Dare & Ors v Fleming [2003] NTSC 54
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PARTIES: DARE, Benjamin
LARAPINTA PTY LTD
(ACN 009 595 279)
MARRIOTT, Jayde

v

FLEMING, Benjamin Peter

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 45 of 1999

DELIVERED: 23 May 2003

HEARING DATES: 14 November 2002

JUDGMENT OF: MARTIN CJ

REPRESENTATION:

Counsel:
Appellant: M Short
Respondent: J Stewart

Solicitors:
Appellant: De Silva Hebron
Respondent: Ward Keller

Judgment category classification: C
Judgment ID Number: mar0231
Number of pages: 6
Mar0231

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dare & Ors v Fleming [2003] NTSC 54
No. 45 of 1999 (9908182)

BETWEEN:

BENJAMIN DARE
First Appellant

AND:
LARAPINTA PTY LTD
(ACN 009 595 279)
Second Appellant

AND:
JAYDE MARRIOTT
Third Appellant

AND:

BENJAMIN PETER FLEMING
Respondent

CORAM: MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 23 May 2003)

[1] Appeal against an order of the Master setting aside a subpoena. This matter was argued at the same time as Territory Insurance Office v Kouimanis Enterprises which also stands for judgment today. For the reasons given in that case I proceed here to treat the application for leave to appeal as an appeal and direct that the procedure be in accordance with the repealed r 77.05. There is no evidence before me other than that before the Master.
[2] The respondent claims damages for negligence arising out of an injury suffered in an accident whilst he was travelling as a passenger in a motor vehicle. His solicitors have lost contact with him.
[3] By the statement of claim the plaintiff says that he was not a resident of the Territory and thus is entitled to claim damages at common law (Motor Accidents (Compensation) Act, s 5). His claim was initially made against the first and second respondents in which he said that the first respondent was the driver and the second respondent was vicariously liable for his actions. He later applied to add the third respondent and also alleges that he was the driver. That application was made after the plaintiff's former solicitors had obtained copies of statements made to the police in the course of their investigation of the accident in which the plaintiff says he was injured. As against each of the personal respondents, he alleges negligence including driving the motor vehicle whilst under the influence of intoxicating liquor.
[4] The Territory Insurance Office is obliged by s 6 of the Act to indemnify a person liable to pay any damages to the plaintiff and has undertaken the defence (s 40). The Office has not been able to locate either the first or third respondent. The solicitor for the Office deposes that there is a paucity of information relating to the circumstances of the accident and the plaintiff's injuries. However, examination of the court file discloses the affidavit sworn by the former solicitor for the plaintiff in support of the application to add the third respondent sworn on 9 October 2000 to which there is annexed copies of two statements taken by the police, one from the first respondent and the other from a Ms Melissa Murray. They say they were passengers in the vehicle, they give details of the events leading up to the accident (the car collided with a tree at the side at the side of the road) and identified the third respondent as the driver. He is said by them to have been drinking alcohol prior to the accident. Both statements put the plaintiff in the front passenger seat and the first respondent, Ms Murray, in the rear seat. There is no suggestion there were any other occupants in the vehicle other than the first and third respondents, the plaintiff and Ms Murray.
[5] The solicitor for the Office disclosed that he had received a copy of a report from the acting consulting surgeon at the Alice Springs hospital in which it is said that the plaintiff was admitted to the hospital after the accident, that he was a rear seat passenger and examination revealed him to be "smelling strongly of stale alcohol". Details are provided of the injuries he sustained and treatment.
[6] The solicitor deposes that the medical report:
"… raises the possibility that the plaintiff and perhaps the first defendant or third defendant were affected by alcohol at the time of the accident and that possibility needs to be investigated for the purpose determining if an amended defence should be filed".
It was apparently to that end that the Office issued the subpoena directed to the medical superintendent of the hospital for production of documents which the solicitor says, "may contain information relating to issues raised in these proceedings". The documents are described as:
"All medical reports, clinical notes, nursing notes, correspondence, admission and discharge records concerning the admission of the above named plaintiff, Benjamin Peter Fleming born 20/02/1977, on or about 10 August 1996".
[7] On the face of it the documents sought do not relate to the first respondent or third respondent and I do not understand how inspection of the documents could assist the Office in its consideration of its defence.
[8] The documents were produced to the Court and the Office sought access to inspect and copy them, subject to the right of first inspection by the plaintiff and any claim for privilege. There is no indication that the hospital was notified of the application to inspect and neither is there any indication that the medical superintendent's attention was drawn to s 12(2) of the Evidence Act when the subpoena was served.
[9] It provides that:
"A medical practitioner shall not, without the consent of his patient, divulge in any civil proceedings … any communication made to him in his professional character by the patient, and necessary to enable him to prescribe or act for the patient".
[10] I have difficulty in understanding what purpose the subpoena serves. The surgeon's report indicates what the documents disclose as to the plaintiff's physical condition upon admission to hospital, how he was said to have come by his injuries and the nature of them and treatment. The statements to the police go to the circumstances of the accident and identify the driver. It is not shown that the Office has pursued enquiry of the other passenger, Ms Murray, who made one of those statements.
[11] The only substantive steps taken in the proceedings are the pleadings and the filing of a list of documents, which, given the absence of some of the parties, could not be taken as final. Obviously a date for trial has not been fixed and then it may be assumed that absent the plaintiff that will not occur.
[12] Nevertheless, the Office seeks now to reinstate the subpoenas and inspect the documents. By definition, r 42.01, a subpoena for production means an order in writing requiring a person named to attend as directed by the order for the purpose of producing a document or thing for evidence. The evident purpose of having the documents produced to the court and seeking inspection of them is to see whether any of the documents will assist the Office to adequately plead its case. A subpoena is not to be used for that purpose, that is, fishing. The documents are not sought for possible use as evidence. It is possible that they may be required for that purpose later, but not at this stage (Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; see also Kennedy Taylor v Grocon (1999) VSC 242, a decision relating to r 42.10 of the Rules of the Supreme Court of Victoria for which there is no Territory equivalent but which expressly provides for a party to issue a subpoena requiring the person named to produce on or before a day specified in the subpoena documents identified in it. But even that Rule has been held not to be an alternative to discovery from a non party for which provision is made in r 32.07 Belsart Pty Ltd v Man Po Holdings (Australia) Pty Ltd, Supreme Court of Victoria, Beach J, 31 August 1998 unreported.
[13] Hospitals are, of course, well acquainted with the subpoena process and the production to the court of medical records in appropriate cases is a necessary aid to the administration of justice, but none of that is to justify the use of a subpoena for production for any purpose contrary to that prescribed for the subpoena process. In appropriate cases there are alternative means of obtaining documents relating to issues between parties, such as non party discovery, which is undoubtedly more expensive to the party seeking the discovery and to the non party against whom discovery is sought, but that does not justify abuse of the subpoena process either.
[14] The appeal is dismissed.

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