"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.