JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CHAMBERS 

LOCATION	:	PERTH 

CITATION	:	WEST -v- GOLD FIELDS LTD [2010] WADC 175 

CORAM	:	PRINCIPAL REGISTRAR GETHING 

HEARD	:	17 NOVEMBER 2010 

DELIVERED	:	17 NOVEMBER 2010 

FILE NO/S	:	CIV 3042 of 2009 

BETWEEN	:	ALLAN TIMOTHY CHARLES WEST
Plaintiff
 
AND
 
GOLD FIELDS LTD
First Defendant
 
GOLD FIELDS AUSTRALIA PTY LTD
Second Defendant
 
ST IVES GOLD MINING COMPANY PTY LTD
Third Defendant 

Catchwords:
Early return subpoena - Abuse of process - Legitimate forensic purpose 
Legislation:
Rules of the Supreme Court 1971 (WA), O 36B 
Result:
Issue of subpoena upheld 

Representation:
Counsel:
Plaintiff	:	Mr A J Stewart
First Defendant	:	Ms M K Joyce
Second Defendant	:	Ms M K Joyce
Third Defendant	:	Ms M K Joyce 
Solicitors:
Plaintiff	:	Chapmans
First Defendant	:	DLA Phillips Fox
Second Defendant	:	DLA Phillips Fox
Third Defendant	:	DLA Phillips Fox 

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

Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Stanley v Layne Christenson Company [2004] WASC 50

PRINCIPAL REGISTRAR GETHING:  [This judgment was delivered extemporaneously on 17 November 2010 and has been edited from the transcript.]
1		By application dated 28 October 2010, the defendant sought an order that the documents sought to be produced pursuant to a subpoena addressed to one Angela Sharpe be returned prior to trial and on 7 December 2010.  Ms Sharpe is the payroll officer of Apex Minerals NL.
2		In accordance with the court's Circular to Practitioners CIV 2008/3, Subpoenas, the court dealt with the application on the papers.  Orders were made by me as asked on 3 November 2010.  Paragraph 9 of the order granted the plaintiff liberty to apply.
3		By a prior order made on 8 October 2010, again along similar terms, I had made an order that a subpoena addressed to one Graham Mokrzycki also be returned early to trial, in that case on 19 November 2010.  Mr Mokrzycki is the executive human resources manager for Barminco Ltd.  Again, par 9 of the orders granted the plaintiff liberty to apply.
4		The plaintiff invoked the liberty to apply in each order by letter to the court.  The objection raised by the plaintiff in relation to each subpoena is not so much that the subpoena should not have been made returnable prior to trial, but that it should not have been issued at all.
5		At a directions hearing on 9 November, I listed the question of whether the issue of a subpoena to Ms Sharpe and Mr Mokrzycki would be an abuse of process for hearing today.  I also directed the plaintiff to file submissions by 12 November 2010.
6		Apex and Barminco are employers in the mining sector with whom the plaintiff had employment subsequent to his accident.  Each subpoena seeks the production of all employment records relating to the plaintiff.  In common terms, they go on to specifically seek seven classes of documents:
(a)	contracts of employment offered to the plaintiff Mr West; 
(b)	any documents addressing the type of duties the plaintiff was required to perform during his employment with Apex and Barminco; 
(c)	any document addressing restrictions on the type of work the plaintiff was able to perform and what the restrictions were; 
(d)	any document addressing the reasons(s) why the plaintiff ceased employment with Apex and Barminco; 
(e)	the plaintiff's applicable award; 
(f)	the plaintiff's personnel file; and 
(g)	pay records from the period 12 December 2007 to date.
7		The application takes as its context the plaintiff's claim for personal injuries suffered in an accident in December 2008.  The latest version of the statement of claim is that in a minute dated 30 June 2010, ordered to stand as a statement of claim by the court on 15 July 2010.  The injuries claimed are post-traumatic stress disorder and generalised anxiety (par 17).  The residual disabilities claimed are disturbed sleep, flashbacks of the accident, loss of motivation, irritability and aggressive behaviour, anxiety, nervousness and fear and loss of sexual drive (par 19).  The plaintiff claims damages, among other things, for a loss of earning and earning capacity (par 22).
8		The defendant has not admitted these allegations, placing them in issue at trial.
Relevant law
9		The issue of an early return subpoena is governed under the Rules of the Supreme Court 1971 (WA) O 36B.  Unlike the provisions it replaced, there is no requirement to obtain the leave of the court before issuing the subpoena: Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 [19].  Rather, there is a general discretion in O 36B r 3(6) to allow the early return of the subpoena: Areva [19].
10		In the decision in Areva, the Chief Justice referred to earlier decisions of the Court of Appeal.  The first was the decision in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185.  The second was a decision in Stanley v Layne Christenson Company [2004] WASC 50.  Each was decided under the old regime in which leave was required.  The Chief Justice in Areva comments of the decisions in these two cases in the following terms [16] - [17]:
These decisions seem to me to establish the proposition that, although a court will start from the presumption that a subpoena sought to be issued will require the production of documents or evidence which are relevant to the issues that arise in a case, where that presumption is put in issue or it is asserted that the subpoena is being issued for some collateral or improper purpose, the Court will require to be satisfied that there is some legitimate forensic purpose to be served by the issue of the subpoena before that subpoena is issued.
Another way in which the issue might arise is by way of an alternative process whereby the party served with the subpoena may move to set it aside on the ground of abuse of process.  Abuse of process would be made out if it could be established that the subpoena served no legitimate forensic purpose.
11		His Honour then continued at [20] and [21]:
In my opinion, the present terms of the Rules do not support the proposition that an applicant for a subpoena returnable prior to trial has some onus to discharge over and above an applicant for a subpoena returnable at trial.  As I have observed, all subpoenas must be issued for a legitimate forensic purpose.  Such a purpose will be assumed unless it is put in issue through one or other of the proceedings to which I have referred.  
The authorities to which I have referred strongly support the conclusion that O 36B should be read in the context of the overall case management processes of the Court, being the processes embodied in O 29 and O 29A.  That view received further support from O 1 r 4B.  
12		The case management processes of the District Court are set out in the District Court Rules.  The intent of those processes parallels the intent of the case management processes in the Supreme Court.  His Honour continues at [23]:
Consistently with the authorities to which I have referred, the legitimate forensic purpose which a subpoena must serve includes a broad range of forensic considerations, and purposes including all the considerations and purposes that are relevant to the management of cases prior to trial, including preparation for mediation and the encouragement of settlement, given the public interest in the encouragement of the early settlement of cases.
13		The way in which I have approached the application is to treat it as an application by the plaintiff to set aside the subpoenas as constituting an abuse of process.  The ability of the court to set aside a subpoena as an abuse of process is well established, see generally: Areva, Commonwealth v Albany and Stanley.  As noted above from the passages quoted from the decision of the Chief Justice in Areva, an abuse of process will be made out if it could be established that the subpoena served no legitimate forensic purpose:  Areva [17].
14		In relation to what constitutes a legitimate forensic purpose, I follow the decisions of the Full Courts in Stanley and Commonwealth v Albany, and adopt the statement of principles set out by Master Sanderson in the decision under review in the Stanley case.  That quote is set out in par 9 of the appeal decision.  In particular, the learned Master states:
A legitimate forensic purpose will be established if a document gives rise to a line of inquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross‑examination.
Plaintiff's objections
15		Turning then to the grounds of objection raised by the plaintiff, there is no objection taken to the documents in par (a) and par (b) (see [6] above).  In relation to par (c), being the documents addressing the restrictions on the type of work the plaintiff was able to perform and what those restrictions were, the objection is as to relevance.  In particular, the submission made on behalf of the plaintiff was that any restriction on the type of work the plaintiff was able to perform is an issue to be dealt with by the treating doctors, not his employer.  The submissions go on to state that any documents provided by a previous employer setting out restrictions would have no weight and add nothing to the case.
16		The issue of the retained earning capacity of the plaintiff is one that is squarely in issue between the parties at trial.  It is true that the trial judge, in making a decision, will have to place significant weight on the medical evidence.  However, the medical evidence in turn will be based on the factual substratum.  It seems to me that any restrictions which the plaintiff was under during the course of his employment post-accident in like professions would be a relevant part of that factual substratum.  It is, at the very least, material that could be used by the defendant for the purpose of meeting the plaintiff's case by way of cross-examination.  I am satisfied that there is a legitimate forensic purpose in relation to that class of documents.
17		The next class of documents to which objection is taken is that in par (e), being the plaintiff's applicable award, and par (g), being pay records for the period 12 December 2007 to date.  The basis of the objection is that the plaintiff has already provided the defendant with complete tax returns for the years ending 30 June 2005 to 30 June 2009, and a PAYG payment summary for the year ending 30 June 2010.  As such, the submission continues, the applicable award and payslips will add nothing further as tax returns provide complete details on his financial status.
18		The issue of the amount of money the plaintiff could have earned but for the accident, and was capable of earning, is clearly one before the trial judge.  The documents sought, being the award and payslips, are relevant to that issue.
19		There is nothing in the authorities as I understand them to the effect that it is an abuse of process to seek documents under subpoena where the information may well already be in the possession of the party seeking the subpoena in another guise, albeit a summary form.  It may well be that the information provided on the subpoena adds further or different information to that available in the summary form.  For example, from the payslips, the profile or pattern of the work engaged in by the plaintiff may well be apparent and this profile or pattern may have some relevance in terms of determining capacity.
20		I am satisfied that there is a legitimate forensic purpose for these documents.
21		The next objection is to the documents at par (d) and par (f).  Paragraph (d) relates to documents addressing the reasons why the plaintiff may have ceased employment with the relevant companies.  Paragraph (f) relates to his personnel file.  It is significant in this case that one of the key issues before the court is the impact of the alleged psychiatric injury on the plaintiff's work capacity.  In that context, it would seem to me a legitimate forensic purpose for the defendant to obtain information about the general work context of the plaintiff in the employment positions he was able to secure following the accident.
22		In a course of argument, I raised with counsel a number of types of documents which, if obtained from the personnel file, would be of relevance.  For example, there may well be performance reviews of the plaintiff while he was at these other employers.  Those performance reviews may well say that the plaintiff was an exemplary employee and was able to do all aspects of the work he was requested to do at a high level.  As an example, it would seem to me that that is the sort of information that the defendant is entitled to receive and place before the trial judge in some sort of context.  There may well be a wider context around a document of that kind that is known to the plaintiff which suggests that it ought not be given weight by a trial judge.  However, the plaintiff will have ample opportunity to place that evidence before the court at trial.
23		I am satisfied that there is legitimate forensic purpose for asking for the documents in par (d) and par (f).
24		It is not clear from the decisions in Areva, Commonwealth v Albany and Stanley exactly where the onus lies in relation to an allegation of abuse of process.  Viewing this in the best possible light for the plaintiff, if the principle is that a defendant needs to satisfy the court that there is a legitimate forensic purpose for the issue of the subpoena, then I am satisfied that there is a legitimate forensic purpose for the issue of the subpoenas to Ms Sharpe and Mr Mokrzycki.
25		On that basis, I am not prepared to set aside either subpoena as an abuse of process.  I will hear from counsel in terms of final orders and costs.