Jajaw v State of NSW

Crown Proceedings Act 1988 Police Act 1990 LEGISLATION CITED : DCR Part 22A, rules 1-6 SCR Part 24 rules 1-6 UCPR Part 22 rules 1 and 2

A v NSW [2007] 81 ALJR 763 Binks v North Sydney Council [2001] NSWSC 27 Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 Boyle v Downs (1979) 1 NSWLR 192 Cavric v Coopers & Lybrand (ACT) Limited & Anor [2002] NSWSC 538 Commissioner for Railways v Small (1938) 38 SR(NSW) 564 Griebart v Morris [1920] 1 KB 659 CASES CITED : Haywood v Collaroy Services Beach Club [2005] NSWSC 1203 Lang v Australian Coastal Shipping Commission (1974) 2 NSWLR 70 Mitchell v John Heine & Son Limited (1938) 38 SR (NSW) 466 Newcastle City Council v Kern Land Pty Ltd & Anor (No 1) unreported, 9 December 1996, McLelland CJ in Eq Priest v State of NSW [2006] NSWSC 12 R v Gould (1993) 67 A Crim R 297 Schutt v Queenan & Anor [2000] NSWCA 341 Yamazaki v Mustaca [1999] NSWSC 1083

PARTIES : Thamir Jajaw - Plaintiff State of New South Wales - Defendant

COUNSEL : Mr P Barham - Plaintiff Mr M Hutchings - Defendant

SOLICITORS : Somerville & Co - Plaintiff I V Knight, Crown Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: Nature of proceedings The plaintiff by Notice of Motion seeks an order from the Court that the defendant provide verified answers to specified interrogatories and that the answers to the specified interrogatories be deemed to apply in other matters which rely upon the same events. The defendant opposes the motion. 2 In the same motion orders were sought that the related proceedings be heard together and that the evidence in one be evidence in the other. Detailed submissions were not made on that question and I do not propose to rule upon it until further case management takes place and the issues likely to arise at trial have been clarified. 3 Accordingly, this judgment relates solely to the interrogatories question.

Factual background 4 The proceedings concern events which occurred on the evening of 8 October 1995. On that evening Hayet and Laath Jajiow and their three children, Linda, Lisa and Peter, were celebrating Linda's eighth birthday. Family members and friends had been invited to their home at 51 Bougainville Road, Lethbridge Park. A large number of people attended. 5 A complaint about noise was made by a member of the public to the NSW Police, who were requested to attend. Initially Senior Constable Taplin and Probationary Constable Siewert attended. There is a significant factual dispute between the parties as to what happened thereafter. 6 The police allege that Constables Taplin and Siewert were confronted by a hostile and aggressive guest, the plaintiff, Thamir Jajaw. The plaintiff was arrested by Constable Taplin for assault. The plaintiff escaped lawful custody assaulted a neighbour and sought to avoid police by taking refuge in the backyard of the Jajiow family home. Other police were then requested to attend and provide assistance. The final number of police officers who actually attended the premises is not clear but was about 24. The police allege that when they entered the premises to arrest the plaintiff, an affray ensued. The police allege that while they were attempting to arrest him, some of them were assaulted by persons on the premises. The persons whom the police believed committed those assaults were subsequently arrested when the police re-entered the premises for that purpose. 7 The plaintiff and those with related proceedings, deny that the plaintiff committed any offence and say that there was no proper cause for such a large number of police to enter the premises. They say that by their conduct at the premises the police abused their powers and assaulted a number of the guests and wrongfully arrested and detained others. 8 The defendant is sued pursuant to the Crown Proceedings Act 1988 for the actions of the various police officers. Fifteen sets of proceedings have been commenced. These were originally commenced in the District Court but were transferred to the Supreme Court in 2006. 9 The plaintiffs in those proceedings can be divided into three categories. The first category comprises the occupiers of the premises Hayet and Laath Jajiow. They have brought proceedings alleging trespass to land, assault and misfeasance in public office. The second category comprises the plaintiff, Amir Jajiow, Nabeel Jajaw, Farid Jajaw, Karim Jajiow and Evan Avades. These persons were arrested at the premises, taken to Mount Druitt Police Station and charged with criminal offences. They have brought proceedings alleging assault, malicious prosecution, false imprisonment and misfeasance in public office. The third category comprises Almas Jajaw, Athear Jajiow, Harriott Jajiow, Stephen Jajaw, Peter Jajiow, Lisa Jajiow and Linda Jajiow. These were persons who were present at the premises but who were not arrested. They have brought proceedings alleging assault and misfeasance in public office. 10 The proceedings by Peter, Lisa and Linda Jajiow (the children of the occupiers) have been settled. 11 After his arrest, the plaintiff was detained at the Mount Druitt Police Station between 7pm and 6am on 9 October 1995 when he was granted bail. He was committed for trial in relation to the following offences:

(i) Riot/affray. (ii) Assault police x 2. (iii) Common assault. (iv) Resisting a police officer in the execution of his duty x 3.

The plaintiff pleaded not guilty on arraignment. 12 The plaintiff's first trial commenced in the District Court at Sydney on 30 March 1998. It proceeded for 26 days when the jury was discharged without a verdict. The plaintiff's second trial commenced in the District Court at Sydney on 8 March 1999. After 12 days the plaintiff was acquitted. Charges were withdrawn in relation to the other plaintiffs in category 2. 13 The plaintiff has the police brief in relation to the offences with which he was charged, together with the transcript of evidence from his trials and the exhibits tendered. The other plaintiffs in category 2, each have copies of the police brief relating to their matter.

Submissions 14 The plaintiff's application is governed by Part 22 rules 1 and 2 of the UCPR: "22.1 Interrogatories ( SCR Part 24 rules 1-6, DCR Part 22A, rules 1-6) (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 to 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 them. 22.2 Objections to specific interrogatories ( SCR Part 24, rule 6(3)) A party may not object to being ordered to answer an interrogatory except on the following grounds: (a) The interrogatory does not relate to any matter in issue between that party and the party seeking the order, (b) the interrogatory is vexatious or oppressive, (c) the answer to the interrogatory could disclose privileged information." 15 The plaintiff submitted that neither his claim nor the related claims could correctly be characterised as being "a claim for damages arising out of the death or bodily injury to any person". Accordingly, it was not necessary for him to satisfy the Court that "special reasons" existed that justified the making of an order for interrogatories. 16 The defendant accepts that proposition in relation to the category 1 and 2 claims, but disputes the submission in relation to the category 3 claims. The defendant submitted that the claims for assault and misfeasance in public office in the context of this case were correctly characterised as claims for damages arising out of bodily injury to a person. 17 I accept the submission of the defendant on that issue. It seems to me that the causes of action based on assault and misfeasance in public office can be characterised as a claim for damages arising out of the bodily injury to a person. In those circumstances the plaintiffs bringing those claims have to satisfy the Court that "special reasons exist" in order to justify the administering of interrogatories in relation to those matters. 18 Not surprisingly, given the nature of the concept of "special reasons", no attempt has been made by the courts to exhaustively define it. In Cavric v Coopers & Lybrand (ACT) Limited & Anor [2002] NSWSC 538 Harrison As J stated: ""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." 19 Rothman J in Haywood v Collaroy Services Beach Club [2005] NSWSC 1203, a case which involved complex contractual relations between the defendant and third parties, considered that the following considerations constituted "special reasons": "(a) The questions are concerned with subjects that, as between the parties, are largely or peculiarly within the knowledge of the defendant; (b) involve complex questions going to the relationship (legal and otherwise) between the defendant and third parties (c) would, for the plaintiff, otherwise be very difficult or impossible to prove or would be such that probative evidence on such issues would be difficult or impossible to obtain." 20 Most recently Johnson J considered the "special reasons" test in the context of discovery in Priest v State of NSW [2006] NSWSC 12 at [127-128]: "127 The creation of the "special reasons" test in Part 23 r 5 SCR in 1996 strengthened what was always a prima facie prohibition upon discovery in claims for personal injury: Haywood v Collaroy Services Beach Club Limited [2003] NSWSC 43 at paragraph 15. The rule represents an intention that discovery in personal injury cases will be rare, and will be ordered only where special reasons are made out: Haywood at paragraph 20.

128 Not surprisingly, there is no definition of "special reasons" in the SCR (or UCPR). The Shorter Oxford Dictionary defines "special" as meaning "of such a kind as to exceed in some way that which is usual or common" and also "exceptional in character, quality or degree" . The application of Pt 23 r 5 SCR (Pt 21.8 UCPR) should be approached giving to "special reasons" the meaning that expression would ordinarily convey in common English usage, whilst having particular regard to the statutory setting in which the language is used: R v Gould (1993) 67 A Crim R 297 at 300. 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: Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535-6 (paragraph 18); Binks v North Sydney Council [2001] NSWSC 27 at paragraphs 9-10." 21 On behalf of the plaintiff it was submitted that the "special reasons" test had been satisfied because these were not typical personal injury claims. The matters complained of took place approximately 12 years ago so that it would be preferable for information to be provided in an orderly manner by way of interrogatories rather than under the pressure of the witness box. It was submitted that answers to interrogatories in relation to these claims would significantly shorten the hearing. 22 I do not regard any of those matters as constituting "special reasons". There is a real issue as to whether a claim for misfeasance in public office can be brought against a police officer and claims for damages for assault are relatively straightforward. Given the date when these proceedings were commenced, it is surprising that no attempt has been made to administer interrogatories before now. I am also far from convinced that the "specified interrogatories", the subject of this application, will in any way shorten the proceedings. Accordingly, in relation to the category 3 plaintiffs, I am not satisfied that special reasons exist which would justify the administration of in interrogatories in their cases. 23 In relation to the claims for trespass, malicious prosecution and false imprisonment an order for interrogatories is not to be made unless the Court is satisfied that the order is necessary at the time it is made. 24 A helpful analysis of the decided cases, both in Australia and in the United Kingdom, on the concept of "necessary" was carried out by Cross J in Boyle v Downs (1979) 1 NSWLR 192. His Honour concluded at p 205: "But the test is … whether, all in all, the order is reasonably necessary for the disposing fairly of the case; and where a plaintiff has evidentiary difficulties, considerations of those difficulties will probably be the most important, but not the only, considerations relevant to determining whether the order is so necessary. I feel that it is for the reason that the rules should take into account the interests of both parties that the rule in other places eg England and South Australia, is framed to make the relevant test "necessary for the disposing fairly of the cause or matter." I am of the opinion that the word "necessary" in r 5 (2) should be interpreted in a somewhat similar manner, namely, "reasonably necessary for the disposing fairly of the cause or matter". In considering the meaning of the word "necessary" in Pt 23, r 14 - a rule relating to discovery and inspection similar to r 5 in Pt 24 relating to interrogatories - Rath J in Percy v General Motors-Holden Pty Ltd interpreted it as "necessary in the interests of a fair trial". This definition is similar to the one I have suggested; for in Griebart v Morris Scrutton LJ interpreted "necessary for disposing fairly of the cause or matter" (under the English rules relating to interrogatories) as "necessary for the fair trial of the action". 25 That approach was approved by the Court of Appeal in Schutt v Queenan & Anor [2000] NSWCA 341 at [12] where Mason P said: "[12] In this area, the accepted test of necessity is what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial ( Boyle v Downs [1979] 1 NSWLR 192 at 205, Yamazaki v Mustaca [1999] NSWSC 1083). The answers which are sought are material in the sense that they may enable the claimant either to maintain her own case or to destroy the case put against her (see Griebart v Morris [1920] 1 KB 659 at 664)." 26 The facts in Schutt involved injuries to a six year old child when she was struck by a motor vehicle. The specified interrogatories were 15 in number and explored such matters as where the driver came from, where he was going, his view, his familiarity with the street and his observation of other vehicles. Against that factual background the Court of Appeal's application of principle in Schutt is useful: "[13] Griebart was remarkably similar to the present case. The plaintiff in a running-down case was concussed and left with a defective memory of her accident. No eye witnesses could be found. The plaintiff sought to administer interrogatories asking in substance what were the positions of the bus from which the plaintiff had alighted and the defendant's motor car at the time of the accident, and how far the plaintiff was from the bus and from the kerb on either side of the road. Leave to administer these interrogatories was refused in the lower courts on the basis of a rule of practice not to allow interrogatories in running-down cases except for special reasons. The English Court of Appeal held that there was no such rule of practice and that in the circumstances the interrogatories were necessary for disposing fairly of the action. See also James v Glenn [1942] VLR 132, Wisniewski v Tolley (1967) 10 FLR 157. [14] Griebart is referred to by Jordan CJ in the Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 575 as authority for the proposition that there may be special circumstances in which a party is entitled to use a subpoena or a summons for interrogatories for the purpose of "fishing" in the sense of endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all. In Newcastle City Council v Kern Land Pty Ltd & Anor (No 1) unreported, 9 December 1996, McLelland CJ in Eq said (at pp 3-4): "The case of Griebart v Morris referred to by Jordan CJ and cases which have followed that case, both in New South Wales and elsewhere, illustrate that in particular circumstances it may be legitimate to use a subpoena for what would in other circumstances be characterised as for fishing purposes, where the relevant area of factual inquiry is one concerning which the plaintiff can, in the nature of things, have no knowledge, where for instance the area of factual inquiry is wholly or at least substantially within the knowledge of the defendants to the proceedings." [15] To the extent that there is a dictum to the contrary relating to fishing interrogatories in the judgment of Master Cantor QC in Lang v Australian Coastal Shipping Commission (1974) 2 NSWLR 70 at 73 I disagree with it." 27 The plaintiff submitted that the number of interrogatories which he was seeking to administer had been significantly reduced and met the traditional criteria, ie they were designed to support the plaintiff's case or to damage the case of the defendant. They were necessary because they went to areas which were solely within the knowledge of the defendant. 28 The plaintiff submitted that the interrogatories were necessary for a fair trial because he had no idea what particular police officers, if any, might be called to give evidence in the defendant's case. As of the present time, no notices had been given under the Evidence Act 1995 to have prior written statements or evidence from police officers admitted in the trial without the necessity to call the witness. In a malicious prosecution claim the plaintiff had the difficult task of proving an absence of reasonable and probable cause and of establishing malice. Reference was made to Mitchell v John Heine & Son Limited (1938) 38 SR (NSW) 466 where Jordan CJ said in relation to malicious prosecution: "Merely to prove that the defendant had before him information which might or might not have led a reasonable man to form an opinion that the plaintiff was guilty supplies no evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant's belief actually was. It is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief; and if such evidence is relied on there must also be evidence that these reasons were in fact operative …" 29 The plaintiff also referred in submissions to the defence under s6 of the Police Act relied upon by the defendant. Section 6 sets out the mission and functions of the NSW Police Force, in particular services by way of prevention of crime and for the protection of persons from injury. The plaintiff submitted that some of the interrogatories were directed to negativing that defence. 30 On behalf of the defendant it was submitted that the question of which police officers were likely to give evidence was irrelevant to the question of whether the interrogatories were "necessary". Because of the positive matters asserted by the defendant in its defence, the defendant would have to go into evidence if it were properly to defend the case, in which situation the defendant's witnesses would be subject to cross-examination. 31 The defendant submitted that not only had the plaintiff been served with the police brief but he had the benefit of the police witnesses being extensively cross-examined in two trials. The plaintiff also had the Crown exhibits relied upon in those trials. It was submitted that the plaintiff had full information concerning the defendant's case so that his situation was quite different to the facts considered by the courts in Schutt and Griebart. In the case of the plaintiffs in the other malicious prosecutions claims, they had each been served with a copy of the police brief and would also have the advantage of the transcripts of evidence from the plaintiff's trials. 32 It seems to me that there is an air of unreality in the plaintiff's application. At the heart of the plaintiff's cause of action is a fundamental issue of fact which will need to be resolved. This has nothing to do with the administration of interrogatories but will depend upon the quality of the evidence adduced by each side. This is the question of what actually happened at 51 Bougainville Road on the evening of 8 October 1995. 33 On the plaintiff's case what was occurring was a children's party attended by family and friends. On the defendant's case there was a noisy, drunken crowd which attacked attending police officers leading to those officers requesting urgent assistance. The resolution of that issue of fact will to a significant extent determine the outcome of the plaintiff's case. The interrogatories have no part to play in that contest. 34 The High Court in A v NSW [2007] 81 ALJR 763 has clarified what a plaintiff has to prove in a malicious prosecution claim. In relation to absence of reasonable and probable cause, the High Court identified a subjective aspect and an objective aspect, ie what the prosecutor made of the available material and what the prosecutor should have made of the available material. As here where a prosecutor possesses personal knowledge of the relevant facts, the issue is whether the prosecutor held a positive belief that the plaintiff was guilty or at least probably guilty. Malice in such a claim means that the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law, ie an illegitimate or oblique motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor. 35 It is difficult to see how any of the specified interrogatories relate to those fundamental issues. At most they deal with peripheral evidentiary matters which may, depending upon the way in which the matter proceeds, be relevant. 36 The plaintiffs seek leave to administer 153 interrogatories some of which contain subsets of questions. An example of the peripheral nature of the information sought is interrogatory 13: "Identify each person who allegedly punched or pulled Officer Taplin as referred to in paragraph 32 of attachment A?" 37 Attachment A is a statement of Constable Taplin. In paragraph 32 he says: "I then felt punches hit me in the body. I felt arms on me pulling at me and JAJAW to try to get him away from me. …"

Apart from the fact that it is patently obvious from the statement that Officer Taplin had no idea who punched him, the relevance of this information is difficult to determine and it is certainly not information which the plaintiff requires in order that a fair trial might take place. 38 A number of interrogatories are directed to why the plaintiff was arrested at the premises, rather than being served with a summons or court attendance notice. Apart from questionable relevance, the issue of reasonableness of arrest is one which will largely turn on the finding of fact ultimately made by the Court as to what occurred at the premises. 39 In support of the plaintiff's motion, certain documents were annexed to the affidavit of Mr Mackic, the plaintiff's solicitor. Included in those documents was a 'serious incident' report completed by Sergeant Corboy on 9 October 1995. Sergeant Corboy was the shift supervisor at the Mount Druitt Police Station on the night of the incident. Included in that report was the following: "At this stage it was clear that if they stayed in their forward position police and the offender could be seriously injured or killed by the objects being hurled. Some objects such as logs and cast iron furniture narrowly missing the police. Meat laced with Draino was also thrown towards the police dogs. It was at this stage that the gates which were padlocked were pushed over. Police retreated with the offender and an outer perimeter established. … Whilst police from other stations manned the perimeter a briefing was held at a safe distance. … All police involved in the original incident and who were part of the arrest teams attended an official debrief also attended by Superintendent Brame." 40 Some of the specified interrogatories were directed to the locked side gate, others were directed to the debriefing which occurred after the incident was concluded as to what was said at that debriefing. It is clear that none of this material is reasonably necessary for disposing fairly of the matter, or necessary in the interests of a fair trial. 41 The same comment applies to those interrogatories directed at whether police officers had discussed their witness statements, whether police officers received training in the prevention of psychiatric injury to bystanders and whether authorisation was given to taking police dogs onto the premises. The remaining interrogatories concern similar matters but refer to the arrests of the other category 2 plaintiffs. 42 As a result of having the police brief and having the transcripts and exhibits from the two criminal trials, the plaintiff has access to an enormous amount of material relating to his claim. Those police officers, who will be the mainstay of the defendant's case, were fully and comprehensively cross-examined in those trials. It is difficult to envisage a situation where a plaintiff would have more information than that which this plaintiff has. His situation is the very antithesis of that considered by the courts in cases such as Schutt, Griebart and Boyle. 43 Against the background of this mass of information the specified interrogatories put at their highest go to peripheral issues at best. The absence of the information sought in them would not significantly impact on the plaintiff's ability to pursue his claim for malicious prosecution. 44 I do not propose to consider in detail the challenges made by the defendant to specific interrogatories based on relevance and oppression. For the reasons set out above I am not satisfied that an order that the defendant answer the specified interrogatories is necessary at the present time. 45 The orders which I make are as follows:

(i) Orders 3 and 4 of the Notice of Motion, dated 2 August 2006, are refused. (ii) The plaintiff is to pay the defendant's costs of the motion. **********

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