Binks v North Sydney Council & Anor

Bob Maitland Pty Ltd formerly known as A G Maitland Pty Ltd (Second Defendant) JUDGMENT OF : Master Harrison

Mr R Weaver (Plaintiff) COUNSEL : Mr J Gruzman (Defendants) T D Kelly & Co (Plaintiff) SOLICITORS : Curwood & Partners (Defendants) CATCHWORDS : Discovery LEGISLATION CITED : Supreme Court Rules - Pt 23 r 5 Mulley v Manifold (1959) 103 CLR 341 CASES CITED : Stavert v Stavert & Anor (NSWSC unreported 30 July 1998, Master Malpass) Boscolo v Secretary, Department of Social Security [1999] FCA 106 DECISION : (1) Orders in accordance with paragraph (1) of the notice of motion filed 14 November 2000. Paragraph 1(a) is to date from 1 January 1994; (2) Costs are costs in the cause; (3) Paragraph (2) of the notice of motion is stood over generally with liberty to restore on 7 days notice.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21088/96 - SIMON JOHN BINKS v NORTH SYDNEY COUNCIL & ANOR

1 MASTER: By notice of motion filed 14 November 2000 the plaintiff seeks an order that the defendants give general discovery verified by affidavit pursuant to Part 23 r 5 of the Supreme Court Rules (SCR) and without limiting the generality give discovery verified by affidavit on the following: "(a) All or any documents, records, reports, plans including Traffic Control Plans, memoranda, maps, drawings, photographs or copies thereof relating to and/or developed for the management of traffic at the work site for the construction of a roundabout and associated roadworks at or near the intersection of Alfred Street South and Fitzroy Streets North Sydney in the State of New South Wales created up to and including 31 December 1995 which are or have been in the possession custody or power for the First Defendant and/or the Second Defendant. (b) All and any records, correspondence, documents or the like or copies thereof relating to the project manager(s) appointed from time to time to manage the construction of a roundabout and associated roadworks at or near the intersection of Alfred Street South and Fitzroy Streets North Sydney in the State of New South Wales or passing to or from such project manager and the First Defendant and/or the Second Defendant and created up to and including 31 December 1995 which are or have been in the possession custody or power of the first defendant and/or Second Defendant. (c) All and any records, correspondence, memoranda, documents or the like or copies thereof relating to the contractual and/or professional arrangements in existence between the First Defendant and the Second Defendant as at the year 1995 in relation to road and/or roundabout construction works at or near the intersection of Alfred Street South and Fitzroy Streets North Sydney in the State of New South Wales created up to and including 31 December 1995 which are or have been in the custody possession or power of the First Defendant and/or Second Defendant." 2 The plaintiff has not as yet prepared a list of questions. Paragraph 2 of the notice of motion seeking leave to administer interrogatories is stood over generally with liberty to restore on 7 days notice. The plaintiff relied on the affidavits of Mary Grieve sworn 14 November 2000 and 9 January 2001. 3 The plaintiff has suffered brain damage allegedly as a result of the accident. He has no memory of the circumstances surrounding the accident and the accident itself. The plaintiff alleges that on 20 July 1995 at 12.55 am, he was driving a motor vehicle south along Alfred Street South at North Sydney. He had reached the intersection of Fitzroy Street. Upon reaching that round about, the plaintiff drove his vehicle to the right. His motor vehicle left the road on Alfred Street and struck a telegraph pole. At the time it is alleged that the first and second defendant were the occupiers, and had the care, control and management of the roadway and intersection known as Alfred Street South and Fitzroy Streets at North Sydney in the State of New South Wales and upon that intersection were in the process of constructing a roundabout (the works). The second defendant was the project manager. 4 The particulars of negligence of the defendants are set out in paragraph 6 of the amended statement of claim. They are firstly, failure to warn persons such as the plaintiff driving south along Alfred Street that works existed at the corner of Fitzroy Street; secondly, failure to properly light the works or at all; thirdly, failure to properly light the roadway at the intersection so that the works could be seen and negotiated safely; fourthly, failure to sign post the works either adequately or at all so that persons such as the plaintiff driving on the road would be able to negotiate the works in a safe manner; fifthly, failure to place a sign marked "CHANGED TRAFFIC CONDITIONS AHEAD" in place where it could be seen by motorists such as the plaintiff driving south along Alfred Street; sixthly, failure to light a "KEEP LEFT" sign placed upon the front of the works so that it could be seen by motorists such as the plaintiff; seventhly, failure to ensure that the intersection was left in a safe condition; and eighthly, failure to ensure that construction of the intersection was carried out in a safe manner.

The law 5 Part 23 r 5 SCR states: "Personal injury claims 5. Rule 2(1)(b) and rule 3 shall not apply to proceedings on a common law claim for damages arising out of the death of, or bodily injury to, any person or for contribution in respect of damages so arising, unless the Court, for special reasons, otherwise orders." 6 Discovery is a procedure directed towards obtaining a proper examination and determination of the issues - not towards assisting a party upon a fishing expedition. Only documents which relate in some way to a matter in issue are discoverable, but it is sufficient if it or they would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary. (see Mulley v Manifold (1959) 103 CLR 341 at 343. 7 As was stated by Master Malpass in Stavert v Stavert & Anor (NSWSC unreported, 30 July 1998), the aim of the present Part 23 is to establish a regime whereby, in the case of personal injury claims, r 3 does not apply "unless the court, for special reasons, otherwise orders" In the case of a personal injury claim the applicant for discovery must first obtain an "otherwise order". An otherwise order cannot be made unless there are special reasons. If the Court makes an "otherwise order", it then has jurisdiction to exercise the discretionary power to make an order for discovery. However, the onus rests with the applicant to demonstrate an entitlement to both an otherwise order and an order for discovery. The proper construction of r 5 has been relatively untrammelled by authority to date. 8 "Special" is relevantly defined in the Shorter Oxford English Dictionary on Historical Principles (Vol 11, Clarendon Press Oxford) as: "A. adj. 1. Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree. 2. Of friends: Admitted to particular intimacy; held in particular esteem ME. 3. Marked off from others of the kind by some distinguishing qualities or features; having a distinct or individual character; also, in weakened sense, particular, certain ME. B. Additional to the usual or ordinary 1840. …" 9 In Boscolo v Secretary, Department of Social Security [1999] FCA 106 at 531, French J referred to other court decisions which have defined the word "special". French J stated: "The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is " ... sufficiently understood not to require judicial gloss": Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be "special" in relation to animals generally but " ... when you are speaking of poets, he may need to be a Milton": Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12 FCR 187; 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle at 228. Circumstances or reasons will not necessarily fall outside the designation of "special" because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; Jarlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245 at 261-262; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322. " 10 "Special" can be said to be exceptional, has a distinct, individual or instrumental character. "Special" indicates to the decision maker that the discretion is one which is not lightly enlivened. However "special reasons" is an elastic instruction suitable for application across a range of situations. 11 In 1997 the plaintiff issued a subpoena to the first defendant seeking all contracts, documents, plans, diagrams, agreements, records, writings, plans and correspondence relating to road works being at, on and about the intersection of Fitzroy Street and Alfred Street at North Sydney, which construction took place on, before and after July 1995. It appears that some but not all relevant documents were produced by the Council in answer to the subpoena. On 17 June 1998, Mr Grant Johnston, a consulting engineer of Jamieson Foley and Associates Pty Limited wrote: "… I confirm that I have now had the opportunity to review the material provided and am in the process of preparing a preliminary report. In order to take this investigation any further we require a number of documents presumably held by the company constructing the subject roundabout and/or North Sydney Council as the approving and supervising body. These documents relate mainly to any Traffic Control Plans (TCP's) developed for the management of traffic at this work site. This should include multiple plans to cover the various stages of the construction process and also specific plans for the various construction activities. The Australian Standard AS 1742 Part 3 of the RTA Guide to Traffic Control at Work Sites provide a number of plans developed for use in specific circumstances. These plans do not however incorporate the specific needs of this particular location or construction activities. It is therefore incumbent on the project manager to develop an appropriate set of specific TCP's. I therefore seek access to this set of TCP's.

We also require information in relation to when the various TCP's which were actually implemented at the work site in particular the timing of schemes immediately before and at the time of the subject incident. This includes those plans used for both daytime construction activities and nighttime guidance. We are particular (sic) interested in any TCP's for construction activities which necessitated southbound vehicles (i.e. heading towards the Harbour) travelling onto the incorrect side of the roadway or to the right of the construction fencing evident at the time of the subject incident. We presume from the nature of the construction that it would have been necessary at various times for excavation or construction of the central island and eastern kerb extensions. This would obviously have occurred under flagman control. We need to determine the nature and location of signposting utilised on these occasions and the actual timing of when vehicles were required to undertake this action, particular (sic) shortly prior to the subject incident. If you could obtain these documents we will proceed to finalise a report in respect of this incident. In the interim I will proceed with a draft advice on the basis of the limited information available." 12 Further on 22 January 2001, Mr Johnson now of Simulation Graphics Pty Limited confirmed that although he had inspected the documents produced on subpoena by North Sydney Council he was still unable to proceed in the most rational manner on this matter as various documents he required had not been provided by the constructing agent. Mr Johnston listed the documents he required some of which were mentioned in his prior letter. He specified further documents that he required in order to prepare the report. 13 Hence the documents produced on subpoena by the first defendant do not permit the plaintiff's expert to prepare a report. The complaints above form the basis of the specific documents requested by the plaintiff to be discovered. 14 The second defendant submitted that the plaintiff has not satisfied the test of "special circumstances". According to the defendants there may be other sources of information namely eye witnesses to the accident, ambulance and police officers. There is no evidence to suggest they have been approached to provide information and in this regard the onus is on the plaintiff. While this information would no doubt be of assistance, it would not establish which defendant had the responsibility for signage and the types of signs that should have been used and the like, and who had overall responsibility. The second defendant also submitted that the proper approach would be for the plaintiff to issue a subpoena addressed to it. Further, the second defendant submitted if special circumstances exist, paragraphs (b) and (c) are irrelevant to the issues in this case and constitute an exercise in fishing. 15 The information sought by the plaintiff is within the particular knowledge of the first and second defendants This case is one of negligent construction of a roundabout not merely whether one driver of a motor vehicle disobeyed the road rules and was negligent. The plaintiff has no memory of the accident. The documents produced under subpoena addressed to the first defendant are insufficient and/or incomplete. It may be that the Council no longer retains those documents. The information required is specifically within the knowledge of the defendants. The documents sought are relevant in that they would lead to a train of enquiry which would either advance the plaintiff's case or damage the defendants' case. It is my view that the case can be considered out of the ordinary. It has a distinct character which fits within the elastic construction. The plaintiff is entitled to specific discovery. Paragraph (a) of the notice of motion should be limited to the period from 1 January 1994. I make orders in accordance with paragraphs (1)(a) as amended, 1(b), and 1(c) of the notice of motion field 14 November 2000. 16 Costs are discretionary. The appropriate order is that costs be costs in the cause. 17 the orders I make are:

(1) Orders in accordance with paragraph (1) of the notice of motion filed 14 November 2000. Paragraph 1(a) is to date from 1 January 1994.

(3) Paragraph (2) of the notice of motion is stood over generally with liberty to restore on 7 days notice. **********

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