Diment v South Eastern Area Health Service [2007] NSWSC 219 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff was employed as an assistant nurse in the intensive care unit at Sutherland Hospital. The defendant was her employer. 2 She claims to have first suffered symptoms in about 1993 or 1994. Initially, it is said that they arose from the use of latex gloves that she was required to wear in her work. Later, it is said that the symptoms were due to latex gloves worn by others that she was required to work with. 3 In a Further Amended Statement of Claim filed on 8 June 2005 she propounds a claim for damages founded on negligence (one count alleges that the defendant is a provider of hospital, medical and surgical services and facilities). A defence has been filed which raises, inter alia, a question of contributory negligence. 4 An Amended Notice of Motion filed on 4 July 2006 came to hearing before Assistant Registrar Howe. It sought relief in respect of two matters. One was the giving of discovery. The other concerned the giving of further and better particulars in respect of the question of contributory negligence. 5 The Registrar dealt with what he described as a preliminary point (concerning what had been done in relation to orders made by Hall J on 10 February 2006) and the applications for discovery and for further and better particulars. 6 All questions were determined adversely to the plaintiff and her application was dismissed. The Registrar delivered written reasons for the decision dated 1 September 2006. 7 On 26 September 2006, the plaintiff filed a further Notice of Motion (being an application for "review"). Under the heading "Grounds", appear 13 paragraphs. The defendant filed a Notice of Contention. 8 Relief is sought pursuant to Rule 49.20 of the Uniform Civil Procedure Rules 2005 (NSW) (which falls within Division 5 of Part 49). This provision enables application to be made for what is entitled as a "review" (the application is also referred to therein as an "appeal"). The provisions contained in Part 49 suggest that the "review" is now intended to be in the nature of an appeal. Rule 49.21 (which is headed "Contents of notice of motion for appeal) requires that the prescribed notice of motion specify grounds relied on in support of the application. It would seem that a ground of appeal which justifies the disturbing of the challenged decision is to be made out. Rule 49.23 contains provisions concerning the admission of further evidence in an application under the Division. 9 The hearing of the application took place on 13 March 2007. Both parties were represented by Counsel. 10 There was an application to rely on further evidence (an affidavit sworn by Mr Healey on 26 September 2006) by the plaintiff. The proposed evidence was material that had been available to the plaintiff at the time of the hearing before the Registrar and was not put in evidence before him. The function of the court in the conduct of a review under the preceding regime was to have a second look at the decision of the Registrar in the light of the material that had been adduced in evidence before him. The admission of further evidence is a matter of discretion. In the circumstances of this case, a decision was made to reject the tender of the further evidence. 11 All matters raised in this review concern questions of practice and procedure. The primary jurisdiction in respect of them is had by a Registrar. The traditional approach of this Court is one of reluctance to interfere with decisions made by those having the primary jurisdiction in respect of such matters (this has been taken to be a relevant matter in the conduct of a review or an appeal). I see no reason to depart from that approach in this case. 12 Whilst what has been said can be regarded as disposing of this particular application, I will briefly make certain additional observations concerning, inter alia, the preliminary point and the application for discovery. 13 The preliminary point arose out of breaches by both parties of the orders of Hall J (including orders (d), (e) and (f)). The orders are set forth in an affidavit sworn by Mr Healey on 8 June 2006. 14 It is somewhat unclear what the plaintiff sought to make of the breach on the part of the defendant. What was submitted seemed to have ignored the breaches made on her own part. I am not satisfied that there was any error in the decision made by the Registrar on this matter. In my view, the orders and the breaches thereof lack significance in the context of what has to be considered in dealing with the application for discovery. 15 This being a personal injury case there is a prohibition on the making of an order unless special reasons are shown which justify the making of an otherwise order. The Registrar was not satisfied that there were special reasons. In my view, he did not err in respect of that matter. 16 "Special reasons" are not defined in the Rules. As I have said in other cases, it seems to me that "special" should be given its dictionary meaning. There is nothing in the context to suggest otherwise. The dictionaries identify that it is to be extraordinary, exceptional and different from what is ordinary or usual. I do not consider that further elaboration of the meaning is helpful. 17 Some years ago I was called upon to address this question in Stavert v Stavert [1998] NSWSC 487 and Goulthorpe v State of New South Wales [2000] NSWSC 329. As was observed in those cases, each case is going to turn on its own particular circumstances. The task for the Court is to look at the material placed before it and make a judgment as to whether or not "special reasons" are present in that case. My attention was also drawn to other judgments (including Bassindale v Western Sydney Area Health Service [2006] NSWSC 703) in which a similar approach had been taken. 18 The plaintiff seeks to advance certain matters which she says brings about "special reasons" (including that her case is not in the normal or ordinary range of personal injury cases). The plaintiff stresses that this is both a master and servant case as well as being a medical negligence case (the plaintiff having been treated by the defendant in respect of her symptoms). 19 In a letter dated 4 July 2006 from the plaintiff's solicitors, the following was said in respect of an allegation of special reasons [at p2]:- "For the reasons as stated at Court, we are of the view that in the circumstances of this case, discovery is necessary and special reason exists for the Court making an Order for discovery. Our client makes allegations in her Statement of Claim, in particular, that your client was or should have been aware of the danger of latex at the time/s, when she was employed by your client and/or when she became exposed to latex. The categories of documents relied upon are relevant to a fact in issue namely, whether or nor your client was or should have been aware of the dangers of latex exposure at the relevant time/s. Your client's statement of knowledge at the relevant times is extremely relevant to this fact in issue. Further, our client also pleads that your client through its servants and agents, was negligent in and about its treatment of, and failure to diagnose, the Plaintiff's condition of latex allergy (paragraphs 18-26 Further Amended Statement of Claim dated 8 June 2005). Our client says that there are further special reasons in that the categories of documents relied upon are relevant to a fact in issue, in particular, the probability of the existence of your client's knowledge of the consequences that can flow from being exposed to latex, as well as the dangers of exposing an employee, such as the Plaintiff, to latex". 20 I have had regard to the submissions and the particular circumstances of this case. I am not persuaded that "special reasons" have been shown in this case. Accordingly, I am not satisfied that the Court should make an otherwise order. 21 The making of an order for discovery is discretionary. In the present case, the plaintiff must fail because she has been unable to satisfy the threshold requirement to the exercise of that power ("special reasons"). Even if that threshold requirement had been satisfied, it seems to me that this was a case in which the order sought should not be made for discretionary reasons. 22 The Registrar, generously, described the documentation being sought by the plaintiff as being too broad. In my view, oppressive is a more appropriate description. 23 What was sought to be discovered is identified in paragraph 8 of the Reasons of the Registrar. What is contemplated is of extraordinary width and extends, inter alia, to publications and journals. 24 The plaintiff had earlier (in October 2002) issued a subpoena directed to the defendant requiring production of, inter alia, the following:- "7. All memoranda, notes, reports, correspondence and other documents in relation to the Plaintiff's employment and any termination of resignation of employment by the Plaintiff from your employment. 8. Copies of all Directions, Circulars, Reports, Information Memoranda provided to Sutherland Hospital by the New South Wales Health Department or the Health Area Service to which the Hospital belonged or by any other party going to the effect of Latex and its by-products on persons such as the Plaintiff." 25 There seems to be no dispute that the defendant purported to comply with the subpoena and that there has been no challenge to the sufficiency of what was produced. In the circumstances, it would seem that the defendant has already produced a quantity of the material that is presently sought by way of discovery. 26 Before concluding this judgment, I should mention one further matter. During submissions in reply, Counsel for the plaintiff confirmed that the application in respect of further and better particulars was no longer pressed. 27 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the application. **********

Diment v South Eastern Area Health Service

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