Cavric v Coopers Lybrand

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20194/2000 FILE NUMBER(S) : LOWER COURT Assistant Registrar Howe JUDICIAL OFFICER :

Mr S McCarthy (Plaintiff) COUNSEL : Mr Chris Hickey (Defendants) McLachlan Chilton (Plaintiff) SOLICITORS : A O Ellison & Co Defendants) CATCHWORDS : Review decision of Registrar - Discovery - Interrogatories LEGISLATION CITED : Supreme Court Rules - Part 61 r 3; Part 23 r 5; Part 24 r 5 Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty (NSWSC unreported, Master Malpass, 18 December 1992) Brijeski v Sunbeam Corporation Limited (NSWSC, unreported Master Greenwood, 29 January 1997) Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994) Modern Woodcraft Pty Ltd v Nott (NSWSC unreported, Young J, 7 March 1997) Mariala Estates Limited v Anthanasi & Ors [2001] NSWSC 1013 CASES CITED : Abram v National Australia Bank Limited [2001] NSWSC 916 Mulley v Manifold (1959) 103 CLR 341 Stavert v Stavert & Anor (NSWSC unreported, 30 July 1998, Master Malpass) Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Limited (No 2) [1965] NSWR 193 Boyle v Downs [1978] 2 NSWLR 381 DECISION : (1) The decision of Assistant Registrar Howe dated 29 April 2002 in relation to discovery and interrogatories is affirmed; (2) The notice of motion dated 1 May 2002 is dismissed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20194/2000 - NENAD CAVRIC v COOPERS & LYBRAND (ACT) LIMITED & ANOR

JUDGMENT (Review decision of Registrar - Discovery; interrogatories) 1 MASTER: By notice of motion filed 1 May 2002 the plaintiff seeks orders pursuant to Part 61 r 3 of the Supreme Court Rules (SCR) that firstly, the order made by Assistant Registrar Howe on 29 April 2002 be set aside; secondly, that the decision made by Assistant Registrar Howe on 29 April 2002 be reviewed; thirdly, that the first and second defendants provide answers to the notice to answer interrogatories served upon them; and fourthly, that the first and second defendants provide discovery of documents contained in the notice of discovery. The first defendant is Coopers & Lybrand (ACT) Limited and the second defendant is Coopers & Lybrand (ACT) Pty Limited as trustee for the Coopers & Lybrand Trust. 2 The proceeding concerns a personal injury claim. The plaintiff commenced employment with the defendants in 1992. The plaintiff was employed by Coopers & Lybrand in its Stamp Duties Division under the supervision of Joanne Seve (Now Kelly) from about February 1993 until June 1996 when he was terminated. He alleges that there was a failure to be provided with a safe and proper working environment due to the behaviour of Joanne Seve. The plaintiff alleges that as a result he suffered a major depressive disorder.

Review 4 There are some cases that are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992); Brijeski v Sunbeam Corporation Limited (NSWSC, unreported Master Greenwood, 29 January 1997); Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994); Modern Woodcraft Pty Ltd v Nott (NSWSC unreported, Young J, 7 March 1997); Mariala Estates Limited v Athanasi & Ors [2001] NSWSC 1013; and Abram v National Australia Bank Limited [2001] NSWSC 916. 5 From these decisions, the approach I should take is that I should inform myself of all the material before the Registrar at the time when he made the orders. I can consider the fresh evidence which the plaintiff has put on and which has not been objected to by the defendants. I can also allow fresh evidence to be tendered. Although in the case before me no new evidence is sought to be relied upon, I should also make my own decision based on the material before me and having heard legal argument. 6 The plaintiff had filed a notice of motion dated 5 April 2002 in which he sought orders concerning discovery and interrogatories. The defendants filed notices of motion concerning subpoenas for production. On 29 April 2002 Assistant Registrar Howe ordered firstly, that access is granted to all parties to the documents produced by Joanne Kelly (nee Seve) in compliance with clause 2 of the schedule of the subpoena addressed to her; secondly, clause 4 of the schedule to the subpoena addressed to Joanne Kelly (nee Seve) is set aside; thirdly, clause (i) to the schedule to the subpoenas addressed to the defendants is set aside; fourthly, the plaintiff's notice of motion filed 5 April 2002 is dismissed; and fifthly, the plaintiff is to pay the defendants' costs of the applications. The orders made in relation to the subpoenas are not subject to the review. 7 The grounds of review are firstly, in relation to discovery the Registrar applied a new test; secondly, the Registrar did not give sufficient weight to the diary notes; and thirdly, in relation to discovery and interrogatories he did not properly take into account the evidence of Mr Amond. The evidence before Assistant Registrar Howe was two affidavits of John Gerard Amond sworn 21 November 2001 and 10 April 2000, exhibit A being a copy of a subpoena to produce addressed to Joanne Kelly (nee Seve), exhibit B being copies of subpoenas addressed to the defendants and exhibit C being an affidavit of Robert Charles Wicht sworn 16 April 2002 which annexes copies of diary entries.

Discovery 8 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." 9 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. As the Assistant Deputy Registrar pointed out, the principal purpose of discovery under the current Part 23 regime is to limit unnecessary discovery and restrict the discovery process to only specified documents or classes of documents 10 Master Malpass in Stavert v Stavert & Anor (NSWSC unreported, 30 July 1998), stated that 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. 11 However, "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. …" 12 In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 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. " 13 "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. 14 The plaintiff's allegations of negligence are that the defendant failed to take any or reasonable care for the safety of the plaintiff; exposed the plaintiff to unnecessary risk of injury; failed to provide proper and safe instruction and supervision to the plaintiff in his work; failed to properly and safely instruct the plaintiff in relation to his employment; failed to ensure that the plaintiff had a reasonable standard in relation to her working environment; failed to warn the plaintiff of the dangers involved in his working environment; failed to ensure that the plaintiff was placed in a safe and proper working environment with proper supervision following his complaints; required the plaintiff to work in an environment and under conditions which were not reasonable and not safe; exposed the plaintiff to abuse and degradation which could have been avoided in the circumstances; and allowed a situation of abuse and degradation to continue after the plaintiff had made the defendants aware of the problem. 15 At paragraph 15 of his reasons for judgment the Assistant Deputy Registrar summarised the special reasons were firstly, no documents produced as a result of the issue of subpoena; secondly, a three year gap in documents produced by the defendant; thirdly, the plaintiff has left the employ of the defendants and has no access to documents and information; fourthly, the plaintiff has suffered very serious injury; and fifthly, the issues concern the conduct of a solicitor and discovery will reduce the issues in dispute and shorten the trial hearing time. The plaintiff submitted there was a further consideration namely that some additional documents namely some diary entires, have since come to light after documents were produced in answer to the subpoenas addressed to the defendants. Before Assistant Registrar Howe the defendants opposed this application by conceding that, if required, an affidavit could be served to testify that the subpoenas directed to the defendants have been complied with. As well, the defendants suggested that the issues in dispute will have to be dealt with by way of oral evidence at the trial and that the documents sought to be discovered (as set out in annexure P to Mr Amond's affidavit) were irrelevant and that production of these documents would be oppressive. Finally, the defendants pointed out that the conduct of Ms Seve complained about was not related to her conduct while acting as a solicitor, but as a workplace manager. To this I should add the information that is sought does relate to information within the defendants' knowledge. 16 At paragraph 17 Assistant Registrar Howe in relation to discovery concluded: "The reasons advanced by the plaintiff are examples of issues in dispute which are to be found in many cases of litigation. Taken either separately, or collective, they do not appear to be "special" to such a degree as to warrant an "otherwise order" for discovery. Accordingly, the application fails." 17 Perhaps Assistant Registrar Howe's conclusion was not expressed as elegantly as it could have been. The plaintiff bears the onus to demonstrate there are special reasons why discovery should be granted. It is my view that the giving of discovery of the documents as outlined in Annexure P to the affidavit of J G Amond sworn 10 April 2002 will not necessarily shorten the trial. Nor can this case be regarded as an exceptional one or have a distinct character. It is a claim by an employee that he suffered a psychiatric injury as a result of an unsafe workplace. In some respects the plaintiff is seeking to test the extent of production of documents in answer to the subpoenas by way of discovery. I have also taken the further considerations outlined earlier into account (including the file notes). It is my view that all these factors do not constitute special reasons. I agree with the decision of Assistant Registrar Howe that the plaintiff's application for discovery should be refused.

Interrogatories 18 Part 24 r 5 states: "(1) The Court may, at any stage of any proceedings, order any party to serve on any other party (whether the interrogating party or not) - (a) a statement in accordance with rule 6 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings; or

(b) a statement as mentioned in paragraph (a) verified by affidavit. (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." 19 Paragraph 4 of Assistant Registrar Howe's reasons suggest that he took into account the evidence. However at paragraph 21 Assistant Registrar Howe states that there had been no evidence adduced in relation to all the orders sought by the plaintiff as to why it is "necessary" for interrogatories to be administered. Since the plaintiff had failed to discharge the onus to demonstrate the necessity for administration of interrogatories, according to Assistant Registrar Howe, there is no necessity to examine the proposed interrogatories to ascertain whether the discretion should be exercised. As it is not clear whether Assistant Registrar Howe did take this matter into account, I propose to make my own decision. 20 The interrogatories for which answers are sought appear in Annexure O to the affidavit of J G Amond sworn 10 April 2002. They comprise of 26 questions and ask such questions as "At any time between 28 October 1992 and 30 June 1996, was any partner of the Defendant's firm aware of any allegation that Joanne Kelly (nee Seve) suffered from any psychiatric/psychological injury?" and "if the answer to the immediately preceding question is in the affirmative, when were such allegations suspicions known and by whom?" 21 As was stated in American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Limited (No 2) [1965] NSWR 193. The first principle is: "… it is not permissible to interrogate as to matters beyond the issues as disclosed by the pleadings and the particulars, but interrogatories may be directed not only to matters directly in issue but also to facts which are relevant to some question in issue." 22 Mr McIntyre, counsel for the defendants before Assistant Registrar Howe at pp 9 to 22 of the transcript outlined his objections to each and every one of the interrogatories. The test is that the parties seeking to interrogate satisfy the court that it is reasonably necessary for disposing fairly of the matter after taking into account the interest of the parties. Costs savings is also a relevant consideration but the overriding requirement is that in every case justice must be done to the parties - see Boyle v Downs [1978] 2 NSWLR 381. 23 I have taken the factors outlined earlier in this judgment under the discovery heading along with the interrogatories proposed to be administered. I have further taken into account that the answering of these interrogatories would be time consuming and burdensome to the defendant. After taking into account the interest of the parties, I am not satisfied that it is reasonably necessary for the defendants to answer these interrogatories in order to dispose fairly of the matter. The plaintiff's application to administer interrogatories is refused. 24 The review fails. The decision of Assistant Registrar Howe in relation to discovery and interrogatories is affirmed. The notice of motion is dismissed. Costs follow the event. The plaintiff is to pay the defendants' costs. 25 The orders are:

(1) The decision of Assistant Registrar Howe dated 29 April 2002 in relation to discovery and interrogatories is affirmed.

(2) The notice of motion dated 1 May 2002 is dismissed.

(3) The plaintiff is to pay the defendants' costs as agreed or assessed. **********

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