Brydon v Australian Rail Track Corporation Ltd

Issues for determination 8Mr D J Hooke SC with Mr J Wynyard appeared for the plaintiff and Ms K Dawson for the defendant. The issues for decision are: (1)Whether preliminary discovery is available given the plaintiff has filed a statement of claim against ARTC; (2)Whether the plaintiff's application is bad and should be rejected because it "seeks to blend the requirements" of Rules 5.2 and 5.3 "impermissibly": Lynx Engineering Consultants Pty Ltd v ANI Corporation Limited (No 2) [207] FCA 1510; 163 FCR 372; Cape Australia Holding Pty Ltd v Iannello [2000] FCA 709 at [64]; E D Oates Pty Ltd v Edgar Edomonson Imports Pty Ltd [2012] FCA 607 at [19]; Each rule does different work and their individual functions are to be distinguished; (3)If the plaintiff overcomes these preliminary objections, whether the application should be rejected because the plaintiff has not demonstrated reasonable previous inquiries; (4)To the extent to which relief is sought under Rule 5.2, whether the evidence identifies a cause of action; (5)Whether the categories of documents sought "are impermissibly broad".

(1) Is preliminary discovery available where the Plaintiff files but does not serve a Statement of Claim? 9In oral argument Ms Dawson of counsel raised the point that the application must fail as rr 5.2 and 5.3 provide for preliminary discovery for the purpose of "commencing proceedings". The filing of the statement of claim having "commenced" proceedings as per the rules the applicant must be precluded from any process of preliminary discovery. 10In reply Mr Hooke SC submitted that this issue was not fatal to the application as the statement of claim has not been served. He argued service was an integral part of the commencement of proceedings. The step of filing but not serving the statement of claim was taken to protect the plaintiff's action from becoming statute barred. 11I interpolate that this is an understandable approach. With time expiring hard choices were called for from the plaintiff's legal advisors. There may, however, be a tension between that approach and s 347 of the Legal Profession Act 2004 (NSW) which requires a practitioner to certify the claim has reasonable prospects of success. This is an issue I need not decide. 12I return to the question whether a statement of claim filed but not served prevents a party seeking preliminary discovery. Survival & Industrial Equipment (Newcastle) Pty Ltd t/as SIE Liferaft Service v Owners of the Vessel 'Alley Cat' (1992) 36 FCR 129 concerns admiralty proceedings in rem. The plaintiffs could not identify the ship owners but admiralty practice permits such proceedings to be commenced against the owners without naming them. A writ was filed but not served. Sheppard J said at 136: ... the proceeding has been commenced and regularly commenced. In my opinion once that has occurred, the rule ceases to be applicable. (My emphasis) 13Sheppard J was dealing with the equivalent Federal Court rule but his Honour's reasoning, in my judgment, is equally applicable to rr 5.2 and 5.3. The question therefore becomes have the proceedings been regularly commenced? The answer lies in the requirements of the rules. 14Rule 6.2 materially provides that: (1) Subject to these rules, the practice notes and any other rules of court, a person may commence proceedings in the court by filing a statement of claim or a summons. (2) Subject to these rules, the practice notes and any other Act or law, the plaintiff may choose whether to commence proceedings by statement of claim or by summons. (3) Originating process must be served on each defendant. The rules allow for an originating process to be validly served up to six months after it is filed. 15Can the proceedings be taken to have commenced before the mandatory step of service has been taken? It is apparent that under the modern rules service is mandatory although it need not be immediate. This may suggest that the requirement of service is part of the process of commencement. Proceedings based on unserved process are inherently bad: Cameron v Cole (1944) 68 CLR 571. 16Further support for Mr Hooke's argument may be derived from the reasoning of Barrett J (as his honour then was) in Onefone Australia Pty Ltd v Onetel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320 at [10]: Unless and until a filed process is served, the defendant has not been drawn into the proceeding. 17However his Honour was dealing with a different part of the rules, and addressing a different issue. Nothing in this dictum detracts from the hard nub of reality presented by the language of r 6.2(1): a person may commence proceedings in the court by filing originating process. Proceedings were commenced, "and regularly commenced", against the defendant when the plaintiff filed the statement of claim, notwithstanding the step was taken expediently in circumstances of uncertainty, and service has not occurred. 18To the extent that the defendant is the person whom the plaintiff desires to bring proceedings against, or has been unable to obtain information to make a decision to bring proceedings relief is no longer available under rr 5.2 and 5.3. But the plaintiff is not denied relief under r 5.2, if its preconditions are otherwise satisfied, to the extent to which the person or persons who may be legally responsible for his injuries and whom he wishes to sue is a person, or are persons, other than ARTC. As I have said potential defendants fall into more than one category, none of which need necessarily be filled by the defendant.

(2) Have the two rules been impermissibly blended? 19Strictly this issue may no longer be in play. For the reasons I have given so far only r 5.2 may apply. Other than ARTC, no potential defendant has been identified and accordingly r 5.3 is not in play. But in deference to counsel's argument I will address the issue. 20The circumstances in which the two rules operate are to be distinguished. Rule 5.3 provides for preliminary discovery to be given to assist a party to determine whether to commence a proceeding on the basis that the applicant may have a right to obtain relief against an identified party. Conversely r 5.2 is enlivened in circumstances where a cause of action has been identified but proceedings cannot be commenced until the identity of the defendant is ascertained. Rule 5.2 is correspondingly limited to discovery revealing identity as defined by r 5.1: Cape Australia Holdings Pty Ltd v Iannello [2009] FCA 709 at [64]; Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd (No 2) [2007] FCA 1510; (2007) 163 FCR 372 at [26], albeit in the context of the equivalent Federal Court Rules. 21Rule 5.3 provides a wider scope for preliminary discovery, allowing an applicant to obtain documents which go to the question of whether it can obtain relief against an identified prospective defendant for the purpose of deciding whether or not to commence proceedings. 22The case law makes it clear that it is impermissible to blend the two rules: ED Oates Pty Ltd v Edgar Edomonson Imports Pty Ltd [2012] FCA 607 at [19]. Each rule is enlivened by separate criteria. To put it simply an applicant who has not identified a defendant cannot engage r 5.3. Similarly an applicant with no identified cause of action cannot engage 5.2. 23The defendant in detailed written submissions argued that the plaintiff's attempted engagement of both rr 5.2 and 5.3 was impermissible. This revealed an inability to engage the distinct requirements of either rule separately. I do not accept this argument is correct. The effect of the application is not a blending of the rules. The oral argument and documentary evidence led before me by the plaintiff made clear the purpose of the discovery and allowed for the proposed orders to be separated so as to not engage in any impermissible blending. 24The plaintiff engages r 5.2 to ascertain the identity of the persons in occupation of the service road, responsible for the maintenance of it and who decommissioned, or demolished, the railway bridge. The defendant may not, as I have said, fill any of these categories. This is a legitimate use of r 5.2. 25It follows that any attempt to seek discovery of documents pursuant to r 5.3 in relation to such persons whose identity is yet to be determined would be impermissible. 26The plaintiff by his inquiries has obtained evidence that the defendant has operation and control of the active railway line (essentially this comes from information published on its website); it would have been entirely permissible, therefore, for him to seek discovery pursuant to r 5.3 (provided he satisfies the other requirements of the rule) in order to decide whether to commence proceedings against ARTC or not. The commencement of the proceedings deprives him of that opportunity. He may yet choose to seek discovery after service.

(3) Have there been reasonable inquiries? 27The defendant submitted in writing that r 5.2 could not be engaged as the requirement that: the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person. had not been satisfied. 28In Age Company Ltd and Others v Liu and Another (2013) 82 NSWLR 268 Bathurst CJ (Beazley and McColl JJA agreeing) outlined what constitutes reasonable inquiries at [51] - [53]: The inquiry is an objective one and is not determined by the applicant's belief that the inquiries which were made were reasonable...To enable such an objective assessment to be made it is necessary, in my opinion, for an applicant for preliminary discovery to disclose to the court the substance of the inquiries which have been made and the result of those inquiries. ... Indeed, it is self-evident that a court cannot make an assessment of reasonableness without knowing what inquiries have been made and their result. However, that does not mean in my opinion that every detail of each inquiry has to be revealed. It is enough if the parties disclose what inquiries have been made and their results. That, in most cases, will indicate whether the inquiries were adequate and what further inquiries could or should have been made. If the evidence means that the court is unable to conclude that reasonable inquiries have been made, then the applicant will fail. (Citations Omitted) 29The affidavit of Paul Gerard Longhurst sworn 25th August 2014 details the inquiries made by or on behalf of the plaintiff. It attaches a map of infrastructure owned by the defendant and other documents obtained from the defendant's website. A view of the site was undertaken, as I have said, which revealed disused railway tracks that bore the letters ARTC, the defendant's acronym. These were roughly painted rather than carefully stencilled. On its own this latter aspect provides less than compelling evidence. 30As stated in [11] of the affidavit the location is remote and does not have a discernible address or other feature from which it may be readily identified for the purpose of a title search. 31The criticism of the inquiries appear in oral argument, Transcript p5, beginning line 40, and [9(a)] of the defendants' written submissions. The substance of the criticism is that the location has not been provided to the defendant with any sufficient precision, and that such information would be available to the plaintiff by way of a title search etc. 32I note that the affidavits read in court exhibited a deal of correspondence between the parties as to the accurate location of the accident. It appears that this has been resolved by the provision of more precise GPS co-ordinates to the defendant, with no issue being taken before me as to their accuracy being 32°07'31.9"S 140°45'01.8"E. With respect I formed the impression that the defendant was being somewhat obtuse when dealing with the plaintiff's inquiries. 33I accept that the plaintiff has made reasonable inquiries in the circumstances. There is no readily discernible address given the remote location. This has made it impossible for the plaintiff to conduct any real property searches. The plaintiff has been able to link the site to some extent to the defendant through searches of the defendant's own publicly available infrastructure maps. But these documents do not of themselves identify the defendant with the categories of potential defendants. The question is not ownership but control, occupation and maintenance. 34I am satisfied that the plaintiff has conducted reasonable inquiries, and that those inquiries found a reasonable belief that the defendant may be able to assist in the identification of the person with "ownership, management and control" of the service road, the person responsible for its maintenance, and the person responsible for the decommissioning of the railway. These are the person or persons who the plaintiff desires to sue.

(4) Is a cause of action identified? 35As identified by the authorities referred to me by counsel r 5.2 applies to situations in which the applicant has already identified a cause of action against an anonymous person or persons and desires to commence proceedings against them. 36The defendant submits that the plaintiff's evidence does not establish an identifiable cause of action. To support this submission reliance is placed on the fact that the plaintiff's attempted engagement of both rr 5.2 and 5.3 at the same time indicates that the plaintiff not only seeks to identify a defendant/s but also seeks further discovery under 5.3 in order to determine whether or not he has a sufficient case to commence proceedings. 37In my judgment the plaintiff's possible cause of action is one in negligence. I gather from the documents tendered and the categories of discovery sought that the plaintiff desires to commence proceedings against the occupier of the land, the party who was responsible for the partial removal of the railway line and bridge at the accident location and the party who was responsible for the maintenance of the site. In theory these may all be the same party, and they may even all be the defendant, however that is far from clear; hence why discovery is sought. There may be further discovery sought for the purpose of furnishing better particulars, but it cannot be said that no basal cause of action has been identified. 38The applicant's case is that his accident was caused by a "trap" on the service road, the trap being the buried obstruction which he collided with. At this preliminary stage these facts sufficiently bespeak negligence on the part of the person or persons occupying, and maintaining the service road or responsible for dismantling the bridge to justify the bringing of this application for the purpose of identifying them. It is readily apparent how each such party may be liable for any accident occasioned by a "trap" on the service road. It is also entirely possible that the defendant may not be liable in any of these capacities, but may have information tending to identify who else is. 39For largely the same reasons I would have been of the view that the applicant has satisfied the not very demanding test of "may be entitled to make a claim" against ARTC under r 5.3.

(5) Are the categories of documents impermissibly broad? 40In ordering discovery pursuant to r 21.2(2) (which r 5.5 specifies as also applying to preliminary discovery) the Court must not specify the category of documents covered by the order in more general terms than the Court considers justified in the circumstances. 41The defendant relies upon several grounds to demonstrate that the orders sought fall foul of this rule: that the proposed categories are impermissibly broad; the time period requested for discovery is too imprecise and lengthy; and the categories not sufficiently shown to be relevant by the plaintiff's evidence. 42I am satisfied each category sought is relevant to a cause of action in negligence, being documents in the possession of ARTC going to: ownership and occupation of the site; the maintenance of the site; and the decommissioning and removal of the railway and the railway bridge. These documents are relevant as they may reveal information that will enable the plaintiff to identify the responsible party or parties. 43It is only relevant to identify the owner or occupier of the land as at the date of injury. 44I propose to limit categories of maintenance and inspection to the period of about 3 years between 1st July 2008 and 22nd September 2011. The reason for this three year period is that as submitted by senior counsel for the plaintiff the remote nature of the location suggests that such maintenance and control may not have been exercised as regularly as, say, in a metropolitan area; the idea of current maintenance may understandably encompass some several years. 45I also accept the submission that no fixed dates should be set as to the documents regarding the decommissioning and dismantling process as this presumably occurred only once, on a date that is not readily apparent to the plaintiff. Such broadness therefore poses no unjustifiable burden on the defendant as all that is being asked is for the discovery of documents relating to the identity of the person who carried out a single operation. For these reasons my orders are: (1)Under r 5.2 Uniform Civil Procedure Rules 2005 (NSW) order the defendant to give discovery with verification of all documents identifying or tending to identify the following persons: (a)The person or persons having ownership, occupation, management and control of the land between the North Barrier Highway and the private property to the north of the highway between Wompinie turnoff and Mingary Bridge, west of Cockburn in the State of South Australia ("the rail corridor"), on 22nd September 2011; (b)The person or persons responsible for inspection and maintenance of the rail corridor, including the unsealed service road, running in a generally east-west direction within it between 1st July 2008 and 22nd September 2011; (c)The person or persons who undertook the work of decommissioning and removing the old railway line running through the rail corridor in a generally east-west direction including the former railway bridge over Mingary Creek situated at the western end of the rail corridor. (2)Order 1 is to be complied with within 21 days of the date hereof. (3)The defendant is to pay the plaintiff's costs of and incidental to this application after they have been agreed or assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2014