Perkovic v State Rail Authority of New South Wales

INTRODUCTION 1 Damir Perkovic (the plaintiff) sued his employer, the State Rail Authority of New South Wales (the defendant) for injuries sustained by him on 15 January 1997 in the course of his duties as a car cleaner at the defendant's Bomaderry rail car maintenance yard. The injuries were sustained when he tripped on a railway track and fell hitting his head. As particularised, his injuries included a closed head injury with brain damage, an injury to the neck, a disc protrusion at C3/4 and a bulging disc at C4/5 levels. These injuries were said to have given rise, inter alia, to headaches, sexual dysfunction, anxiety and depression and other psychiatric manifestations and disorders. One of the psychiatric disorders was said to have changed him fundamentally in a personal sense, to have rendered him unemployable and unable to manage his own affairs. As a consequence of that condition the management of his affairs had been placed in the hands of the Protective Commissioner. 2 The action came on for hearing at Wollongong on 28 May 2001 and continued over a series of days until 5 June 2001 when it was adjourned to a date to be fixed for further hearing. There was a significant medical issue between the plaintiff and the defendant. It related to the nature of the psychiatric disorder from which the plaintiff suffered. The plaintiff contended that his psychiatric disorder was a post concussional personality disorder of an obsessive/compulsive type, but did not amount to a psychosis. On the other hand, the defendant contended that the plaintiff suffered from schizophrenia or a schizophreno-form psychosis. This, it argued, was genetic in origin and unrelated to any head injury sustained by the plaintiff in the course of his employment. 3 The defendant became aware that the plaintiff's brother, Zelco Perkovic, was serving a prison sentence in Albany, Western Australia for a murder which was committed by him in or about 1984. As a consequence the defendant wanted to examine the records, especially medical records, relating to the plaintiff's brother. 4 Before the hearing of the matter resumed an offer of settlement of $600,000 plus costs, but clear of any workers' compensation payments, was made. This was expressed to be on the basis of 25% contributory negligence on the part of the plaintiff. Acceptance was recommended by the solicitor for the plaintiff. Because of the plaintiff's serious mental condition the acceptance of the offer of settlement required the approval of this court. This was given by Hulme J on 13 November 2001. 5 At the commencement of the hearing the defendant called on a subpoena to produce documents addressed to the Executive Officer of the Ministry of Justice in Perth, Western Australia (the WA Ministry). The subpoena required production of the following documents: "Your complete file regarding Zelco Perkovic incarcerated in Albany Regional Prison including but not restricted to copies of all medical documents, determinations by the Offenders Review Board and Serious Offenders Review Board, parole documents, prison transfer documents, psychological and psychiatric assessments, social workers reports for the period 1 January 1984 to date. 6 Counsel for the WA Ministry objected to the production of any documents the subject of the subpoena on two grounds. One ground was that the subpoena was too wide and such as to constitute a fishing expedition. This ground was dealt with in a judgment given on 28 May 2001 in which it was determined that, having regard to the context, the subpoena identified with reasonable particularity the documents required to be produced, that it did not run counter to the statements made by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 and was consistent with what had been decided in Waind v Hill (1978) 1 NSWLR 372. 7 The argument raised by the WA Ministry in relation to the other ground was that in a civil case the procedure for a person being required to respond to a subpoena for production and for the use of any documents produced pursuant to the subpoena involved three steps. The first is a decision by the Court as to whether it will require obedience to the subpoena by requiring the entity the subject of the subpoena to bring the required documents into court. The second step is a decision by the court as to whether or not permission should be given to inspect the documents. The third step is concerned is the admission of the documents or some of them into evidence. 8 Counsel for the WA Ministry based his objection to the production of the prison documents on the grounds that no legitimate forensic purpose would be served by requiring production of the documents. He argued that the threshold required to be reached before the court would require the production of the documents had not been reached. He submitted that in a civil case before the court would require the production of documents under a subpoena there must be shown to be some concrete ground for belief which takes the case beyond a mere fishing expedition. 9 Argument concerning the subpoena occupied the whole of the first morning of the hearing and a further hour on the date on which judgment on the application was delivered, namely 5 June 2001. In the result production of the documents to which objection had been raised was ordered and access to such documents was allowed. The question as to who should pay the costs incurred as a result of the argument was argued but the matter was settled before any decision was given. 10 As a result of the settlement of the action the defendant became liable to pay the plaintiff's costs. Those costs included the costs of the first day of hearing notwithstanding that the majority of such time had been taken up with the argument as to the production of documents. The costs payable by the defendant also included the costs of the time occupied by the delivery of judgment on 5 June 2001. 11 The question posed for decision is whether the WA Ministry should be ordered to pay the costs incurred as a result of the unsuccessful, but time-consuming, argument raised by it. 12 The power of the Court to set aside or not enforce subpoenas stems from two sources, namely the Rules of Court and the inherent jurisdiction of the court. Under Part 37 of the Rules, the Court may, on the motion of any person having a sufficient interest, set aside the subpoena in whole or in part. A like power forms part of the inherent jurisdiction of the Court to control its own proceedings, to control court process and to prevent any abuse of such process. 13 Section 76 of the Supreme Court Act 1970 provides that, subject to certain restrictions (not presently relevant) and to the Rules, the costs of any action are in the discretion of the court, and that the court has full power to determine by whom, and to what extent, costs are to be paid. The power conferred on the court by s 76 extends to persons who are not named as parties (Knight v FP Special Assets Limited (1992) 174 CLR 178), including persons who have participated in the proceedings in a way in which a person who seeks to set aside a subpoena participates in the proceedings. The decisions by Gibbs J in Hardie Rubber Co Ltd v General Tyre and Rubber Co (1971-1973) 129 CLR 527, by Lord Selborne in Bidder v Bridge (1884) 26 ChD 1 (at 9) and by Cotton LJ (at 12) support this conclusion. The decision in Owners of SS Kalibia v Wilson (1910) 11 CLR 689 at 694 is also relevant in this respect. In each of the foregoing cases, the concept of the person who is a party to proceedings is treated expansively rather than restrictively. Such an approach ensures that the Court has power under its rules to control its proceedings, including the costs incurred by persons who are involved in such proceedings. See also Pickles v Gratzon [2002] NSWSC 688. 14 I am of opinion that the court has power to award costs against the WA Ministry in the present case. 15 This conclusion accords with what is said by Hunt J in Darcey v Preterm Foundation Clinic (1983) 2 NSWLR 497 at 504, in which he expressly stated that a power to award costs in such circumstances is part of the inherent jurisdiction of the Court (see also Wilson v McDougall (1987) 11 NSWLR 241 at 245 per Newman J). 16 Whether the power to award costs in the present application should be regarded as stemming from s 76 and the Rules, or as part of the inherent jurisdiction preserved for the Court by the Supreme Court Act 1970, I am satisfied that such a power exists. 17 The usual rule is that costs follow the event. That is, they should be paid to the person who has been successful by the person who has not. Whilst there are certain circumstances in which the successful party or person may be deprived of costs, eg Degmam Pty Ltd (in liq.) v Wright (1983) 2 NSWLR 348, none of those circumstances apply in the present case. Moreover, no reason has been advanced which would call for the exercise of the discretion in relation to costs other than in accordance with the usual rule. 18 For the foregoing reasons, I am of opinion that the WA Ministry should pay the defendant's additional costs occasioned by the application made by it in respect of the subpoena addressed to the Executive Officer of the Ministry of Justice in Perth. Those costs are to be the costs incurred in respect of the first half day of hearing, together with the costs incurred in respect of the taking of judgment on 5 June 2001. 19 I order accordingly. **********