Plaintiff v Defendants [2025] VSC 538 | Case summary

Supreme Court of Victoria|2025-09-02|Before: Baker JR

For the reasons set out above, I will make an order requiring production of the categories of documents sought by the TAC in respect of photographs of the accident scene and any interrogatories and answers served in the claimant's 2018 proceeding. I will not make any order in relation to expert liability reports as the available evidence does not disclose any grounds for believing that such material exists. As noted above, if an order is sought in relation to the medical reports category, the TAC should seek this armed with better evidence concerning the claimant.
The TAC has been partially successful in the application, however equally I note that it was not really opposed by any party, but rather proceeded to a hearing given the nature of the relief being sought concerning the Harman obligation. I can appreciate that given the nature of the obligations owed by practitioners in this regard, solicitors for the defendants acting prudently might well have sought to have the certainty of having an order in place requiring the production of the material sought by the TAC here, such that an application of some kind might have been required in any event.
In that setting, I express a provisional view that the appropriate order as to the costs of the application is that they be costs in the proceeding. If any party wishes to make submissions regarding any other order that they contend should be made, I will allow a period of 14 days for the parties to file any brief submissions on this point, limited to 2 A4 pages, after which time the issue will be determined on the papers.

[1] Affidavit of Dominic Joseph, sworn 18 July 2025 ('First Cook Affidavit') 2, [5].

[2] Order of Baker JR in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 October 2024) [1].

[3] Summons filed by the Transport Accident Commission in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 July 2025) [1].

[6] First Cook Affidavit (n 1) 3, [17].

[11] Affidavit of Nicole Joanne Norris, sworn 23 July 2025 ('Norris Affidavit') 2, [6].

[17] Affidavit of Katherine-Lisa Stefano, sworn 30 July 2025 Exhibit 'KLS1', email from Katherine Stefano to Patrick Russell, 9 July 2025.

[18] Ibid; Email from Dominic Cook to Katherine Stefano, 21 July 2025.

[21] Affidavit of George Chadwick, affirmed 31 July 2025 ('Chadwick Affidavit') Exhibit 'GDC-1' [3(a)].

[23] Affidavit of Dominic Joseph Cook, sworn 31 July 2025 ('Second Cook Affidavit') 1-2, [3]-[5].

[25] Statement of Compatibility, Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (Vic) 2890; Second Cook Affidavit (n 24) 2, [6].

[26] Statement of Compatibility, Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (Vic) 2890; Second Cook Affidavit (n 24) Exhibit 'DJC-2' 13.

[27] Second Cook Affidavit (n 24) 2, [8].

[28] Chadwick Affidavit (n 22) Exhibit 'GDC-1' [3(b)].

[29] Statement of Claim in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 3 October 2024) ('Statement of Claim') [25].

[30] Defence filed on behalf of the first defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 19 December 2024) [25]; Defence filed on behalf of the second defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 February 2025) [25]; Defence filed on behalf of the third defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 July 2025) [25]; Defence filed on behalf of the fourth defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 18 December 2024) [25].

[44] Transport Accident Act 1986 (Vic) s 131(5) (definition of 'specified person').

[45] Ibid (definition of 'restricted information').

[48] First Cook Affidavit (n 1) 3, [16].

[49] See, e.g., Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, [9] (Gibbs CJ).

[50] As opposed to, for instance, any serious injury process that was undertaken prior to the commencement of the 2018 proceeding.

[51] See, e.g., Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, [37].

[57] Defence filed on behalf of the first defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 19 December 2024) [22]; Defence filed on behalf of the second defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 February 2025) [22]; Defence filed on behalf of the third defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 July 2025) [22].

[58] See, e.g., Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules') r 28.05(3).

[59] See, eg, Privacy Act 1988 (Cth) s 6 (definition of 'sensitive information').

[62] The situation can be contrasted with the reasonably common occurrence of the two claims proceeding in parallel, where the parties to each claim will be aware of each other through joint appearances at directions hearings, and where it is not uncommon for the lawyers for a plaintiff in a common law damages proceeding to also sign consent minutes in a related recovery proceeding to which they are not a party in order to provide for releases from Harman obligations.

[63] In relation to the TAC's reliance on s 126B in this regard, it may be relevant to note that the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is the one thing that is explicitly not overridden by the provision.

[64] Noting that based on the Statement of Compatibility exhibited to Mr Cook's affidavit, the existence of an ongoing relationship between the TAC and claimants appears to have been one of the reasons relied upon to justify the removal of protections against the use of documents in s 127B.

[66] The TAC also filed further and better particulars of compensation paid to the claimant on 16 May 2025 with a total that is approximately $260 higher than the total of the equivalent particulars in the statement of claim. It appears that this change arises from relatively small differences in the amounts categorised as "medical - general" and "other", however it is not apparent whether this is an indication that the TAC has made further payments in that amount to the claimant since October 2024 or whether the May 2025 particulars simply reflect a more precise and updated formulation of the benefits paid prior to that date.

Court (General Civil Procedure) Rules 2015

Accident and Accident Compensation Legislation Amendment Act 2010

Injury Rehabilitation and Compensation Act 2013

(Miscellaneous Provisions) Act 1958

Human Rights and Responsibilities Act 2006

Plaintiff v Defendants

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