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. …"