Nettleton v Rondeau

THE EVIDENCE

1. The notice of motion was supported by the following affidavits: 1. Thomas Julius Goudkamp of 7 August 2015; 2. Ruth Michelle Hudson of 30 September 2015; and 3. Ruth Michelle Hudson of 1 October 2015.
2. The defendant read the affidavit of Peter Utiger of 27 August 2015, and also tendered: 1. a report of Dr Brian Zeman, a Consultant in Rehabilitation Medicine, of 28 April 2015; 2. a report of John Raue, Vocational Psychologist, dated 20 July 2015; and 3. a report of Dr Peter Slezak of 4 December 2012.
3. In addition, senior counsel for the plaintiff tendered two of the plaintiff's evidentiary statements of 20 June 2013 and 24 October 2014 (although those statements were annexed to the affidavit of Mr Utiger).

THE FACTUAL CONTEXT

1. I have already set out the nature of the proceedings which have been brought by the plaintiff. However it is necessary for me to make reference to some particular aspects of the proceedings, so as to put the present application in its proper context.
2. The plaintiff was born on 19 May 1962. At the time of the accident he occupied a senior executive position in the finance industry, a role in which he remained until his recent retirement. The plaintiff asserts that his retirement came about earlier than would otherwise have been the case and that it was, in effect, forced upon him by his injuries. The plaintiff asserts that he suffers from (inter alia) constant pain, the level of which is steadily increasing.
3. One of the fundamental issues between the parties in respect of damages is the extent of the plaintiff's residual earning capacity. On the defendant's case, it is that issue to which the Subpoena in question was directed.
4. Annexed to the affidavit of Ms Hudson of 30 September 2015 was a report of Dr Susan Rutkowski, a Rehabilitation Physician, of 25 November 2014. At p 2 of her report, Dr Rutkowski noted that at the time of her examination of the plaintiff on 11 November 2014 he described his pain at "5 out of 10 whilst 'fully dosed up' on medication" and that he continued to consult Professor Siddall regarding "this severe below spinal level neuropathic pain".
5. At p 6 of her report Dr Rutkowski said: "My opinion has not changed since my previous assessment. In my opinion Mr Nettleton is unable to continue working as a senior banking executive, the position he held at the time of the accident. As stated previously, Mr Nettleton is likely to have minimal earning capacity should he retire from the ANZ bank, as he would not be able to function sufficiently for any similar future employer for the reasons mentioned above. His residual earning capacity would be for a casual role with no certainty permancy (sic) and likely at a miniscule income level relative to pre-injury. In my report of January 2013, I surmised that Mr Nettleton might be able to contribute in a voluntary capacity for short periods of time such as serving as a board member for a not-for-profit organisation. Indeed he reported that he has joined the Board of 'Save the Children' in an honorary capacity. The above-mentioned health maintenance procedures take a large allocation of time and (sic) not compatible with his current work load. Furthermore he is suffering excessively from the chronic unremitting neuropathic pain, which has worsened since continuing to work. Mr Nettleton's quality of life, already affected by SCI is continuing to decline while he continues to struggle to work. In my opinion, Mr Nettleton is totally and permanently medically unfit for the employment that he currently holds or any similar for which he is qualified".
6. Annexed to the same affidavit was a report of Dr Roxana Heriseanu, a Rehabilitation Specialist. Dr Heriseanu reported the plaintiff's complaints of pain, burning feet, cramping and abdominal hypersensitivity. A report of Dr Siddall, an expert in pain management, of 10 December 2014 was also annexed to Ms. Hudson's affidavit. Dr Siddall reported (inter alia) that the plaintiff's effort of continuing to work in a demanding job with pain was "taking its toll".
7. In his evidentiary statement of 24 October 2014 (prepared prior to his retirement) the plaintiff (commencing at [39]) outlined that his working hours had reduced significantly. He said that there were occasions on which his pain levels became so intense that he was not able to function or concentrate, and was forced to leave work and return home. He foreshadowed (at [46]) that if a revised medication regime did not successfully control his pain levels, he would retire at the end of 2014 and that it would not be possible for him to secure any comparable role with his then employer.
8. The plaintiff filed a further evidentiary statement dated 19 September 2015. He stated (commencing at [60]) that he continued to have pain for which he was taking a variety of medications, including methadone. He stated that his pain levels had an increased impact upon his ability to work, as a consequence of which his level of performance had reduced.
9. Commencing at [104], the plaintiff explained that he had not been capable of considering any paid employment since retiring. He stated that the only "business" activity in which he had engaged in recent times was as a non-executive Director of a charity. He explained that although this position only occupied a few hours each month, there had been one occasion on which he had missed a meeting due to his pain levels. He stated that his pain levels also interfered with his ability to concentrate, and that he had passed the management of his personal investments to external fund managers.
10. The plaintiff was assessed by Dr Zeman (at the request of the defendant) on 28 April 2015. In his subsequent report, Dr Zeman observed: "Although not working now Mr Nettleton is still on the board of Save the Children Australia. They have board meetings twice a year in Melbourne and he said he is trying to do this over the internet. He spends his time managing his investments".
11. The plaintiff was also assessed by Mr Raue (at the request of the defendant) on 8 July 2015. In his report of 20 July 2015 Mr Raue observed: "Pain management interventions with different medications still continue. Hopefully they will enable a consistent and reliable management of his pain to be achieved and if that is the case then despite the likelihood that he may have ongoing limitations in his ability to work long hours or to respond very quickly to crisis situations his overall work capacity and ability to concentrate may increase".
12. Mr Raue expressed the opinion that the plaintiff's options included future employment in the capacity of:

• a management accountant;
• a management consultant; or
• a company director.

1. Mr Raue also expressed the view that if the plaintiff was prepared to undertake further training, his options could be extended to include employment in the capacity of:

• a recruitment consultant;
• an Accountant (general);
• a Financial planning advisor; or
• a loans consultant.

1. Mr Raue further expressed the view that an option open to the plaintiff, without the need to undergo formal training, was that of an office manager. I should emphasise that, as he specifically acknowledged, Mr Raue's assessment was undertaken from a psychological perspective. Whilst he took note of the plaintiff's self-reported physical limitations, Mr Raue accepted that evaluation of those limitations was beyond his area of expertise.
2. Finally, in a report of 4 December 2012 Dr Slezak (who also assessed the plaintiff at the request of the defendant) said (at p 4): "As stated above, to his absolute credit, Mr Nettleton has returned to work, albeit on limited work hours. With careful titration of potent analgesic medication(s), directed towards control of the bilateral lower limb neuropathic pain, and more recently the availability of a reclining chair which will enable Mr Nettleton to be outside of his wheelchair for periods of time, will allow Mr Nettleton to continue is 'pre-injury' employment on a full-time basis hopefully through to normal retirement age".
3. As I have previously indicated, the plaintiff has now ceased his previous employment.

THE relevant Provisions of the Rules

1. Rule 33.4 of the rules is in the following terms: Setting aside or other relief (1) The court may, on the application of a party or person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

Submissions of the plaintiff

1. Senior counsel for the plaintiff submitted that although there were some slight variations in the formulation of the applicable test, it was fundamentally necessary for a party seeking production under a subpoena to establish that the material sought had the capacity to throw light on the issues: GB v Western Sydney Area Health Service [2010] NSWSC 181; White v Tulloch (1995) 19 Fam LR 696; (1995) 127 FLR 105, or that it was "on the cards" that the material would materially assist the resolution of those issues: Alister v R [1984] HCA 45; (1984) 154 CLR 404.
2. Senior counsel also relied on a number of other general principles (about which counsel for the defendant took no issue) including the following: 1. a subpoena may constitute an abuse of process where it has not been served bona fide, for the purposes of obtaining relevant evidence: Botany Bay Instrumentation and Control Pty Limited v Stewart [1984] 3 NSWLR 98; 2. a subpoena cannot be used as a substitute for discovery against a party: Commissioner for Railways v Small (1938) 38 SR NSW 564; 3. a subpoena can be set aside where it is oppressive: National Employers' Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372; 4. a subpoena must identify the documents sought with reasonable particularity, absent which it may constitute impermissible fishing: Associated Dominions Assurance Society Pty Limited v John Fairfax & Sons Limited (1952) 72 WN (NSW) 250.
3. Senior counsel for the plaintiff submitted that the subpoena in the present case contravened one or more of these principles. He submitted that the subpoena sought documents which did not relate to any issue in the proceedings, and that it was "drawing an extremely long bow" to suggest that evidence of income derived from assets acquired prior to the plaintiff ceasing work was relevant to the issue of his residual earning capacity.
4. Senior counsel further submitted that the subpoena represented little more than an attempt by the defendant to access information as to the entirety of the plaintiff's assets and, as such, was both burdensome and oppressive: Tony Azzi Automobiles Pty Limited v Volvo Car Australia Pty Limited [2006] NSWSC 283 at [8]. Whilst senior counsel conceded that the extent of the plaintiff's residual earning capacity was clearly an issue in the case, he submitted that the categories of documents set out in the schedule to the subpoena were not confined to investments which the plaintiff may have managed himself. This, he submitted, resulted in the subpoena being one which was "extraordinary complex and wide". It was submitted that the fact that this was so was confirmed by the letter from the plaintiff's Accountant (annexed to the second of Ms Hudson's affidavits) which established that the production of documents in response to the subpoena would entail significant time, at a cost of $16,500.00.
5. Senior counsel for the plaintiff accepted that the history provided to Dr Zeman included a reference to the fact that the plaintiff was managing his own investments. However, he submitted that this was no longer the position (the plaintiff having now engaged fund managers to carry out that task) and that in any event, management of investments of that kind required a completely different set of skills than those which the plaintiff had acquired and applied in his previous employment. This, it was submitted, further supported the conclusion that the documents sought were not relevant.

Submissions of the defendant

1. Counsel for the defendant explained that it would be the defendant's position at the hearing that the despite the plaintiff's retirement, he retained a residual earning capacity which was capable of being exercised. Counsel cited the history recorded by Dr Zeman (at [16] above) and explained that the defendant would argue that the plaintiff, drawing upon his previous expertise in the finance sector, had a residual earning capacity in the management of investments and that such capacity was, at least potentially, productive of income.
2. Although, as I have noted, counsel for the defendant did not take issue with the statements of principle upon which senior counsel for the plaintiff relied, he pointed out that in assessing the plaintiff's claim for economic loss it would be necessary for the Court to determine the plaintiff's likely earnings but for the accident. He submitted that in the event that it were found that the plaintiff had a residual earning capacity which was capable of being exercised, the Court would need to assess what amount of income it was likely to produce. He submitted that the material sought under the subpoena was relevant to those issues.
3. Counsel also emphasised that the defendant had not issued the subpoena in an effort to establish the level of income derived from the plaintiff's assets prior to the time he ceased work. He submitted that the documents were relevant to the identified issue of the plaintiff's residual earning capacity, and pointed out that the defendant was required to establish only that there was a reasonable chance that the material sought under the subpoena would assist in the resolution of that issue: City of Sydney v Streetscape Projects (Aust) Pty Limited [2011] NSWSC 364.
4. Counsel further submitted that the documents sought were identified with sufficient particularity, such that the subpoena could not be considered oppressive, or an exercise in fishing. He submitted that the fact that compliance with the subpoena might involve substantial cost was not, of itself, evidence of the fact that it was oppressive. However, he accepted that if the subpoena was not set aside, the cost of complying with it was one which the defendant may well have to meet.

CONSIDERATION

1. There is no doubt that the extent of the plaintiff's residual earning capacity is an issue in these proceedings. Unsurprisingly in those circumstances, the plaintiff's history to Dr Zeman regarding the management of his own investments sparked the defendant's interest. Whether or not that history continues to accurately represent the position is, in my view, not entirely to the point. Moreover, whether the management of a person's own investments requires skills which are different to those acquired by the plaintiff during his career in the finance industry is not something that I can (or am required to) determine on the present application.
2. The defendant is entitled to seek the production of documents which, on the face of it, are relevant to the issue of the plaintiff's residual earning capacity. However, the defendant can only do so within the bounds of what is permissible, and in accordance with the fundamental principles about which the parties are agreed. In my view, the subpoena in the present case traverses some of those principles for a number of reasons.
3. Firstly, bearing in mind the issue between the parties, and also bearing in mind the fact that such issue appears to have arisen (at least in part) from the plaintiff's history to Dr Zeman, the subpoena makes no attempt to confine the documents sought to those relating to investments managed by the plaintiff himself. For example, paragraph 2(b) of the subpoena seeks production of documents demonstrating "all transactions", i.e. irrespective of whether or not the plaintiff has conducted them. Further, paragraphs 4, 5, 6 and 7 seek the production of (inter alia) documents which identify the person who conducted nominated transactions. Given the issue between the parties, such transactions would seemingly be relevant only if it was the plaintiff who conducted them. In the context of the present case, a subpoena which seeks production of documents evidencing the identity of any person who conducted particular transactions bespeaks of fishing.
4. Secondly, as I have already noted, the accident giving rise to the present proceedings occurred in January 2012. Paragraph 5 of the subpoena seeks production of documents dating back to 1 July 2007, almost 4½ years prior to the accident. Paragraphs 2, 3, 4, 6 and 7 seek production of documents dating back to 1 July 2009, almost 2½ years before the accident. It is difficult to determine how documents relating to transactions which date back that far could bear upon the issue of the plaintiff's residual earning capacity. This is particularly so in circumstances where, as I have pointed out, the documents sought are not confined to those relating to transactions conducted by the plaintiff. In these combined respects, the terms in which the subpoena has been drafted are, in my view, indicative of its impermissible width.
5. Thirdly, paragraph 3 of the subpoena seeks production of (inter alia) "copies of all documents relating to all superannuation deeds…". It is not apparent how a superannuation deed, of itself, could be relevant to the issue of whether or not the plaintiff's retains a residual earning capacity involving the management of investments.
6. Fourthly, paragraph 4 of the subpoena seeks documentation relating to "real estate investments". As senior counsel for the plaintiff pointed out, that paragraph, given the terms in which it is drafted, would include documentation pertaining to the plaintiff's own residence. That is again indicative of impermissible fishing.
7. For all of these reasons, the subpoena should be set aside.
8. In the course of submissions, counsel for the defendant effectively invited me to redraft the subpoena in the event that I came to the conclusion that the plaintiff's motion should succeed. I do not propose to take that course. The plaintiff does not cavil with the fact that the defendant may have a legitimate forensic purpose in seeking the production of documentation which can be established as being relevant to the issue which has been identified. If the solicitor for the defendant wishes to pursue that course, then it is open to him to do so by the issue of a revised form of subpoena which is drafted in appropriate terms, and which does not infringe the principles which have been identified.

ORDERS

1. I make the following orders: 1. The subpoena filed by the defendant on 28 July 2015 and directed to the plaintiff is set aside. 2. The defendant is to pay the plaintiff's costs of the notice of motion. 3. The matter is listed before me for directions on Monday 19 October 2015 at 9.15 am.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2015