These are our reasons for dismissing the application.
Background
Following a number of trials in the County Court,[1] Svajcer was acquitted of one count of rape and three counts of assaulting the complainant and convicted of three counts of committing an indecent act with a child under 16 and five counts of sexual penetration of a child under 16. The convictions arose out of consensual sexual acts which began in September 2004, two weeks before the complainant’s sixteenth birthday.[2] The complainant moved out of her mother’s house with the respondent and their relationship continued until June 2006.
[1]The procedural history of the applicant’s criminal proceedings is set out by Redlich JA in Svajcer v R [2010] VSCA 116, [2].
[2]The judge says that Svajcer was also charged with three counts of assaults of the complainant over the period April to June 2006. He was also charged with one count of threat to kill. It can be deduced that he was acquitted of these offences.
The application arises out of proceedings in which Svajcer seeks leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the s 134AB application’) to commence proceedings to recover common law damages for a serious injury arising out of his employment by Woolworths, on 3 September 2003. Following that injury, a discectomy and fusion of his lumbar spine was performed on 17 November 2004.[3]
[3]This seems to be inconsistent with the statement in Svajcer v R [2010] VSCA 116, [3] that he had been operated on for his serious back injury before he went to live with the complainant and her mother in May 2004.
In the affidavit sworn by Svajcer on 7 May 2007 and filed in support of the originating motion seeking leave under s 134AB he deposed that:
· He was unable to return to work after his operation and continues to suffer from significant lower back pain and pain and weakness in his left leg
· His symptoms are made worse by sitting or standing for long periods and by bending, twisting or lifting.
· He is on a various medications for his pain which have significant side effects.
· He has become depressed and worries about his future.[4]
[4]Exhibit KF 7 to Affidavit of Kathryn Footner, solicitor for Woolworths [B21].
Svajcer claims that he has a serious injury under s 134AB(37) of the Accident Compensation Act 1985 because he suffers from a permanent serious impairment of loss of the body function of the spine (under paragraph (a)) and a permanent severe mental or permanent severe behavioural disturbance or disorder (under paragraph (c)).[5]
[5]Particulars of injury.
A subpoena was issued to the Director of Public Prosecutions (DPP), at the request of Woolworths, requiring production of ‘copies of all documents from all files relating to [the respondent] including, but not limited to, all pleadings, medical evidence, briefs of evidence, correspondence, statements, exhibits and transcripts of evidence’ from the DPP. The DPP did not resist the subpoena, but the respondent objected to the applicant inspecting these documents, as he was entitled to do under Rule 42A.08 of the County Court Civil Procedure Rules.
Following negotiations between the parties, the applicant consented to vacation of the objections hearing.[6] By her affidavit sworn on 30 October 2012 the solicitor for the applicant, Holly Pinnis, deposed that consent was given on the basis that:
[6]The Court was informed that although the agreement was headed ‘Consent Orders’ no orders may have been made by the County Court.
…
(b)The Applicant be granted access to the victim’s impact statement, clinical notes and the letter from the Respondent’s father contained in the subpoenaed material provided by the Director of Public Prosecutions;
(c)The parties have liberty to apply regarding the objections hearing;
(d) Costs reserved.
…
13.In providing the consent referred to in paragraph 12 herein, it was my understanding that:
(a)the Respondent was not withdrawing and/or waiving his right to maintain the objection to the inspection being sought by the Applicant;
(b)the Respondent was not withdrawing and/or waiving any claim to privilege he had over the documents sought to be inspected by the Applicant;
(c)the sole purpose for allowing the inspection was to permit the Applicant to decide whether or not it wished to proceed with its application to inspect all of the subpoenaed documents;
(d)the access granted to the Applicant was limited entirely to an inspection only and did not extend to the Applicant being permitted to take a copy of any document or documents inspected.
14.The Respondent maintained his objection to access being granted to all of the documents provided by the Director of Public Prosecutions in response to the Applicant’s subpoena referred to in paragraph 8 herein. I understand and verily believe that the County Court of Victoria listed the matter for an Objections Hearing on or about the 5th October, 2012. …
By her affidavit sworn on 19 October 2012 the applicant’s solicitor, Ms Kathryn Footner, deposed that the purpose of the inspection was to allow the applicant to determine whether or not to proceed with its application for access to criminal trial documents.
In inspecting the witness statements made by Shae Harris, Natalie Jonker, Shane Peake, Patrick D’Arcy and the complainant and in making file notes on those documents, the applicant’s solicitor appears to have gone beyond the terms of the consent given by the respondent’s solicitors, although counsel for the applicant informed us that the solicitor had refrained from inspecting some documents which were not covered by the agreement and that she had not intended to go outside its terms by inspecting the witness statements.
Subsequently, and on the basis of that inspection, the applicant applied to the judge below for access to the statements made by these five witnesses, including two statements made by the complainant and to victim impact statements in respect of alleged assaults on her by Svajcer. At the hearing before us, counsel for the applicant informed the Court that the reference to victim impact statements was misconceived and that the applicant had simply sought access to witness statements made by the complainant.
Submissions below
Before the judge below, Woolworths submitted that it should be permitted to have access to the complainant’s witness statements because they contained information relating to the assaults and included ‘detailed descriptions of how the victim and plaintiff engaged in sexual intercourse and incidences [sic] where the plaintiff was physically abusive towards the victim’. These were said to be ‘inconsistent with the consequences of the back injury as alleged by the plaintiff in the serious injury application’.
During the hearing his Honour asked the applicant’s solicitor, Ms Footner, about the nature of the inconsistency, and she described the content of some of the statements, based on notes provided by the solicitor who had inspected them. The judge asked if the respondent’s evidence at trial was that he could not have intercourse and the solicitor responded ‘on top’. The judge then remarked that this was drawing ‘a long bow’. The solicitor then submitted that the respondent:
is alleging that he’s been wheelchair bound and unable to ambulate, which is in direct conflict with the information that was presented to the court for the criminal proceedings.
The solicitor for the applicant also submitted that issues relating to Svajcer’s sexual performance created inconsistencies between evidence at his trial and his serious injury claim. He had also claimed he had lifting, bending and twisting restrictions, which were said to be inconsistent with evidence at the trial that he had thrown the complainant across the room. The DPP materials had also suggested that Svajcer had attempted suicide because of an argument with the complainant, whereas in his WorkCover application he had said this was because of his work‑related psychiatric injury. It was submitted to his Honour that ‘the defendant needs to investigate as to what component [of the psychiatric condition] might be work related, and what other non‑work related factors might be involved in any psychiatric condition being suffered by the plaintiff’. The information in the DPP file was said to show that his attempted suicide was directly related to an argument ‘he had with the victim of the assault’. It was contended that the material in the witness statements were relevant to Svajcer’s credit as well as to the question of whether he had suffered a serious injury.
The respondent submitted that access to the documents should be denied because the applicant was simply ‘fishing’ for material which might prove useful in resisting the application for leave to seek common law damages on the basis that Svajcer had a serious injury. It was speculative to suggest that his alleged injury might have affected his sexual performance.
Trial judge’s reasons
In his Ruling his Honour referred to the principles set out by J Forrest J in Commissioner of Australian Federal Police v Magistrates Court of Victoria and Ors[7] and restated by his Honour in Messade v Baires Contracting Pty Ltd[8] relating to whether a party is entitled to access documents which have been subpoenaed. Neither counsel challenged the correctness of these propositions, which were as follows:[9]
[7][2011] VSC 3,[28]. Paragraphs (a)-(e) and (h) were relied upon by his Honour in Messade v Baires Contracting Pty Ltd [2011] VSC 56,[6], where they were applied to the question whether documents should be produced pursuant to a notice to produce. J Forrest J said that the principles applicable to a notice to produce were similar to those applied when it was decided whether a subpoena should be set aside.
[8][2011] VSC 56. Note, J Forrest J only restated (a) - (e) and (h). His Honour considered that (f) and (g) were not relevant in that instance.
[9]The judge excluded (f) and (g) from the judgment, as his Honour did not consider them relevant to this proceeding.
(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;[10]
(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;[11]
(c) the applicant for the witness summons must also satisfy the court that it is ‘on the cards’,[12] or that there is a ‘reasonable possibility’,[13] that the documents sought under the subpoena ‘will materially assist the defence’.[14]
(d) a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;[15]
(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.[16] 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.[17]
(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g) in criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.[18]
(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.[19]
[10]R v Saleam (1989) 16 NSWLR 14, 18; R v Mokbel(Ruling No 1) [2005] VSC 410, [45]; Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498, 504; R v Sergi [1998] 1 Qd R 536; NSW Commissioner of Police v Tuxford [2002] NSWCA 139, [22]; Re Don [2006] NSWSC 1125, [26].
[11]Attorney-General for NSW v Stuart (1994) 34 NSWLR 667, 681.
[12]Alister v The Queen (1984) 154 CLR 404, 414.
[13]DPP v Selway (Ruling No 2) (2007) 16 VR 508, [10]; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, [96].
[14]Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536, [5], [62], [64]; R v Mokbel (Ruling No 1) [2005] VSC 410, [45]; R v Saleam [1999] NSWCCA 86, [11]; Alister v The Queen (1984) 154 CLR 404, 414; R v Saleam (1989) 16 NSWLR 14, 18.
[15]Alister v The Queen (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14, 17; 414; Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 575; Re Don [2006] NSWSC 1125, [26].
[16]Attorney-General (New South Wales) v Chidgey (2008) 182 A Crim R 536 [59].
[17]Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162, 181.
[18]Sankey v Whitlam (1978) 142 CLR 1, 42, 62; Alister v The Queen (1984) 154 CLR 404, 414, 454-456; R v Saleam (1989) 16 NSWLR 14, 17; R v Mokbel (Ruling No 1) (2005) VSC 410, [40].
[19]R v Saleam (1989) 16 NSWLR 14, 18. See also R v Sergi [1998] 1 Qd R 536; R v Saleam [1999] NSWCCA 86, [11].
The judge compared Woolworths’ application with the application in Messade v Baires,[20] where J Forrest J held that a notice to produce requiring production of photographs of the defendant on overseas trips over a number of years, which the defendant’s counsel claimed might, if shown to the defendant’s doctors, enable them to determine whether his holiday activities were consistent with his claimed medical condition, was not sufficiently specific. In Messade it was held that the notice to produce failed to identify with sufficient precision how the plaintiff’s account to his doctors was inconsistent with the photographic evidence, such as what he was and was not capable of doing on the trip or whether or not he was working while away.
[20][2011] VSC 56.
His Honour said that he was not provided with any material to suggest the criminal activities of the applicant were inconsistent with any allegation made in the serious injury application.[21] Like the claim in Messade the claimed right to inspect witness statements in this case was too general:
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.
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.[22]
[21]Svajcer v Woolworths Limited [2012] VCC 1496, [14].
[22][2012] VCC 1496, [14] – [15].
In relation to the claim that the information contained in the witness statements was relevant to Svajcer’s credit he said:
…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.
As J Forrest J said in Messade:[23]
‘This is the casting of a line with the hope that something may be caught in a very large pond. …’
The plaintiff’s objection to the disclosure of the relevant materials in the subpoena is upheld.[24]
[23][2011] VSC 56, [10].
[24]Svajcer v Woolworths Limited [2012] VCC 1496, [18].
Grounds of appeal
The applicant seeks leave to appeal on the following proposed grounds.
1.The learned trial judge failed to give proper regard to the fact that the respondent’s case includes an assertion that he has a serious psychiatric injury that he has suffered as a result of his back injury, and that the circumstances surrounding the assaults and the respondent’s reactions to the stresses associated with those assaults and criminal proceedings are of potential relevance to the determination of that issue.
2.The learned trial judge failed to give proper regard to the fact that the physical activities relating to the assaults were inconsistent with the respondent’s claimed consequences of his back injury.
3.The learned judge erred by having regard, on the question of access to the documents, to whether some subsequent uses of the documents might be unfairly prejudicial particularly in a jury trial.
4.It was not reasonably open in the circumstances to conclude that there was no proper forensic purpose for which access to the documents was being sought and/or that the subpoena was a ‘fishing expedition’ and thus an abuse of process.
5.The learned trial judge erred by stating that he was not provided with any material to suggest that the criminal activities of the respondent were inconsistent with any allegations made in the serious injury application, when his Honour had been informed by the solicitor for the appellant, with the acquiescence of the solicitor for the respondent, of relevant inconsistencies.
6.Alternatively to 5, the learned trial judge failed to accord the appellant procedural fairness by failing to act upon statements of fact advised to him by the solicitor for the appellant, with the acquiescence of the solicitor for the respondent, without first giving prior indication that he would or might not accept those facts.
Submissions on appeal
The applicant argues that the test for leave to appeal has been satisfied[25] and that the appeal should be allowed because the judge erred in the exercise of his discretion in the House v The King[26] sense. The applicant contends that the judge erred in finding that the applicant had not identified any legitimate forensic purpose for which access to the witness statements were sought.
[25]King v Lintrose Nominees Pty Ltd (2001) 4 VR 619, 627 [22].
[26](1936) 55 CLR 499, 505.
The applicant submits that contents of the statements would provide a basis for cross-examining Svajcer about his claim to have suffered a serious injury and on matters of credit. At the hearing Woolworths’ solicitor had identified the inconsistencies said to exist between material in the witness statements to which access was sought and the respondent’s serious injury claim, including the claim that there was a causal relationship between his psychiatric injury and the physical injury he had suffered. The solicitor had explained to the judge, in precise terms, the purpose for which access to the statements was sought. In these circumstances it was not reasonably open to his Honour to hold that the applicant was simply on a ‘fishing expedition‘ and to refuse access to the material in the witness statements.
In addition, the judge had wrongly relied on the consideration that ‘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’.[27] In making this comment, his Honour was referring to questions which would arise in determining whether the evidence was admissible, rather than to the issue before him which was whether there was a legitimate forensic purpose in seeking to have access to the witness statement material.
[27]Svajcer v Woolworths Limited [2012] VCC 1496, [16].
Moreover, even if it was open to the judge to deny Woolworths access to the witness statements, his Honour should have warned counsel of his intention to reject the argument that there was an inconsistency between the material put to him by Ms Footner and the nature of the serious injury claim.
The respondent contends that leave to appeal should be refused, because the trial judge’s orders were not attended with sufficient doubt to warrant a grant of leave.[28] Indeed, the judge was required to reject the application because he had ‘not been provided with any material to suggest the criminal activities of [Svajcer] were inconsistent with any allegation made in the serious injury application’. There was no unfairness in his Honour reaching that conclusion.
[28]Niemann v Electronic Industries Ltd [1978] VR 431, 441-2.
The fact that his Honour had not been referred to any evidence which made good the submission that there were inconsistencies in histories given to doctors or in the material relied upon in by the respondent in support of his s134AB application was particularly striking, because the applicant had had an opportunity to review the material and to identify the forensic purposes to which it was relevant.
Conclusion
This Court will not grant leave to appeal unless the applicant shows that the judgment was attended by sufficient doubt to justify the grant of leave and that substantial injustice would be done if the decision were to be allowed to stand.[29]
[29]Niemann v Electronic Industries [1978] VR 431, 442.
In our opinion his Honour erred in refusing access to the documents on the basis that:
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.
The risk that the admission of the evidence would be prejudicial to the respondent is not relevant to the question whether there was a legitimate forensic purpose in seeking access. As Glass JA observed in National Employers’ Mutual General Association Ltd v Waind and Hill:[30]
The exercise of the discretion [to permit access to documents produced by a third party under subpoena] does not involve the determination of an issue between the parties as to the relevance or admissibility of the document. [31]
[30][1978] 1 NSWLR 372.
[31]Ibid, 385.
The issue of admissibility would arise at a later stage in the proceedings if Svajcer sought to have the evidence excluded under s 135 of the Evidence Act 2008, on the basis that its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to a party.[32]
[32]National Employers Mutual General Association Limited v Waind (1978) 1 NSWLR 372.
Although his Honour took account of an irrelevant consideration in refusing access to the documents, we do not consider that there is sufficient doubt about the correctness of his Honour’s decision to justify the grant of leave to appeal.
In Carroll v Attorney-General(NSW)[33] Mahoney AP acknowledged that:
There is a distinction between a subpoena which requires the production of documents from a party to a proceeding and one which requires production of documents from a third party. To an extent, the court will allow to a party subpoenaing documents a somewhat broader latitude in obtaining for inspection documents from a third party which, being from a third party, could not have been obtained on discovery or otherwise in the proceeding….:
But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a ‘fishing expedition’, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.[34]
…In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case.[35]
[33](1993) 70 A Crim R 162.
[34]Ibid, 181.
[35]Ibid, 182.
In this case, his Honour said that there was no evidence before him which enabled him to consider whether there was a legitimate forensic purpose in seeking access to material in the witness statements. The transcript does not indicate that the judge had his attention drawn to Svajcer’s affidavit in support of his s 134AB application, although counsel for Woolworths made various assertions as to the nature of that claim from the Bar table. Even if the judge had read Svajcer’s affidavit, that affidavit made no claim that he was wheelchair bound or unable to have sexual intercourse, or that his mental condition had resulted in him attempting to commit suicide.[36] Furthermore, although Svajcer had provided many medical reports to Woolworths,[37] none of those reports were placed before the judge in support of the alleged inconsistencies. In these circumstances, his Honour correctly held that there was no legitimate forensic purpose in examining the witness statements in Svajcer’s criminal trial. The applicant’s claim amounted to no more than an assertion that there might be an inconsistency between an ability to engage in consensual sex and the claimed back injury, or that there might be something in those witness statements which could possibly be relevant to the applicant in resisting Svajcer’s claim. The fact that the applicant had been permitted to inspect the documents on the basis that the respondent did not waive its right to object to its access cannot advance the applicant’s position, even though the applicant now asserts there was something in the documents which might assist it. We would also reject the argument (made under cover of ground 6) that the judge did not warn the applicant that he was inclined to reject the application, despite Ms Footner’s submission as to the contents of the witness statements.
[36]Note the copy of the applicant’s affidavit provided to the court was undated. It was attached as an exhibit to the affidavit of Kathryn Footner, solicitor for the applicant, dated 19 October 2012.
[37]See exhibit WP1 to the affidavit of Holly Pinnis sworn 30 October 2012.
The applicant’s assertion that Svajcer will rely on being wheelchair bound may have been based on the reasons of his Honour Judge Allen when he sentenced the respondent for his sexual offences. [38] His Honour said that:
Since suffering that back injury in 2003, you have undergone intensive medical treatment, as I have just mentioned, including spinal-fusion surgery in 2004 which was unsuccessful. You have remained on a heavy regime of medication, including multiple narcotic-based analgesics, anti-muscle-spasm medication, simple analgesia, and medication to combat the side effects of these medications, such as nausea and gastric irritation.
During the course of this trial you spent most of the time in a wheelchair, as you are today. I accept that that is genuinely necessary, as a result of the level of pain and discomfort that you suffer chronically. That situation has been borne out by the fact that since your incarceration, a little over two months ago, at the conclusion of a trial, you have been accommodated in St John's Hospital ward at the Port Phillip Prison in order that your serious back complaint and related depression may be adequately managed. During the course of evidence given by Dr Walton, he expressed the opinion that he expects that this situation will continue indefinitely; that is, the need to manage you within the hospital ward as opposed to the general prison population, and I will come back to that later.
As I have mentioned, I accept without reservation that you have for many years suffered depression. I accept the expert opinion of the respected forensic psychiatrist, Dr Lester Walton, that this depression was probably originally referrable to your childhood trauma involving the sexual abuse; to other difficulties that you suffered as a result of that over the years, including difficulties in forming appropriate relationships until recent times. I accept Dr Walton's opinion that it seems highly likely that pre-existing underlying depression was significantly aggravated by the back injury that you suffered and the ongoing pain and discomfort that you have endured in the years since 2003.
That opinion of Dr Lester Walton is entirely consistent with the opinion of your general practitioner, Dr Eastaugh, who has been treating you for several years. He says that at the time of your offending you were being managed with Aropax daily for depression and Xanax for associated anxiety. He said this psychiatric condition has been fluctuating over the past decade and you have remained on anti-depressant medication for the majority of that decade. Again, I note Dr Walton's evidence that having examined your medical file at Port Phillip Prison, he has confirmed that, apart from the management of your serious physical ailments, you are being seen by the prison psychiatrist, Dr Senadipathy, and are receiving regular attention from the psychiatric nurses.[39]
[38][2001] VCC 501.
[39]Ibid [28]-[31].
If the applicant’s claim of inconsistency is based on those sentencing remarks , it does not reveal any conflict between Svajcer’s assertions in support of the serious injury application and the statements which Woolworths sought to access. Nor is it to the point that Woolworths obtained a file from the Office of Corrections, which, it was claimed, referred to suicide attempts by Svajcer.
During the course of the hearing counsel for the applicant was asked whether the fact that the complainant in the criminal trial had not disputed the applicant’s claim to have an injured back could be taken into account in deciding whether there was a legitimate forensic purpose in inspecting the witness statements. Counsel responded that this was not a relevant matter.
In Gardiner v R[40] the likely usefulness of the subpoenaed material was regarded by McLellan CJ at CL as a material factor in deciding whether a party was seeking access to the documents for a legitimate forensic purpose. In Gardiner the applicant had sought access to police documents in an effort to prove that either the police or an informer had ‘set him up’. His Honour said that even if the ‘set up’ allegation was correct:
Ducker ADCJ was correct to find that the subpoenaed documents had no legitimate forensic purpose. It was hardly likely that appellant would find evidence supporting this assertion in documents made and retained by the police force’ because ‘it was highly improbable that they would make a permanent record of their own corruption. To my mind the appellant was ‘fishing’ for evidence. [41]
[40][2006] NSWCCA 190.
[41]Ibid, [96].
In this case it is unlikely that anything in the witness statements would be of greater assistance to Woolworths’ attempt to rebut Svajcer’s claim that he has a serious injury or in attacking his credit, than the material already available on public record. We have already referred to the detailed discussion of the applicant’s back condition in Judge Allen’s sentencing remarks. Similarly, in his judgment in Svajcer’s conviction appeal Redlich JA said that ‘the complainant gave a quite detailed description of the applicant’s back disability consistent with the applicant’s own description of his disability which he had given in his record of interview’.[42]
[42][2010] VSCA 116, [34].
For these reasons we do not consider that the judge erred in concluding that the applicant had not established that there was any legitimate forensic purpose in having access to the witness statements. Since the matter was not raised below we have not considered whether the applicant’s reliance on file notes made on documents inspected outside the terms of the agreement between the respondent and the applicant, would provide an alternative reason for the court exercising its discretion to refuse leave to appeal. We do however find it troubling that the arguments made in the proceedings below and on this appeal are largely based on that breach of agreement.
Finally it is necessary to comment on the fact that the judge reached his conclusion without inspecting the witness statements to which the applicant sought access. It may well be that this occurred because, before his Honour, counsel for both the applicant and the respondent accepted the correctness of J Forrest J’s statement in Messade v Baires Contracting Pty Ltd[43] that the Court should not inspect the documents prior to determining whether the applicant had a legitimate forensic purpose in seeking access to them. J Forrest J cited Attorney-General for New South Wales v Stuart[44] (‘Stuart’) as authority for that proposition.
[43][2011] VSC 56, [6].
[44]Attorney-General for NSW v Stuart (1994) 34 NSWLR 667, 681.
Although nothing turns on it in this case, we regard that statement as being too broadly expressed. As the cases cited below reveal, the generally applicable practice is to the contrary.
In National Employers’ Mutual General Association Ltd v Waind and Hill[45] Glass JA said that:
In my experience it has long been the practice in this State for the judge, even against opposition, to exercise a discretion to allow one party or the other to inspect documents which appear to be relevant to the issues, whether or not in admissible form.[46]
[45][1978] 1 NSWLR 372.
[46]Ibid, 385.
It will not usually amount to an error in the House v King[47] sense for a judge to decide whether access should be granted to documents without inspecting them. However except in cases where the subpoena is plainly too broad, and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether access should be granted. In this case it would have been unnecessary for the judge to inspect the documents because the material produced was based on a ‘bare unsupported assertion’ that there might be something in there that would assist the applicant.
[47](1936) 55 CLR 499.
In Stuart, cited by J Forrest J in support of his proposition (b), the central issue related to the process which should be followed when a party opposed the production of documents on the basis that they were protected by public interest immunity. Hunt CJ at CL said that a party had to establish a legitimate forensic purpose for seeing the documents before the judge considered the questions relevant to public interest immunity and that:
In order to determine whether there is such a legitimate forensic purpose, it is not appropriate for the judge to inspect the documents simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused: Alister v The Queen (at 414, 439, 454). In Alister’s case, the documents were eventually inspected by the High B Court because — applying the criterion suggested in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439 — the majority were satisfied that there was some concrete ground for a belief that the documents did contain information which would materially assist the accused, or (as Gibbs CJ put it, at 414) it was ‘on the cards’ that they would do so: see also R v Saleam (at 17‑18).[48]
[48](1994) 34 NSWLR 667, 676.
The point which his Honour was making in the italicised section is that in some cases there may be such a marginal relationship between the documents to which a party seeks access and the issues raised in the proceeding that it would be entirely unnecessary for a judge to inspect the documents on the off‑chance that something might turn up which could advantage the party seeking production (or inspection). In this proceeding, the documents to which Woolworths sought access were exactly of such a character.
In the earlier case of R v Saleam, a second authority to which J Forrest J referred,[49] Hunt J (as he then was) had referred to the legitimate forensic purpose requirement and said that before granting access to subpoenaed documents when a party has objected to that access:
the judge should usually inspect the documents (or those which the Crown may suggest are sufficiently representative) for himself, as it is unfortunately not unknown for the objection taken to be misconceived: see also the remarks of Brennan J in Alister’s case (at 455, 456). [50]
[49](1989) 16 NSWLR 14.
[50]Ibid, [14].
What Hunt J said is apposite to a case in which a legitimate forensic purpose referable to subpoenaed documents has been identified, and the question arises whether any of the documents are relevant to that purpose. But the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ that the documents will assist his or her case.
For these reasons we would refuse leave to appeal.
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