Eyles v Hawkesbury Show Society

District Court of NSW|2022-09-14

Summons

This is an application by summons filed by the applicant, Ms Kim Eyles, seeking orders for pre-action preliminary discovery of certain records held by the Hawkesbury Show Society concerning an injury she sustained at the Hawkesbury Showground on 20 April 2020. The application is made pursuant to Uniform Civil Procedure Rules 2005 (NSW), ("UCPR"), r 5.2 and r 5.3.

Evidence

The parties produced a common Court Book (Exhibit "A") which contained the relevant affidavits and relevant annexures. The applicant relied upon an affidavit sworn on 6 June 2022 by his solicitor, Mr Christopher Michael. The respondent relied upon the affidavit sworn on 25 July 2022 by its solicitor, Mr Brett Turnbull. There was no affidavit or other evidence from the plaintiff herself.

Procedural legislation

Any orders for preliminary discovery made pursuant to UCPR r 5.2 and r 5.3, or any other orders, must be made in accordance with the dictates of justice and the overriding purpose of the Civil Procedure Act 2005 (NSW): s 56, s 57, s 58(2) of that Act.

Consideration

During the course of the hearing the legal representatives of the parties were asked to address what appeared to be a fundamental tension between the request for preliminary discovery and what I considered to be a determinative statement of dis-entitlement made by the applicant's solicitor in the foundation letter of request for such discovery, as explained below.
On 15 August 2021, prior to the filing of the present application, the solicitor for the applicant wrote a letter to the respondent seeking from the respondent copies of documents and other material. That letter was in the following terms: "… Our client holds you liable to compensate for personal injury, loss and damages sustained by our client on the above injury date in the circumstances outlined above. It is our preliminary view that the issue of liability in this instance is in favour of our client. We request that you acknowledge receipt of this letter and forward this letter to your relevant insurer. On a without prejudice basis, our client has indicated a willingness to negotiate a settlement without the need to commence proceedings and incur unnecessary costs. We will convey an offer to you in due course once we have obtained relevant medical reports and other ' information to properly assess our client's claim. Please also advise if there is another third party that may be involved so as we may make enquiries with them and further our investigations along those lines. Please note in the event that we are not appraised of another party being involved at this stage we will assume that you are the only potential Defendant in this action, if there is such a third party, please provide us with their particulars including name, address, ABN number and if available, details of their public liability insurer. Please also forward any written documentation you may hold such as a contract between the third party and your company if applicable. …"
In my view, that letter self-evidently demonstrates that the present application cannot be competently maintained in light of the fact that the applicant indicated through her solicitor, that she already held the view that the respondent, the proposed defendant, is, in the applicant's view, liable to compensate her for the injuries sustained in the incident in question: Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883, per Barrett J, at [12]. Given the terms of that letter, the applicant's solicitor must be taken to have known that particular state of knowledge and belief was fatal for the present application.
UCPR r 5.2.1(a) can only be invoked where the applicant is unable to sufficiently identify a proposed defendant after reasonable inquiry. The terms of the letter cited at paragraph [6] above unambiguously demonstrate that the present application falls foul of that rule.
UCPR r 5.3(1) pre-supposes that despite reasonable inquiries having been made, the applicant is unable to obtain sufficient information to decide whether to commence proceedings against a prospective defendant. An applicant under this rule must therefore provide satisfactory evidence that the respondent may have or might have had possession of material that could assist in determining whether or not the applicant is entitled to claim the contemplated relief: UCPR r 5.3.(1)(b). The applicant has not satisfied the requirements of that rule.
In the instance of each of those rules invoked by the applicant, there is no evidence of the unfruitfulness of previous inquiries. The compelling conclusion to be drawn from the letter cited is the applicant already holds the requisite view for the commencement of proceedings. It is therefore otiose to invoke those provisions given the terms of the letter cited at paragraph [6] above. The application was therefore destined to fail at the outset.
Mr Lynch, who appeared for the applicant, was briefed with the invidious task of arguing to the contrary of the above analysis. In my view he has submitted all that could be reasonably argued in favour of making the orders sought. That brief was the metaphorical hospital pass. The terms of the letter cited at paragraph [6] meant the applicant's submissions could not be accepted.
In argument, emphasis was placed on the proposition that the liability view of the applicant's solicitor was only of a preliminary nature. In my opinion that does not derogate from the unambiguously firm view her solicitor attributed to the applicant in the first paragraph of that letter.
In argument, the applicant sought to salvage the application by, in the alternative, invoking UCPR r 5.3 in respect of the identification of "another third party that may be involved", as was mentioned in that letter.
In my view, that approach was impermissible in the present application as the Court has no power, either from within UCPR r 5.3 or otherwise, to require the respondent, a potential defendant, to form a pre-action opinion as to the potential liability of another party, and to then provide evidence in support of that opinion. The application was misconceived.

Disposition

On the basis of the foregoing analysis the relief sought by the applicant must be refused.
Notwithstanding that conclusion, I consider that some facilitative alternative cost saving orders are indicated to ameliorate the applicant's predicament on an application of the mandate of s 56 of the Civil Procedure Act 2005 and the overriding purpose of a just quick and cheap resolution of the real matters in dispute, in accordance with the dictates of justice as provided by s 58(2) of that Act, particularly in the interests of saving costs: s 98 of that Act. I will therefore proceed to make those orders.
I propose to make self-executing orders which will provide the applicant with a costs saving opportunity to salvage the filing fee for the present summons if she chooses to commence the contemplated proceedings against the present respondent. The existence of proceedings commenced in that way will permit the pursuit of more appropriate remedies, such as the issue of relevant subpoenas, the possible pursuit of discovery and interrogatories, if those procedural avenues prove relevant and necessary.

Orders

I make the following orders: 1. The applicant is granted leave to file, within 60 days of today's date, a statement of claim in the present proceedings to claim damages against the respondent in respect of injuries she claims to have sustained at the Hawkesbury Showground on 20 April 2020; 2. In the event the applicant files a statement of claim in compliance with Order (1), the applicant's summons filed on 31 May 2022 will stand dismissed at that time, and the costs of the dismissed summons will be assessed as costs in the cause of the substantive proceedings commenced by that statement of claim; 3. In the event that the applicant fails to file a statement of claim in compliance with Order (1) by the specified date, the summons filed on 31 May 2022 will stand dismissed, with the consequence that the applicant must thereafter pay the respondent's costs of the dismissed summons as assessed or agreed; 4. Exhibit "A" may be returned to the applicant; 5. Liberty to apply on 7 days' notice if further or other orders are required.

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: 19 September 2022

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