HM v State of New South Wales

Texts Cited: Nil.

Category: Procedural rulings

Parties: HM (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
Mr A Williams (Plaintiff)
Mr B Williams (Defendant)
Solicitors:
Slater and Gordon (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2024/00XXXXXX

Publication restriction: Initials have been used to identify the plaintiff in recognition of the operation of section 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

JUDGMENT (EX TEMPORE)

1. Before the Court for determination is a Notice of Motion filed on 23 September 2025 by the plaintiff seeking leave pursuant to rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) to administer, and to require the defendant to answer, certain interrogatories and related relief.

2. Certain interrogatories proposed are annexed to the Notice of Motion. However, the plaintiff has sought to amend the interrogatories in question and the argument proceeded on the basis that the amended ones were the interrogatories that were to be considered.

3. In support of the application the plaintiff read the affidavit of Paul Kenneth Creed sworn 10 October 2025. No affidavit evidence was relied on by the defendant.

4. The defendant, the State of New South Wales, opposed at the hearing the orders sought. The correspondence in evidence in effect says that the orders sought are not consented to.

5. The Court has had the significant assistance of written submissions by counsel appearing for both sides and further submissions orally.

6. Rule 22.1 of the Uniform Civil Procedure Rules provides as follows:

(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.

(2) An application for such an order must be accompanied by a copy of the proposed interrogatories.

(3) In the case of proceedings on—

(a) a claim for damages arising out of the death of, or bodily injury to, any person, or

(b) a claim for contribution in relation to damages so arising,

such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.

(5) An order to answer interrogatories—

(a) may require the answers to be given within a specified time, and

(b) may require the answers, or any of them, to be verified by affidavit, and

(c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.

7. The principles to be applied in considering an application under the rule have been set out in a number of authorities which the Court takes into account in determining the application: Priest v State of New South Wales [2006] NSWSC 12 at [123]–[134]; Ahmed El Hayek v Josslyn Vasic [2010] NSWSC 1498 at [48]–[52]; Scott v Hunter New England Local Health District [2019] NSWSC 1676 at [55]–[62]; Ahmad v South Western Sydney Local Health District [2018] NSWSC 1327 at [10]–[14]; and O*’*Driscoll v Encore Aviation Pty Limited [2025] NSWSC 458 at [12]–[15] and [35]–[36].

8. In summary, the principles to be applied from those cases are as follows. In a claim seeking damages arising out of an alleged bodily injury (which on the authorities has been taken to include a psychiatric injury) the rules require special reasons to exist to justify the making of an order for interrogatories. “Special reasons” are not defined in the Uniform Civil Procedure Rules. In paragraph 126 of Priest, Johnson J indicated in relation to discovery, which has a similar rule, that discovery (and hence interrogatories) in personal injury cases will be “rare” and will be ordered only where special reasons are made out: see [127]. His Honour stated in paragraph 129 of his Honour’s judgment that the core of the requirement for special reasons is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course, i.e. that there are some unusual features to it.

9. In paragraph 50 in El Hayek, Garling J said the phrase “special reasons” was an inexact one, capable of some elasticity in interpretation. His Honour said that something unusual or different must be established to take the matter out of the ordinary course. His Honour quoted a number of cases including French J (as his Honour then was), in Boscolo v Secretary, Department of Social Security [1999] FCA 106. The matters which his Honour indicated would take the matter out of the ordinary are:

(a) an inability to obtain the requisite factual material without the exercise of the discretion; (b) that the applicant is in a position of some disability or disadvantage; (c) the complexity of the subject matter; (d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.

In addition his Honour indicated at [52] that the issue of relevance must be satisfied.

10. Those requirements have been followed in the cases I have referred to.

11. It seems that, dealing with each of the matters seriatim:

(a) it would be difficult for the plaintiff in the present case to obtain some of the requisite factual material without the exercise of the discretion. However, the log books for the Whitten unit of the centre in question, which I will come to shortly, have been offered to the plaintiff’s solicitors subject to some redaction. That would provide a starting point which I will explain shortly; (b) in relation to the plaintiff being in a position of some disability or disadvantage, I accept the submission on behalf of the defendant that that really looks at a disadvantage or disability from a procedural point of view. However, the facts of the matter which I will come to shortly do place the plaintiff at a disadvantage in determining some of the issues involved as the alleged facts occurred a long time ago and some records are held by the defendant; (c) in relation to the complexity of the subject matter, I do not see the matter as being complex in the sense that the plaintiff can readily give his account of what occurred; (d) this factor goes to whether the just, quick and cheap resolution of the real issues in the proceedings requires the discretion to be exercised. I will come to that.

12. Obviously, relevance is important. In the last decision I referred to, of Elkaim AJ, his Honour made clear at paragraph 35 that the rule requires the order for interrogatories to be necessary. His Honour also stated, which I agree with, that it was important to observe a distinction between the interrogatories being necessary and the order being necessary.

13. As to what is meant by “necessary” in rule 22.1(4), I refer to Davies J in the Ahmad case, quoting Schmidt J in the Edwards case in paragraph 14 of his Honour’s judgment, that the question of necessity must be approached as meaning “reasonably necessary for the disposing fairly of the cause or matter” or “necessary in the interests of a fair trial”. I accept, in the light of ss 56 to 58 of the Civil Procedure Act 2005 (NSW), that the Court must look at what is in the interests of justice, having regard to what would be required to satisfy the interrogatories if leave were given in the exercise of the discretion. However, I note also that rule 22.1(4) refers to the requirement that the order should not be made unless the Court is satisfied that the order is necessary “at the time it is made”.

14. The background to the matter is important. The allegation made in the Amended Statement of Claim is that the plaintiff whilst aged 17 was arrested by police for an alleged breach of an apprehended violence order made for the protection of his girlfriend on 21 May 2005 and was taken to the Green Valley Police Station and was then transferred on the same day to the Reiby Juvenile Justice facility. It is alleged that the plaintiff was detained there overnight and was released the next day. It is also alleged that whilst a strip search was being conducted of him that a person described as a “Pacific Islander Juvenile Justice officer” sexually assaulted and anally raped the plaintiff. That allegation is put in issue by the defendant in the Defence filed on 19 December 2025. The affidavit of Mr Creed notes that he was informed, and it is not in issue, that the plaintiff sought the staff rosters for Reiby on the relevant date by subpoena filed on 15 April 2025 and were advised that the staff rosters for Reiby had been destroyed. See annexure PAC6 to Mr Creed’s affidavit.

15. The submissions on behalf of the plaintiff submit that the special reasons threshold has been satisfied and that the orders are “necessary”. It is submitted that the destroyed records would have been important in the task of identifying the alleged assailant of the plaintiff. However, the submissions also note that having regard to the facts, it is said that it is likely that the “Pacific Islander Juvenile Justice officer” was more likely to have been rostered in the Whitten unit at Reiby rather than in another wing at Reiby at the relevant time. It is submitted that otherwise the plaintiff has satisfied the other requirements for leave which I have indicated.

16. The defendant in its submissions takes issue with the plaintiff’s submissions. In summary, it is submitted that it is not necessary to make the order and the Court should reject the leave sought in the exercise of its discretion. In particular, the following submissions are made:

(a) in relation to interrogatory 1, that the defendant has offered, subject to redaction, the Whitten unit log book at Reiby for the relevant period which would denote the names of the officers on duty; (b) as to interrogatory 2, the names and roles of the officers can be ascertained by inspection of that log book; (c) that the admission procedure document in force at the time has been produced in answer to the subpoena; (d) that the issue as to the plaintiff’s clothes he was wearing could be answered by himself; (e) in relation to interrogatory 4.5, that it was a fishing expedition; and (f) in relation to interrogatory 5, that the physical descriptions, ethnicity or apparent ethnicity of Juvenile Justice officers were not matters properly the subject of a request for interrogatories.

17. It is important in my view that the background to the matter be taken into account. The following matters appear to me to be relevant:

(a) that the events are alleged to have occurred in 2005, over 20 years ago. Documents if available are likely to be the most relevant. Memories of most staff are likely to be of limited extent and of limited worth; (b) the plaintiff was only held at the Centre for one day. The chance of there being recollections of him specifically in staff other than perhaps the alleged perpetrator if the event occurred is not high at all; (c) searches were undertaken to a greater and/or lesser degree of all new inmates at the time as the search register shows; (d) the time and cost of making the necessary inquiries is relevant; (e) the difficulty for the plaintiff of obtaining information himself or through his solicitors through alternative means is of course important and relevant; (f) that the Centre staff attendance sign on sheets and staff rosters for the period have been destroyed. This assists the plaintiff on his application; (g) as I indicated, the plaintiff’s submissions on p 3, while not being decisive, indicate that the Juvenile Justice officers in question were likely to be from the Whitten unit rather than another wing of Reiby on 21 May 2005; (h) the officers can therefore potentially be identified by the inspection of the Whitten log book offered by the defendant. See the submissions of the defendant at paragraphs 5.12–5.13; (i) the plaintiff can give direct oral evidence of the alleged sexual assault. If the officers who searched him as alleged cannot be identified, his will be the only direct evidence and that will be tested to the standard in s 140 of the Evidence Act 1995 (NSW), being on the balance of probabilities while taking into account the seriousness of the allegations; (j) as to the admission procedure, that is dealt with in the Department’s admission basic procedure document which has been produced; (k) in relation to the clothing issue, the plaintiff can give direct evidence of the clothing he wore. It does not appear to be significant or a fact in issue; (l) that matters addressing physical descriptions, ethnicity or apparent ethnicity of officers are inherently vague and uncertain and require subjective assessments. I agree with the defendants that they are not the proper subject of request for interrogatories; (m) the Court must take into account ss 56 to 59 of the Civil Procedure Act and I gratefully adopt the distinction made by Elkaim AJ in O*’*Driscoll, relating to the Court’s discretion.

18. Looking at the matter as a whole, I am inclined to think that on the facts of the case special reasons within rule 22.1(3) have been established because of the difficulty of the plaintiff obtaining information otherwise, the defendant having some records at its disposal and that the identification issue is a difficult one for the plaintiff.

19. However, I am not satisfied as to all of the interrogatories sought, nor that an order is necessary for all interrogatories at the present time. I will come to the interrogatories individually. I am also not satisfied in relation to some of the interrogatories that the Court should exercise its discretion to grant leave in relation to them.

Interrogatory 1: “How many staff were on rostered on [sic] to work in the Whitten Unit at the time of the plaintiff’s admission to Reiby on 21 May 2005?”

20. In my view, this can be determined by the Whitten unit log book which has been offered. It is unclear how this could otherwise be obtained and having regard to the time that has passed, it would be an inappropriate use of resources to try to ascertain by talking to staff how many staff were rostered at the time.

Interrogatory 2: “What are the names, physical descriptions including ethnicity or apparent ancestry and roles or positions of the juvenile justice officers who were rostered on to work at the Whitten unit at the time of the plaintiff’s admission to Reiby on 21 May 2005?”

21. Physical descriptions including ethnicity and apparent ancestry and roles in my view are inherently vague and uncertain. A person could appear one way to one person and another way to another. However, in relation to the names and roles of the officers, it would appear in relation to the Whitten unit that it could be sought from the log book.

Interrogatory 3: “What was the usual procedure for the admission of juvenile detainees to Reiby including the process for their transfer from reception to the wing as at the time of the plaintiff’s admission to Reiby on 21 May 2005?”

22. The usual procedure is set out in the policy document which has been produced. The plaintiff can always say what the procedure was when he was there.

Interrogatory 4: “Why was the plaintiff allowed to retain his clothing with him rather than change into a uniform following his admission to Reiby on 21 May 2005?”

23. The plaintiff can give evidence that he had his street clothes with him. It does not seem to be in issue that he was allowed to retain them, and in any case the property register seems to suggest that he did retain them, so in exercising my discretion, that would not appear to go anywhere.

Interrogatory 4.5: “A copy of Property Register for the plaintiff recorded as having been completed at 4:52:55pm on 21 May 2025, annexed hereto and marked ‘A’, was completed by an officer who has written his name on that document although this is substantially illegible. What was the full name, position and role of the officer who completed that Property Register within Reiby Juvenile Justice Centre?”

24. That relates to the property register which is marked A to the revised interrogatories. That document shows that the plaintiff was admitted on 21 May 2005 at 4:15pm. The document then indicates that the register was completed on the same day at 4:52pm, very soon thereafter. There is a signature which cannot be on its face identified. In my view, having regard to the proximity of the time it was completed to the admission, it is important that that interrogatory be permitted because it may lead to steps to identify the officer which itself may assist the plaintiff as to what occurred. I take into account paragraph 4.9 of the defendant’s submissions. In my view, that is a proper interrogatory.

Interrogatory 5: “What are the names and physical descriptions including ethnicity or apparent ancestry of the officers who accompanied the plaintiff from the reception area to the Whitten Unit at Reiby following his admission to that juvenile detention facility on 21 May 2005?”

25. Having regard to the time that has passed, the fact the plaintiff was there and the availability of the Whitten log book, in my view in the exercise of my discretion, that would not be a proper interrogatory. The Court should not give leave having regard to how long ago the event occurred, the time the plaintiff was there, the fact the Whitten log book exists and the sheer unlikelihood that anyone would recall the plaintiff in all of those circumstances bar potentially the alleged perpetrator. I repeat my comments above as to the ethnicity or apparent ancestry description.

26. Having regard to all of those matters, the order I make is proposed interrogatory 4.5 is allowed and leave is granted pursuant to rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff to administer it to the defendant.

[There was then discussion as to the form of the orders to be made.]

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