Clancy v Nwc Pty Ltd [1997] NSWCC 49; (1997) 15 NSWCCR 353 (4 November 1997)

[1997] NSWCC 44; (1997) 15 NSWCCR 353

CLANCY v. NWC PTY LTD

Compensation Court of New South Wales: Curtis J

4 November 1997

Practice and procedure - Subpoenas - Subpoena to produce documents - Power of court to defer or refuse access to investigator's report - Basis for exercise of discretion

R.E. Pfennigwerth (solicitor), for the applicant

J.D. Brooke-Cowden (solicitor), for the respondent

Ex tempore

CURTIS J: The respondent in this matter, producing to the Court pursuant to subpoena a report of Garry Cox Investigations Pty Ltd bearing date 21 December 1995, seeks a ruling that the report be not made available to the applicant until the conclusion of cross-examination.

The respondent relies upon the authority of Markus v. Provincial Insurance Co Ltd, Supreme Court, CLD No. 17241/82, Clark J, 11 May 1983, unreported.

Mr Pfennigwerth for the worker opposes that order and relies upon considerations of justice and fairness at large and also upon the reasoning of Matthews J in Re Taxation Appeals NT 94/281-291 (1995) 21 AAR 275.

The material in question may be relevant to whether or not the applicant suffers from any particular injury or any disability or requirement for medical treatment as a result of the employment injury claimed. I am told by the respondent that credit is an issue in the case, the applicant having been paid one week's compensation only in respect of the claim for total incapacity from 1 November 1995 to date.

The nature of the submissions before me highlights the competing approaches in modem jurisprudence to the merits or the ills of the adversary system. Mr Justice Clarke, observing in Markus that before him the ultimate question was one as to the genuineness or otherwise of the plaintiffs, declined to give access to material upon which the plaintiff was to be cross-examined on the basis that, if the plaintiff were not genuine, access to the material would put him on notice of some allegedly suspicious circumstance and enable him to tailor or endeavour to tailor his evidence to meet that circumstance.

This approach is consistent with that of Mr Justice Wilcox in Australian Postal Commission v. Hayes [1989] FCA 176; (1989) 23 FCR 320. His Honour there observed that where bona fides of a claimant were in contention, one way of testing such a claimant is to ask questions which require the claimant to commit himself in relation to a version of events, which version may be capable of contradiction. His Honour said:

"It is the every day experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents. But as with any other cross-examination it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters ... it is important in that process that a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture."

As was observed by the Administrative Appeals Tribunal in Re Lindsey and Australian Postal Commission (1989) 10 AAR 457:

"Ambush by film or video tape is ambush by the truth, and is a valuable aid in testing the credit of an applicant."

The Tribunal in that matter regarded it as important that information may be held back by persons resisting claims, which would otherwise moderate the evidence to be given by the claimant. I must say that in my experience in a tribunal where one is usually almost entirely reliant upon the truthfulness or otherwise of the worker in determining his entitlement to compensation the only tactics of any effect available to those resisting claims, if made by dishonest persons, are the tactics of inconsistency and surprise. This approach to the present problem some may view as harsh. The alternative approach is well articulated by Matthews J in the Administrative Appeals Tribunal in the Taxation Appeals to which I have already referred. Her Honour said this:

"This Tribunal is bound by the decision in Hayes However, I consider that that case must be seen as the high point for a party who is seeking to have otherwise relevant documents held from disclosure to another party. Hayes was decided in 1989. The intervening years have seen increased openness in the litigation process, together with a move away from traditional adversarial `ambush' method of conducting trials. This in my view is to be applauded. Little is to be gained in my experience by adopting a confrontationist approach to litigation. This approach very frequently leads to an outcome which is welcome to no one, at least to none of the parties. On the other hand, openness and cooperation can often serve to produce agreement where agreement had been thought to be imp!ossible and at the very least to isolate and focus upon the major issues in a case, thus containing what can sometimes be prohibitively expensive both in human and financial terms. This `cards on the table' approach has recently led the English courts to conclude that in all but very rare personal injury cases, video film should be disclosed to plaintiffs. Khan v. Annaguard Ltd [1988] UKHL 6; [1994] 3 All ER 545.

The overriding consideration in all these situations is that of procedural fairness ..."

With the greatest respect to her Honour, where the fundamental issue in matters to be determined is honesty, little is to be gained by adopting other than a confrontational approach to litigation. Openness and co-operation are appropriate where credit is not an issue. Focusing upon the major issue as I am invited to do by the terms of her Honour's admonition, and regarding as she does, that the overriding consideration in all these situations is that of procedural fairness, I do not believe that fairness would be accorded to a respondent were it compelled to disclose inconsistent material which would otherwise be used in testing the credit of the applicant. I decline to grant access.

So far as costs are concerned, if the applicant is ultimately successful in this claim, there can be no good reason why his costs in seeking access to these documents, a prudent course by an experienced solicitor, ought not form part of his costs in the trial.

I am most obliged to the assistance from both solicitors. I return the report of Garry Cox Investigators to the respondent. It should be produced again at the trial.

Orders accordingly

Solicitors for the applicant: MacMahon Drake Balding

Solicitors for the respondent: Rankin & Nathan