Peter Biffin v State of New South Wales

MOTION FOR DISCOVERY

1. Contained within Exhibit A is a letter from the defendant dated 18 February 2019 indicating that the following documents would be produced, subject to all the implied undertakings as to their use which applies to documents produced under subpoena: 1. Video footage received by the NSW Police Force from the OLGR in relation to events occurring at the Domain on 31 October 2015 involving the plaintiff; 2. Statements created by the NSW Police Force officers in relation to events occurring at the Domain on 31 October 2015 involving the plaintiff; 3. Notebook entries by Leading Senior Constable Juan Maruri for 31 October 2015 relating to the plaintiff; 4. Custody Management Record U58197460 for the plaintiff; 5. Any Field Arrest form for the plaintiff relating to 31 October 2015; 6. COPS events relating to the arrest of the plaintiff on 31 October 2015.
2. Further, the defendant/respondent made the necessary enquires as to whether the following documents would be available for production: 1. VKG recording for the radio channel used by the Domain Command Post on 31 October 2015 between 7:00pm and 11:59pm relating to the plaintiff; 2. CAD (Computer Aided Dispatch) Job or Incident Log relating to the plaintiff on 31 October 2015; 3. Custody Management Records for other persons in custody at Day Street Police Station at the same time as the plaintiff on 31 October 2015 (with personal details redacted); 4. Video footage from Day Street Police Station between 21:30 and 22:30 on 31 October 2015 depicting the plaintiff.
3. There are 21 proposed categories left outstanding, and they are the subject of this motion.
4. The defendant objects to any further discovery generally on a number of grounds. Firstly, they submit that discovery should not be used as an instrument of oppression in proceedings. They submit that the court can control and restrict the availability of discovery and will do so. The defendant submits that the extravagant scope of the claim for discovery is informed by the lack of precision or purpose in the Statement of Claim.
5. Specifically, the defendant opposes any order for discovery for the following reasons: 1. The application for discovery is premature, the pleadings not having closed. 2. The proceedings are personal injury proceedings and there are no special reasons within the meaning of r 21.8 UCPR that have been identified as warranting discovery. 3. The orders for discovery sought would in the context of these proceedings be oppressive and contrary to the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 ('the Act'). 4. No reason has been identified why discovery is preferable in these proceedings to appropriately drawn notices to produce. 5. Many of the categories proposed seek discovery of material that is not in any proper sense relevant to a fact in issue within the meaning of 21.2(4) UCPR. 6. Many of the categories proposed seek discovery of material that is obviously privileged such that the operation of r 1.9 UCPR will be to prevent the inspection of those documents in any event. To order discovery in those circumstances carries with it a degree of futility.
6. Some of these objections apply to the application for discovery as a whole. Others apply to particular categories for which orders are sought.

THE RELEVANT PROVISIONS OF THE RULES

1. Rule 21.2 of the UCPR is in the following terms: '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 sub rule (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.'

CONSIDERATION

1. The pleadings in these proceedings have not closed, and in the normal course of events, an order for discovery would not be made until joinder of issues. (see Sunday Times Newspaper Co Ltd v Sun Newspaper Co Ltd (191) 36 WN (NSW) 72; Latec Finance Pty Limited v Jury (1960) 77 WN (NSW) 674; [1960] NSWR 321).
2. In Commonwealth Bank of Australia v Goater [2016] NSWSC 710, Adamson J stated the following: 'Principles relating to discovery 31 Discovery is a procedural tool which can be of substantial benefit in litigation. However, it can come at a substantial cost. It has, at times, been used, whether intentionally or otherwise, as a means of delaying proceedings, increasing costs disproportionately, or wearing out a party to litigation. This is particularly the case in respect of so-called "chain-of-inquiry" discovery which requires the party against whom an order for discovery is made to go through documents to ascertain if any might bear any relevance to the category: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101] per Allsop P. Where a notice to produce or subpoena could serve the forensic purpose just as well, it is to be preferred. 32 For these reasons, it is necessary, before an order for discovery is made, for the Court to be satisfied that it is in the interests of justice and consistent with the just, quick and cheap determination of the real issues in the proceedings, having regard to ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW). 33 Furthermore, the time at which discovery is ordered is also important. There are good reasons for deferring discovery until after affidavit evidence has been filed. The understandable tendency to reconstruct the past by reference to contemporaneous documents (whether of one's own making or which emanate from another party) can undermine the credibility of a witness's evidence and deprive the Court of the actual recollection of a witness, unaffected by this process of reconstruction. This is one of the reasons for the provisions of the Practice note in the Equity Division (where evidence is more commonly given on affidavit) which provide that discovery may only be ordered before the filing of affidavit evidence in exceptional circumstances: Equity Division, Practice Note SC Eq 11, considered in Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [13] per Brereton J. Another reason is that the issues in the case tend to be narrowed after evidence has been served, thereby obviating the need, in most cases, for discovery. 34 The rule that is relevant for present purposes is Uniform Civil Procedure Rules 2005 (NSW), r21.2(4), which provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.'
3. There is no question that the question of whether discovery should be ordered in a particular matter is governed by ss 56-61 of the Act. Courts and litigants are required to facilitate the overriding purpose of 'the just, quick and cheap resolution of the real issues in the proceedings'.
4. The capacity of an order for discovery to operate in an oppressive fashion is well recognised (see Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264). This Court can control and restrict the availability of discovery and will do so.
5. The allegations made by the plaintiff are reasonably well confined, in that he was deprived of his liberty for about 2½ hours. The misfeasance in public office component of the allegations also bears a reasonably limited factual circumstance and relates to the editing of video images before production to the police. The work that would be involved in compliance with any order I may make for discovery including preparation of lists of documents and verification by affidavit, would be considerable.
6. This also then needs to be considered in the context of these proceedings wherein the defendant has already attempted to engage with the plaintiff and has produced significant amounts of material that the plaintiff seeks, in circumstances where he would be entitled to it, but not as a consequence of an order for discovery. This was done without the compulsion of a Court order. (see Affidavit of Stephanie Koch 21 February 2019 - Exhibit 1).
7. The defendant submits that it has done so in observation of its obligations placed upon it as an agency of the State as a litigant, and in accordance with the provisions of s 56 of the Act.
8. I accept that the letter dated 8 March 2019 (Exhibit 2) from the solicitor for the plaintiff to the solicitor for the defendant clearly indicates that the pleadings have not closed, as the plaintiff in that letter indicates that consideration is being given to the filing of a Reply.
9. The defendant has already produced a large amount of material without the compulsion of the Court, presumably to assist as best they can.
10. I am of the view that significant amounts of the documents requested would be privileged documents, and that the operation of r.1.9 of the UCPR would prevent the inspection of those documents, making the order for discovery of those documents futile.
11. I am satisfied that to make an order for verified discovery of the documents requested would be premature, oppressive, and in regard to some documents, futile. The pleadings have not closed, and there remains the options for the plaintiff to issue appropriately framed notices for production or subpoenas to produce documents.

ORDERS

1. I make the following orders: 1. The Notice of Motion filed 5 December 2018 is dismissed. 2. The plaintiff to pay the defendant's costs of and incidental to the motion as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2019