Preston v Star City Pty Limited [2007] NSWSC 293 | Case summary

JUDGMENT 1 HIS HONOUR: Between 1996 and 1998 the defendant conducted casinos known as the Sydney Harbour Casino and the Star City Casino. During that period the plaintiff attended those casinos. He has brought proceedings against the defendant asserting that it tortiously caused him to suffer losses amounting to $7 million and otherwise caused injury to him by its conduct during that period. 2 The proceedings were commenced on 8 September 1998. Since that date there have been a number of applications to strike out the Statement of Claim as failing to disclose a cause of action. Those applications have been unsuccessful although discrete portions of the Statement of Claim have been struck down. The current Statement of Claim is entitled the Sixth Further Amended Statement of Claim and it is anticipated that the plaintiff will seek to file a Seventh Further Amended Statement of Claim. 3 In parallel with those matters there have been disputes between the parties as to the adequacy of discovery by each side. The first order for discovery was made on 19 July 2000 and required that general discovery be given. As was pointed out by Mr Coffey, on behalf of the plaintiff, it is regrettable that this order did not comply with current practice and require that discovery be made by reference to categories. This he submits may well account for some of the problems which have arisen in relation to discovery over the years. 4 The plaintiff is the moving party in the present application. The motion on which the plaintiff moves was filed on 14 April 2005 and seeks further discovery without qualification. 5 By way of background, the defendant filed and served its List of Documents (the original List of Documents) in August 2000. Following an exchange of correspondence, the defendant provided a draft Supplementary List of Documents to the plaintiff on 13 February 2001. 6 Disputes continued concerning the adequacy of the defendant's discovery. In anticipation of that matter being resolved by the court, affidavits were prepared on each side. The primary affidavit for the plaintiff was that of Mr Coffey of 17 February 2004 and on behalf of the defendant, those of Mr Parker of 2 March 2000 and of Ms Hamilton of 1 March 2004. 7 In March 2004 the defendant learned of the existence of video footage of the plaintiff while he was at the casino. This material had not been previously included in the discovery made by the defendant. On or about 27 August 2004 the defendant provided a copy of the additional documents to the plaintiff. 8 In view of the fact that considerable amendments had been made to the original Statement of Claim and that the defendant's original List of Documents had been based on the allegations in that Statement of Claim, I ordered that each party provide further discovery if necessary. Some further documents were located by the defendant when seeking to comply with that order. As a result a Supplementary List of Documents was served on the plaintiff on 4 October 2006. This Supplementary List included all of the additional documents which had been discovered by the defendant since the original List of Documents was filed. The plaintiff continued to maintain that discovery by the defendant was inadequate. 9 In anticipation of this hearing, two further affidavits of Mr Coffey were filed, 7 February and 26 March 2007. On behalf of the defendant two affidavits of Simone Bridge of 23 January and 25 January 2007 were filed. That completed the evidence before me. 10 In submissions Mr Coffey, on behalf of the plaintiff, restricted the matters in relation to which complaint was made but there remained a substantial number of categories where it was asserted that discovery was insufficient. In other words, the plaintiff's complaint related to the amplitude of the defendant's discovery, ie whether all relevant documents in the possession of the defendant had been discovered.

Submissions 11 Three propositions were put forward on behalf of the plaintiff. 12 In order to understand the first proposition it is necessary to say something about the two affidavits on which it was based. The affidavit of Ms Bridge of 25 January 2007 referred to conversations which she had had with the solicitor (Ms Hamilton) who had previously handled the matter on behalf of the defendant and who herself had discussed the matter with servants of the defendant. It also referred to discussions between Ms Bridge and servants of the defendant. The effect of the affidavit was to set out in considerable detail the inquiries and investigations which the defendant had carried out in order to prepare its lists of documents. It also sought to meet the particular complaints which had been raised on behalf of the plaintiff, both in correspondence and in affidavits filed on his behalf. 13 The affidavit of Mr Coffey of 26 March 2007 principally comprised assertions made by Mr Wells, who had been a manager of the defendant between 1996 and 1998 and who had been in close contact with the plaintiff during that time when he had attended the defendant's casinos. Much of the affidavit set out and described categories of documents which Mr Wells said would have come into existence and which would have related to the plaintiff so as to be properly discoverable. Mr Wells then identified some specific documents which he believed had come into existence but which had not been discovered by the defendant. 14 By reference to these two affidavits, it was submitted on behalf of the plaintiff that the methodology used by the defendant in preparing its list of documents was clearly deficient in that it did not have regard to a number of specific categories identified by Mr Wells in that Coffey affidavit. That of itself, it was submitted, provided a basis for ordering further discovery. 15 It was accepted by the defendant that in relation to one category of document only, ie the possibility that the plaintiff's accommodation at the casino may have been listed as part of the Endeavour Room allocation, further inquiries were necessary. The defendant advised the court that such further inquiries were being made. I accept that this is being done and I do not regard that concession by the defendant as sufficient of itself to justify an order for further discovery. 16 In relation to the plaintiff's first proposition generally, I am of the opinion that it fails in limine. Implicit in the proposition is the submission that in some way the categories described in the Bridge affidavit and those referred to by Mr Wells are mutually exclusive. I do not so read them. It seems to me that the categories referred to in the Bridge affidavit include those categories of documents referred to by Mr Wells and that there is in fact no genuine issue between the plaintiff and the defendant as to the methodology used in preparing the defendant's List of Documents. If the methodology described by Ms Bridge has been implemented it would pick up the documents referred to by Mr Wells. 17 The second proposition refers in detail to the affidavits, filed on behalf of the plaintiff. It identifies a number of documents which, relying upon the statements of Mr Wells, the plaintiff submits must have been brought into existence by the defendant but have not been discovered. 18 On behalf of the defendant it is submitted firstly that documents said not to have been discovered have in fact been discovered and secondly, comprehensive searches and inquiries have failed to reveal documents other than those actually discovered. Reliance is placed on the affidavits filed on behalf of the defendant. 19 I do not propose to refer in detail to the categories of document identified by the plaintiff in his submissions. It is not necessary to do so in order to decide the dispute between the parties in relation to the plaintiff's second proposition. 20 What is at the heart of the plaintiff's second proposition is what is described in the authorities as a "conflict of affidavits" as to whether all relevant documents in the possession of the defendant have been discovered. The traditional approach in such circumstances was that a court would not allow the sufficiency of discovery to be challenged in such a way. 21 Although the basic rule remains that an affidavit of discovery is conclusive some exceptions to that rule have been recognised by the common law and by the rules of court (Mulley v Manifold (1959) 103 CLR 341, Fruehouf Corporation Pty Limited v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359). Those exceptions are narrow and require that the insufficiency of the affidavit of discovery appear either from the documents themselves or from any other source that constitutes an admission of the existence of a discoverable document. In applying one of those exceptions the court has to "on the face of it or from admissions in other documents … have reasonable grounds for being fairly certain that there were other relevant documents which ought to have been disclosed …" (British Association of Glass Bottle Manufacturers Limited v Nettlefold (1912) AC 709 at 714, Beecham Group Ltd v Bristol Myers Co (1979) VR 273 at 276). 22 Nowhere in the authorities can I find support for the proposition that "a conflict of affidavits" of itself with nothing more is sufficient to justify an order for further discovery. In this application there is nothing before me which would lead me to prefer the assertions of Mr Wells over those of the servants of the defendant. 23 In some instances Mr Wells has cross-referenced documents to which he has referred to documents which have been produced but in most cases his statements to the effect that he believed that documents existed are not a clear or cogent demonstration of their probable existence as, working in the organisation, he had the opportunity to have knowledge of casino documents yet he expresses himself in terms of an unsupported belief. In those circumstances the evidence does not reach the standard of specificity of proof that there are further discoverable documents which the court requires. 24 It follows that the plaintiff has not made out his second proposition. 25 The plaintiff's third proposition relates to documents referred to in paragraphs 55-61 of the affidavit of Mr Coffey of 17 February 2004. The documents referred to in those paragraphs can be divided into two groups. 26 The first group comprises documents which have been obtained by the plaintiff pursuant to applications under the Freedom of Information Act 1989 to the Casino Control Authority. Some of those documents relate to the plaintiff and came into existence between 1996 and 1998. Many of them, however, came into existence after that period and are in the nature of correspondence and commentaries on earlier events. Those latter documents are clearly "excluded documents" as defined in UCPR Rule 21. It is clear that under the Freedom of Information Act the plaintiff obtained only those documents relating to himself and was not given access to documents relating to other persons. In those documents which were provided references to other persons were removed. 27 The plaintiff submits that none of these documents, either those to which he was granted access under the Freedom of Information Act and those to which access was refused, have been discovered by the defendant. In reply the defendant relied upon the affidavit of Ms Hamilton of 1 March 2004. That affidavit sought to answer complaints about those documents which came into existence between 1996 and 1998 and to which the plaintiff gained access under the Freedom of Information Act. Ms Hamilton says that those documents have either been discovered (contrary to the plaintiff's submission) or no longer exist or are no longer in the control of the defendant. 28 I do not propose to make an order for further discovery in relation to those documents. The considerations to which I referred when considering proposition two, apply equally to those documents. 29 In relation to the "excluded documents" these appear to be second hand documents in the nature of a commentary or gloss on original documents. I am not persuaded that they are documents relevant to a fact in issue nor am I satisfied that those documents would contain material which could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. 30 The second group of documents comprise documents which were considered by McClellan QC (as he then was) when preparing his December 2000 report on the Star City Casino for the Casino Corporation Authority. As with the freedom of information documents, some of those referred to in the report had come into existence between 1996 and 1998 while others comprised transcripts of statements made to Mr McClellan QC by servants of the defendant during the course of his inquiry and correspondence and other documents which came into existence well after March/April 1998. 31 In relation to the documents which came into existence between 1996 and 1998 (paragraph 61c-h of the Coffey affidavit), these were referred to in the affidavit of Mr Parker of 2 March 2000. As with the other contested matters, these documents were the subject of a "conflict of affidavits" with no rational basis for preferring one set of assertions to another. I do not propose to order further discovery in relation to those documents. 32 In relation to the balance of documents in the second group which are "excluded documents", I am not persuaded that they are relevant to a fact in issue or could contain material which could rationally affect the assessment of the probability of the existence of a fact in issue. Consequently I am not prepared to make an order for further discovery in respect of those documents. 33 It follows that the plaintiff has not made out his third proposition. 34 A common theme in the submissions of the plaintiff was the obligation on the defendant to make continuing discovery, ie that if the defendant became aware of the existence of additional relevant documents there was a continuing obligation to discover those. It is trite law that the defendant should be alert that if it transpires that it has not given proper discovery of documents, then that will be a serious default on its part. I do not suggest for a moment that such has occurred in this case, but in view of the debate which has taken place and in view of the arguments which have been advanced before me, it should not be assumed that my conclusion in any way absolves the defendant from being vigilant to locate relevant documents and if such are located to discover them promptly to the plaintiff. 35 The plaintiff's motion of 14 April 2005 seeking further discovery is dismissed. I order that the plaintiff pay the defendant's costs of the motion.

Preston v Star City Pty Limited

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (2)

Cited By (12)