Anica Clark v Woolworths Pty Ltd Sca [1992] ACTSC 9 (31 January 1992)

SUPREME COURT OF THE ACT

ANICA CLARK v. WOOLWORTHS PTY. LTD.
S.C.A. No. 64 of 1991
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Practice and Procedure - Subpoena to Produce Documents - Time for Producing Documents - Abuse of Process - No Useful Purpose - Substitute for Discovery - Oppressive - Too Wide - Appeal from Magistrates Court - Issues on Appeal - No Possibility of Relevance of Documents.

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 565-569

R v Barton (1981) 2 NSWLR 414

Magistrates Court (Civil Jurisdiction) Ordinance 1982 s.282G

HEARING

CANBERRA
31:1:1992

ORDER

The subpoenas dated 6 January 1992 be set aside.

Respondent to the Motion pay the Applicant's cost of and incidental to this application.

DECISION

This is an application to set aside two subpoenas that have been issued in an appeal pending in this Court.

2. The respondent to the Notice of Motion, who is the appellant in the Appeal, whose solicitors issued the subpoenas, had been employed by the applicant. She claimed to have been injured at work on 12 February 1988. The applicant paid compensation to her from 12 February 1988 to 15 March 1991. It made an application to the Magistrates Court seeking termination or diminution of the weekly payments from 30 January 1989 on the alternative grounds that either she did not sustain the injury that she claimed to have received, or, if she did, she was no longer incapacitated for work as the result of that injury.

3. That application was contested, and on 23 April 1991 the Magistrate made findings adverse to the respondent, including findings that there was no injury to the respondent while in the applicant's employment on 12 February 1988, and that she was not then incapacitated for work. He ordered that the applicant cease payment of compensation as from 30 January 1989.

4. From that decision the respondent has appealed to this Court.

5. Notice of Trial was given on 13 December 1991, but a date has not been fixed for the hearing of the appeal.

6. The subpoenas, the subject of this application were returnable on Monday 16 December 1991, and were addressed, one to the proper officer of the respondent, Woolworths Limited, and one to the named State Occupational Health and Safety Rehabilitation officer for NSW and ACT of the respondent.

7. The first sought the production of the following:
"1. Copies and/or originals of any statements, reports,

records, correspondence, diary notes, file notes, employment
records, cards, wage records, pay slips, sick leave records,
attendance records, accident reports, claim forms and/or any
other document relating to Anica Clark for the period 1 January
1980 to the present time.
2. Copies and/or originals of any statements, reports,
records, correspondence, diary notes, file notes, accident
reports, claim forms, and/or any other document relating to Anica
Clark reported, completed and/or prepared by or on behalf of
Beverly Wallace, Helen Walne, Judy Nelson or Alfred Haines.
3. Any correspondence, documents, records, reports, file
notes, diary notes or other documents describing or relating to
the procedure adopted by Woolworths when dealing with/handling
complaints of injuries by injured employees for the period 1
January 1980 to the present time."

8. The second sought the production of the following:

"1. Copies and/or originals of all correspondence, records,
reports, claim forms, statements, notes diary notes, clinical
reports and/or records, interview notes, treatment records and
any other document relating to Anica Clarke for the period 1
January 1980 to the present time."

9. Counsel for the applicant based his attack on the subpoenas on three grounds.

10. The first was that they were premature, since no date has yet been set for the hearing of the appeal.

11. Ordinarily the purpose of a subpoena to produce is to ensure that a document or thing will be present at Court on the hearing of the relevant proceeding. In recent years in many jurisdictions, practice directions have been issued which enable them to be made returnable at a date prior to the final hearing. That has been done in particular types of cases to facilitate the processes of preparation for trial and negotiation for settlement.

12. In the absence of such a purpose, and where there is no practice direction relating to the particular case to authorise any other date, a subpoena to produce should still be returnable for the day of the hearing.

13. A discussion of the principles relating to the time at which subpoenas should or may be made returnable is contained in the judgment of Smithers J., in which Bowen C.J. and Nimmo J. concurred, in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 565-569.

14. There is no practice direction permitting a return date prior to the hearing of appeals, nor was there put forward by Counsel for the respondent, any consideration of justice or convenience requiring production of these documents at an earlier time, or at the particular time specified in the subpoenas.

15. Whether that would be sufficient to require these subpoenas to be set aside I do not decide, because there are other relevant considerations.

16. The second ground was that they were an abuse of process because they would serve no useful purpose. That, it was submitted, is because what is before the Court is not an ordinary trial of fact, but an appeal, which is to be determined upon the basis of the evidence given before the Magistrate, subject to the Appeal Court's discretion to admit further evidence on the appeal. See Magistrates Court (Civil Jurisdiction) Ordinance 1982 s.282G.

17. It follows from the very existence of that discretion that it may sometimes be proper to issue a subpoena to produce documents at the hearing of an appeal. I do not think that the evidence before me enables me to decide that it is not possible that the appeal Court will grant leave to adduce further documentary evidence, and I doubt that it would ever be proper for such an issue to be determined on an interlocutory application such as this. I do not propose to set the subpoenas aside because they relate to an appeal.

18. As I discuss below, there is another, different, reason why they would serve no useful purpose.

19. The third ground was that they were too wide in their description of the documents sought to be produced. It was said that they amounted to a process of discovery, which is not a proper purpose of subpoenas.

20. Much of the discussion of this ground of attack upon subpoenas in the decided cases relates to occasions when the person subpoenaed is not a party to the action. See Lucas Industries v Hewitt (supra) and R v Barton (1981) 2 NSWLR 414.

21. In this case it is the respondent itself which is called upon to make decisions about what documents come within the description, and I do not see that it would be in any difficulty in identifying the material sought. The applicant did not adduce any evidence to show that it would suffer any undue difficulty in doing so.

22. But as Cantor J. pointed out in R v Barton (supra) at 419, unless it appears that an issue may possibly arise to which the documents may relate the person subpoenaed has a right not to be required to busy himself seeking, identifying, bringing together and producing his documents to the Court. The right of a mere witness to his privacy is of much greater weight than that of a party to the proceedings, but even in the case of a party, I think that if it is clear that there is no possible issue that might arise on the hearing to which the documents could relate then the subpoena must be set aside.

23. I turn then to consider the issues arising on the appeal.

24. I have not read the transcript of evidence in the Magistrates Court, but I have perused the reasons for decision of the learned Magistrate. It was not suggested that I should go beyond them in order to identify the issues that will arise on the appeal.

25. From those reasons it appears that the respondent commenced employment with the applicant in October 1987. She worked continuously until 16 February 1988. The first main issue to be decided was whether she sustained the injury she claimed to have suffered on 12 February 1988. In the Magistrate's view, the resolution of that factual question depended ultimately on whether the respondent's version about the time at which and the manner in which she sustained injury was to be believed. There were no witnesses to it. She gave various accounts about it to a number of doctors.

26. There was a conflict of evidence about a conversation that she had with Mr Mills, her superior, when she came back to work after a short period on sick leave, but it was common ground that there was then no written report made out relating to the incident, and no steps were then taken to complete any documentation relating to Workmens' Compensation. The respondent's own evidence was that she did not formally report the incident to anyone, until on 10 June 1988 she completed a written claim form. One of the criticisms made of her credit by the learned Magistrate was based upon the length of time that had elapsed before she made that claim.

27. Counsel for the respondent sought to support the subpoenas on the basis that the respondent's system of recording injuries was relevant to the appeal, and it was reasonable to require the applicant to have at Court for the purposes of the appeal, any document in its possession relating to the respondent that might cast light on her reasons for not lodging a written claim at an earlier time. I did not understand him to claim that it would be her evidence on the appeal that she had in fact, ever lodged with the respondent any claim for compensation before 10 June 1988, and any such claim would seem to be contrary to her own evidence before the Magistrate.

28. It is obvious that both subpoenas are too wide, in that they seek documents going back to 1 January 1980. Her own evidence was that she began work with the respondent in October 1987. That defect could perhaps be easily dealt with by amendment.

29. I am prepared also to deal with this application on the basis that the appeal Court may well grant leave to the respondent to adduce further evidence on the hearing of the appeal.

30. But it is obvious to me that there is no possible connection between any document coming within the descriptions in the relevant subpoenas and any issues that may arise in the appeal.

31. The application is granted.

32. The respondent must pay the applicant's costs.