Lipman v State of New South Wales

Catchwords: Limitation defence – Personal injury – Negligence – Interrogatories – Discovery – Special reasons – Client Legal Privilege – Implied waiver

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), ss 117, 118, 119, 122
Limitation Act 1969 (NSW), s 50
Police Regulation (Superannuation) Act 1906 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 22.1

Cases Cited: Attorney-General (NT) v Maurice (1986) 161 CLR 475
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236
Hancock v Rinehart [2016] NSWSC 12
Lila Foxall (by her tutor Robert Foxall) v Kirsty Carter (No. 2) [2023] NSWSC 872
Mann v Carnell (1999) 201 CLR 1
Mid North Coast Local Health District v Hickson [2019] NSWCA 165
Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376
Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] [1981] Com LR 138
New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWCA 257
Oshlack v Richmond River Council (1998) 193 CLR 72
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Pomare v Hogan (No 2) [2019] NSWSC 496
Schutt v Queenan [2000] NSWCA 341

Category: Principal judgment

Parties: John Lipman (Plaintiff)
The State of New South Wales (Defendant)

Representation: Counsel:
B Dooley SC (Plaintiff)
P O’Rourke (Plaintiff)
N Bentley (Defendant)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s): 2022/00123661

Publication restriction: Nil

JUDGMENT

1. This judgment concerns a Notice of Motion (NOM) filed by the defendant on 11 April 2025, seeking discovery and interrogatories.

2. The plaintiff is Mr John Lipman. He is represented by B Dooley SC and P O’Rourke of counsel. The defendant is the State of New South Wales. It is represented by N Bentley of counsel. The parties relied on a joint court book which was marked as Exhibit A.

3. The plaintiff relied on two affidavits of the plaintiff dated 14 April 2025 and 28 April 2022 and two affidavits of Joel Tucker (the plaintiff's solicitor), dated 28 April 2025 and 6 May 2025. The defendant relied upon the affidavit of Amelia Grace Hagley (the defendant’s solicitor) dated 10 April 2025.

Background

4. At about 1:25pm on 19 October 2011, the plaintiff, while executing his duties as an Inspector in the New South Wales Police Force (NSWPF), was injured at his Huntingwood office. It is alleged that while he was placing items in a cupboard the lights went out and attempting to leave the room to activate the afterhours switch, tripped and fell over some objects. The proceedings arise out of this incident and its alleged consequences, which it is claimed were occasioned by the defendant's negligence.

5. Prior to initiating these proceedings, the plaintiff’s injury was substantially dealt with under the Police Regulation (Superannuation) Act 1906 (NSW) (Police Superannuation Ac**t). Under that Act, the plaintiff was financially supported after his injury. The defendant has many of the documents relating to this incident in its possession. Following the incident, the plaintiff remained in the employment of the defendant.

6. In August 2017 the plaintiff approached the Police Association of New South Wales (Police Association) in order to make a claim for lump sum gratuity under the Police Superannuation Act. The Police Association granted the plaintiff legal assistance for his claim under this Act. These legal services were provided by Walter Madden Jenkins (WMJ), panel solicitors for the Association.

7. In August or September 2018, on his own application, the plaintiff was medically discharged from the NSWPF and was placed on a 'superannuation allowance' under the Police Superannuation Act. Following an appeal, the superannuation allowance was raised from 72.75% to 79.12% of the salary attaching to the office held by the plaintiff at the time of discharge.

8. In April 2020, the plaintiff first contacted Slater & Gordon Lawyers. He did so because, it is said in his statement filed on 14 April 2025, having discussed his state of affairs with his partner, he decided to make enquiries as to whether or not 'there was any other action available' to him to compensate him for what he considered was 'a substantially reduced lifestyle' (at [54]).

The Pleading Framework

9. On 29 April 2022, the plaintiff filed the Statement of Claim (SOC). He alleges that the NSWPF was negligent as outlined earlier and seeks damages for personal injuries.

10. On 3 May 2022, the plaintiff provided particulars relating to out-of-pocket expenses, a claim for domestic assistance, loss of earning capacity and past economic loss, future economic loss, and loss of past and future superannuation entitlements.

11. On 5 December 2022, the defendant filed a defence denying liability, raised contributory negligence, and a limitation defence under ss 50C-50D of the Limitation Act 1969 (NSW) (Limitation Act).

12. On 11 April 2025 the defendant filed the NOM seeking, discovery of documents and interrogatories relating to its defence under the Limitation Act. Some of the documents sought on discovery were complied with by the plaintiff’s evidentiary statements filed on 14 April 2025 and 28 April 2025.

13. The substantive matter is listed for a five-day hearing on 4 August 2025 to 8 August 2025.

Orders Sought

14. In the light of the additional statements provided by the plaintiff, at the hearing, counsel for the defendant produced an updated list of orders sought (Short Minutes of Order for 20 May 2025 Hearing). They are:

“1 Pursuant to UCPR rr 2.1, 2.3(i) and 22.1, direct that the plaintiff provide answers verified by affidavit to the interrogatories the subject of the schedule annexed and marked “A” by a date to be set by the Court.

2 Pursuant to UCPR rr 21.2, 21.3, 21.4 and 21.5, direct that the plaintiff is to give verified discovery, and produce for inspection, by a date to be set by the Court of all documents held, created, sent or received (including by his servant or agents, such as Walter Madden Jenkins and Slater & Gordon) by him up to 29 April 2022:

a. recording or referring to the fact that he knew, or ought to have known, that on 19 October 2011 he had suffered an injury (Injury);

b. recording or referring to the fact that he knew, or ought to have known, that his Injury was caused by the fault of his employer;

c. recording or referring to the fact that he knew, or ought to have known, that his Injury was sufficiently serious to justify the bringing of an action on the cause; or

d. which could reasonably inform an assessment of the matters stated in s 50D(1)(a)-(c) of the [Limitation Act].

3 Pursuant to CPA s 61 and UCPR r 2.1, direct that the plaintiff’s solicitors by a date to be set by the Court review and identify by way of affidavit which documents (1) produced to Court listed in Annexure B to the Affidavit of Samantha Ryan affirmed and filed on 11 July 2023, (2) Annexure B to the Affidavit of Samantha Ryan affirmed and filed on 12 September 2023 and (3) any documents produced in response to the Subpoena dated 14 May 2025 issued to Taylor & Scott Lawyers, are captured by the categories listed under order 2 above and otherwise specify with respect the balance of the documents produced or to be produced:

a. the date of the document;

b. the author of the document;

c. a brief description of the document; and

d. in case of correspondence, the name of who sent the document and to whom.

4 In relation to any documents discovered in accordance with Orders 2 and 3 above:

a. the defendant’s legal representatives have leave to inspect and copy any such documents as have been produced to the Court on subpoena; and

b. the plaintiff produce to the defendant’s solicitors copies of any other documents.

5 Pursuant to CPA s 68(b) and UCPR rr 2.1 and 2.3(h), direct that the plaintiff (either by himself or through Slater & Gordon) is to produce to Court for inspection and copying by the defendant’s legal representatives a copy of all documents concerning the plaintiff’s claim arising from a 1987 motorcycle accident from which he was injured while on duty as a police officer.

…”

15. The orders seek the production of evidence and documents that may support the limitation defence. The relevant law is found in the Limitation Act. Section 50C provides that a cause of action for personal injury expires 3 years after the cause of action becomes discoverable. The defendant relies on ss 50C and 50D of the Limitation Act. These sections relevantly read:

50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

…

(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times—

(a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,

(b) the appointment of the plaintiff as the deceased’s personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,

(c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased’s personal representative.

(3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.

50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts—

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.

16. The defendant is required to raise a limitation defence.

17. The defendant submitted that orders seek evidence relevant to these three elements. The plaintiff submitted that the NOM should be dismissed.

18. I will first deal with the issue of interrogatories followed by discovery.

Interrogatories

19. The defendant seeks orders that the plaintiff provide answers by affidavit to certain interrogatories under r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The interrogatories sought were listed in 'Annexure A' to the Short Minutes of Order for 20 May 2025 Hearing. They are as follows:

Knowledge of injury being caused by the fault of the defendant

1. At the time of your Injury, who did you understand to be responsible for the lighting and its maintenance in your office at the facility on Liberty Road in Huntingwood (Office)?

2. At the time of your Injury, who did you understand to be responsible for occupational health and safety in your Office?

3. On which date did you first know the fact that the Injury was caused by the fault of your employer, the Commissioner of Police (employer)?

4. Who, if anyone, informed you that the Injury was caused by the fault of your employer and:

(i) How did they inform you (if you were told in writing please specify the type of document/format of the writing and date)?

(ii) On which date(s) did they inform you?

5. What were the circumstances in which you became aware of the fact that the Injury was caused by the fault of your employer?

Knowledge of injury being sufficiently serious to justify the bringing of the proceedings against the defendant

6. On which date did you first know the fact that the Injury was sufficiently serious to justify the bringing of the proceedings against your employer?

7. What did you understand justified the bringing of the proceedings against your employer?

8. Who, if anyone, informed you of the fact that the Injury was sufficiently serious to justify bringing the proceedings against your employer and:

(i) How did they inform you (if you were told in writing please specify the type of document/format of the writing and date)?

(ii) On which date(s) did they inform you?

9. What were the circumstances in which you became aware of the fact that the Injury was sufficiently serious to justify the bringing of the proceedings against your employer?

20. In a common law claim arising out of bodily injury, an order to answer interrogatories is not to be made unless the court is satisfied that special reasons exist that justify the making of the order (UCPR r 22.1(3)). This requirement is additional to the general requirement that, in any case, an order to answer interrogatories can only be made where the court is satisfied that such an order is necessary at the time of issue (UCPR r 22.1(4)).

21. Rule 22.1 of the UCPR relevantly reads:

22.1 Interrogatories

(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

…

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.

22. Both parties relied on Schutt v Queenan [2000] NSWCA 341 (‘Schutt’) and on Mid North Coast Local Health District v Hickson [2019] NSWCA 165 (‘Hickson’).

Defendant’s Submissions

23. By its written submissions in support of the NOM, the defendant says that the factual matters necessary to establish a limitation defence are uniquely within the knowledge of the plaintiff, and that, it is one of the ‘classic instances’ where an order to answer interrogatories should be made.

24. The defendant relied on Hickson and referred to [25], stating:

“the Court of Appeal upheld the decision of a registrar that it was “necessary” and there were “special reasons” to order interrogatories in a personal injuries case directed to a defence in ss 50C and 50D of the Limitation Act. The defendant there had not been able to plead the defence without more information.”

25. The defendant submitted, as I understand it, that a limitation defence engaging ss 50C–50D itself amounts to a special reason because the evidence necessary to establish such a defence lays within the camp of the plaintiff (T4 [19]-[27]).

26. The defendant submitted that they should be permitted to have the plaintiff answer the interrogatories directly, rather than having to gather the answers from the disclosed documents (T20 [36]–[49]). This would also afford the defendant procedural fairness, that is, the defendant would be given an opportunity to test the answers against the documentary evidence (T20 [42]–[44]).

Plaintiff’s Submissions

27. The plaintiff referred to the requirement for identification of special reasons by the court before an order for interrogatories could be made. It says there are no special reasons for the ordering of interrogatories. It referred to Hickson and highlighted that in that case, the Court of Appeal did not order interrogatories but ultimately left intact the Registrar’s order that the plaintiff provide witness statements relevant to the limitation defence.

28. Here, after the NOM was filed, the plaintiff provided two evidentiary statements and two affidavits which bear on the limitation defence (Evidentiary Statement of John Lipman, 14 April 2025; Affidavit of Joel Tucker, 28 April 2025; Supplementary Evidentiary Statement of John Lipman, 28 April 2025; and Affidavit of Joel Tucker, 6 May 2025). He argues that in light of the evidentiary statements, there is no necessity for the ordering of interrogatories; therefore, Hickson is not applicable.

29. At the hearing, the plaintiff referred to the evidentiary statement of the plaintiff dated 14 April 2025, where he deposed to the following:

“49. I have, on one earlier occasion, retained lawyers, Taylor & Scott, to act for me in relation to an accident which occurred in April 1987 when I was on duty and riding a police motorcycle. My motorcycle was struck by another car. Ultimately, I received some payment in relation to that claim. Notwithstanding this claim, at the time I was dealing with [WMJ] I had no understanding that I might have any potential negligence claim as a result of the pleaded accident occurring on 19 October 2011.

50. At no stage did any representative of the Police Association of NSW provide me any advice in relation to any possible negligence claim arising out of the pleaded accident on 19 October 2011.

54. After a while and in discussion with my partner I decided to make enquires as to whether or not there was any other action available to me to compensate me for what I thought was a substantially reduced lifestyle.

55. I made the decision to contact Slater & Gordon lawyers. Although now I'm not certain, I think I saw this these lawyers advertising in the Police News.

56. On or about 20 April 2020 I rang Slater & Gordon Lawyers and spoke to Mr Mark Amos. I described to him my present circumstances and I described to him the circumstances of the pleaded accident on 19 October 2011.

59. On 15 June 2020 I attended a conference with Mr Dooley SC and Mr Amos.

61. Following this conference I understood that I may have a viable claim in negligence as a result of the pleaded accident. …

65. I was unaware of the 3-year limitation period of common law negligence until Mr Dooley SC passed that information onto me. “

30. Annexed to his evidentiary statement are approximately 60 pages of documents that include: internal police documents recording and dealing with the injury; correspondence between WMJ and the plaintiff relating to the claim under the Police Superannuation Act; the costs agreement issued by WMJ; emails between Slater & Gordon and the plaintiff; and memoranda of advice relating to the negligence action. Other documents filed by the plaintiff contain the same or similar documents.

31. The plaintiff submitted that Hickson concerned an inability, for lack of evidence, for the defendant to plead a limitation defence (T27 [4]–[12]; [25]–[29]). Counsel referred to [31] of the judgment of Basten JA (with whom Payne JA agreed):

“The form of r 22.1(3) is not that of an absolute prohibition, but of a qualified prohibition. The criterion of “special reasons” is imprecise as to its scope and effect. It should be construed according to general principles governing the conduct of civil litigation. That means, that in giving effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings (Civil Procedure Act 2005 (NSW), s 56(1)), the general rule should be followed that personal injury proceedings can usually be justly and fairly disposed of without the need for interlocutory steps, such as interrogation. On the other hand, the phrase “special reasons” should not be construed as so restrictive that it will prevent interrogation where the effect would be to render a claim or defence unavailable due to the inability to obtain information from the other party, in the circumstances identified in Schutt. That would tend to disadvantage the most seriously injured and allow a procedural hurdle to eviscerate a substantive right.”

32. The plaintiff submitted that the present case is distinguishable from Hickson because it concerns not an inability to plead but a desire to pre-emptively cross-examine — all the questions for which answers are now sought can be put to the plaintiff during cross-examination (T28 [8]–[11]).

Defendant’s Submissions in Reply

33. The defendant repeats their submission that special reasons arose ‘by dint of the plaintiff being the sole person who can answer the specific matters set out in s 50D of the Limitation Act’. It rejects the plaintiff’s submission that the provision of further evidentiary statements following the filing of the NOM renders nugatory the need for interrogatories.

Resolution

34. Generally, interrogatories may only issue where the court is satisfied that the order is necessary at the time it is made (UCPR r 21.1(4)). In common law actions arising out of bodily injury, there is a further requirement that the court be satisfied that there be ‘special reasons’ justifying an order for interrogatories (UCPR r 21.1(3)). This is on the basis that ‘personal injury proceedings can usually be justly and fairly disposed of without the need for interlocutory steps’ (Hickson at [31]).

35. In Schutt, Mason P (with whom Powell and Fitzgerald JJA agreed) stated at [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).”

36. In Schutt, the plaintiff was a little girl who had been struck by a car. The only witness other than the plaintiff was the driver of the car. It was this evidentiary issue that moved the Court to allow an appeal against a refusal to grant interrogatories (at [17]). There was no requirement at the time that a special reason be identified before interrogatories issue, but only that they were necessary at the time the order was made. The Court dismissed an argument that the availability of a police statement of the defendant rendered the interrogatories unnecessary.

37. Schutt was discussed with approval in Hickson (at [25]) by Basten JA (with whom Payne JA agreed). In Hickson, the plaintiff, having taken an overdose of diazepam, was admitted to the Coffs Harbour Hospital on 6 November 2010. She was released on 9 November 2010 and jumped from a balcony on 10 November 2010. On 28 November 2016 she commenced proceedings alleging a negligent failure to take reasonable steps for her care and supervision to protect her from self-harm.

38. Hickson, like the present matter, specifically considered interrogatories directly relevant to a ss 50C–50D limitation defence. The requirement for ‘special reasons’ also applied. There, a limitation defence had not been pleaded because the defendant considered that it did not have enough material to support such a defence. Despite this deficiency in the defendant’s pleading (and therefore lack of strict joinder of issue), the Registrar nonetheless ordered the plaintiff to provide witness statements relevant to the limitation defence. The Court of Appeal approved of this course of action and affirmed (at [26]) that it may, in some instances, be appropriate to interrogate another party ‘not to obtain evidence to support [one’s] case, but to discover whether [they] have a case at all’ (quoting Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 575).

39. The Court of Appeal in Hickson (at [34]) approved of the reasoning of the Registrar as to the existence of ‘special reasons’ at [7] and [8] of his decision which is as follows:

“[7] Whether the plaintiff's cause of action falls within the ‘3 year post discoverability period’ must be based substantially on the plaintiff's knowledge, or what the plaintiff ought to have known. The latter may involve evidence of the conduct or statements of the plaintiff. Evidence may have to be given by the plaintiff and probably her legal advisers or former legal advisers. There is a significant evidentiary exercise that a defendant must surmount in order to avail itself of the defence. The parties accept that the burden is on the defendant. The defendant is at an obvious disadvantage in respect of this.

[8] The nature of the plaintiff's claim is complex. On the plaintiff's own admission, in her lawyer's letter of 9 January 2017, this is accepted. It will be the basis of asserting that the discovery period does not start until 10 October 2016. Even without the letter, the pleadings show that this will be a difficult matter to prosecute and defend.”

40. The Court held that it was open to the Registrar to conclude that the circumstances, being an inability of the defendant to plead a limitation defence, were such as to support a finding of ‘special reasons’. The Court (at [40]) was also critical of the Judge who overturned the Registrar’s decision thereby ‘effectively [foreclosing] the limitation defence being raised’.

41. The defendant relied on the decision in Schutt where the Court of Appeal ordered interrogatories despite a statement being provided. That statement was a police statement and ‘wholly exculpatory’ (at [11]). The statement here stands in a different position, it was provided in light of the interrogatories sought and meets their substance. This is not analogous to the police statement given in Schutt, although it could be described as ‘exculpatory’.

42. Here, the plaintiff has provided a further evidentiary statement (Evidentiary Statement of John Lipman, 14 April 2025). In particular, at [46]–[50], [54]–[65] of that evidentiary statement, the plaintiff, in lay terms, meets the substance of the interrogatories sought. Fundamentally, the plaintiff’s submission is that he was dissatisfied with the benefit received under the Police Superannuation Act and approached Slater & Gordon to see if anything else could be done. He discovered that he had a cause of action when he was told so at a conference with counsel. In my view, there is not any necessity, nor any special reasons demonstrated by the defendant. On 5 December 2022 the defendant filed a defence.

43. In my view, the interrogatories are not necessary nor have special reasons been established. These issues are more fairly dealt with at trial where the plaintiff can give evidence and be cross examined.

Discovery and Privilege

44. Discovery is sought in relation to documents:

(a) recording or referring to the fact that he knew, or ought to have known, that on 19 October 2011 he had suffered an injury (Injury); (b) recording or referring to the fact that he knew, or ought to have known, that his Injury was caused by the fault of his employer; (c) recording or referring to the fact that he knew, or ought to have known, that his Injury was sufficiently serious to justify the bringing of an action on the cause; or (d) which could reasonably inform an assessment of the matters states in s 50D(1)(a)-(c) of the Limitation Act.

45. In particular, the defendant seeks discovery of the documents which passed between the plaintiff and the firm of solicitors, WMJ, which was assisting him with his claim for lump sum gratuity under the Police Superannuation Act and of all documents concerning the plaintiff’s claim arising from a 1987 motorcycle accident from which he was injured while on duty as a police officer.

46. The documents held by Slater & Gordon have been produced to the Court by subpoena filed 25 November 2022. The documents held by WMJ have been produced to the Court by subpoena filed 25 November 2022. On 14 May 2025 a subpoena was also issued to Taylor & Scott, the solicitors who assisted the plaintiff with his claim arising from the 1987 motorcycle injury. The date for compliance was 21 May 2025, but nothing has been produced to the Court.

47. Rules 21.1­­­–21.8 of the UCPR govern discovery. They relevantly read as follows:

21.1 Definitions

(1) In this Division—

excluded document, in relation to proceedings the subject of an order for discovery, means any of the following documents—

(a) any document filed in the proceedings,

(b) any document served on party A after the commencement of the proceedings,

(c) any document that wholly came into existence after the commencement of the proceedings,

(d) any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included,

(e) any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents,

but does not include any document that the court declares not to be an excluded document for the purposes of those proceedings.

list of documents means a list of documents referred to in rule 21.3.

order for discovery means an order referred to in rule 21.2.

party A means a party to whom another party is giving discovery, or being ordered to give discovery, of documents.

party B means a party who is giving discovery, or being ordered to give discovery, of documents.

party B’s affidavit means an affidavit prepared in relation to the list of documents under rule 21.4.

(2) For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

21.2 Order for discovery

(1) The court may order that party B must give discovery to party A of—

(a) documents within a class or classes specified in the order, or

(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3) Subject to subrule (2), a class of documents may be specified—

(a) by relevance to one or more facts in issue, or

(b) by description of the nature of the documents and the period within which they were brought into existence, or

(c) in such other manner as the court considers appropriate in the circumstances.

(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

21.3 List of documents to be prepared

(1) Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order.

(2) The list of documents—

(a) must be divided into two parts—

(i) Part 1 relating to documents in the possession of party B, and

(ii) Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B, and

(b) must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and

(c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and

(d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise.

(3) Party B must comply with the requirements of subrule (1)—

(a) within 28 days after an order for discovery is made, or

(b) within such other period (whether more or less than 28 days) as the order may specify.

21.4 Affidavit and certificate supporting list of documents

(1) The list of documents must be accompanied by—

(a) a supporting affidavit, and

(b) if party B has a solicitor, by a solicitor’s certificate of advice.

(2) The affidavit referred to in subrule (1)(a) must state that the deponent—

(a) has made reasonable inquiries as to the documents referred to in the order, and

(b) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and

(c) believes that the documents in Part 1 of the list of documents are within the possession of party B, and

(d) believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and

(e) as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in,

and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege.

(3) The solicitor’s certificate of advice referred to in subrule (1)(b) must state that the solicitor—

(a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and

(b) is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents).

21.5 Documents to be made available

(1) Subject to the requirements of any Act or law, Party B must ensure that the documents described in Part 1 of the list of documents (other than privileged documents)—

(a) are physically kept and arranged in a way that makes the documents readily accessible and capable of convenient inspection by party A, and

(b) are identified in a way that enables particular documents to be readily retrieved,

from the time the list of documents is served on party A until the time the trial of the proceedings is completed.

(2) Within 21 days after service of the list of documents, or within such other period or at such other times as the court may specify, party B must, on request by party A—

(a) produce for party A’s inspection the documents described in Part 1 of the list of documents (other than privileged documents), and

(b) make available to party A a person who is able to, and does on party A’s request, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents, and

(c) provide facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being photocopied, and

(d) provide photocopies of, or facilities for the photocopying of, such of the documents as are capable of being photocopied, subject to—

(i) party A’s solicitor undertaking to pay the reasonable costs of providing those photocopies or facilities, or

(ii) if party A has no solicitor, party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of providing those photocopies or facilities.

…

21.7 Discovered documents not to be disclosed

(1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.

(2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.

21.8 Personal injury claims

In any proceedings on a common law claim—

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

(b) for contribution in respect of damages so arising,

an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise.

48. Rule 21.8 provides that in a common law claim arising out of bodily injury, an order for discovery may not be made unless the court, for special reasons, orders otherwise.

Defendant’s Submissions

49. The defendant submitted that ‘special reasons’ arise from the same matters identified in relation to interrogatories. The documents over which discovery is sought directly inform the limitation defence and are uniquely within the knowledge of the plaintiff.

50. The defendant anticipates the plaintiff’s claim of privilege of those documents and submitted that ‘the controverting of the limitation defence by the plaintiff means that the plaintiff cannot maintain any such privilege’. The defendant submitted that any privilege is destroyed by ‘issue waiver’:

“The matters in s 50D(1) relate to the plaintiff’s state of mind. By controverting the defence, the plaintiff has put in issue his state of mind … [h]e cannot maintain privilege over legal advice which may have affected that state of mind.”

51. It relies on Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 (‘Archer’) and Pomare v Hogan (No 2) [2019] NSWSC 496 (‘Pomare’) to support these submissions. Specifically, the defendant draws attention to two memoranda of advice (dated 15 June 2020 and 11 May 2021) provided to the plaintiff by his counsel. The memorandum of 15 June 2020 stated:

“17. He attended Walter Madden Jenkins Solicitors in relation to a 12D Gratuity for which he received $53,000.00.

18. There is some suggestion that they may have mentioned the possibility of a negligence claim.

19. We are obtaining the documentation to see whether this is in fact the case.”

52. The memorandum of 11 May 2021 stated:

“2. I have reviewed the documents from Walter Madden Jenkins Solicitors. I did not identify any advice to the plaintiff in relation to bringing common law proceedings.

3. My instructing solicitor should also review the documents to ensure that is the case. “

4. It would seem that it is only upon the receipt of this advice that the plaintiff will be provided with the advice that he has a valid cause of action, hence the date of discoverability.

53. The defendant submitted that there has been a ‘clear waiver’ (T12 [8]) in circumstances where the plaintiff has voluntarily waived privilege over advices which form the conclusion that there is no discoverability issue and where the defendant has been denied the opportunity to review the material on which that conclusion has been drawn (T13 [10]–[15]). Moreover, to deny the defendant such an opportunity amounts to a denial of natural justice (T9 [35]).

54. The defendant further submitted that privilege has not been properly established over the documents and relies of the decision of Brereton J in Hancock v Rinehart [2016] NSWSC 12 (‘Hancock’). The party claiming privilege, under ss 118–119 of the Evidence Act 1995 (NSW) (Evidence Ac**t) must establish that the evidence over which privilege is claimed is confidential (T9 [20]-[50]). In particular, it draws attention to [7] of Hickson:

“To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made (Gardner v Irvin (1878) LR 4 Ex D 49, 53), or in other words “expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable” (National Crime Authority v S (1991) 100 ALR 151, 159 (Lockhart J). The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed (Lazenby v Zammit [1987] Tas R 54, 56 (Green CJ and Wright J); see also Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500, 508 (Gibbs CJ); Holmes v Deputy Commissioner of Taxation (1987) 19 ATR 1278, 1286 (Davies J)), and must do so by admissible direct evidence, not hearsay (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 513-4 (Brennan CJ)).”

55. Counsel for the defendant also drew my attention to a decision of my own (Lila Foxall (by her tutor Robert Foxall) v Kirsty Carter (No. 2) [2023] NSWSC 872) where, in addition to Hancock, I considered New Cap Reinsurance Corporation Ltd (in liq*) v Renaissance Reinsurance Ltd* [2007] NSWCA 257.

Plaintiff’s Submissions

56. The plaintiff submitted that there are no ‘special reasons’ to justify an order for discovery and so the Court’s power to order them does not arise. He submitted that the statements and documents provided by him following the filing of the NOM (including incident reports, communications between him and the NSWPF, and communications and the costs agreement between him and WMJ) provide all the documents relevant to a limitation defence and render any order for discovery unnecessary.

Defendant’s Submissions in Reply

57. The defendant impugns the plaintiff submissions, saying that the plaintiff does not show ‘why there is an absence of special reasoning justifying discovery in the present matter’ (emphasis in original). It also brings attention to the plaintiff’s failure to explain:

“[W]hy the Court and the defendant should only be apprised of the 16 documents annexed to the plaintiff’s supplementary statement rather than all the apparently relevant documents that could inform the Court’s determination of whether the plaintiff knew or ought to have known of the matters specified in s 50D of the Limitation Act. (emphasis in original).”

58. Finally, it submits that:

“The plaintiff’s refusal to provide discovery or consent to access to the documents over which privilege is claimed suggests that the plaintiff does not want the court and the defendant to see for themselves whether the assertions made in the plaintiff’s supplementary statement holds water.”

Resolution

Discovery

59. The onus is on the defendant to demonstrate ‘special reasons’. UCPR r 21.8 makes it clear, that in proceedings concerning a personal injury claim, an order for discovery is an extraordinary one. The general rule is that, in personal injury actions, proceedings can usually be justly and fairly disposed of without the need for interlocutory steps. This requirement is additional to the general position of the Court that some care must be exercised by the Court when dealing with discovery. In Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101], Allsop P (with whom Macfarlan JA agreed) said:

“Parties should understand that the restriction on discovery now contained in Pt 21 is the current framework for discovery. Discovery (and its uncontrolled use) always contains (and contain) the risk of abuse and oppression. Discovery can be a highly expensive exercise. Courts in defamation, as in all other matters, including commercial matters, should be astute to ensure that it is not used as a weapon of oppression by wealthy litigants to oppress less well-funded parties. Even when all parties are well resourced, over-enthusiastic and unnecessary use of discovery impedes the due administration of justice and undermines confidence in the court system's ability to resolve disputes justly, quickly and cheaply.”

60. I am not persuaded by the interpretation of Hickson advanced by the defendant that, of itself, a limitation defence under ss 50C–50D of the Limitation Act gives rise to ‘special reasons’ just because the matters going to the defence are completely within the camp of the plaintiff. This is not so. The defendant has already been provided with statements of the plaintiff and other documentary evidence.

61. So far as the WMJ file is concerned, sometime soon after August 2017, the plaintiff engaged (on the initiative of the Police Association) WMJ in relation to his claim for a lump sum gratuity under the Police Superannuation Act. WMJ acted for the plaintiff for, it seems, just under 3 years. The plaintiff has produced the costs agreement and various communications between himself and WMJ. It is said that the provision of these documents renders an order for discovery unnecessary. If ‘special reasons’ were identified, it is a difficult proposition to accept that a party could dispel such special reasons by disclosing their own selection of documents over which discovery is sought. Although, I have no reason to doubt that senior counsel for the plaintiff ‘did not identify any advice [from WMJ] to the plaintiff in relation to bringing common law proceedings’, I accept that the defendant should itself be able to inspect the documentation.

62. The special reason for ordering discovery is that the plaintiff, in relation to an injury which occurred in 2011, received legal advice in relation to the injury over a period of three years. The provision of that legal advice seems to have been only in relation to a claim under the Police Superannuation Act, however, it is curious, if the plaintiff’s submissions are correct, that the legal advice did not advert, even tangentially, to a potential action at common law. Any comments such as this go centrally to a ss 50C–50D limitation defence.

63. It seems that the plaintiff also received analogous legal advice in relation to the injury sustained in the 1987 motorcycle accident.

64. The overriding purpose of the power to order discovery is the just, quick, and cheap resolution of the real issues in the proceedings (Civil Procedure Act 2005 (NSW) (CPA) s 56(1)).

65. Limitation periods are a fundamental element of private law (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551–552 (McHugh J)). Where there is a real possibility that a defendant may avail themselves of a limitation defence, it is in the interests of justice and advances the principal purpose of the powers vested in the Court for the adjudication of civil disputes that they be given the opportunity to do so.

66. For these reasons, I order that the plaintiff give discovery of all documents produced to the Court by WMJ pursuant to the subpoena issued on 25 November 2022:

(a) Any documents recording or referring to the fact that he knew, or ought to have known, that on 19 October 2011 he had suffered an injury (Injury); (b) Any documents recording or referring to the fact that he knew, or ought to have known, that his Injury was caused by the fault of his employer; (c) Any documents recording or referring to the fact that he knew, or ought to have known, that his Injury was sufficiently serious to justify the bringing of an action on the cause; or (d) which could reasonably inform an assessment of the matters states in s 50D(1)(a)-(c) of the Limitation Act 1969 (NSW).

67. The defendant has already subpoenaed Taylor & Scott documents relating to the 1987 motorcycle accident, but the documents have not been produced to the Court. Some of the documents are already available to the defendants namely the costs agreement. Taylor & Scott may not have retained those documents relating to the 1987 motorcycle accident as it occurred about 38 years ago. The defendants should chase up Taylor & Scott’s non-compliance with the subpoena.

Privilege

68. It becomes necessary then to consider which, if any documents, produced to the Court by WMJ are protected by client legal privilege.

69. The parties relied on ss 117, 118, 122 of the Evidence Act. By operation of s 131A, those section apply to pre-trial discovery.

70. Without deciding the anterior question of whether the WMJ or Taylor & Scott documents were privileged to begin with (although it seems that they were), I will deal with the question of waiver of that privilege.

71. Under the statute (which does not exclude the common law otherwise expressly or by necessary intendment: s 9), loss of privilege by waiver is dealt with by s 122 of the Evidence Act:

122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if—

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—

(a) the substance of the evidence has been disclosed—

(i) in the course of making a confidential communication or preparing a confidential document, or

(ii) as a result of duress or deception, or

(iii) under compulsion of law, or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

72. For the purposes of these proceedings, sub-s (2) is relevant.

73. There has been no express waiver over the documents sought. What remains is the question of what has alternatively been called implied or imputed waiver. In Attorney-General (NT) v Maurice (1986) 161 CLR 475 (‘Maurice’), the High Court identified that the question of whether a waiver should be implied fundamentally turned on the question of fairness. At 481, Gibbs CJ said:

“[I]n a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”

74. His Honour quoted with approval a passage of Mustill J’s judgment in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] [1981] Com LR 138 at 139:

“[W]here a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.”

75. In Mann v Carnell (1999) 201 CLR 1, while affirming Maurice, the High Court specified (at [28]) that it was ‘inconsistency between the conduct of the client and maintenance of confidentiality which effects a waiver of that privilege’.

76. In Archer, the Court of Appeal further explained (at [48], [72]) that it was this inconsistency which gives rise to the unfairness identified in Maurice.

77. However, the plaintiff has given statements describing the process by which, through the consultation of lawyers, he came to understand that he had a cause of action. The plaintiff has also disclosed various legal documents supporting the assertions made in the statement (for example, that he was not advised by WMJ as to the possible existence of a common law action). He has waived legal professional privilege over these documents.

78. It is my view that any privilege over the WMJ documents has been waived. The plaintiff is to produce the following:

(a) Any document recording or referring to the fact that he knew, or ought to have known, that on 19 October 2011 he had suffered an injury (Injury); (b) Any document recording or referring to the fact that he knew, or ought to have known, that his Injury was caused by the fault of his employer; (c) Any document recording or referring to the fact that he knew, or ought to have known, that his Injury was sufficiently serious to justify the bringing of an action on the cause; or (d) Any matters that could reasonably inform an assessment of the matters states in s 50D(1)(a)-(c) of the Limitation Act.

Costs

79. Costs are discretionary. Counsel for the defendant sought indemnity costs (T28 [32]-[33]). The award of indemnity costs requires a 'sufficient or unusual feature' (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233-234 (Sheppard J)). The High Court has said that indemnity costs require 'some relevant delinquency' (Oshlack v Richmond River Council (1998) 193 CLR 72 [44] (Brennan CJ)). The defendant is not entitled to indemnity costs.

80. Normally, costs follow the event. However, given the partial success and partial failure of this motion (both by way of consent and by way of this judgment), the appropriate order is that costs be costs in the cause.

The Court orders that:

1. the plaintiff, by 24 July 2025, is to give verified discovery of, and produce for inspection, all documents produced to the court by WMJ under subpoena issued 25 November 2022:

(a) recording or referring to the fact that he knew, or ought to have known, that on 19 October 2011 he had suffered an injury; (b) recording or referring to the fact that he knew, or ought to have known, that his injury was caused by the fault of his employer; (c) recording or referring to the fact that he knew, or ought to have known, that his injury was sufficiently serious to justify the bringing of an action on the cause; or (d) which could reasonably inform an assessment of the matters stated in s 50D(1)(a)-(c) of the Limitation Act 1969 (NSW);

2. the plaintiff’s solicitors, by 2 July 2025, by way of affidavit, specify with respect to those documents captured by order (1):

(a) the date of the document; (b) the author of the document; (c) a brief description of the document; and (d) in case of correspondence, the name of who sent the document and to whom;

3. leave is granted to the defendant’s legal representatives to inspect and copy any such documents captured by order (1); and
4. costs of the Notice of Motion filed by the defendant on 11 April 2025 are costs in the cause.

**********

Amendments

26 June 2025

Reordered the 'Costs' and ' Orders' section and added at the 'Orders' section: "(4) costs of the Notice of Motion filed by the defendant on 11 April 2025 are costs in the cause."