Cave v McLeod & Ors [2002] QSC 162

State Reporting Bureau JjzoozJ ©£G I k>2 Queensland Governmen Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. - ■ ■ ■ I l>3.2<3 / 0 «T «T SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J No 28 of 2000 MELISSA JOYCE CAVE Applicant/Plaintiff and BARBARA ANNE McLEOD Respondent/First Defendant and TRANSPORT ACCIDENT COMMISSION Respondent/Second Defendant and MMI GENERAL INSURANCE LIMITED (ACN 000 122 850) Respondent/Third Defendant CAIRNS ..DATE 15/05/2002 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999,and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 4Th Floor. The Law Courts Complex. George Street. Brisbane Ql 4000. Telephone: (07) 3247 4360. Facsimile: (07) 3247 5532 -- 1 of 5 -- 1 HIS HONOUR: This is an application on the part of the plaintiff seeking that the first and second defendants disclose certain documents pursuant to rule 223 of the Uniform Civil Procedure Rules. The application is somewhat unusual, because already there has been correspondence passing between the plaintiff's legal representatives and those of the second defendant, to the effect that these documents do not exist, that the second defendant has no copies and has not ever seen the documents or copies of them. The plaintiff persists in the application because the parties generally are in an unusual situation of not being able to adduce any direct evidence as to how the accident occurred or the relative direction of travel of the respective vehicles. The plaintiff alleged her vehicle was travelling in a northerly direction and that the first defendant's vehicle was travelling in a southerly direction. The defendants have admitted that . the plaintiff's vehicle was travelling in.a northerly direction but do not admit that the first defendant's vehicle was travelling in a southerly direction. The accident itself has been investigated by experts and their conclusion is that the collision was a head-on collision between a vehicle travelling north and a vehicle travelling south. In the light of that admission that the plaintiff's vehicle was travelling north, it might be thought that any further evidence about the direction of travel of the other vehicle is a matter of abundant caution. However, legal representatives are entitled to be concerned when directions 15052002 T9/JFG M/T CNSl/2002 (Jones J) 10 20 30 2 JUDGMENT -- 2 of 5 -- 15052002 T9/JFG M/T CNSl/2002 (Jones J) of travel and circumstances of accident have to be established relying on evidence other than direct evidence of witnesses. The point of the plaintiff1 s quest in seeking these particular documents, is to show facts from which an inference might be drawn that the first defendant's vehicle was travelling in a southerly direction, in circumstances where that fact has not been admitted on the pleading. Although, on one view, it might be seen to be overkill, it does seem to me to be an appropriate line of inquiry for the legal representatives of the plaintiff to take in the circumstances. The position of the second defendant who is obligated by section 44 of the Motor Accident Insurance Act to undertake "control of the legal proceeding", and also to "act for the insured person", means that the task will fall upon it to prepare two further affidavits, it seems to me. Firstly, one by itself to swear to the circumstances set out in correspondence which its solicitors have had with the plaintiff's legal representatives, to the effect that it has not seen and does not have copies of these documents. Secondly, to inquire of, and if necessary prepare an affidavit on the part of the first defendant which might have the same result. The inquiry might alternatively lead to disclosure of some further documents in the classes set out in the application . There is evidence that the first defendant did refer to the keeping of a diary in the course of an interview. The denial 3 JUDGMENT -- 3 of 5 -- 15052002 T9/JFG M/T CNSl/2002 (Jones J) that such a diary has ever existed is somewhat at odds with that statement. The plaintiff is entitled to know whether a diary exists and if so, what its contents are, as, potentially at least, there is the prospect that they may assist the plaintiff in establishing the fact that the first defendant's vehicle was travelling in a southerly direction. I do have a concern that the period over which the documents are sought is rather more broad than would be relevant to the purpose for which the documents should be disclosed and so I propose to reduce the period of relevance of the particular documents to one week prior to the 17th of August 1997. With that exception, I will allow the application. HIS HONOUR: I will therefore order that the first and second defendants disclose to the plaintiff, the following classes of documents: (a) Bank statements, cheque books, financial documents of the first defendant and/or of Robert McLeod deceased, for one week prior to 17 August 1997. (b) Deleted. (c) Receipts and invoices from motels and hotels occupied by the first defendant for one week prior to the 17th of August 1997. 4 JUDGMENT -- 4 of 5 -- 15052002 T9/JFG M/T CNSl/2002 (Jones J) (d) A copy of the first defendant's diary kept for the period of one week prior to 17 August 1997 in accordance with rule 273 of the Uniform Civil Procedure Rules 1999. HIS HONOUR: I order that the second defendant pay the plaintiff's costs of and incidental to the application. I will make orders in terms of the draft initialled by me and placed with the papers. 5 JUDGMENT -- 5 of 5 --