Supreme Court New South Wales Medium Neutral Citation: Labruyere v Parsons Brinckerhoff Australia Pty Ltd (No 3) [2019] NSWSC 79 Hearing dates: 1 February 2019 Date of orders: 01 February 2019 Decision date: 13 February 2019 Jurisdiction: Common Law Before: Lonergan J Decision: 1. Leave is granted to the first defendant pursuant to s 31 of the Trans-Tasman Proceedings Act 2010 (Cth) to issue and serve a subpoena for production addressed to each of the person or entities listed in column 2 of the Schedule attached to the Notice of Motion filed by the first defendant on 17 January 2019 for service in New Zealand at the address listed in respect of the subpoena recipient in column 3 of the Schedule. 2. I note that the last date for service in respect of each subpoena is 8 February 2019 and each subpoena is to be made returnable for 11 March 2019. Catchwords: PROCEDURE – subpoenas – service in New Zealand – personal injury proceedings – relevance of subpoenas to appropriately explore the question of damages – significance of the documents to be produced and the unlikelihood such material would be obtained by other means Legislation Cited: Trans-Tasman Proceedings Act 2010 (Cth), ss 31, 34 Cases Cited: Comeskey v New South Wales Bar Association [2015] NSWSC 12 Category: Procedural and other rulings Parties: John Labruyere (Plaintiff) Parsons Brinckerhoff Australia Pty Limited (First Defendant) Representation: Counsel: Mr H Chiu (First Defendant) Solicitors: K & L Gates (First Defendant) File Number(s): 2008/289569 Publication restriction: Nil Judgment 1. The defendant by motion seeks leave pursuant to s 31 of the Trans-Tasman Proceedings Act 2010 (Cth) ("the Act") that it be granted leave to file and serve a series of subpoenas on the individuals and organisations listed in the Schedule to the Notice of Motion. 2. The application was supported by a detailed affidavit of Stefan Ronald Heap sworn 17 January 2019 that included the proposed 21 recipients, a copy of each of the subpoenas (all for production of documents) identifying the nature and extent of the documents sought, as well as explaining in the body of the affidavit, the background to the proceedings, its current status, and the relevance of the documents and their significance to the issues being explored between the parties. 3. As helpfully outlined by Mr Chiu of counsel, the proceedings arise out of the collapse of the Lane Cove tunnel in November 2005. At the time this occurred, the plaintiff was working underground sitting on some heavy machinery. He had to jump quite a distance from the machinery and effectively ran for his life. He says he has sustained a hip injury and significant psychiatric injury. 4. The plaintiff returned to New Zealand not long after this incident, and has lived there since. 5. He has brought a claim for damages which includes claims for loss of earning capacity both past and future arising from his physical and psychiatric disabilities. He has also made a claim for gratuitous care. It is estimated by Mr Chiu that the parameters of the claim exceed $2 million. 6. It is evident and unsurprising given his return to New Zealand in May 2006 that the plaintiff's post-accident employers and hospital, medical and paramedical treaters are all located in New Zealand. 7. Also sought to be issued is a subpoena on the New Zealand Accident Compensation Corporation, a workers compensation insurer, to examine the extent and relevance, if any, of the plaintiff's pre-existing or other work related injuries. There is also a subpoena to be issued to the plaintiff's accountant as there have been periods of self-employment since June 2015. Legislation and the test 1. Section 31 of the Act provides the basis for leave for service of subpoenas in New Zealand: 31 Subpoenas not to be served in New Zealand without leave (1) If the proceeding is in an Australian court, the subpoena must not be served in New Zealand without the leave of the court. (2) If the proceeding is in an Australian tribunal, the subpoena must not be served in New Zealand without the leave of an inferior Australian court. (3) Without limiting the matters that the court may take into account in deciding whether to give leave under subsection (1) or (2), the court must take into account: (a) the significance of the evidence to be given, or the document or thing to be produced, by the person named; and (b) whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience to the person named. (4) In giving leave, the court: (a) must impose a condition that the subpoena not be served after a specified day; and (b) may impose other conditions. (5) The court must not give leave if the person named is less than 18 years old. 1. As correctly observed by Davies J in Comeskey v New South Wales Bar Association [2015] NSWSC 12 at [15], s 31(3)(a) does not provide any particular test of significance. It simply says that without limiting the matters that the Court may take into account in deciding whether to give leave to issue a subpoena under the legislation, the Court must take into account the significance of the evidence to be given or the document or thing to be produced. 2. It is in my view self-evident that documents of the type sought by the subpoenas proposed, are likely to contain matters of direct relevance and significance to the issues between the parties, namely the appropriate identification of the damage, physical and financial, incurred by the plaintiff as a result of what he says was the negligence of the first defendant. 3. I am satisfied pursuant to s 31(3)(b) that the documents could not be obtained by other means without significantly greater expense or inconvenience. In respect of the medical materials, given doctor/patient confidentially it is most unlikely the material will be volunteered and indeed a court order would usually be required, or some compulsion applied given the party seeking the material is the defendant to the proceedings. 4. The same considerations apply to the accountant's material and, arguably, the workers' compensation insurer's material. In respect of past employers, confidentiality considerations are likely to apply. 5. In my view it is appropriate that the order be made. Production in New Zealand 1. Section 34 of the Act provides: 34 Australian subpoenas that require production If the subpoena only requires production of a document or thing, it must permit the person named to comply by producing the document or thing at any registry of the High Court of New Zealand not later than 10 days before the date specified in the subpoena as the date on which the document or thing is required for production in the court or tribunal that issued the subpoena. 1. As a result of this provision, Mr Chiu proposed that the appropriate timing for response should have inbuilt 21 days plus 10 days so that if a producing organisation or person wishes to avail themselves of the opportunity to provide the material to the High Court of New Zealand, they can do so and it can then be forwarded to this Court as set out in s 34. 2. Accordingly, the last day for service of the subpoenas is 8 February 2019. 3. The subpoenas are to be made returnable before this Court on 11 March 2019. ********** Amendments 22 February 2019 - 22 February 2019 - Added [No 3] to decision name 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: 22 February 2019