Lawrance v Pickles [2005] NSWSC 718 | Case summary

(1) Where, on application by any person, it appears to the Court that: (a) the applicant, having made reasonable inquiries, is unable to ascertain the identity of a person for the purpose of commencing proceedings against that person or is unable to ascertain the description of any person sufficiently for that purpose, and (b) some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document or thing, tending to assist in the ascertainment of the identity or description of the person concerned, the Court may order that person: (c) to attend before the Court or an officer of the Court and be orally examined on any matter relating to the identity or description of the person concerned, and (d) to produce any document or thing in his possession, custody or power relating to the identity or description of the person concerned." 5 The operation of the rule was discussed by Master Allen, as he then was, in Exley v Wyong Shire Council, unreported, 10 December 1976. His Honour observed in that case: "The rule, in its present form, makes no reference to it being shown that the plaintiff has a prima facie case for relief against the unidentified person. Instead, it provides, so far as relevant, that the court may order preliminary discovery where it appears that "the applicant, having made reasonable enquiries, is unable to ascertain the identity of the person for the purpose of commencing proceedings against that person or is unable to ascertain the description of any person sufficiently for that purpose". But, as Mr White has pointed out, the granting of preliminary discovery is within the discretion of the court. In that regard, in my opinion a material factor is the prospect of the plaintiff succeeding in proceedings against the person whom he wishes to sue once he has obtained his name. The provision made by Pt 3 for preliminary discovery was a bold innovation although, to some extent, the same objective has been attained in England by application of the principles applicable to the Old Bill of Discovery in Equity and a specific rule in personal injury cases (O 24 r 7A). The objective was to overcome the manifest injustice which could occur that a person who had suffered a legal wrong committed by another might be without redress because he did not know the name of the wrongdoer or otherwise have such a description of his identity as would enable him to be sued. In such a case it was only just that the person so wronged should be enabled to obtain the wrongdoer's name (or other appropriate identification) from a person who had that knowledge. Preliminary discovery is a valuable aid to justice. But its objective would be perverted if it were to be permitted to be turned into an instrument of oppression. In my opinion it would be turned into an instrument of oppression if it became a procedure in aid of speculative claims. It is one thing to require the name of a wrongdoer to be disclosed to the person wronged. It is a very different thing to require his name to be disclosed so that someone supposing himself to have a grievance against him may commence merely speculative proceedings against him." 6 These observations were cited with approval by Sheppard J in Stewart v Miller (1979) 2 NSWLR 128 at 140. 7 The applicant read a large number of affidavits in support of the relief that she claims. It is not necessary to turn to each of them in order to explain my reasons. 8 I should note that also before me today is a motion filed on 23 February 2005 by the first defendant, Dr Margaret Pickles, which claims, inter alia, an order pursuant to the SCR Part 13 rule 5 that the proceedings against her be dismissed. 9 In support of the relief claimed in that motion, and by way of opposition to the making of the orders that are claimed in the summons for preliminary discovery, the first defendant tendered the summons in proceedings 30 of 2004 filed in the Protective Division of this Court, together with the evidence that was filed in those proceedings. The first defendant drew to my attention the judgment of Windeyer J delivered in those proceedings with respect to the claims brought against two defendants on 2 August 2004 and with respect to the claims brought against the remaining defendants on 16 August 2004. 10 My attention was also drawn to the decision of Sheller JA, with whom Tobias JA agreed, in Lawrance v The Guardianship Tribunal, CA 10 December 2004. 11 For the reasons I am about to give, it has not been necessary for me to consider the first defendant's submission that the present proceedings are an abuse of the process of the Court, in that they are an endeavour to relitigate issues that were determined by Windeyer J in the two judgments to which I have referred. 12 It is the applicant's understanding that she is being administered medical treatment without her consent, and she objects to that continuing. In her affidavit affirmed in support of the summons filed on 8 February 2005, she states: "I do not know who is prescribing, and who is administering, treatment, nor who has consented to its application. I do not have a mental illness, a mental disorder nor a disability. I have never in the past consented to nor tolerated involuntary treatment, nor have I been aware of such having occurred prior to 4 April 2003." 13 It is the applicant's case that the administration of medication against her will commenced on or about 4 April 2003 and has been continuing since that time. 14 Before turning to the causes of action that the applicant seeks to bring, it is necessary to refer to the provisions of Part 63 of the SCR. Counsel for the first defendant drew to my attention the requirements of Part 63 rule 5 subrule 2: "Where, after the commencement of proceedings, a party becomes an incompetent person, no step in the proceedings shall be taken by or against the incompetent person until a tutor for him has been appointed by the Court." 15 "Incompetent person" is defined, for the purpose of the SCR, in Part 1 rule 8, as: "(a) A person who is not a minor and who is (i) incapable of managing his or her affairs..." 16 No evidence was tendered on behalf of the second to fifth defendants. The only evidence tendered on behalf of the first defendant was as I have stated and went to the issue to which I have referred. 17 In the affidavits filed on behalf of the applicant, there is material concerning her consultation with the first defendant, a psychiatrist, and relating to an attendance with the second defendant, who is also a psychiatrist, in the mid 1990s. Annexed to one of the affidavits is correspondence passing between the applicant and the second defendant relating to that earlier attendance. 18 In addition, there is material in the applicant's affidavits touching on her belief that she has been subjected to a medication regime of some character to which she has not consented. 19 The applicant does not invite me to approach the matter upon the basis that she is an incompetent person within the meaning of the Rules. Her assertion is, as I have noted, that she does not suffer a mental illness, a mental disorder, nor any form of disability. 20 There is material in the evidence before me that serves to explain why, properly, the question of the application under Part 63 rule 5 subrule 2 was brought to my attention. However, I was not persuaded that the material disclosed the applicant to meet the definition of an incompetent person to which I have referred. 21 I return to the applicant's case with respect to the relief that she seeks. She identifies as the cause of action that she seeks to commence, a claim in trespass to the person. This, as I understand it, is a claim that she would wish to propound against the person or agency responsible for the non-consensual medical treatment which she believes she has been subject to since 4 April 2003. 22 In addition, she tells me that she believes herself to have been unlawfully discriminated against in the field of employment, goods and services, and, since 2003, in the field of education. It is her understanding that the discrimination to which she has been subject is unlawful, both under the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. 23 The applicant informed me that she has proceedings pending in the Federal Court of Australia with respect to her claims of unlawful discrimination. As I understand it, those proceedings have been commenced against the Social Security Appeals Tribunal, the Refugee Review Tribunal, and the Macarthur Legal Centre, each being her former employers. 24 Turning, firstly, to the proposed cause of action in trespass to the person arising out of the administration of medical treatment and/or medication to which the applicant has not consented. Whilst the evidence discloses that the applicant believes that she has received medication and/or treatment, it does not get higher than that. The basis for the applicant's belief, asserted in a number of her affidavits that she is "being administered medical treatment against my will", is not disclosed. 25 In an affidavit affirmed on 23 February 2005, the applicant sets out the history of her dealings with the first defendant, including that she consulted Dr Pickles in January 2002 and that her last consultation with Dr Pickles was on a date in or about mid March 2003. 26 On that occasion she says that she showed Dr Pickles a copy of a complaint that she had made to the Health Care Complaints Commission. The complaint was dated 14 March 2003. I infer that her consultation with Dr Pickles was on a date on or about that day, or shortly thereafter. She says this was the last occasion on which she consulted Dr Pickles. Dr Pickles was dismissive of her on that date, and she resolved to no longer attend consultations with her. 27 In the course of submissions the applicant informed me that she believed Dr Pickles would have knowledge of the identity of the person or agency providing the treatment, because of the proximity of the last occasion when she consulted Dr Pickles and the date when she believes the non-consensual treatment commenced. 28 I am not persuaded that the applicant has established that she has any prospects of successfully bringing a cause of action against any person with respect to the administration of treatment and/or medication to her against her will based on the material that has been led in support of this application. I am not persuaded that the applicant has established, in any event, that Dr Pickles is a person who has or may have knowledge of facts touching on the administration of medical treatment or medication to her from 4 April 2003 until the present time. No ground has been made out for an order with respect to the first defendant. 29 I turn now to the relief claimed with respect to the second defendant. In the course of submissions, the applicant told me that she considers Dr McMurdo to be a person who may have information concerning the circumstances in which others have imputed a disability to her. This is relevant to her discrimination claim in the Federal Court proceedings. 30 To the extent that the applicant has commenced proceedings against her former employers in the Federal Court, I am not persuaded that she has made out a case for preliminary discovery pursuant to the SCR Part 3 rule 1 (1) (a). I note that in her summons the applicant asserts that Dr McMurdo is a person whom she seeks to have orally examined pursuant to the provisions of Part 3 rule 1 upon the current medical treatment being administered to her. Suffice it to say, for the reasons earlier given, I am not of the view that the applicant has established that she has the prospect of succeeding in any claim brought in trespass, or otherwise, arising out of her belief that she has been the subject of involuntary medical treatment. Further, since her beliefs in relation to this treatment concern events commencing on or about 4 April 2003, and her sole consultation with Dr McMurdo is said to have been in late 1995, I am not persuaded that she has established a basis for the conclusion that he is a person who has, or may have, knowledge of facts tending to assist in the ascertainment of the identity or description of any person involved in the administration of non-consensual medical treatment since April 2003. 31 Turning to the third defendant, Andrea Taylor, it is submitted that Ms Taylor, a person with whom the applicant was once on friendly terms, may have knowledge of the medical treatment. The reasons for that belief are not established with any clarity. 32 In her affidavit of 8 February 2005, and in later affidavits, the applicant refers to her understanding that Andrea Taylor has engaged in email correspondence with other person that relate to her. The applicant observes that she values her privacy, along with her independence and autonomy, and, in oral submissions, she stated that she would want to know what it is that Ms Taylor has been saying about her. 33 For the reasons earlier given, I am not of the view that the applicant has prospects of succeeding in any cause of action arising out of the medical treatment. Nothing is before me to suggest, in any event, that Ms Taylor is a person who has, or may have, knowledge of facts tending to assist in the ascertainment of the identity or description of any person involved in the administration of non-consensual medical treatment to the applicant. 34 The fourth defendant, Fiona Stiff, is the applicant's sister. In oral submissions, the applicant asserted her belief that her sister may have knowledge of the medical treatment, although somewhat more prominent in the way the matter was put, was her concern that her sister had lied to her and had wrongly developed a belief that she (the applicant) was suffering from some mental condition. 35 In her affidavit affirmed 22 February 2005, the applicant states, at paragraph 7: "Fiona Stiff and I have never had any conversations or discussions about medical treatment. I have never thought that she had anything to do with me nor access to medical records." 36 For the reasons earlier given, I am not persuaded the applicant has established that she has any prospect of succeeding with respect to the claim that she identifies in trespass arising out of the non-consensual medical treatment. The evidence falls well short of establishing, in any event, Ms Stiff is a person who may have knowledge of facts tending to assist in the ascertainment of the identity or description of a person involved in the administration of non-consensual medical treatment to the applicant. 37 The fifth defendant, Andrea Howard, was joined, as I have noted, pursuant to leave earlier granted. The applicant claims an order that Ms Howard produce documents and be orally examined in relation to what she describes as "the above matters". 38 In her affidavit evidence, including the affidavit affirmed on 16 March 2005, the applicant recites a history of her dealings with Ms Howard. This includes that in relation to her belief, in hindsight, that she has been subject to marital status discrimination that Ms Howard is a person aware of the policy adopted at the Refugee Review Tribunal with respect to that topic. Various other assertions concerning Ms Howard are made in that affidavit, including the applicant's belief that Ms Howard has been the recipient of lies and false information about her. The applicant seeks access to material tending to establish that Ms Howard may have had contact in relation to her with various entities and persons (paragraph 17). 39 Again, I am not persuaded that the applicant has established that she has any prospect of succeeding in the proposed cause of action in trespass with respect to the non-consensual medical treatment. I am not persuaded that Ms Howard is a person with knowledge of facts tending to assist in the ascertainment of the identity or description of any person involved in the administration of non-consensual medical treatment to her. 40 To the extent that in her affidavit she refers to Ms Howard as a person with knowledge of matters relevant to the proceedings that she has brought in the Federal Court propounding claims of unlawful discrimination, it is material that does not fall within the terms of Part 3 rule 1. 41 For these reasons, I dismiss the applicant's summons for preliminary discovery. 42 It follows from that that it is not necessary to turn to the first defendant's motion to which I have referred, and I dismiss that motion. 43 I direct that the applicant is to pay the defendants' costs, as agreed or assessed.

Lawrance v Pickles

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (1)