District Court New South Wales Medium Neutral Citation: Cripps v Mick's Fishing Enterprises P/L [2021] NSWDC 58 Hearing dates: 2 March 2021 Date of orders: 2 March 2021 Decision date: 02 March 2021 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [22]. Catchwords: PRACTICE & PROCEDURE – setting aside a subpoena Cases Cited: Commissioner of Police v Hughes [2009] NSWCA 306 Evans v Lindsay [2006] 46 MVR 531 Griffiths v Kerkemeyer [1977] 139 CLR 161 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 115 Todorovic v Waller (1981) 150 CLR 402 Category: Procedural rulings Parties: Chantelle Cripps (Plaintiff) Mick's Fishing Enterprises Pty Limited t/as Evans Head Deep Sea Fishing Charters (First defendant) Robert George Foster (Second defendant) Representation: Counsel: Mr C Simpson (Plaintiff) Mr J Raftery (Defendants) Solicitors: Somerville Laundry Lomax (Plaintiff) Barry Nilsson (Defendant) File Number(s): 2019/80280 Publication restriction: None EX-TEMPORE Judgment 1. This is an application to set aside a subpoena which is returnable at the Lismore Registry of the District Court on 5 March 2021. The application was brought on urgently in the current sittings of the Court of Lismore because of the imminent return date. 2. The context of the application is that the plaintiff has made a claim against the defendants for damages for personal injuries comprising chronic post-traumatic stress disorder and a related chronic depressive disorder resulting from a deep sea fishing incident that occurred on the defendants' boat on 24 March 2016. 3. The plaintiff's statement of claim was filed on 13 March 2019. The plaintiff's statement of particulars outlining her claim for damages was filed on 19 March 2019. It particularises a generalised claim for diminution in her earning capacity and also seeks an economic buffer to compensate for a claimed diminution in her future earning capacity. 4. In the application, the defendants' solicitor was to originally appear via AVL but that arrangement became unworkable. In the circumstances, Mr Raftery of counsel appeared for the defendants via AVL at short notice and has provided an outline of written submissions. He also spoke to those submissions. In my view he has put all arguments that could be reasonably advanced on behalf of the defendants in this application. 5. Turning to the factual basis of the application, the plaintiff was a 17 year old student at the time of the events. She is now aged 22 years and she has just recently graduated as a nurse. Therefore, her past history of earnings is unknown, if not negligible or unlikely. 6. Dr Scurrah, a consultant psychiatrist, retained by the plaintiff's solicitor, has assessed the plaintiff and has reported as follows: "PTSD and depression may in some way interfere with her capacity as a nurse. Exposure to triggers within the work environment of a nurse may occur. During these periods her efficiency as a nurse would be reduced and she may need to take time off work. The nursing profession can be a strenuous profession. It may involve shift work, exposure to traumatised individuals and/or emotionally distressed individuals. All of these situations are likely to lead to a deterioration in her psychiatric illnesses and may place her at risk of reduced efficiency in the workplace and/or needing to take leave and/or remotely being unable to continue to work as a nurse." 1. I emphasise the words "may" and "remotely". The affidavits sworn and filed by the plaintiff's solicitor, Ms Melanie Loomes, on 24 February 2021 and 2 March 2021, annexed a copy of the subpoena in contention, as well as annexing the contentious correspondence between the parties regarding the subpoena. That correspondence has been augmented by an affidavit sworn by the defendants' solicitor, Mr Nicholas Bell, on 2 March 2021. The second affidavit from Ms Loomes of 2 March 2021 annexes correspondence whereby the solicitor for the defendant seeks to justify the ambit of the subpoena: Annexure A. 2. The plaintiff has objected to production of the document sought by the defendants on grounds of relevance, describing the subpoena as a fishing expedition that lacks legitimate forensic purpose, citing Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 115. In contrast, the defendants' submissions argue that there is a legitimate forensic purpose for the subpoena and claim it does not constitute a fishing expedition. Therefore the defendants seek to enforce compliance of the subpoena and they have declined to withdraw it. 3. The affidavit of Mr Bell sworn and served on 1 March 2021 was prepared at short notice. That affidavit annexed a report dated 19 October 2020 from Dr Doron Samuell, a clinical and forensic psychiatrist who examined the plaintiff at the request of the solicitor for the defendants. In essence, Dr Samuell expressed an opinion which, in effect, accepted that the plaintiff suffers from a psychological injury due to a psychologically traumatic deep sea fishing incident. He accepted that the plaintiff has incurred a resultant PTSD condition. 4. Dr Samuell was asked for an opinion on whether the plaintiff's capacity for work was restricted by any ongoing incapacity for part or fulltime employment, or whether the plaintiff might face early retirement. Dr Samuell addressed that question in the following terms: "She is working without medical restriction and on that basis, her working capacity is normal. I do not expect that there will be a future impact on her work capacity, nor do I expect that she will require early retirement". 1. It appears that after the present dispute over the defendants' subpoena had emerged, the defendants' solicitor sought a supplementary report from Dr Samuell. 2. The letter of instruction to Dr Samuell which commissioned that report has not been disclosed by the defendants' solicitor, nor has any file note or minute prepared by the defendants' solicitor been produced which evidences the terms of the request to Dr Samuell. 3. Somewhat oddly, on 1 March 2021, whilst the present dispute was already being debated between the solicitors, Dr Samuell provided a letter to the solicitor for the defendant in the following brief terms: "In order to prepare a supplementary report on Chantelle Cripps, could you please obtain the following documents; bank statements, credit card statement." 1. In my view, the defendants have not shown any reasonable or sufficient nexus between the plaintiff's claim for diminished earning capacity and any purported legitimate forensic need for access to the plaintiff's described credit, debit or bank statements as has been suggested by Dr Samuell. Neither have the defendants shown any sufficient or reasonable nexus to justify Dr Samuell's ex post facto request for those documents. His request remains unexplained, especially given the cited content of the opinion he had given 5 months earlier as to the plaintiff's fitness for work. It is not readily apparent as to what had in the meantime provoked Dr Samuell to initiate his correspondence dated 1 March 2021. 2. I find the defendants have not demonstrated that the documents sought by the subpoena are on the cards relevant to an assessment of the plaintiff's claim for diminished earning capacity. In my view, contrary to the defendants' submissions, the documents sought are not relevant to the forensic task of testing the plaintiff's particulars of disability or loss of earning capacity as outlined at paragraphs 1 to 15 of the plaintiff's statement of particulars filed on 19 March 2021: Commissioner of Police v Hughes [2009] NSWCA 306 at [74]; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9]. 3. Absent a defined claim for past loss of income, in an assessment of the plaintiff's claim for diminished earning capacity, the key documents of relevance would be those which show the plaintiff's actual earnings at the time of assessment and her past pattern of earnings, if such earnings exist. 4. It is axiomatic that it is for the plaintiff to disburse her available funds as she sees fit, whether it be by way of credit card, debit card, or bank account transactions: Todorovic v Waller (1981) 150 CLR 402, at 412, Griffiths v Kerkemeyer [1977] 139 CLR 161, at 176-177 and 193-194, Evans v Lindsay [2006] 46 MVR 531, at [112]-[113]. 5. The defendants' quest for the documents envisaged by the subpoena is therefore puzzling. In my view, that quest is based on an irrelevant consideration that does not have any sufficient or relevant nexus to the plaintiff's particularised claim: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 115, at [22]. 6. The defendants' subpoena issued on 17 February 2021 is therefore set aside. It is a fishing expedition which arises, somewhat ironically, from a fishing expedition. It is a speculative exercise lacking legitimate forensic purpose. It follows that the defendants are to pay the plaintiff's costs of the motion filed on 24 February 2021. 7. After hearing the parties on the question of costs, I consider that the appropriate order for costs in this case is that the defendants pay the plaintiff's costs of the set aside subpoena on the ordinary basis, but in a gross lump sum amount within 28 days of today's date. 8. Costs have been identified in the sum of $6500. Recognising that the exercise is imprecise and requires a broad brush, including a discount, I assess the plaintiff's reasonable costs at $5850. 9. I make the following orders: 1. The defendants' subpoena issued on 17 February 2021 is set aside; 2. The defendants are to pay the plaintiff's costs as a gross lump sum amount assessed at $5850 within 28 days of today's date; 3. Liberty to apply on 7 days' notice if further or other orders are required. ********** 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: 10 March 2021