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Angelowitsch, Genna; Sim, Catherine --- "Eureka! Discovery and Civil Procedure" [2023] PrecedentAULA 62; (2023) 179 Precedent 16

Eureka!

Discovery and civil procedure

By Genna Angelowitsch and Catherine Sim

For a practitioner to fulfil their obligations under the Civil Procedure Act 2010 (Vic) (Civil Procedure Act), discovery of relevant documents is critical. This article explores the general duties surrounding discovery, as well as specific provisions relevant to motor vehicle accident and workers compensation claims for damages in Victoria.

GENERAL DUTIES REGARDING DISCOVERY UNDER THE CIVIL PROCEDURE ACT

The Civil Procedure Act unambiguously protects the continued operation of existing powers under the relevant court rules,^[1] including O29 of the County and Supreme Court rules governing the process of discovery.^[2] The additional provisions, particularly those contained in pt 4.3 of the Civil Procedure Act, are intended to enhance the court’s jurisdictional authority rather than usurp it. For example, s55 provides the court with unrestrained authority to ‘make any order or give any directions in relation to discovery that it considers necessary or appropriate’. Section 55 then goes on to provide a list of examples of orders that a court can make in relation to discovery.

As the Supreme Court of Victoria noted in Matthews v SPI Electricity Pty Ltd,^[3] the objective of the Court is to ‘achieve an optimum balance so that discovery is undertaken by each party in the most timely, efficient and cost-effective manner, while ensuring that discovery is proportionate to the size of the case and appropriate to the interests of justice’.^[4]

Additional examples of the powers contained in pt 4.3 of the Civil Procedure Act include ordering a party to provide an affidavit of document management, outlining storage of documents and exposing the deponent to the possibility of oral examination by the court in relation to the contents of the affidavit of document management.

Of course, for such provisions to be effective, there must also be sanctions for breach. Under s56, the court has unfettered power to make any order it considers appropriate in the event of a failure to comply with discovery obligations or a court order relating to discovery. Section 56(2) goes on to provide a list of examples of how the court may choose to exercise its power including, in extreme cases, the option to dismiss any part of a claim or defence lodged by offending parties. Legal practitioners can face referral to disciplinary authorities for non-compliance.

Whether the court will actually exercise its sanction powers under s56 depends, of course, on the circumstances of each case. Factors include the effect that the behaviour has on the just resolution of the real issues in the proceeding, the prejudice that arises from the behaviour, the reasonableness of any explanation offered and whether the default was intentional or arising from contumelious behaviour. Understandably, the decision to strike out a claim or a defence that has been filed is an option of last resort and is reserved for only the most serious of cases.

One such example of serious conduct arose in the case of Ren v Sinicorp Pty Ltd.^[5] Between proceedings commencing in 2014 and 2021, the first plaintiff filed six separate affidavits of documents, and the second plaintiff filed three separate affidavits of documents. Despite this, Matthews AsJ concluded that there were categories of documents that both plaintiffs had deliberately not discovered. She considered this ‘conduct intended to delay, frustrate or avoid discovery of discoverable documents’.^[6] Having regard to the mandatory factors under s56, her Honour concluded that the plaintiffs’ conduct warranted the grave step of striking out their claims, as ‘the least ... necessary to achieve the ends of appropriate case management’.^[7]

Interaction with overarching obligations

Operating in conjunction with the discovery provisions are the overarching obligations imposed on all participants in litigation under pt 2.3 of the Civil Procedure Act. The overarching obligation to disclose the existence of documents in s26 of the Civil Procedure Act is different from the ordinary discovery obligations in two notable ways.

First, as an overarching obligation, s26 applies to all participants in the proceedings, not just to the parties. For example, in circumstances where experts have not disclosed material that they have relied upon when reaching their opinion, it is ordinarily s26 they are considered to have breached.

Secondly, the inclusion of a time restriction differentiates s26 from the discovery provisions in O29 of the County and Supreme Court rules. Under the ordinary principles of discovery in O29 of the rules and also pt 4.3 of the Act, parties have ongoing obligations of discovery but a time period is not prescribed. Contrarily, s26 imposes an overarching obligation on the person to disclose the existence of critical documents of which they are aware ‘at the earliest reasonable time after the person becomes aware of the existence of the document’.^[8] Awareness can be actual awareness or imputed awareness, and a barrister’s awareness of the existence of a document could be imputed upon their instructing solicitor, provided it is more than a mere suspicion that a document exists.^[9]

Section 26 requires discovery of documents that are considered ‘critical’, defined by the Victorian Court of Appeal to mean ‘those which are crucial to each party’s case and which, on this basis, if produced to the opposite party, are the most likely to lead to resolution of the dispute either by early settlement or at trial’.^[10]

The sanctions for breaching s26 are contained in s29 of the Civil Procedure Act, and are similar in breadth to the provisions contained in s56 for breach of the discovery obligations. Section 29(1)(f) enables a court to make ‘any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations’, potentially facilitating a dismissal of a claim or defence in a sufficiently egregious case.

ADDITIONAL CONSIDERATIONS

The Victorian Model Litigant Guidelines also apply to litigants appearing on behalf of the State of Victoria, including the Transport Accident Commission (TAC) and WorkSafe. Summarily, the Model Litigant Guidelines require government agencies to deal with claims promptly and not cause unnecessary delay, to make an early assessment of the prospects of success and liability and, most importantly, pay legitimate claims without litigation.

Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) underpins it all. Section 24 of that Act enshrines the right to a fair hearing for a party to a civil proceeding.

SPECIFIC PROVISIONS – TRANSPORT ACCIDENTS

Section 93 of the Transport Accident Act 1986 (Vic) prescribes the process an injured person must comply with to satisfy the serious injury threshold, but neither the documentation that needs to accompany the application nor the material to be included in TAC’s response.

Although they do not have the prescriptive force of legislation, the 2016 Transport Accident Act Common Law Protocols provide some guidance in relation to the service of TAC’s liability position in the preliminary process.^[11] Following the granting of the certificate, chs 14 and 15 outline the processes for exchanging information in preparation for the common law conferences.

The information exchange obligation applies equally to both parties, so plaintiffs also need to provide any documents or information relating to liability where it is in issue, including expert or other witness opinions to be relied upon. Under cl 15.4, any information in possession of the parties which could have been provided under the Protocols but was not cannot be relied on without consent or leave of the court.^[12]

SPECIFIC PROVISIONS – WORKERS COMPENSATION

By way of a legislative history lesson, in 1992 s135A was inserted into the Accident Compensation Act 1985 (Vic) (ACA). This section sets out the requirement for the Victorian WorkCover Authority to respond to an application for damages stating whether the VWA determined that the worker had met the 30 per cent whole person impairment threshold or not. In 1997, s135A(2DA) was inserted into the ACA, and the provisions further expanded, outlining the material required in that response. Section 135A(2DA) makes no distinction between the material required for a response where the application was determined at 30 per cent or more or for a response to the application stating that it was refused.

If the worker was injured between 1 December 1992 and 12 November 1997 and relies on s135A of the ACA, the disclosure requirements apply to both the ‘deemed’ injury and ‘undeemed’ injuries, as does an almost identical conference and statutory offer process.

In 2000, the Accident Compensation (Common Law and Benefits) Act 2000 (Vic) gained a new div 8A: the serious injury gateway provisions. The explanatory memorandum for this piece of legislation outlined that ‘the new subsections 7–9 of 134AB require the authority or self-insurer to respond and impose a number of requirements and conditions to that response’. There is no mention of any reasoning or consideration of limiting the response material requirements to only deemed applications or applications where the worker has an impairment of 30 per cent.

Pravidur revisited

This specific issue was canvassed in 2010 in Pravidur v Scental Pacific Pty Ltd (Pravidur),^[13] a case under the ACA but referencing identical provisions to those in the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).

The majority of the Court of Appeal in Pravidur held that, on a strict interpretation of the legislation as it stood, the discovery obligation only applied where there was a deemed serious injury – that is, an impairment assessment of 30 per cent or more.^[14] The dissenting judge, Neave JA, rejected this literal application and considered a drafting error to have produced an unintended limitation^[15]

Unfortunately, in the drafting of the WIRC Act in 2013, these provisions were not changed and there is no information in the explanatory memorandums regarding the determination in Pravidur, the implications to workers, and whether this was the deliberate intention of lawmakers. What remains is the same legislative framework that existed under s134AB wherein the responses to an application differ, depending on whether the application is deemed or not.

This issue, the impact on parties in assessing their prospects in proving and defending a claim in negligence, and the impact on the ability of solicitors to provide fulsome advice to their clients (both plaintiff and defendant) about their prospects at common law at an early stage, is resulting in seemingly avoidable conflicts with the overarching obligations imposed on all participants in litigation under pt 2.3 of the Civil Procedure Act.

DOCUMENTS IN THE RESPONSE MATERIAL

The law at the time of writing is clear. Section 330(2)(a)–(d) of the WIRC Act requires the authority or the self-insurer responding to the application to disclose ‘all medical reports; and affidavits attesting to such other material – existing when the advice is given and – of which the employer, authority or self-insurer or the legal representative of any of them is aware’ and on which they intend to rely or adduce in evidence in proceedings.

The 2016 Ministerial Direction: Actions for Damages (Directions)^[16] clarifies the material that should be included. The objectives of those Directions include the facilitation of the just, efficient, timely and cost-effective resolution of common law applications and consistency between application management, decision making and Civil Procedure Act obligations.

Clause 9.2 of the Directions provides that the advice must include: ‘a list of documents which the employer, authority or self-insurer has in their possession and on which they intend to rely’.^[17]

However, the Directions outlining what is required specifically refer to deemed serious injury applications only. The Directions are silent as to what is required for applications that are not deemed. So, arguably, in accordance with the legislation, all that is required for non-deemed serious injuries is advice in writing as to whether or not a certificate will be granted. While a small footnote in the Directions^[18], suggests the VWA and self-insurers should, as a matter of practice, provide the same material in all applications, the fact remains that this is not required.

Section 332 of the WIRC Act provides that certain material is not admissible in proceedings. For the authority or self-insurer, this means that if they were aware of it before the response date and it was not disclosed in the response material, it is not admissible. For the worker, it means that any material the worker or their legal representative was aware of or in possession of, ‘before the expiration of 28 days after receiving the advice’, is not admissible.

UNFAIR IMPACT ON PLAINTIFFS

Recent decisions demonstrate the potential injustice that can arise if s330(2) is applied equally to all cases, as well as how opportunities can be lost to narrow issues in dispute, potentially causing a further drain on limited court resources and an incurring of unnecessary legal costs.

Keely Alister v UVA Salon Pty Ltd^[19]

In this matter, the plaintiff was a hair stylist, who suffered a wrist injury through her employment with the defendant. The plaintiff claimed that the defendant had, either through negligence or breach, caused her injuries, primarily in the three months prior to October 2017, and after her return to work following her injury.

The defendant had provided records that detailed the daily services between 1 August and 7 October 2017, and the plaintiff confirmed that she provided all of those services. However, on day three, the defendant discovered further documents, which had more extensive information about the division of services between staff. It was noted by the trial judge that the plaintiff’s case was potentially forensically disadvantaged by the defendant’s late production of the records.

Her Honour English J stated: ‘the defendant’s late discovery of Exhibits D1–D32 was unfair to the plaintiff and piecemeal. However, I am satisfied they are a more accurate reflection of the actual services completed by (the plaintiff)’.^[20]

Had s322 of the WIRC Act been applicable, this document would have been discovered in the response material in the first instance and allowed the solicitors to advise of the prospects with respect to that argument, and the parties to narrow the issues in dispute. Further, if it was discovered mid-trial, it would not have been admissible.

This matter was ultimately unsuccessful for the plaintiff.

Ly v Australian Pharmaceutical Industries Ltd^[21]

This matter was a successful verdict for the plaintiff for over $800,000.

The plaintiff worked as a replenisher in a warehouse, replenishing stock in a system known as the A-Frame. As a result of this work, he suffered an injury to his neck and shoulder. On the first day of the trial, the plaintiff made an application for specific discovery, seeking documents detailing the weight of items and pace of work, as well as hazard reports. As Clayton J explained:

‘The plaintiff noted the apparent dearth of documents, in particular, the lack of documents going to risk assessment, and was concerned he would be prejudiced if such documents suddenly appeared mid-trial.’^[22]

On the fifth day of the hearing, the plaintiff’s legal team informed the Court that a document of ‘utmost importance’ had just been discovered.^[23]

A defendant witness had given evidence stating that the weight of the boxes on the top shelf would not exceed 2kg. However, the document indicated that the weight could be up to 7kg. This raised the question as to why the document was not discovered earlier. Her Honour commented:

‘It was most unfortunate the task analysis document was only produced so late in the piece. This caused delay and confusion and resulted in the discharge of the jury’.^[24]

This was five days of costs to the Court, the authority and ultimately the plaintiff.

Munro v Peninsula Health (Ruling)^[25]

In this ruling, indemnity costs were awarded against the defendant for four days. The matter commenced on 19 July 2023 and on day four of the trial, the jury was discharged due to late discovery by the defendant of documents of relevance to the central issue in the claim.

The matter was relisted for hearing on 28 August 2023. In his ruling, Pillay J referred to the case of Yara Australia Pty Ltd v Oswal^[26] and the proposition that late discovery of documents without proper explanation may also amount to misconduct in litigation that justifies indemnity cost. In addition, his Honour recognised the defendant’s position as a party that was ‘no stranger to litigation’,^[27] as discussed in the case of National Australia Bank Ltd v Petit-Breuilh (No 2).^[28]

CONCLUSION

Ultimately, it is the responsibility of all litigants to honour their discovery obligations: not just to achieve optimal outcomes for participants, but to ensure consistency and efficiency throughout the judicial process.

Genna Angelowitsch is a Victorian barrister and LIV Accredited Specialist in Personal Injury Law. She appears in cases across the personal injury spectrum, including claims arising from industrial accidents, transport accidents and medical negligence. EMAIL Genna.angelowitsch@vicbar.com.au.

Catherine Sim is a Practice Director at Redlich’s Work Injury Lawyers, and acts for people injured at work, on the road, or in a public place. EMAIL catherine.sim@redlichs.com.au.

^[1] Section 54.

^[2] County Court Civil Procedure Rules 2018 (Vic) and Supreme Court (General Civil Procedure) Rules 2015 (Vic).

^[3] [2011] VSC 401 (Matthews).

^[4] Ibid [28].

^[5] [2021] VSC 728 (Ren).

^[6] Ibid [2].

^[7] Ibid [297].

^[8] Emphasis added.

^[9] Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 8) [2014] VSC 567.

^[10] Mullett v Nixon [2022] VSCA 174, [86].

^[11] Law Institute of Victoria (LIV), Australian Lawyers Alliance (ALA) and Transport Accident Commission (TAC) Transport Accident Act Common Law Protocols, 1 July 2016, ch 7.

^[12] Ibid, cl 15.4.

^[13] [2010] VSCA 144 (Pravidur).

^[14] Ibid [76].

^[15] Ibid [22]–[27].

^[16] R Scott MP, ‘Ministerial Direction: Actions for Damages’ in Victoria Government Gazette, G16, 21 April 2016, 803.

^[17] Ibid, 9.2(d).

^[18] Ibid, 810.

^[19] [2023] VCC 23 (Keely Alister).

^[20] Ibid [215].

^[21] [2022] VCC 1772 (Ly).

^[22] Ibid [36]–[48].

^[23] Ibid [38].

^[24] Ibid [71].

^[25] [2023] VCC 1463 (Munro).

^[26] VSCA 337 (Yara).

^[27] Munro, above note, [6].

^[28] [1999] VSC 395.