"AZ" v "DQ" as Legal Personal Representative of the Estate of the late "PC" deceased & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20013 of 2002 "AZ" v "DQ" as Legal Personal Representative of the Estate of the late "PC" deceased & Anor

JUDGMENT 1 MASTER: These proceedings were commenced by Statement of Claim filed on 15 January 2002. The plaintiff claims damages arising out of alleged sexual assault by a teacher when he was a pupil at Sydney Boys High School during the period from February 1963 to November 1968. It is alleged that the assaults took place between about November 1964 and November 1968. 2 The court has been informed that back in February 2003, a change was brought about to the relevant law by reason of the High Court decision in New South Wales v Lepore (2003) 77 ALJR 558. 3 It is said that it is now essential for the plaintiff to demonstrate fault on the part of the school arising from prior complaint which put the school on notice. 4 On 27 May 2002, the plaintiff filed an Amended Statement of Claim. It is now the process relied on. 5 On 6 June 2003, the plaintiff filed a Notice of Motion seeking inter alia that he be granted leave to administer a Notice To Answer Interrogatories to the second defendant in the form thereto attached. Attached to the Notice of Motion is a document entitled Notice To Answer Interrogatories. The interrogatories are as follows:- "1. During the entire period of employment of 'PC' as a teacher with the NSW Department of Education, was any complaint, report or statement made to the said Department or any teacher or employee of the Department by any person as to possible or actual improper sexual behaviour by 'PC' in relation to children? 2. If the answer to 1 above is yes: (a) provide particulars of the substance of any such complaint, report or statement, including the approximate date thereof; (b) identify who made each such complaint, report or statement; (c) identify to whom each such complaint, report or statement was made; (d) if any such complaint, report or statement was in writing or referred to in writing, provide a copy thereof; (e) what action, if any, was taken in relation to 'PC' as a result of such complaint, report or statement?" 6 The Notice of Motion came before Assistant Registrar Howe. He dismissed the Notice of Motion. He delivered written reasons for his decision on 25 August 2003. 7 On 22 September 2003, the plaintiff filed a further Notice of Motion. In substance, it seeks to have the orders made by the Registrar set aside. The application was brought by way of review of that decision. 8 A review is to be distinguished from a fresh application. Primarily, a review involves the court in having another look at the decision of the Registrar (Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd BC9203284 - NSWSC - 18 December 1992). 9 The review was undertaken on 20 November 2003. At the outset, counsel for the plaintiff conceded that the interrogatories sought before the Registrar were too wide and said that the plaintiff was now seeking answers only for the period from 1962 to 1968. This brings about a change in the nature of the application now before the court. Strictly speaking, the court was no longer being asked to review the decision of the Registrar, it was being asked to determine a fresh application involving a different question. Such an application could have been pursued before the Registrar. 10 The administration of interrogatories is governed by the provisions of Pt 24 of the Supreme Court Rules 1970. Rule 1 enables interrogatories to be sought by notice. This procedure does not involve application to the court. Rule 5 subrule (1) enables the court, at any stage of the proceedings, to order a party to serve a statement in the prescribed form in answer to interrogatories specified or referred to in the order. Part 24 does not confer a power to grant leave to administer interrogatories. 11 Rule 5 contains inter alia the following: "………………….. (2) The Court shall not make an order under subrule (1) unless satisfied that the order is necessary at the time when the order is made." 12 The effect of subrule (2) is to impose a prohibition on the court. It is not to make an order unless it is satisfied that the order is necessary at the time when the order is made. The prohibition is sometimes referred to as a threshold requirement. When it is satisfied, the court is empowered to exercise the discretionary power conferred by subrule (1). 13 Reference has been made to the old decision of Boyle v Downs [1979] 1 NSWLR 192. Until it was exhumed in more recent times by Yamazaki v Mustaca [1999] NSWSC 1083, it had been hoped that the approach taken in that case had been quietly put to rest. The court had been following an approach which gave "necessary" its natural or literal meaning and treated what was necessary as being a question of fact to be determined on a case by case basis. 14 In Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252, I once again raised the question of the flaws in the Boyle approach and to some of the problems thrown up by adopting it. In a sense, its approach may be seen as restrictive when it is compared with the giving of subrule (2) its natural and literal meaning. 15 For present purposes, that matter need not be further pursued. This application can be determined without that being done. 16 It suffices to say that an order must be necessary at the time when the order is made. The intent of the rule is to make that temporal factor a specific requirement. 17 I now turn to some of the factual background. The teacher died before the commencement of the proceedings (the court was told that he committed suicide in 2000). There were criminal proceedings brought against him in 1999 and 2000 involving the plaintiff and others. The last alleged assault took place about 35 years ago and the alleged assaults commenced about 4 years earlier. The plaintiff's claim is not maintainable unless he is successful in obtaining an order extending the relevant limitation period. Such an application is yet to be brought on for hearing (although it was commenced on 8 October 2002). Some interlocutory processes have been explored. Documentation has been produced by the second defendant. It has been described as being a large volume of documents. In respect of documentation produced relating to students, the name of the student has been obliterated. In respect of documentation produced in relation to other persons, the names are available to the plaintiff. Counsel for the plaintiff says that the documentation does not provide evidence of prior complaint. It is said that for this reason the application to administer interrogatories is pressed. 18 The Registrar came to the view that the threshold requirement had not been satisfied. One of the matters that he took into account was that the application was premature. He saw the first question being couched in wide terms. 19 Generally speaking, where the statutory defence is relied on, it could be expected that a plaintiff would first seek an extension of the limitation period and later look at the question of interrogatories. Until the extension is granted, the plaintiff does not have a viable cause of action and the proceedings are statute barred. In such circumstances, it could be said that it would be futile to allow the plaintiff to administer interrogatories. It would merely put the defendant to unnecessary cost and expense. Usually, interrogatories are only sought after the pleadings have closed. 20 In contrast to rule 5, rule 1 enables interrogatories to be sought by notice only after the pleadings are closed. In this case, the defendants are yet to file a defence. Until issue has been joined, the issues between the parties will not be defined. 21 In opposing the application, the second defendant relies on the threshold requirement and a number of discretionary grounds. 22 It is said that the application involves a fishing expedition. It is said that it is oppressive. It is said that the plaintiff has available avenues of inquiry which may produce the evidence required by the plaintiff. 23 The plaintiff says that the application is not premature, because it requires what may be adduced from the administering of interrogatories as evidence in the extension application, as the viability of the cause of action may be put in issue. 24 What is proposed involves a novel use of the interrogatory processes. The question of whether or not they were intended to be used for such a purpose can be put aside as it has not been argued. 25 The material gives me the impression that what is now being argued by the plaintiff may be somewhat different from what was put to the Registrar. However, for present purposes, I shall also put that matter aside. 26 It seems to me that this application involves the plaintiff in engaging in a fishing expedition. The answers are being sought in an endeavour to obtain some evidence to enable him to demonstrate that he has an arguable case. He is trawling for that purpose. At the moment, it appears that he does not have any evidence of prior complaint. It is said that if he does not obtain that evidence, he may not proceed with the extension application. 27 The last alleged assault took place about 35 years ago. What is presently sought involves a period of about 6 years. Whatever be the period, the interrogatories would require inter alia inquiry of every teacher of the school and of every employee of the Department during that period concerning any complaint, report or statement and the providing of the material and information required to answer interrogatory No. 2. 28 The task of now locating the relevant persons may be one of great difficulty. It would certainly be one which involved significant effort and expense. 29 It seems to me that the answering of these interrogatories imposes an unduly burdensome task. I consider that the interrogatories are oppressive. 30 There are other avenues of inquiry that may be open to the plaintiff. He can make his own inquiry of the persons named in the large volume of documentation that has already been produced. It may be that the obliteration of the names involved non-compliance with subpoenas. What was done seems to have been the product of arrangement between parties. It may be open to the plaintiff to make further application in relation to compliance with these subpoenas. An application without notice for an order to address these questions was either made or foreshadowed in the course of the review. I took the view that the court should not entertain such an application concerning other interlocutory processes whilst it was engaged in a review concerning interrogatories. It is a matter that can be pursued elsewhere by way of fresh application. The criminal proceedings are relevantly recent in time. They involved 67 offences concerning other students who had attended the school between 1964 and 1998. It could be expected that at least some of these students may be known to the plaintiff and that he could make his own inquiry of them. 31 The discretionary power to make an order is exercised having regard to the particular circumstances of the case before the court and so that justice is best served. The plaintiff bears the onus of persuading the court that an order should be made. 32 In the circumstances of this case, assuming that the threshold requirement had been satisfied, I would not have been satisfied that an order to the effect of the relief sought should be made pursuant to rule 5. 33 But leaving those discretionary considerations aside, I do not consider that the threshold requirement has been satisfied. I am not satisfied that an order is necessary in the relevant sense at this time (whichever approach is taken). 34 It may be added that in the circumstances of this case the taking of the Boyle approach makes the plaintiff's task more difficult. It restricts the exercise of the power to what is reasonably necessary for the disposing fairly of the case. It would be premature for the plaintiff to be seeking answers for future use in preparation for and in the conduct of a trial. It is not a necessity at this time. Presently, he does not even have a maintainable cause of action. He wants the answers now so that he has evidence to prosecute an extension of limitation period application. 35 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion.

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