Ivers v State of NSW

CATCHWORDS: PRACTICE AND PROCEDURE - Interrogatories - whether permitted - action for damages for wrongful arrest, false imprisonment and malicious prosecution following a discontinuation of the charge of murder against plaintiff - consideration of Uniform Civil Procedure Rules 2005 r 22.1 and r 22.2 - consideration of s 56 of Civil Procedure Act 2002 - consideration of public interest immunity in not requiring a police officer to answer certain interrogatories in context of an unresolved criminal investigation

LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

Boyle v Downs [1979] 1 NSWLR 192 Kalgeracos v Bomba [2009] NSWSC 1271 Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70 Nowlan v Marsland Transport Pty Ltd [2001] NSWCA 346 O'Brien v Little [2007] NSWSC 64 CASES CITED: Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101 Seidler v John Fairfax & Sons [19983] 2 NSWLR 390 Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; (1969) 123 CLR 514 Spedley Securities Ltd (In Liq) v Yuill & Ors (1991) ACSR 758 White v Overland [2001] FCA 1333 Yamazaki v Mustaca & Anor [1999] NSWSC 1083

PARTIES: Colin John Ivers (Plaintiff) State of New South Wales (Defendant)

COUNSEL: Mr D Stewart (Plaintiff) Mr G Giagios (Defendant)

SOLICITORS: Logical Legal Solicitors (Plaintiff) Crown Solicitor (Defendant)

The defendant has brought this notice of motion seeking interlocutory orders to strike out disputed interrogatories for which the plaintiff seeks answers. In the substantive case, the plaintiff Colin Ivers sues the State of New South Wales, claiming damages for wrongful arrest, false imprisonment and malicious prosecution. Mr Ivers had been charged with murder. A prosecution of that charge was discontinued against him following analysis of DNA evidence. Those circumstances have led to the present proceedings in which Mr Ivers claims damages. The murder for which Mr Ivers was originally arrested and charged, remains unsolved. Procedural history

On 16 October 2009 the plaintiff brought a notice of motion before the court seeking to enforce a disputed request for particulars sought by the plaintiff in relation to the statement of defence. On that day, after some discussion between the parties, the motion was dismissed by consent, with each party to bear their own costs of the dismissed motion. At that time leave was given to the parties to administer interrogatories if they so required. The parties were also given liberty to apply in the event of any dispute arising concerning such interrogatories. The purpose for granting leave to administer interrogatories was to assist the parties to get to the heart of the matter quickly, by directing their efforts at pre-trial preparation in the expectation of saving costs and, ultimately, court time.

On 10 December 2009 the matter was listed at the request of the defendant for the purpose of disputing the plaintiff's entitlement to seek answers to some 87 interrogatories that had been delivered to the defendant. On that occasion the notice of motion which sought to strike out the plaintiff's interrogatories was stood over for the filing of written submissions, with further argument scheduled to take place on 5 February 2010.

On 5 February 2010 the parties supplemented their written submissions with oral arguments concerning the disputed interrogatories.

The issue for determination in the motion can be narrowed to the question as to whether or not the interrogatories sought by the plaintiff are, either as a whole, or individually, vexatious, oppressive or otherwise objectionable so as to justify an order to strike them out. There is also a related public interest immunity issue relating to an unsolved murder investigation by police.

The plaintiff's interrogatories are, in large measure, concerned with the arrest of the plaintiff and with the DNA evidence, which is said to be at the heart of his case. The plaintiff's case also involves an allegation that the police investigation revealed that a person other than the plaintiff may have killed the deceased victim. The plaintiff has pleaded detailed allegations of the case he seeks to make, including allegations that the police investigation disclosed that someone else may have killed the deceased, and that the prosecutor had no reasonable cause to suspect that the plaintiff had committed the offence of murder. In the statement of defence, the defendant has pleaded a blanket denial of these allegations.

By issuing interrogatories the plaintiff seeks admissions and other forensic advantage by seeking to close off issues from contention in respect of what is foreshadowed to be a complex and lengthy hearing. The stated aim of the interrogatories is to seek to shorten hearing time and confine costs associated with the hearing.

In modern litigation conducted under the Civil Procedure Act 2005 and the related rules, the overriding purpose is to facilitate the quick, just and cheap resolution of the matters in dispute between the parties : s 56 of the Act.

In adversarial litigation a court seeks to determine the truth of the evidence given by or on behalf of the respective parties. This is also the position with regard to interrogatories, as was stated by Cole J in Spedley Securities Ltd (In Liq) v Yuill & Ors (1991) ACSR 758 at 762 : "The object of interrogatories is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it" : Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101 at 111; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; (1969) 123 CLR 514 at 518."

It is for the interrogating party to establish a relevant association or connection with a matter in issue in the proceedings and that the interrogatories sought have a tendency to serve to narrow the issues between the parties : Seidler v John Fairfax & Sons [19983] 2 NSWLR 390 at 393 per Hunt J.

The requirement to show that interrogatories are "necessary" has been conventionally interpreted to mean reasonably necessary for the disposing fairly of the cause or matter : Boyle v Downs [1979] 1 NSWLR 192 at 205B - 205E per Cross J, cited with approval in Yamazaki v Mustaca & Anor [1999] NSWSC 1083 at [4] per Sully J.

Before the advent of the Civil Procedure Act 2005 there was a much more restrictive approach to interpreting the requirement that interrogatories be "necessary". However, even then, the interests of justice and fairness were the predominant considerations : Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70 at 72F per Cantor M.

In my view s 56 of the Act provides the relevant guidance for resolving interlocutory questions such as the interrogatories that are in contention in this case.

A party may apply for another party to answer interrogatories at any stage of proceedings : Uniform Civil Procedure Rules r 22.1(1). In a case such as this, an order for interrogatories is not to be made unless the court is satisfied that they are necessary at the time the order is sought : Uniform Civil Procedure Rules r 22.1(3) and (4).

Available objections to interrogatories include irrelevance to an issue in the proceedings, vexatiousness, oppressiveness or potential disclosure of privileged information : Uniform Civil Procedure Rules 2005 r 22.2.

Essentially, the defendant's position is that the number of the interrogatories sought by the plaintiff, 87 or more if sub-numeration is taken into account, is indicative of their unreasonableness, vexatiousness and oppressiveness. In support of that position the defendant relies upon the decision of Brereton J in Kalgeracos v Bomba [2009] NSWSC 1271.

The defendant's objections to answering the plaintiff's interrogatories also focussed on a complaint that the plaintiff was in effect attempting to cross-examine by correspondence, and the further assertion that interrogatories were unnecessary. The defendant asserted that the interrogatories directed at documents were not needed as the documents could speak for themselves. Against that submission the plaintiff argued that there should be no trial by ambush in this case, especially where the identification and interpretation of documents is concerned. Here, the relevant documents relate to DNA issues.

The defendant also submitted that the plaintiff, by interrogating the defendant, was seeking to reverse the onus of proof. The plaintiff submitted that in making that submission the defendant has failed to appreciate that an inherent function of the procedure of interrogatories is to seek to obtain admissions that can be tendered in the substantive proceedings.

The defendant also submitted that some of the interrogatories went to matters not in dispute. That submission assumes there is no apparent forensic purpose to the questions asked. The plaintiff's response to the submission was that in a complex case it is important to seek to define and clarify the factual matrix beyond dispute so that the litigation can be confined to the matters that are truly in dispute.

Mr Stewart of counsel informed me that the decision in Kalgeracos concerned a family provisions dispute involving, amongst other things, domestic conversations about a dishwasher whereas in this case the subject matter involves DNA evidence obtained in a criminal investigation and alleged wrongful deprivation of liberty therefore requiring different considerations in determining the entitlement of the parties to interlocutory relief. Further, I was informed that in Kalgeracos the interrogatories sought to cross-examine a party on the contents of a sworn affidavit. Whilst these highlighted considerations that were apparently ventilated in Kalgeracos are not strictly in evidence before me, they do serve to illustrate by argument the importance of focussing on the demands of justice and fairness in the particular case rather than focussing on objections based on arcane considerations as to quantity, and to a lesser extent, form, which appears to me to be the position of the defendant in this case.

I am reinforced in this view by observing that none of the plaintiff's interrogatories were directed at questioning the credit of the arresting officer, a step which I consider would be an indication of oppressiveness in the context of interrogatories.

I consider that in this case, the considerations demanded by s 56 of the Act override objections that merely involve the counting of interrogatories rather than weighing the gravity of the issues at stake and the common interest of the court and the parties to facilitate coming to grips with the issues in a speedy and economical way. Having regard to these factors I consider the decision in Kalgeracos to be distinguishable from the facts and circumstances of this case. In my view the considerations outlined in Kalgeracos refer to an era that pre-dated the mandatory requirements of s 56 of the Act.

It is plain from the manner in which the interlocutory skirmishes have so far proceeded in this case, that these proceedings will be vigorously contested by the defendant at a trial. This will inevitably take up court time. In these circumstances, I consider it necessary that the parties pursue diligent efforts to seek to minimise the ambit of the true issues in dispute.

In such circumstances, in addition to considering the mandatory requirements of s 56 for the facilitation of the quick, just and cheap resolution of the proceedings, I consider that it is desirable in this case, when it comes time to take a date for hearing, which will only arise after due preparation, the parties should place their cards on the table as trial by ambush is undesirable. The parties and the court should strive to avoid that occurring : Nowlan v Marsland Transport Pty Ltd [2001] NSWCA 346 : per Heydon JA at [30]; White v Overland [2001] FCA 1333 at [4] per Allsop J.

In order to avoid ambush or surprise it is incumbent on the representatives of the plaintiff to minimise such a possibility from occurring by seeking to confine the defendant and to make the defendant state its position in the litigation : Nowlan, per Young CJ in Eq. At [44].

Against that background I turn to a consideration of the appropriateness of the plaintiff's interrogatories.

I accept the plaintiff's general submission that the means of testing the truth of the factual matters in issue in the proceedings, and in respect of which the plaintiff seeks clarificatory answers, is entirely within the knowledge of the arresting police officer and prosecutor. This is implicit in paragraph 15 of the defence filed. In those circumstances, the arresting officer's state of mind at the relevant times that concern the arrest, detention and prosecution of Mr Ives, is in my view a proper matter for interrogatories : O'Brien v Little [2007] NSWSC 64 at 20 per Patten AJ : "… Where a suit raises as a relevant issue the state of mind of an individual, then a properly framed interrogatory directed to the ascertainment of ingredients in that state of mind would no doubt be allowed. …"

I consider it particularly significant that the plaintiff has not framed any interrogatories directed at his claim of malicious prosecution. I consider that circumstance to be an indication of reasonableness and a contra-indication to vexatiousness or oppressiveness, except where I have otherwise indicated in the Appendix attached to these reasons.

With regard to interrogatories 68 and 69, they seek answers that in my view seek to delve into privileged material in that they seek information on the names and basis of suspicion of other suspects for the murder of the deceased victim. As such, in my view, to enforce answers to those questions would tend to compromise the proper and fair administration of justice and would involve inappropriate disclosure of privileged information. Whilst such information may be of undoubted assistance to the plaintiff, the potential benefits of disclosure of such information to the plaintiff has to be balanced against the potential deleterious impact of such disclosure on an ongoing criminal investigation and on the administration of justice. I consider that the public interest would not be served by enforcing answers to these questions. I therefore strike out interrogatories 68 and 69 on grounds of public interest immunity. The defendant is not required to answer those interrogatories.

I consider interrogatories 5(e) to 5(f), 6(d) to 6(f), 12(d) to 12(i), 12(s) to 12(ii), 75, 80, 82(d) to 82(f) and 82(h) to 82(i) are oppressive and I strike them out. The defendant is not required to answer those interrogatories.

In my view, each of the interrogatories asked by the plaintiff, except those identified as having been abandoned by the plaintiff or which I have ordered to be struck out, are proper interrogatories directed at eliciting admissions concerning the decision of the arresting officer to arrest the plaintiff. The defendant is required to answer the remainder of the interrogatories that have not been notified as being abandoned by the plaintiff.

In the Appendix to these reasons I have identified those interrogatories that have been abandoned by the plaintiff. I have also identified those interrogatories that I have ordered to be struck out as well as those I have ordered to be answered by the defendant.

Hopefully the effect of my orders in this case will ultimately lead to the co-operative construction of a statement of agreed facts and issues to simplify the trial and to reserve for the trial the true matters in dispute.

The plaintiff has been largely successful on the issue of the disputed interrogatories. In the ordinary course this would entitle him to an order for costs in his favour. Given that the cost of the listing of the matter on 10 December 2009 were reserved and therefore not argued, rather than deal with the costs in a piecemeal fashion, I give the parties leave to apply to have the matter listed before me to argue any entitlement for costs in the event that the question of costs cannot be agreed upon between the parties beforehand. Orders

I make the following orders:- (a) Interrogatories numbered 5(e) to 5(f), 6(d) to 6(f), 12(d) to 12(i), 12(s) to 12(ii), 68, 69, 75, 80, 82(d) to 82(f) and 82(h) to 82(i) are struck out.

(b) Within 28 days the defendant is required to answer the remaining interrogatories not abandoned by the plaintiff and the defendant is to verify the answers by affidavit;

(d) The parties have leave to re-list the matter to determine the question of costs of the motion in the event they are unable to agree upon those costs;

Interrogatory Order Ground for strike out order

1.           To be answered by defendant
   

2.           [Abandoned by plaintiff]
   

3.           To be answered by defendant
   

4.           To be answered by defendant
   

5. (a) - (c) To be answered by defendant
6. (d) - (f) Struck out Oppressive
7. (g) [Abandoned by plaintiff]
8. (h) - (i) Struck out
9. (j) - (k) To be answered by defendant
10. (a) - (c) To be answered by defendant
11. (d) - (f) Struck out Oppressive
12. (g) [Abandoned by plaintiff]
13. (h) - (i) Struck out

14.           To be answered by defendant
    

15.           To be answered by defendant
    

16.           To be answered by defendant
    

17.          To be answered by defendant
    

18.          To be answered by defendant
    

19. (a) - (c) To be answered by defendant
20. (d) - (i) Struck out Oppressive
21. (j) - (r) To be answered by defendant
22. (s) - (ii) Struck out Oppressive
23. (jj) - (mm) To be answered by defendant

24.          To be answered by defendant
    

25.          To be answered by defendant
    

26.          To be answered by defendant
    

27.          To be answered by defendant
    

28.          To be answered by defendant
    

29. (a) To be answered by defendant
30. (b) - (f) [Abandoned by plaintiff]
31. (g) To be answered by defendant

32.          [Abandoned by plaintiff]
    

33.          To be answered by defendant
    

34.          To be answered by defendant
    

35.          To be answered by defendant
    

36.          To be answered by defendant
    

37.          To be answered by defendant
    

38.          To be answered by defendant
    

39.          To be answered by defendant
    

40.          To be answered by defendant
    

41.          To be answered by defendant
    

42.          To be answered by defendant
    

43.          To be answered by defendant
    

44.          [Abandoned by plaintiff]
    

45.          To be answered by defendant
    

46.          To be answered by defendant
    

47.          To be answered by defendant
    

48.          [Abandoned by plaintiff]
    

49.          To be answered by defendant
    

50.          To be answered by defendant
    

51.          To be answered by defendant
    

52.          [Abandoned by plaintiff]
    

53.          To be answered by defendant
    

54.          To be answered by defendant
    

55.          To be answered by defendant
    

56.          To be answered by defendant
    

57.          To be answered by defendant
    

58.          [Abandoned by plaintiff]
    

59.          [Abandoned by plaintiff]
    

60.          [Abandoned by plaintiff]
    

61.          [Abandoned by plaintiff]
    

62.          [Abandoned by plaintiff]
    

63.          [Abandoned by plaintiff]
    

64.          [Abandoned by plaintiff]
    

65.          [Abandoned by plaintiff]
    

66.          [Abandoned by plaintiff]
    

67.          [Abandoned by plaintiff]
    

68.          [Abandoned by plaintiff]
    

69.          To be answered by defendant
    

70.          To be answered by defendant
    

71.          [Abandoned by plaintiff]
    

72.          [Abandoned by plaintiff]
    

73.          [Abandoned by plaintiff]
    

74.          [Abandoned by plaintiff]
    

75.          [Abandoned by plaintiff]
    

76.          To be answered by defendant
    

77.          To be answered by defendant
    

78.          To be answered by defendant
    

79. (a) - (k) To be answered by defendant
80. (l) [Abandoned by plaintiff]
81. (m) - (n) To be answered by defendant

82.          To be answered by defendant
    

83.          Struck out                   Public interest immunity
    

84.          Struck out                   Public interest immunity
    

85. (o) - (p) To be answered by defendant
86. (q) - (y) [Abandoned by plaintiff]

87.          To be answered by defendant
    

88.          To be answered by defendant
    

89.          To be answered by defendant
    

90.          To be answered by defendant
    

91.          Struck out                   Oppressive
    

92.          To be answered by defendant
    

93.          To be answered by defendant
    

94.          To be answered by defendant
    

95.          To be answered by defendant
    

96.          Struck out                   Oppressive
    

97. (a) To be answered by defendant
98. (b) - (e) [Abandoned by plaintiff]
99. (f) To be answered by defendant
100. (a) - (c) To be answered by defendant
101. (d) - (f) Struck out Oppressive
102. (g) [Abandoned by plaintiff]
103. (h) - (i) Struck out Oppressive

104.          To be answered by defendant
     

105.          To be answered by defendant
     

106.          [Abandoned by plaintiff]
     

107.          [Abandoned by plaintiff]
     

108.          To be answered by defendant
     

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