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Accident Compensation Cases

Robinson v Accident Rehabilitation and Compensation Insurance Corporation (No 1) (HC, 04/05/05)

Judgment Text

Cooper J
This matter was set down for an evaluation conference today at which I have dealt with outstanding issues as to discovery and another issue concerning documents alleged to be privileged, which have been raised by Mr Robinson. I have also made appropriate procedural directions to ensure that the matter is ready to be set down for trial. 
There was some initial discussion about whether or not I should proceed to deal with the discovery and privilege issues today, Mr Robinson not having understood that they would be dealt with at this conference. However, in my view it is plain from the minute of the directions made by Associate Judge Faire on 25 May 2004, that those matters would be dealt with at the evaluation conference. They had in fact already been raised in a notice of interlocutory application made by Mr Robinson so long ago as 25 May 2004. 
I can deal with the issue concerning privilege shortly. Part of the interlocutory application made by Mr Robinson sought an order directing that certain documents which had been listed in the defendant's list of documents on discovery should be ruled inadmissible on the grounds of privilege. The documents were referred to by number. 
In his memorandum filed for the purposes of this hearing Mr Tuiqerequere, for the defendant, indicated that with the exception of documents 1.1042 and 1.1093, the defendant accepts that the documents which had been identified at paragraph 4 of Mr Robinson's interlocutory application are indeed privileged. He asserted, however, that documents 1.1042 and 1.1093 were not privileged and opposed Mr Robinson's application on that basis. 
The first of those documents is a letter written by an agent for the defendant, to solicitors then acting for Mr Robinson. It concerned routine procedural matters concerning preparation for a hearing scheduled to commence imminently in the Whangarei District Court. The letter was written on 6 December 2000. There is nothing in it which in my view would make it a privileged document and as I understand it, Mr Robinson now accepts that is the case. 
Insofar as document 1.1093 is concerned, it consists of a number of documents described as “tally dockets” relating to a company in which Mr Robinson is involved. The documents do not fall within any recognised category of privilege and I am satisfied that there is no basis upon which I should make the order sought by Mr Robinson in relation to them either. 
Turning then to the question raised as to discovery, Mr Robinson sought an order that the defendant produce for inspection an application for a search warrant, an affidavit filed in support of that application, job sheets of the defendant before and after the search and seizure of documents, communications to police and other agencies before and after the search and seizure of documents, and other file notes made before and after the search and seizure of documents in relation thereto. 
These documents were said by Mr Robinson to be relevant to one of his causes of action pleaded in the amended statement of claim dated 12 November 2003, but in fact filed on 13 November. One of the causes of action in the amended statement of claim alleges misfeasance against the defendant. One of the particulars given of that claim is that “the defendant conspired and knowingly underpaid the plaintiff”. Other particulars given assert that the defendant failed to have proper regard to Regulation 5 of the Accident Rehabilitation and Compensation Insurance (Earnings Definition) Regulations 1992 and/or failed to apply correct calculation[sic] to the plaintiff's entitlement and earnings deliberately. 
Mr Robinson this morning, has argued that misconduct in relation to the application for, and I think execution of the search warrant, would be relevant to the allegation that the defendant conspired and knowingly underpaid the plaintiff. 
However, there are no allegations which refer to the search warrant in the statement of claim. Further, the events upon which the whole claim is based occurred in 1998, 1999 and 2000. It is within that period that the defendant allegedly entered into an agreement with the plaintiff as to his entitlement to compensation and then subsequently breached it. There is in my view no allegation in the statement of claim which, properly construed, could relate to the application for and issue of the search warrant which occurred in 2001. 
In the circumstances I am not prepared to order that the defendant give the further discovery which Mr Robinson has sought and that part of his application is dismissed. 
There are no other outstanding interlocutory matters so it is now appropriate that procedural directions be made for the trial. Having discussed the position with the parties the following orders are made, largely by agreement: 
The plaintiff is to file and serve signed briefs of the evidence upon which he intends to rely at the hearing within 30 working days of today. 
At the same time as the briefs are served, the plaintiff must serve an index of the documents on which he intends to rely at the hearing. 
Within 20 working days of receipt of the plaintiff's briefs of evidence, the defendant is to serve on Mr Robinson the signed briefs of the witnesses upon whom it intends to rely at the hearing. 
Mr Tuiqereqere, for the purposes of the hearing, is to prepare a bundle of the documents, including those documents referred to in the plaintiff's index earlier received and also those documents upon which the defendant will wish to rely at the hearing. 
Mr Tuiqereqere is to serve an index of the defendant's documents on Mr Robinson within the same 20 working day period already mentioned in paragraph (c). 
I direct the Registrar to set the matter down for hearing at the first available opportunity after a period of 50 working days from today has expired. A fixture of four days should be allowed for, although I note that the parties are hopeful that the matter might be able to be accommodated in a shorter fixture. I provide for four days to avoid any possibility that the matter will need to be adjourned part-heard. 
Mr Robinson is to file and serve a copy of his opening submissions one week before the hearing. 

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