The defendant's position
4The defendant contends that discovery should not be ordered as on its view the pleadings closed in November 2008 so that the plaintiff's application should be rejected as having been made too late. More particularly, the defendant opposes discovery for the following reasons. First, discovery is discretionary. By reason of the lateness of the request, the defendant says that it is oppressive. Secondly, it is said that many of the proposed categories lack an obvious relationship to any fact in issue in the proceedings. The defendant submits that these categories are in the nature of a fishing expedition or go only to the possible issue of the credit of potential witnesses. Thirdly, many of the categories are said to be too wide and are presumably for that reason oppressive. Finally, although the tort sued upon is one of abuse of process, it is said to be so analogous to a claim for personal injuries that discovery should be declined for that reason as well.
5In further elaboration of these contentions the defendant prays in aid the provisions of the Civil Procedure Act 2005 , in particular Part 6 and ss 56 to 59 inclusive. The defendant submitted that having regard to the relatively late stage of the proceedings, it would be inimical to the overriding purpose to order discovery now. The defendant draws attention to the matters listed in s 58(2)(a) and (b) as support for its opposition. Those matters are as follows:
" 58 (2) For the purpose of determining what are the dictates of justice in a particular case, the court :
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."
6The defendant also emphasised s 59 of the Act as requiring proceedings to be conducted in a manner that tends to eliminate delay in getting the matter ready for trial. The precise terms of s 59 are worth noting:
" 59 Elimination of delay
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial."
7The defendant especially observed that the request for discovery came two and a half years after the proceedings had been commenced and after they had been set down for hearing. Significantly, that has to be viewed against a background of events that give rise to the proceedings that are themselves quite old. That last factor would not of itself be fatal to the application but is said to have a greater significance in this case in terms of the practicalities affecting the location, retrieval and production of many of the documents in many of the nominated categories. In this respect the defendant relies upon the evidence of Mr Brumby and his estimates for the time and the effort that he considers will be required, as well as the associated difficulties that the defendant might be expected to encounter, in attempting to comply with an order for discovery in the plaintiff's currently nominated categories.
8The defendant also complains that the categories promoted by the plaintiff lack relevance to any discernible fact in issue. This is said to inform both the question of whether discovery should be granted at all as well as the categories that should be allowed if discovery is ordered. The defendant draws attention to UCPR 21.2 in this context, which is as follows:
" 21.2 Order for discovery
(1) The court may order that party B must give discovery to party A of:
(a) documents within a class or classes specified in the order, or
(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.
(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.
(3) Subject to subrule (2), a class of documents may be specified:
(a) by relevance to one or more facts in issue, or
(b) by description of the nature of the documents and the period within which they were brought into existence, or
(c) in such other manner as the court considers appropriate in the circumstances.
(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue."
9It will be necessary to refer to the proposed categories in at least some detail later in these reasons in order properly to assess this contention.
10It is possible at this stage however to reject the contention that the proceedings are in the nature of a claim for damages for personal injury so that discovery is less likely to be ordered. In such proceedings an order for discovery may not be made unless the court for special reasons orders otherwise. Her Honour Harrison AsJ dealt with this issue in Hamod v State of New South Wales [2007] NSWSC 425 at [4]-[5] as follows:
"[4] The plaintiffs submitted that their claim is not "for damages arising out of...bodily injury". The first defendant submitted that the damages do arise out of bodily injury and even if it does not, there are no special circumstances that warrant the making of an order for discovery. The first plaintiff's claim for damages arises out of malicious prosecution, injurious falsehood, false imprisonment and detinue. The injury to the person that is alleged is a consequential injury flowing from the emotional upset, anxiety and distress caused by the commission of the torts alleged, as was the case in Houda v New South Wales [2005] NSWSC 1053 at [322] - [368]. In my view, the plaintiff's claim is not one which arises entirely out of bodily injury.
[5] Even if I am wrong, it is my view that special reasons exist for discovery (see Priest v New South Wales [2006] NSWSC 12). They are that firstly, the first plaintiff's case arises in extraordinary circumstances and falls outside the normal range of personal injury cases; secondly, that primary claim of the first plaintiff is for economic loss occasioned by reason of the intentional acts of the first defendant; thirdly, the very nature of the cause of action malicious prosecution is such that discovery is necessary in the interests of a fair trial. A central element of the cause of action is the absence of reasonable and probable cause. A determination of the presence or absence of reasonable and probable cause is based on the state of knowledge of prosecutors at the time of prosecution; fourthly, such state of knowledge includes information and documentation in the prosecutors possession at the time of prosecution, not merely the brief of evidence provided to the first plaintiff in the Local Court."
11There does not seem to me to be any reason in this case not to adopt and to apply the same approach as that exposed in this extract from her Honour's reasons for judgment. I would not decline to order discovery in the present case based upon the defendant's argument in this respect. Moreover, the very nature of the proceedings makes discovery more important and more likely than otherwise.
12However, the defendant raises a matter of considerably more importance in the following way. The Court of Criminal Appeal earlier remitted certain matters to Acting Judge Davidson pursuant to s 12(2) of the Criminal Appeal Act 1912 . The plaintiff was represented in those proceedings in the course of which large amounts of material relating to the original charges against the plaintiff and her subsequent trial were made available. This included large amounts of material that was said to be fresh. The defendant contended on this application that the plaintiff has in these circumstances had available to her, albeit in a different context, significant material that might not otherwise be available to a plaintiff in similar circumstances. The defendant argued, therefore, that the need for discovery had to be assessed in the light of that fact and having regard to the dilution or removal of the advantage that a defendant in proceedings alleging malicious prosecution might ordinarily be expected to enjoy. The defendant contended that the plaintiff has in effect been an active party to separate proceedings that examined the material upon which the defendant's decision to prosecute was based. This was said to be a matter of some weight on the exercise of the discretion to grant or to refuse an order for discovery.
13When the application was before Harrison AsJ, her Honour marked the list of the 56 categories of discovery for which the plaintiff contends as Exhibit "A". A copy of that exhibit is appended to these reasons. The defendant's particular objections to these categories are dealt with and explained in the defendant's written submissions as follows.
Categories 1 and 2
14The plaintiff alleges that the conduct of Peter Thomas in investigating the plaintiff for arson in 1983 is relevant to the question of malice. However, the defendant contends that what the plaintiff seeks in these categories goes far beyond that purpose. The details sought might conceivably be relevant and proper for discovery were the arson investigation itself the subject of a suit for malicious prosecution. The defendant asserts that it is not. Any alleged absence of reasonable and probable cause for that prosecution is not in itself a fact in issue in the proceedings.
Categories 3, 46 , 47, 54-56
15These documents seek material that will clearly be privileged under either s 170 of the Police Act 1990 or the earlier s 59 of the Police Regulation (Allegations of Misconduct) Act 1978 as amended from time to time. The defendant contends that in those circumstances it would be futile to order that discovery be given, and that notwithstanding the remarks of the court in R v Saleam (1989) 16 NSWLR 14 , the position should now be seen as different given the terms of UCPR 21 and Part 6 of the Civil Procedure Act . Further, the defendant submitted that these categories are drawn far too widely for the purpose stated. In particular, the relevance of complaints made by the plaintiff with respect to James Henry Morris is questionable, where it is not pleaded that he was a prosecutor for the purposes of the allegation of malicious prosecution. The entire personnel file, without limitation as to subject matter , is sought for Messrs Thomas, Paget and Morris. The defendant submitted that such an approach is contrary to UCPR 21.2(2).
Category 4
16The plaintiff has stated the basis for seeking this material in the letter of 24 May 2011, which is annexed to the affidavit of Mr Goldberg sworn 24 May 2011. That includes, among other things, references to sub-paragraphs 99(a) and (e) of the amended statement of claim. The defendant contends that allegations of intimidation of Shane Golds, Greg Baggs and Bill Ferguson can have nothing to do with material stated by Adrian Newell with respect to six other named people.
Category 5
17While the plaintiff alleges in paragraph 55 of the amended statement of claim that there was such a charge and sentencing proceeding, the defendant says that it is not clear to what issue that goes in the proceedings. Paragraph 55 is included in a section under the heading "The Marriage of the Plaintiff and Barry Catt". The pleaded matters appear to be included merely by way of background. The events of 19 August 1988 are not otherwise referred to in the pleadings and do not apparently go to any element of the tort of malicious prosecution or fact in issue in the proceedings.
Category 6
18This category is stated very broadly, and in effect seeks every document relating to the investigation and prosecution of Barry Catt. The category is apparently sought to support allegations of malice by Peter Thomas. According to the defendant, the documents asked for go far beyond anything that could relevantly bear on the question of Thomas's malice. What is sought is in effect every document relating to an investigation into a non-party (who is not pleaded to be a prosecutor for the purposes of malicious prosecution). That non-party was acquitted by a jury at his trial. The category is not in terms limited by anything to do with Peter Thomas or Carl Paget, who are said to have been the plaintiff's prosecutors.
Category 8
19This category is apparently justified by reference to the pleaded malice of Peter Thomas at paragraph 74 of the amended statement of claim. It is alleged that Thomas investigated the private prosecution and the conduct of the officers of FACS. That paragraph is to be found under the heading "Commencement of Thomas' investigation into the Plaintiff". The defendant contended that no more than the fact of that investigation could be relevant (if indeed there was such an investigation), and certainly not every detail of it. The category is in broader terms than should be permitted, even if it is accepted that the documents sought are relevant to a fact in issue in the proceedings.
Category 11
20The defendant does not accept that the question of whether there was any third party permission or authority for Peter Thomas to use premises belonging to Adrian Newell is relevant to a fact in issue in the proceedings.
Category 12
21Similarly, the defendant does not accept that the question of whether there was any third party permission or authority for Peter Thomas or Adrian Newell to perform investigative tasks is relevant to a fact in issue in the proceedings.
Category 13
22Nor is it accepted by the defendant that the question of whether there was any third party permission or authority for Peter Thomas to request analytical testing is relevant to a fact in issue in the proceedings.
Category 14
23The defendant does not accept that all documents relating to chain of custody of certain samples are relevant to a fact in issue in the proceedings.
Category 15
24The defendant does not accept that the fact of investigation of James Morris is capable of being relevant to any fact in issue in the proceedings. Further, the documents sought appear to require discovery of police investigation documents with respect to Mr Morris, whereas what is pleaded at paragraph 89(k) refers to an investigation by FACS (and not by the police). There is no pleaded allegation that Thomas knew of that investigation, or that if he knew, it should have had or did in fact have an impact upon his decision to prosecute the plaintiff. On the contrary, given what is pleaded about the relationship between Mr Thomas and FACS, the defendant contended that it is counter-intuitive to suggest that Thomas would have been aware of an investigation by FACS (at least in terms of the plaintiff's case).
Category 16
25The defendant perceives that the plaintiff puts in issue Mr Thomas continuing as an investigator after 22 November 1989. It is not pleaded that he ought not to have been an investigator prior to that point. The proposed category seeks documents that pre-date 22 November 1989.
Categories 17-23
26These categories relate to the searches that took place on 24 August 1989. Apart from the general oppression of a late request for discovery in a large number of categories, the details of the search were dealt with in detail on referral before Acting Judge Davidson. The plaintiff was represented at those proceedings. Further, to the extent the material sought constitutes things that were part of the original Crown brief or exhibits at the 1991 trial, these have already been the subject of a notice to produce issued by the plaintiff to the defendant on 6 January 2011 (and forming annexure "A" to the affidavit of Lynley Tretheway affirmed 24 May 2011, part of the reply to which forms annexure "B" to that same affidavit). The plaintiff seeks discovery in terms that duplicate a notice to produce already served in the proceedings. The defendant submitted that it should not be permitted.
Categories 24, 25, 27 and 29
27The defendant disputes the relevance to a fact in issue in the proceedings of any material relating to Detective Boyd-Skinner in the context of these categories.
Category 37
28This category seeks documents relating to an alleged decision not to test certain tablets found in the course of the execution of a search warrant. It is said by the plaintiff to be relevant to the pleaded lack of reasonable and probable cause with respect to count 5. In support of this category the plaintiff points to sub-paragraphs 88(w) and (x) of the amended statement of claim, which deal with a failure to have the tablets tested, and the allegation of a "plant" of certain substances by Mr Thomas and/or Mr Paget. Both are said to be relevant to an absence of reasonable and probable cause. It is unclear to the defendant how the failure to have tested things found on a search could be said to be demonstrative of an absence of reasonable and probable cause, or how that failure could be said to have anything to do with an alleged "plant" of evidence at all.
Categories 44-45
29These have already been made the subject of a notice to produce to the defendant by the plaintiff.
Categories 50-52
30The defendant contended that these categories are far too broad, both in respect of their subject matter and the period to which they are said to relate. The policy documents sought, to the extent that they are relevant at all, are only capable of being relevant up to a period concluding just after the arrest and charge of the plaintiff on 24 August 1989, but not until 18 October 1991 when Mathews J sentenced the plaintiff.
Category 53
31According to the defendant, this proposed category is a blatant attempt to obtain material going to the general credit of the people named, as opposed to some particular point of credibility that might bear some relevance to the proceedings. It constitutes a fishing expedition. So much is said to be clear from the fact that the criminal records sought are not limited as to time or subject matter.