Priest v State of New South Wales [2006] NSWSC 12 | Case summary

Priest v State of New South Wales [2006] NSWSC 12 | Case summary | Zoe

Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 Gunns Ltd v Marr [2005] VSC 251 Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276) Hall v Nominal Defendant (1966) 117 CLR 423 Licul v Corney (1976) 180 CLR 213 Goldsmith v Sandilands (2002) 190 ALR 370 Williams v Milotin (1957) 97 CLR 465 Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 State of New South Wales v Paige (2002) 60 NSWLR 371 O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 Water Board v Moustakas (1988) 180 CLR 491 Enever v The King (1906) 3 CLR 969 Attorney-General for NSW v Perpetual Trustee Company Limited (1954) 92 CLR 113 Koehler v Cerebos (Aust) Limited (2005) 214 ALR 355; [2005] HCA 15 State of New South Wales v Seedsman (2000) 217 ALR 583 Wheadon v State of New South Wales (District Court of New South Wales, Cooper DCJ, 2 February 2001) Hollis v Vabu Pty Limited (2001) 207 CLR 21 Chate v Commissioner of Police (1997) 76 IR 70 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Mannall v State of New South Wales [2001] NSWCA 327 State of New South Wales v Mannall [2005] NSWCA 367 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 Tame v New South Wales [2002] 211 CLR 317 Webster v Lampard (1993) 177 CLR 598 Robinson v Woolworths Ltd [2005] NSWCA 426 Uren v John Fairfax and Sons Ltd (1979) 2 NSWLR 287 CASES CITED : Mundey v Askin (1982) 2 NSWLR 369 R v Jackson (1987) 8 NSWLR 116 Della Bosca v Arena [1999] NSWSC 1057 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Combined Excavations and Supplies v Bowis [2000] NSWCA 298 Webb v South Eastern Sydney Area Health Service [2003] NSWSC 329 Commonwealth of Australia v Cook (Court of Appeal, 11 November 1994, BC9403513) Swain v Waverley Municipal Council (2005) 220 CLR 517 Moran v Moran [1999] NSWSC 977 The Queen v Glennon (1992) 173 CLR 592 R v Yuill (1993) 69 A Crim R 450 Germain v Cordina Chicken Farms Pty Limited [2002] NSWCA 56 Sharp v Guinery (NSW Supreme Court, Ireland J, 13 February 1998) Cooper v Smee (NSW Supreme Court, Bell J, 6 February 2000) R v Yildiz [2002] ACTSC 41 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 Muir v Council of Trinity Grammar School [2005] NSWSC 555 Haywood v Collaroy Services Beach Club Limited [2003] NSWSC 43 B v Gould (1993) 67 A Crim R 297 Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 Binks v North Sydney Council [2001] NSWSC 27 Percy v General Motors Holden Pty Limited (1975) 1 NSWLR 289 Mulley v Manifold (1959) 103 CLR 341 National Australia Bank Limited v Idoport Pty Limited [2000] NSWCA 8 Economos v Bowlers Club [2000] NSWSC 1065 Falk v Finlay [1999] NSWSC 1284 Hamilton v Oades (1988-1989) 166 CLR 486 Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90 Lucas Industries Limited v Hewitt (1978) 18 ALR 555 Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 Southern Pacific Hotels Services Inc v Southern Pacific Hotel Corporation Limited (1984) 1 NSWLR 710

The Defendant's Strike-Out Application 5 On the strike-out application, the Defendant read the affidavit of Zarina Dara Braybrooke, affirmed on 12 July 2004. The Plaintiff read the affidavits of Elyse White sworn on 5 November 2003 and 11 May 2005. Neither deponent was required for cross-examination. 6 The Plaintiff's claim arises out of his service as a police officer at Cabramatta Police Station to which he was transferred in March 1997. Thereafter, events occurred with respect to policing in the Cabramatta area which, on the evidence before me, have attracted considerable public attention. The topic, including the role of the Plaintiff, has been the subject of parliamentary inquiry in New South Wales - Report 8 of the General Purpose Standing Committee No. 3 of the New South Wales Legislative Council entitled "Cabramatta Policing" (July 2001); Report 13 of the Standing Committee on Parliamentary Privilege and Ethics of the New South Wales Legislative Council entitled "Possible Intimidation of Witnesses Before General Purpose Standing Committee No. 3 and Unauthorised Disclosure of Committee Evidence" (November 2001) and Report 12 of General Purpose Standing Committee No. 3 of the New South Wales Legislative Council entitled "Review of Inquiry into Cabramatta Policing" (September 2002). The Plaintiff seeks to rely upon parts of the proceedings before the Standing Committee and the reports of the two Committees on these applications. An issue has arisen concerning parliamentary privilege in this context, to which I will return later in this judgment. 7 The original Statement of Claim was filed on 22 November 2001. Following the provision of Further and Better Particulars, a Notice of Grounds of Defence was filed by the Defendant on 28 March 2003. 8 An Amended Statement of Claim was filed on 22 July 2003 pursuant to leave granted to the Plaintiff by the Court on 10 July 2003. Following a request from the Defendant, further particulars were provided by the Plaintiff on 21 August 2003. 9 On 7 November 2003, the Plaintiff filed a Notice of Motion seeking leave to file a Second Amended Statement of Claim. 10 On 11 December 2003, the Defendant filed a Notice of Motion seeking orders, inter alia, that the Amended Statement of Claim, or parts thereof, be struck out pursuant to Part 15 r 26 SCR. That Notice of Motion was listed for hearing on 5 February 2004, as was the Plaintiff's motion for leave to file a Second Amended Statement of Claim. 11 According to the affidavit of Ms White sworn on 11 May 2005 (paragraphs 11-16), Mr Semmler QC appeared on 5 February 2004 for the Plaintiff. Mr Sternberg of Counsel appeared for the Defendant. Following discussions between Counsel for the parties, agreement was reached as to various amendments to be made to the Amended Statement of Claim. By consent, the following orders were made by Registrar Howe:

The Amended Defence and Subsequent Events 21 The Defendant filed an Amended Notice of Grounds of Defence ("Amended Defence") on 1 April 2004. In the Amended Defence, the Defendant admitted the allegations contained in paragraphs 1, 3, 4, 5, 6, 8, 9. 22, 27, 31, 50, 54, 55, 62, 64, 69 and 70 of the SASC. Further, the Defendant made qualified or partial admissions with respect to the allegations contained in paragraphs 14, 19, 23, 24, 30, 37, 40, 48, 51, 52, 53, 56, 58, 63 and 66 of the SASC. Denials were made concerning other matters alleged in the SASC. 22 On 14 April 2004, the Plaintiff filed a requisition for trial with a jury for the purpose of s.86 Supreme Court Act 1970 and paid the appropriate fee. 23 On 30 April 2004, the Defendant was served with the Plaintiff's Notice of Motion seeking an order for particular discovery. 24 On 28 May 2004, the Defendant's solicitor wrote to the Plaintiff's solicitor indicating that Mr Maconachie QC had been briefed recently for the Defendant and that discussions were ensuing between Mr Maconachie QC and Mr Semmler QC concerning interlocutory issues. 25 On 2 June 2004, the Defendant's solicitor furnished the Plaintiff's solicitor with a document prepared by Mr Maconachie QC which raised certain issues concerning the SASC and discovery. It is appropriate to set out that part of the document prepared by senior counsel for the Defendant which sought clarification concerning the causes of action pleaded in the SASC: " Statement of the plaintiff's case - the manner in which the procedural steps have been taken thus far requires a clear analysis and expression of the plaintiff's case 1. The plaintiff's case is founded on three causes of action expressed to be: (i) breach of contract paragraphs 66 to 68, both inclusive, of the Second Amended Statement of Claim - the breaches of contract relied upon by the plaintiff are co-extensive with the particulars of negligence set out in paragraph 65 of the Second Amended Statement of Claim - incorrectly identified as paragraph 67 in the particulars of breach of contract on page 13 of the Second Amended Statement of Claim);

(c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 30 The function of pleadings should be kept in mind in considering the strike-out application: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at paragraphs 47-53. 31 The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and to define the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance: Banque Commerciale at 296. 32 For a statement of claim to comply with the rules of court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Part 15 r 7 SCR (see now Part 14.7 UCPR). In doing so, the pleadings should be as brief as the nature of the case admits: Part 15 r 8 SCR (see now Part 14.8 UCPR). 33 Pleadings also provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at paragraphs 100-103. 34 A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: Gunns Ltd v Marr [2005] VSC 251 at paragraphs 14-15. 35 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393, Tamberlin J explained the concept of "embarrassment" with respect to pleadings at paragraph 18:

(b) Mr Maconachie QC was briefed to appear as senior counsel for the Defendant and his advice proposed a different course to that which had been taken up to that time. 40 Mr Maconachie QC submitted that, irrespective of the conduct of the Defendant, the Court had an interest in the pleadings being in proper form to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Part 1 r 13 SCR (see now s.56 CP Act). He submitted that the stance taken by the parties should not stand in the way of the Court ensuring that the pleadings were in proper form. 41 It is clear that an application to amend a pleading and an application to strike out a pleading are interlocutory in nature: Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440. Successive applications for interlocutory orders may be made, although a later application ought be supported by additional relevant facts: Hall v Nominal Defendant at 440-441; Licul v Corney (1976) 180 CLR 213 at 225. Accordingly, the Defendant is not estopped from bringing the present application. 42 I do not consider that the filing of the SASC by consent should operate to shut out the Defendant from making the present strike-out application. The filing by the Plaintiff of a requisition for trial by jury is a relevant event which occurred after the consent orders were made. The prospect of a jury trial is a matter which calls for precision in pleading to minimise the prospect of disruption to the trial once it has commenced. If the pleadings are defective and do not comply with the rules in the manner alleged by the Defendant, it is open to the Court to take steps to remedy that position. However, I will have regard to the fact that consent orders were made and an Amended Defence filed in response to the SASC in considering the question whether the SASC is deficient in the manner alleged by the Defendant. The ultimate question is whether the pleadings comply with the Rules so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Defendant's Submissions 43 In support of the strike-out application, Mr Maconachie QC took as his starting point the statement of Gleeson CJ in Goldsmith v Sandilands (2002) 190 ALR 370 at 371 (paragraph 2) to the following effect: "The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but 'to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial': Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-3. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings." 44 Reference was made to Williams v Milotin (1957) 97 CLR 465 at 474 where Dixon CJ, McTiernan, Williams, Webb and Kitto JJ said: "When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the special or particular damage - it is the gist of the action - and the want of due care." 45 Mr Maconachie QC referred to statements of Gleeson CJ in Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 at 553-4 (paragraphs 6-7) concerning limits upon justiciability of issues concerning the reasonableness of government action or inaction and, in this context, the reasonableness of governmental spending priorities. He referred also to statements of Spigelman CJ in State of New South Wales v Paige (2002) 60 NSWLR 371 at 387-8 (paragraph 78) concerning the "novel category of duty" advanced in that case. Reference was also made to O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 at paragraph 23 where the Chief Justice emphasised the need to recognise the distinction between certain duties which arise in an employer/employee context (such as an obligation to accord natural justice or of fair dealing) and a duty of care for the purposes of the law of negligence. 46 Mr Maconachie QC submitted that there were, within the structure of the law, measures for redressing alleged wrongs within the New South Wales Police by means of disciplinary action and other procedures including complaints to the Police Integrity Commission. It was said that the existence of such procedures ought be borne in mind when the causes of action contained in the SASC are considered. Mr Maconachie QC submitted that, unless and until that which the Plaintiff complains of in the broad and generic sense in the SASC is properly structured and identified in accordance with the rules of Court, identification of where the line is to be drawn in terms of what is justiciable and what is not justiciable cannot be considered (Transcript, 23 June 2005, page 45.10). It was submitted that the SASC contains "a discursive narrative which with respect jumbles together a whole lot of things with no particular structure" and accordingly offended Part 15 r 6 and r 7 and Part 15A r 1 SCR. 47 The Defendant submitted that paragraph 9A of the SASC was incomplete as it failed to allege facts which give rise to the issue of reasonable foreseeability. The complaint is made that paragraph 9A contains no assertion that the Defendant knew or ought to have known that the Plaintiff was vulnerable to further stressors. 48 It is then submitted that paragraphs 10-64 of the SASC pleads a "narrative of evidentiary and unessential facts" and not material facts. It was submitted that this amounted to, in essence, "interrogation by pleading" (Transcript, 23 June 2005, page 47.5). Mr Maconachie QC sought to illustrate his submission by reference to paragraphs 58 and 60 of SASC. He referred to Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 at 293 where Barwick CJ said: "Further, in all these essential respects the plaintiff can only be allowed to succeed according to the case which has been alleged as well as proved: the breach of duty must be specifically alleged as well as proved. The generality of assertion accepted in the common law form of pleading ought not be acceptable. Specific and limiting particulars of the breach of duty should be insisted upon: and the evidence kept within the confines of the particulars."

Plaintiff's Submissions 51 Mr Semmler QC submitted that, in the event that the Court entertained the Defendant's strike-out application, it ought to be dismissed. He contended that the SASC complied with the rules of Court and that no basis had been demonstrated for an order under Part 15 r 26 SCR. 52 With respect to the complaint concerning paragraph 9A of the SASC and the matters alleged in paragraphs 10-26 concerning events between 1984 and August 1998, Mr Semmler QC submitted that it was part of the Plaintiff's claim that, by reason of stressors to which he had been exposed earlier in his career as a police officer, he was vulnerable to suffer psychiatric injury as a result of further stressors in his employment with the Defendant after 1998. 53 It was submitted that the importance of the fact of vulnerability to psychiatric disorder in a case where an employee alleges psychiatric injury as a result of his employment had been recently emphasised by the High Court in Koehler v Cerebos (Aust) Limited (2005) 214 ALR 355; [2005] HCA 15 at paragraphs 19, 33-36, 41. He submitted that it was essential that all of the matters relating to the Plaintiff's employment prior to September 1999 be pleaded. Mr Semmler QC acknowledged that, where psychiatric injury is alleged to have resulted from the tortious acts or omissions of an employer, the foreseeability of psychiatric injury to that particular employee is critical to a successful outcome (Transcript, 23 June 2005, page 56.36). He submitted that paragraph 9A of the SASC took up the Koehler issue and that paragraphs 10-22 of the SASC referred to the matters relied upon by the Plaintiff as stressors which were said to give rise to vulnerability. Mr Semmler QC submitted that, if these matters had not been alleged in the SASC, complaint may properly have been made by the Defendant. 54 Mr Semmler QC submitted that the Defendant's arguments arising from Graham Barclay Oysters, Paige and O'Leary concerning areas of justiciability did not touch upon the pleading points which were the subject of the application under Part 15 r 26 SCR. Rather, these issues might be relevant to questions to be determined as part of the final hearing. 55 The Plaintiff submitted that the present case did not involve "some novel area of the law where a duty hasn't been previously recognised" (Transcript, 23 June 2005, page 58.16). Rather, the existence of a cause of action by a police officer against the State of New South Wales in negligence for psychiatric injury said to arise from workplace stress was recognised in State of New South Wales v Seedsman (2000) 217 ALR 583. The Seedsman principles had been applied in a closely analogous case in Wheadon v State of New South Wales (District Court of New South Wales, Cooper DCJ, 2 February 2001), where a substantial verdict was returned in favour of a plaintiff and that verdict had apparently not been the subject of appeal by the State of New South Wales. 56 With respect to the negligence claim, the Plaintiff submitted that the Defendant had not demonstrated a basis for relief under Part 15 r 26 SCR. 57 With respect to the claim for breach of contract, in written submissions provided after the hearing, the Plaintiff submitted that an arguable case for breach of contract exists and that that part of the SASC ought not be struck out. The Plaintiff acknowledged the line of authority exemplified by Attorney-General for New South Wales v Perpetual Trustee that the relationship of master and servant does not exist between the Crown and its police officers and that police officers are independent office holders exercising original authority in the execution of their duties. It was submitted, however, that in recent times, the employment status of police officers has been the subject of much closer scrutiny by the Courts particularly in the specialist industrial relations jurisdictions. 58 The Plaintiff submits that, in New South Wales, the operation of the common law rule has been modified by statute. In many areas, the law has undergone significant change, ensuring that police officers enjoy essentially the same employment and industrial rights as other employees. For example, s.134 Occupational Health and Safety Act 2000 deems police to be employees for the purposes of that Act. The Police Act 1990 specifies that for industrial matters, the Commissioner is the employer: s.84. The Commissioner determines rates of pay and allowances: s.85, and a police officer may sue for and recover remuneration: s.85(2). The Plaintiff points to provisions in the Police Service Regulation 1990 dealing with grades and classifications, promotions, record sheets, discipline, uniforms, annual leave, temporary transfers and allowances and contends that these aspects of control bear the indicia of an employment arrangement: cf Hollis v Vabu Pty Limited (2001) 207 CLR 21. 59 The Plaintiff points to the decision of Sperling J in Chate v Commissioner of Police (1997) 76 IR 70, a case concerning a suspended officer's entitlement to the accrual of annual leave during the period of suspension. 60 The Plaintiff argues that his contract of employment with the Defendant included an implied term, said to be underscored by the provisions of the Occupational Health and Safety Acts 1983 and 2000, that it would take all reasonable steps to ensure the safety of the Plaintiff during the course of his employment. The Plaintiff alleges that it was an implied term of that contract that the Defendant ensure that the duty of care that it had in respect of him was not breached. The Plaintiff submitted that it would be inappropriate, at this interlocutory stage, to strike out the claim given the stringent test in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125. 61 The Plaintiff did not press the claim for breach of statutory duty in the SASC. Accordingly, that part of the SASC should be struck out.

Decision 62 Has the Defendant demonstrated a basis for relief under Part 15 r 26 SCR with respect to the whole or part of the SASC (apart from the claim for breach of statutory duty)? 63 With respect to the claim in negligence, I do not accept the Defendant's submission that the present claim is especially novel. A claim for damages by a police officer against the State of New South Wales for alleged failure to provide a safe system of work so as to protect the person from psychiatric injury was considered in Seedsman. Such a claim was brought successfully against the State of New South Wales in the context of a police officer alleging harassment and victimisation by other police officers in Wheadon, a decision which was not taken on appeal to the Court of Appeal. A claim in negligence for psychiatric injury resulting from workplace stress said to flow from victimisation and harassment has been held to be justiciable: Mannall v State of New South Wales [2001] NSWCA 327 at paragraph 64; State of New South Wales v Mannall [2005] NSWCA 367. 64 The Plaintiff's claim in negligence for alleged psychiatric injury is said to have resulted from workplace stress in his capacity as a police officer (Seedsman) involving, inter alia, allegations of victimisation and harassment by other police officers for which the Defendant is said to be directly and/or vicariously liable (Mannall). This combination of issues appears to have been considered and determined, adversely to the Defendant, by Cooper DCJ in Wheadon. The present case appears to be a further example of such a claim. Although the particular features of the case are different factually from those arising in Seedsman and Mannall and, to a lesser extent, Wheadon, I do not consider that the present claim is to be characterised appropriately as novel. 65 I accept the Plaintiff's submissions that arguments based upon Graham Barclay Oysters, Paige and O'Leary concerning the limits of justiciability have no application on a pleadings argument as involved here. 66 In any event, the issue which is presently relevant is whether the claim in negligence in the SASC (whether novel or not) complies with pleading requirements for such a claim. As stated earlier, I do not consider that the Defendant is precluded from making the present strike-out application because of its consent to the filing of the SASC and the filling of an Amended Defence to the SASC. It is a matter for the Court to determine whether the pleadings contained in the SASC are deficient so as to warrant an order under Part 15 r 26 SCR. However, given the purposes of pleadings, it is highly relevant that the Defendant consented to the filing of the SASC on 5 February 2004 and was able to file an Amended Defence thereafter responding to the matters raised in the SASC. The Defendant understood the claims made against it and was able to respond to the claims by admission, qualified or partial admission and denial. Mr Maconachie QC's analysis of the Plaintiff's negligence claims (set out in paragraph 25 above) displays an understanding by the Defendant of the case which it has to meet. 67 I am satisfied that paragraphs 6-9 and 65 of the SASC plead, in an acceptable way, the Plaintiff's claim in negligence. With respect to paragraph 9A of the SASC, it is common ground between the parties that the ingredients of the Plaintiff's claim involves more than the assertion of bare vulnerability on his part. As Mr Semmler QC acknowledged in argument and as the decision in Koehler makes clear, it is necessary for the Plaintiff to establish the risk of the Plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable. 68 The SASC does not refer to the issue of reasonable foreseeability. The Defendant's analysis of the Plaintiff's case (set out at paragraph 25 of this judgment) inferred that the Plaintiff alleges that the Defendant knew or ought to have known of the Plaintiff's vulnerability to psychiatric injury. However, the SASC does not contain such an allegation. 69 In Koehler, McHugh, Gummow, Hayne and Heydon JJ at 362 (paragraph 33) observed that the central inquiry remains whether, in all the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful. 70 To the extent that paragraph 9A of the SASC does not contain an express allegation of reasonable foreseeability of psychiatric injury, I consider that it is deficient and ought be struck out. The absence of such an allegation in paragraph 9A has a tendency to cause embarrassment or delay in the proceedings so as to attract Part 15 r 26(1)(b) SCR. The Plaintiff ought be given an opportunity to replead this part of the SASC to comply with the requirements for proper pleading of this part of the claim. This step will assist the Defendant, the Court, and any jury at trial, to understand the Plaintiff's case and will, at the least, reduce the risk of delay flowing from this aspect of the pleadings. 71 It will be a matter for the Plaintiff to plead the reasonable foreseeability aspect of his claim as he sees fit. Whether that pleading accords with the Defendant's currently inferred understanding of this aspect of the Plaintiff's claim remains to be seen. My ruling ought not be taken to require the Plaintiff to plead this aspect of his claim in that way. That which the Plaintiff is required to establish concerning reasonable foreseeability ought comply with the principles in Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 390, 413-4; Tame v New South Wales [2002] 211 CLR 317 at 332-3 (paragraph 16), 343-4 (paragraphs 61-62), 385 (paragraph 201), and Koehler. No doubt, the Plaintiff will have regard to those principles in formulating his pleading in substitution for the current paragraph 9A of the SASC. 72 With respect to paragraphs 10-64 of the SASC, I am not satisfied that any basis had been demonstrated for the striking out of any or all of these paragraphs. The paragraphs which allege matters between 1984 and August 1998 relate to the alleged vulnerability of the Plaintiff. So much is clear from the SASC itself and from the submissions of Mr Semmler QC before me. The Defendant has responded to these paragraphs by way of admission, qualified or partial admission or denial in the Amended Defence. I do not consider that the Defendant has demonstrated a basis for an order under Part 15 r 26 SCR with respect to these paragraphs. 73 With respect to the Plaintiff's claim for breach of contract, the Defendant's real submission is that the claim is not tenable and ought be struck out. The striking out of a pleading allegedly containing no reasonable cause of action should only occur in circumstances where the claim is "manifestly groundless", "so obvious untenable" that it cannot possibly succeed or so "manifestly faulty that it does not admit of argument": General Steel Industries at 125. Put another way, the test is not whether the Plaintiff would probably succeed in his action against the Defendant, it is whether the material before the Court demonstrated that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard (1993) 177 CLR 598 at 602. 74 In my view, there is a significant legal issue as to whether the Plaintiff's claim for breach of contract is maintainable given his status as a police officer seeking to sue the Defendant for breach of a contract of employment. However, I am not satisfied that the parts of the SASC advancing such a claim ought be struck out on the present interlocutory application. I am not satisfied that the stringent requirements of General Steel Industries and Webster v Lampard have been made out in this case. Further, the breach of contract claim appears to be a subsidiary one in this case. The Plaintiff's primary claim is in negligence and it appears that the same facts and circumstances are relied upon in support of the subsidiary claim for breach of contract. An issue might arise at the trial as to whether the claim for breach of contract should be left to the jury. However, I decline to strike out that part of the claim on the present application. 75 I note that certain typographical errors in paragraphs 68 and 71 of the SASC are to be remedied by the Plaintiff and that the Plaintiff has foreshadowed an amendment to paragraph 63 and the deletion of subparagraph (l) within paragraph 65 of the SASC (letter from Plaintiff's solicitor dated 5 July 2004). I will assume that these amendments will be effected by the Plaintiff and that these matters do not require any order of the Court. 76 Accordingly, I propose to strike out paragraphs 9A and 69-71 of the SASC. I will grant the Plaintiff leave to replead the matters contained in paragraph 9A of the SASC.

Evidence on the Application 83 On this application, the Defendant read the affidavit of Zarina Dara Braybrooke affirmed on 17 December 2004 and tendered, without objection, a range of documents to demonstrate that significant media coverage had been given to the Legislative Council inquiries into policing in Cabramatta and the role of the Plaintiff in that inquiry, together with other statements concerning the Plaintiff generally. I accept that substantial electronic and print media coverage has been given to the Plaintiff's position between 2001 and 2004. 84 Much of this media coverage has been sympathetic to the Plaintiff and adverse to the New South Wales Police in its dealings with the Plaintiff. The evidence reveals that the radio identity, Mr Alan Jones, has made public statements supporting the Plaintiff on his programme on Radio 2GB. The last supportive comment revealed in the evidence was made by Mr Jones on 8 December 2004. The Defendant relies upon evidence of audience ratings demonstrating the substantial audience for Mr Jones' programme on Radio 2GB. The Defendant also tendered material to demonstrate that a substantial volume of material concerning the Plaintiff and his role in policing at Cabramatta may be recovered by searching the internet. The Defendant tendered a copy of a book entitled "To Protect and To Serve: The Untold Truth About the New South Wales Police Service" written by the Plaintiff and Mr Richard Basham and published in August 2003. The book touches upon the Plaintiff's experiences as a police officer and, in particular, events at Cabramatta in and after 1997. 85 The Plaintiff read the affidavit of Elyse White sworn 12 May 2005 together with an affidavit of the Plaintiff sworn 11 May 2005. Neither deponent was required for cross-examination. 86 The affidavit of Ms White exhibited the various Legislative Council reports to which reference has been made, together with transcripts of evidence given by the Plaintiff and others before the Legislative Council Committees. These documents were marked for identification at the hearing to allow a ruling to be made as to admissibility after further written submissions were made concerning the principles of parliamentary privilege. I propose to admit these documents in evidence for the limited purpose of this application, although the question of admissibility of this material at the final hearing of this matter may involve greater controversy. In New South Wales, the question of admissibility of the record of parliamentary proceedings turns on the operation of Article 9 of the Bill of Rights 1688 (Imp) in force by virtue of the Imperial Acts Application Act 1969 (NSW): Robinson v Woolworths Ltd [2005] NSWCA 426 at paragraph 44. The Plaintiff does not seek to impeach or question in any Court or place out of Parliament the freedom of speech and debates or proceedings in Parliament contrary to Article 9 of the Bill of Rights 1688 (Imp). Here, the material is tendered to prove, as a fact, that certain things had been said in the course of proceedings in the Legislative Council. There was no question of any further examination of the circumstances in which the proceedings had taken place, or the motives of the participants, or of anything else which might infringe parliamentary privilege: Uren v John Fairfax and Sons Ltd (1979) 2 NSWLR 287 at 289; Mundey v Askin (1982) 2 NSWLR 369 at 373; R v Jackson (1987) 8 NSWLR 116 at 118-120; Della Bosca v Arena [1999] NSWSC 1057. 87 The affidavit of the Plaintiff sworn on 11 May 2005 reveals that approximately 24,000 copies of the book written by the Plaintiff and Mr Basham in August 2003 have been sold Australia wide. 88 Mr Semmler QC read a further affidavit of Ms White sworn on 14 June 2005 which annexed a report dated 9 June 2005 of Dr Michael Minehan, Head of Department of Communication at Insearch, University of Technology, Sydney. Mr Maconachie QC tendered a report dated 22 June 2005 of Professor Philip Bell, Professor of Media and Communications at the University of New South Wales. The parties agreed that the reports of Dr Minehan and Professor Bell ought be admitted into evidence on the present application without either witness being cross-examined. The reports of Dr Minehan and Professor Bell relate to the impact of media publicity on audiences and the ability of the public to remember news events. Put shortly, Dr Minehan considered that there would be a relatively low level of recall by members of the public of media publicity surrounding the Plaintiff in the context of policing in Cabramatta. Professor Bell considered that publicity of the Plaintiff and his role as a critic of policing in Cabramatta would be more memorable for the general public, including the sympathetic depiction of the Plaintiff by the media in this context.

Defendant's Submissions 89 Mr Maconachie QC, for the Defendant, advanced two submissions in support of the application to dispense with the jury. Firstly, it was submitted that the subject matter of the litigation involving the Plaintiff's involvement with policing in Cabramatta had been widely publicised for some years in the media and was the subject of a book written by the Plaintiff. It was submitted that there was a significant risk of potential jurors bringing preconceived ideas to their judgment in the case as a result of this publicity. 90 Mr Maconachie QC acknowledged that the problem of pre-trial publicity is encountered from time to time in the context of criminal trials. However, he sought to distinguish the position of trial by jury in criminal and civil matters. He submitted that trial by jury was the primary and usual method of trial on indictment in criminal matters, subject only to a statutory alternative of trial by judge alone with the consent of both the Crown and the accused: s.132 Criminal Procedure Act 1986. In civil proceedings, he contended that there were two equally valid mechanisms for trial - one with a jury and one without a jury. In the words of Kirby P in Pambula at 391D, "each of these modes of trial is, generally speaking, accepted as equally authentic and appropriate to decide disputed questions of fact". The statutory requirement for a jury, subject to dispensation with the consent of both parties in criminal trials, did not extend to civil trials. 91 In these circumstances, the Defendant submitted that the risk of pre-judgment by potential jurors as a result of pre-trial publicity was a factor which ought weigh in favour of a discretionary decision under s.89 to dispense with the jury. It was submitted that the interests of justice favoured trial by judge alone, where the reasons of the judge could be exposed for public scrutiny without the risk of the decision-making process being influenced by pre-trial publicity. 92 Mr Maconachie QC submitted that the evidence of Professor Bell ought be preferred to that of Dr Minehan with respect to likely memory by potential jurors of media publicity concerning the Plaintiff and issues surrounding policing in Cabramatta. In substance, the Defendant submitted that Professor Bell's evidence supported a conclusion that there was a probability that potential jurors would have a memory of some of the detail of media publicity, much of which was favourable to the Plaintiff, that was generated by the electronic and print media between 2001 and 2004. Thus, the Defendant relied upon the existence of the media publicity, and Professor Bell's opinion concerning memory of such publicity, in support of the application to dispense with the jury. 93 The Defendant's second argument pointed to the relative novelty of the claim and the desirability for transparency by means of reasons for decision given by a trial judge sitting without a jury. It was submitted that trial by jury was "more likely to lead to injustice" in this case (Transcript, 23 June 2005, page 70.27). 94 In written submissions provided after the hearing, the Defendant relied upon a third argument. The Plaintiff's wife, Karen Priest, has commenced proceedings (in 2004) for damages against the State of New South Wales which overlap in significant respects with those brought by the present Plaintiff. There is yet to be determined a contested application for extension of time to commence proceedings under the Limitation Act 1969 with respect to Mrs Priest's claim. 95 The Defendant submits that the nature of Mrs Priest's claim relies upon findings of negligence in the Plaintiff's matter. It would still remain for Mrs Priest to establish that her injury was reasonably foreseeable. If both matters are heard by a judge sitting alone, the evidence in respect of negligence in one matter could be admitted as evidence in the other. The Defendant points to the prospect of a lengthy jury trial in the Plaintiff's matter followed by a trial by judge alone in Mrs Priest's claim and submits that no principle of issue estoppel or res judicata would apply so as to shorten the hearing of the second matter. 96 The Defendant submits that, this prospect is relevant to the application to dispense with the Plaintiff's jury. In order to facilitate the just, quick and cheap resolution of the real issues in the proceedings, the Defendant submits that the Plaintiff's requisition for a jury should be set aside.

Plaintiff's Submissions 97 Mr Semmler QC, for the Plaintiff, emphasises the Plaintiff's right to trial by jury (Pambula at 411F-G, 412F-G per Samuels JA) unless the Defendant satisfies the Court, in accordance with the Pambula principles, that the requisition for trial by jury ought be set aside. He relies upon the recent observations of Gleeson CJ concerning the importance of the civil jury in our system of justice in Swain v Waverley Municipal Council (2005) 220 CLR 517 at 520-522 (paragraphs 3-7) and, in particular, at 521-2 (paragraph 7): "Even so, decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards." 98 With respect to the Defendant's first submission concerning the risk of pre-judgment arising from pre-trial publicity, the Plaintiff points to the decision of Hidden J in Moran v Moran [1999] NSWSC 977 where an application to dispense with a jury under s.89 based upon pre-trial publicity grounds was rejected. The Plaintiff submits that the reasoning of Hidden J in Moran ought be followed in this case where a similar argument is made by the Defendant. In The Queen v Glennon (1992) 173 CLR 592, Mason CJ and Toohey J observed at 603: "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them."

In R v Yuill (1993) 69 A Crim R 450, Kirby ACJ said at 453-4: "Courts will assume that jurors, properly instructed, will accept and conform to the directions of the trial judge to decide the case solely on the evidence placed before them in court: see Demirok (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect to that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the court room, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled." 99 In Moran after citing Glennon and Yuill, Hidden J at paragraph 8 referred to the difference between civil and criminal proceedings in the context of an argument based upon pre-trial publicity: "True it is that a judge has no power to dispense with trial by jury in a criminal case (although the case may be tried by judge alone if the accused chooses that mode of trial and the Crown consents, in accordance with s32 [now s.132] of the Criminal Procedure Act 1986). Nevertheless, the observations in the cases to which I have referred are of general application, and it is appropriate to have regard to them in exercising the discretion under s89. Whether any of the jurors in the present proceedings would remember the publicity about the defendants cannot be known, but there is an obvious risk that one or more of them may. However, there is no reason to doubt that each of the jurors would heed a direction to put that material out of his or her mind and to decide the case on the evidence. I would not direct a trial without jury on this basis." 100 The Plaintiff relies upon the decision of the Court of Appeal in Germain v Cordina Chicken Farms Pty Limited [2002] NSWCA 56 where the Court concluded that a District Court trial judge had erred in principle in dispensing with a civil jury under the equivalent of s.89 Supreme Court Act 1970, partly on the basis of the contents of a television programme screened during the course of the trial, without first considering whether the problem was capable of a less drastic remedy, such as the giving of appropriate directions to the jury. 101 Mr Semmler QC submits that the evidence of Dr Minehan should be preferred to that of Professor Bell who, it was contended, did not appear to have expertise in relation to news and current affairs of the type possessed by Dr Minehan. The Plaintiff submits that, in any event, there is a critical distinction to be made between the ability of those exposed to publicity to recall in general terms the subject matter of the publicity and, on the other hand, the more specific details. 102 In response to the Defendant's second submission, Mr Semmler QC submits that there is nothing especially novel about the present claim. In any event, the Plaintiff points to other decisions of the Court where applications to dispense with a jury under s.89 had been rejected because of the suggested novelty or complexity of the issues to be considered. In Sharp v Guinery (NSW Supreme Court, 13 February 1998), Ireland J observed that "the prospect that the present case may, to some extent, break new ground does not disqualify it from resolution at the hands of a jury". See also Cooper v Smee (NSW Supreme Court, 6 February 2000, Bell J at paragraph 12); Webb v South Eastern Sydney Area Health Service at paragraph 48. 103 With respect to the Defendant's third submission concerning the interrelationship between the Plaintiff's proceedings and his wife's claim, the Plaintiff submits that this is not a relevant consideration to be taken into account in the exercise of discretion under s.89(1) Supreme Court Act 1970. However, even if it were a relevant consideration, the Plaintiff submits that there is no certainty that Mrs Priest's proceedings will not ultimately be determined by a jury. The Plaintiff submits that it is not possible to speculate on the outcome on any application made by her. Even if Mrs Priest's claim was listed to be determined by a judge alone, the Plaintiff submits that it is quite possible that those proceedings would be resolved between the parties once the Plaintiff's proceedings are concluded. 104 By way of general reply to the Defendant's application to dispense with the jury, the Plaintiff submits that the present proceedings involve "quintessential jury issues" and that matters raised by the litigation are matters of considerable public importance. In this respect, the Plaintiff relies upon the reports and transcripts of the Legislative Council inquiries concerning policing in Cabramatta between 1999 and 2001 to which reference has already been made. The Plaintiff tenders this material on the hearing of the present motion solely for the purpose of establishing that the parliamentary inquiries took place and to establish what occurred and what was said during the parliamentary inquiries. The Plaintiff does not seek to tender these documents as evidence of the truth of any statement made to the Legislative Council committees. Given the limited purpose of the tender, I have admitted this material into evidence in the present interlocutory application. 105 The Plaintiff submits that this material is relevant to the present application in that it demonstrates the public importance and public interest in the issues to be determined in these proceedings. The fact that the Legislative Council saw fit to inquire into these matters and publish reports concerning them is a matter, the Plaintiff submits, which supports such a conclusion. The Plaintiff submits that it is entirely appropriate that the issues of fact arising out of these matters of public importance should be determined by representatives of the community, and that this factor ought be weighed in the exercise of discretion under s.89 together with the other matters advanced by the parties.

Decision 106 The resolution of the competing submissions takes as a starting point the Plaintiff's (conditional) right to trial by jury given that the requirements of s.86(1) Supreme Court Act 1970 have been met. No onus lies upon the Plaintiff to justify his decision to requisition a jury, although some positive submissions have been advanced on his behalf pointing to the suggested public importance of the factual matters to be determined. 107 It is for the Defendant to satisfy the Court that there are circumstances particular to these proceedings which require that an order ought be made dispensing with the jury: Pambula at 402G, 405D, 413D. 108 With respect to the pre-trial publicity issue, the evidence reveals a substantial volume of publicity in the electronic and print media concerning the Plaintiff, policing in Cabramatta and the Legislative Council inquiries over a period of time from 2001 to 2004. I accept that it is likely that members of the public may retain some memory, varying in detail, of this publicity by the time this matter may come on for trial in 2006 or 2007. 109 As Hidden J observed in Moran and as the statements in Glennon and Yuill exemplify, this is not an uncommon scenario in the context of criminal trials. On occasions , an inquiry by a Royal Commission or a body such as the Independent Commission Against Corruption or the Police Integrity Commission may attract substantial publicity adverse to individuals. Thereafter, persons may stand trial before a jury for alleged offences relating to the subject matter of the earlier inquiry. In circumstances such as this, the trial judge will give directions to the jury in accordance with the principles in Glennon and Yuill and the trial will proceed to conclusion on its merits. 110 The evidence of Professor Bell and Dr Minehan touches upon the extent of memory of earlier media publicity of particular events. Even accepting, for present purposes, the evidence of Professor Bell concerning memory of such publicity, the question to be considered is the capacity of potential jurors to differentiate between what they may have heard in the past and what they hear by way of evidence at trial whilst subject to the solemn responsibility to deliver a verdict in accordance with their oaths and to comply with directions given by the trial judge. 111 In Yuill, Kirby ACJ adverted to the capacity of jurors to differentiate between news and opinion heard before the case and evidence heard in the Court at trial. In R v Yildiz [2002] ACTSC 41, Higgins J at paragraph 69 observed that he was fortified in an optimistic view of the capacity of jurors to resist pre-trial publicity by a recent study entitled "Managing Prejudicial Publicity" (Chesterman, Chan and Hampston, Judicial Research Centre, Law and Justice Foundation of NSW, February 2001). 112 The "previous tendency to regard jurors as exceptionally fragile and prone to prejudice" was rejected by Spigelman CJ (Handley JA and Campbell AJA agreeing) in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at 366 (paragraph 103): "There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them." 113 I do not consider that the Defendant's submissions contrasting the use of juries in criminal and civil proceedings assists the Defendant's argument. Clearly, the possible impact of pre-trial publicity is a relevant factor to be taken into account in the exercise of discretion under s.89(1) Supreme Court Act 1970. However, the principles applicable to pre-trial publicity with respect to criminal juries, including the giving of directions to the jury with respect to such publicity, are applicable to the present application. Like Hidden J in Moran, I do not consider that the evidence of pre-trial publicity in this case ought give rise to an order dispensing with the jury. 114 I have not overlooked the fact that there is a further and unusual feature in this case. The Plaintiff is a co-author of a book, published in August 2003, which bears upon the subject matter of the proceedings. The fact that the book remains in circulation and may be available in libraries and other places is a factor to be taken into account in the exercise of discretion. I do not consider that this factor, taken together with the evidence of pre-trial publicity generally, ought lead to a decision to dispense with the jury. This matter may be the subject of directions by the trial jury in association with general directions concerning pre-trial publicity. 115 With respect to the Defendant's second submission, I do not consider that the relative novelty of the claim ought lead to an order dispensing with the jury. As Ireland J observed in Sharp v Guinery, the prospect that the case may, to some extent, break new ground does not disqualify it from resolution at the hands of a jury. As I have observed earlier (see paragraphs 63-64), in any event, the present proceedings are not especially novel. 116 I am not satisfied that there is a risk of injustice as to warrant an order dispensing with trial by jury. If necessary, the trial judge will decide, as a matter of law, whether the facts alleged by the Plaintiff are capable of giving rise to a duty of care, conduct on the part of the Defendant in breach of that duty (negligent conduct) and consequential damage: Swain at 520 (paragraph 4). In legal formulations of the duty and standard of care, the central concept is reasonableness. The question whether the conduct of the Defendant has been negligent (whether it has departed from what reasonableness requires) will be presented as a question of fact for the jury. The jury's decision will involve both a resolution of disputed questions of primary fact and an application, to the facts as found, of the test of reasonableness: Swain at 520-521 (paragraph 6). The jury remains a time-honoured and important part of our justice system: Swain at 522 (paragraph 7). In my view, there is no greater risk of injustice resulting from a jury trial in the present proceedings than in jury trials for serious criminal offences which occur daily in our system of justice. 117 As to the Defendant's third submission, I do not consider that the possible future course of Mrs Priest's proceedings ought give rise to an order dispensing with the Plaintiff's jury. As I understand it, there is a contested application under the Limitation Act 1969 with respect to Mrs Priest's claim. Although my decision concerning the Defendant's present strike-out application may have a practical flow-on effect to Mrs Priest's claim, which was described by Mr Maconachie QC as "parasitic on the claim made by Mr Priest" (Transcript, 23 June 2005, page 2.56), I am not determining any issue on the present applications concerning her claim. 118 It appears that Mrs Priest's proceedings (No. 20116 of 2004) are subject to the provisions enacted by the Courts Legislation Amendment (Civil Juries) Act 2001. The course taken by the present Plaintiff to requisition a jury under s.86 Supreme Court Act 1970 is not open to Mrs Priest: cf Muir v Council of Trinity Grammar School [2005] NSWSC 555. In my view, it is doubtful that I can have regard to Mrs Priest's pending claim at this time in determining the Defendant's application to dispense with the jury in the Plaintiff's matter. Even if Mrs Priest's pending claim may be taken into account in the exercise of the s.89(1) discretion, it is speculative to consider what might or might not happen at a future time with respect to her proceedings in the event that an extension of the limitation period is obtained by her. Accordingly, I do not consider that the future course of Mrs Priest's pending claim ought give rise to an order dispensing with the Plaintiff's jury. 119 I have concluded that the matters advanced by the Defendant, taken individually, ought not lead to an order under s.89(1) dispensing with the jury. Viewing these matters cumulatively, I am of a similar view. I do not consider that the Defendant has demonstrated a basis for an order under s.89(1) Supreme Court Act 1970. 120 In these circumstances, it is not necessary for me to consider the Plaintiff's further argument based upon the suggested public importance of the issues raised in the proceedings. 121 I do not consider that my ruling with respect to the Defendant's strike-out application stands in the way of a determination on the merits of the Defendant's s.89(1) application concerning trial by jury. 122 The Defendant's Notice of Motion seeking an order under s.89(1) that all or any issues of fact be tried without a jury ought be dismissed.

The "Special Reasons" Test 126 The Plaintiff makes a common law claim for damages arising out of alleged bodily injury. Accordingly, Part 23 r 2(1)(b) and rule 3 SCR do not apply to allow for discovery unless the Court, for special reasons, otherwise orders: Part 23 r 5 SCR (see not Part 21.8 UCPR). 127 The creation of the "special reasons" test in Part 23 r 5 SCR in 1996 strengthened what was always a prima facie prohibition upon discovery in claims for personal injury: Haywood v Collaroy Services Beach Club Limited [2003] NSWSC 43 at paragraph 15. The rule represents an intention that discovery in personal injury cases will be rare, and will be ordered only where special reasons are made out: Haywood at paragraph 20. 128 Not surprisingly, there is no definition of "special reasons" in the SCR (or UCPR). The Shorter Oxford Dictionary defines "special" as meaning "of such a kind as to exceed in some way that which is usual or common" and also "exceptional in character, quality or degree". The application of Pt 23 r 5 SCR (Pt 21.8 UCPR) should be approached giving to "special reasons" the meaning that expression would ordinarily convey in common English usage, whilst having particular regard to the statutory setting in which the language is used: B v Gould (1993) 67 A Crim R 297 at 300. The core of the requirement for "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535-6 (paragraph 18); Binks v North Sydney Council [2001] NSWSC 27 at paragraphs 9-10. 129 The Plaintiff submits that special reasons exist in this case for the making of an order for limited discovery. It is submitted that the Plaintiff's case has arisen in extraordinary circumstances and falls well outside the normal range of personal injury cases. At the heart of the Plaintiff's claim, it is submitted, is the conduct by very senior officers of the New South Wales Police in allegedly victimising the Plaintiff when he became a "whistle blower" in relation to the under-resourcing and alleged corruption in policing in the Cabramatta area. The Plaintiff submits that serious issues were raised in this respect, involving Legislative Council inquiries at the hearing of which the Plaintiff was called to give evidence. 130 The Plaintiff submits that one of the facts which would give rise to special reasons is the difficulty facing him in obtaining direct witness evidence concerning alleged victimisation and harassment of the Plaintiff for his whistle blowing activities. It is submitted that discovery of documents by the Defendant is the only way to address this difficulty. It is submitted that many of the classes of documents sought in discovery are internal documents uniquely in the possession of the Defendant. They include relevant policies and protocols in relation to persons who make protected disclosures, but include internal documentation relating to the manner in which those policies were applied (if at all) to the Plaintiff. The documents sought also relate to the alleged "quota" for crime reporting, internal directives not to make drug-related arrests in the Cabramatta area and funding documents in relation to Local Area Commands in Cabramatta and surrounding areas. Discovery is also sought of internal reviews by the New South Wales Police into the conduct of its own senior officers in relation to the Plaintiff. 131 Mr Semmler QC emphasised that the issues in the case need to be tried fairly. He referred to Percy v General Motors Holden Pty Limited (1975) 1 NSWLR 289 at 292 where Rath J, in the context of an earlier statutory regime for discovery in personal injury matters, described the proper approach as being whether discovery was necessary in the interests of a fair trial. In Percy, Rath J at 292 observed that it was clear that the defendant would have "virtually exclusive knowledge of many aspects" of the design and manufacture of the relevant vehicle and that, "in the interests of justice in this case, the plaintiff should have access to such information insofar as that access is necessary for the proper preparation of his case". Mr Semmler QC submitted that similar considerations applied to this case both with respect the existence of "special reasons" and the categories of documents which were sought under the order for limited discovery. He submitted that it would be unfair to deprive the Plaintiff of the opportunity to have available to him the information which had been carefully categorised. 132 It was submitted that, in the absence of discovery, the Plaintiff may be unable to obtain evidence required to support his own case and attack the Defendant's case: Mulley v Manifold (1959) 103 CLR 341 at 345. In addition, it is submitted that the material requested will assist in narrowing the facts in dispute between the parties and will assist of disposing fairly of the proceedings. Upon these bases, the Plaintiff submits that special reasons exist for the making of an order for particular discovery in this case. 133 Mr Maconachie QC submitted that the Plaintiff had failed to demonstrate "special reasons" for the making of a discovery order. He submitted that no special reasons had been advanced in this case "other than that there is an approach to this case as though it was another Royal Commission" (Transcript, 23 June 2005, page 53.54). 134 I am satisfied that the Plaintiff has demonstrated "special reasons" for an order for limited discovery to be made in this case. In broad terms, I accept the Plaintiff's submissions concerning the presence of "special reasons". The claim has unusual features which takes it out of the ordinary run of personal injury claims. I am satisfied that there are unusual and exceptional factors in this case so as to satisfy the threshold "special reasons" test.

(c) in such other manner as the Court considers appropriate in the circumstances." 136 The Defendant resisted the making of an order for discovery and made submissions contending that some of the categories of documents were not relevant or that compliance with an order would be oppressive. For the purpose of exercising discretion to make an order for discovery, the Court should consider the relevance of the classes of documents to the issues in the proceedings in accordance with the principles in National Australia Bank Limited v Idoport Pty Limited [2000] NSWCA 8 at paragraph 5ff; Economos v Bowlers Club [2000] NSWSC 1065 at paragraph 46ff. Once the Court exercises its power to make an order under Part 23 r 3 SCR, the question of relevance of documents to a fact in issue is superseded by the terms of the Court's order. The question for the parties thereafter is whether a document under consideration falls within the terms of the Court's order, regardless of whether the party who was subject of the order believes the document to be relevant to a fact in issue: Falk v Finlay [1999] NSWSC 1284 at paragraph 43. If the Court decides to make an order for discovery, a class of documents shall not be specified in more general terms than the Court considers to be justified in the circumstances: Part 23 r 3(2) SCR. 137 With respect to the issue of oppression, the Court is required not to specify a class of documents in more general terms than the Court considers to be justified in the circumstances: Part 23 r 3(2) SCR. It may be taken that the task of complying with discovery is, to some extent, burdensome. To comply with the order, a party is required to undertake often extensive searches for documents. The test of oppression must be considered against this background. The term "oppressive" is often used to signify considerations which justify the exercise of the power to control procedures to prevent injustice where the procedures are "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Hamilton v Oades (1988-1989) 166 CLR 486 at 502; Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90 at 102-103.

(l) to the rehabilitation, training, protection or assistance to be provided to persons after making submissions to a Parliamentary Inquiry about the functioning of the NSW Police Service; 2. All protocols, manuals, directions, procedures and policies (in any format) which would have applied to police officers between February 2001 and August 2002 in relation to the assistance, including vocational guidance, counselling, therapy and debriefing to be provided to police officers in the period between their last day of active service as a police officer and before their medical retirement is granted." 144 The Defendant submits that paragraphs 1 and 2 are so broad as to be oppressive and are, in any event, irrelevant. In his affidavit of 5 August 2004 (paragraph 7), Sergeant Popov stated, with respect to paragraph 1(g), that he was not aware of the existence of any further documents as required beyond the normal welfare assistance policy documents held by the NSW Police. With respect to paragraph 1(h), Sergeant Popov stated that he was not aware of the existence of any documents as required that meet this category of documents. The Plaintiff submits that the periods involved in paragraphs 1 and 2 of Exhibit A are relatively confined and that the documents sought relate to parts of the SASC and the Amended Defence as specified in the Plaintiff's written submissions dated 23 June 2005 entitled "Relevance of Document by Reference to the Amended List". 145 Although I accept that there will be some burden cast upon the Defendant and the Legal Services Section of NSW Police in complying with paragraphs 1 and 2 of the Plaintiff's Amended List (as is inevitable in compliance with an order for discovery), I am not satisfied that the task would be oppressive so as to stand in the way of an order for discovery. I am satisfied that the statement of the class of documents in paragraphs 1 and 2 complies with Part 23 r 3(2) SCR. I do not consider that the evidence of Sergeant Popov concerning paragraphs 1(g) and (h) ought stand in the way of including those subparagraphs in the order. The affidavit for the purpose of discovery must comply with Part 23 r 3(5) and (7) SCR. The requirements of those rules appear to extend beyond the matters stated in paragraphs 6 and 7 of Sergeant Popov's affidavit. I propose to include paragraph 1(g) and (h) in the class of documents contained in the order. I am satisfied that the documents sought are relevant by reference to parts of the SASC and Amended Defence relied upon by the Plaintiff. 146 Paragraphs 3, 4, 5, 7 and 8 of the Plaintiff's Amended List seek the following classes of documents: "3. The plaintiff's complete personnel file (including all disciplinary files) held by the NSW Police Service.

(h) Reports, notes, letters, correspondence or any other document in relation to the Plaintiff's participation in the Parliamentary Inquiries. 10. All documents (in any format) forwarded to or collected by the Internal Affairs Division of the NSW Police Service in relation to the Plaintiff, including (but not limited to) correspondence, records, diary entries, notes witness statements, investigation results, reports and memoranda. 11. All documents (in any format) forwarded to or collected by Assistant Police Commissioner Small in relation to the Plaintiff between 1 January 1999 and 31 December 2001." 151 The Defendant submits that paragraphs 9 and 10 in particular are broad and not demonstrated by the Plaintiff to be relevant to the issues properly defined by the pleadings. It was the evidence of Sergeant Popov that some 80 archive boxes are held at the Legal Services Section repository which relate to the involvement of that Section in the Legislative Council inquiries. If an order was made in terms of paragraph 9(h), Sergeant Popov said that an examination of the contents of the 80 boxes would be required to determine if any document related to the Plaintiff and, if so, whether any public interest immunity claim might attach to it. Sergeant Popov estimated that it would take two days for a person to examine the contents of each of the 80 boxes for this purpose. With respect to paragraph 9(g), Sergeant Popov testified that very extensive searches would be required to determine if documents fell within this category (Transcript, 23 June 2005, page 26.45). The Plaintiff submits that the documents sought in paragraph 9 are relevant to paragraphs 23 to 56 of the SASC and paragraphs 6 to 19 of the Amended Defence, that the documents sought in paragraph 10 are relevant to paragraphs 50 and 65 of the SASC and paragraph 3 of the Amended Defence and the documents sought in paragraph 11 are relevant to paragraphs 23 to 56 of the SASC and paragraphs 6 to 19 of the Amended Defence. 152 Having regard to the issues in the proceedings, I am satisfied that the categories of documents referred to in paragraphs 9, 10 and 11 of the Plaintiff's Amended List are relevant to the proceedings. I am not satisfied that an order for discovery with respect to these categories would be oppressive. The requirements of Part 23 r 3(2) SCR have been met. In my view, the opening words of paragraph 9 (documents forwarded to or collected by the Cabramatta Local Area Commander) should operate to confine the classes of documents to be examined. Further, the Defendant has the advantage that the documents relating to the Legislative Council inquiries are consolidated into some 80 boxes. It is not necessary for the Defendant to locate and gather together these documents from different locations. It might be thought, in any event, that the Defendant would examine the contents of these boxes for its own purposes in preparation for this litigation, given the relevance of the Legislative Council inquiries and the role of the Plaintiff in them. I am inclined to agree with Mr Semmler QC's submission that the estimated time given by Sergeant Popov for examining the contents of the boxes is rather longer than might reasonably be expected, especially given that Sergeant Popov does not have a detailed understanding of the actual volume of documents in the boxes (Transcript, 23 June 2005, pages 25-26, 31-32). The order for discovery will extend to paragraphs 9, 10 and 11 of the Plaintiff's Amended List. 153 Paragraphs 13, 14, 15 and 17 of the Plaintiff's Amended List seek discovery of the following categories of documents: "13. All records (in any format) relating to the steps taken by the NSW Police Service to prevent disclosure of the identity of the Plaintiff and provide him counselling and assistance, following his complaints to the NSW Crimes Commission and Police Commissioner in July 1999.

[17]

All records relating to the steps taken by the NSW Police Service to prevent further physical or psychiatric injury, once the Plaintiff was diagnosed or suspected as suffering from psychiatric injury." 154 The Defendant submits that each of paragraphs 13, 14, 15 and 17 call for a judgment to be made by the Defendant as to whether something falls within the relevant category. The Plaintiff submits that paragraph 13 in the Plaintiff's Amended List is relevant to paragraphs 30 to 34, 70 and 72 of the SASC, that paragraph 14 is relevant to paragraphs 35 to 39, 70 and 72 of the SASC, that paragraph 15 is relevant to paragraphs 40 to 65, 66, 69, 70 and 72 of the SASC and that paragraph 17 is relevant to paragraphs 9A, 10, 11, 65 to 72 of the SASC and paragraphs 2, 3 and 25-27 of the Amended Defence. Given the issues identified in the pleadings and the nature of the claim brought by the Plaintiff, I am satisfied that the categories of documents sought in paragraphs 13, 14, 15 and 17 of the Plaintiff's Amended List are relevant to the proceedings. 155 Although the use of the term "relating to" in these paragraphs requires the Defendant to exercise a judgment as to the documents falling within the categories, the mere use of that expression does not in itself impose an unreasonable burden upon the Defendant. The test is whether the categories of documents are identified sufficiently clearly in the circumstances of the case: Lucas Industries Limited v Hewitt (1978) 18 ALR 555 at 573; Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 929-930; Southern Pacific Hotels Services Inc v Southern Pacific Hotel Corporation Limited (1984) 1 NSWLR 710 at 719. With respect to each of these categories, the documents are confined to records concerning the Plaintiff. In the circumstances of the present case, I do not consider that the task required to comply with these paragraphs would be oppressive and I am satisfied that the documents sought are relevant to the proceedings. They should be included in the order for discovery. 156 The Defendant submits that the Plaintiff's Amended List seeks irrelevant documents, involving an oppressive process, in paragraphs 16, 18, 19, 20, 21 and 30 of the Plaintiff's Amended List which seek discovery of the following categories: "16. All documents (in any format) relating to offers, requests or directions for counselling, psychiatric assistance or debriefing for the Plaintiff during the course of his employment with the NSW Police Service.

Report by Detective Senior Constable Cook of Organised Crime South Eastern Asian Crime Agency (OCSEA) dated November 1999 and all related documents." 157 The Plaintiff submits that paragraph 16 is relevant to, inter alia, paragraphs 10, 11, 16, 33, 53, 64, 65(g), 65(h), 65(p), 65(q), 65(r), 66 and 69 of the SASC. It is submitted that paragraph 18 relates to paragraph 63, 64 and 70 of the SASC and paragraphs 2 and 24 of the Amended Defence. The Plaintiff submits that paragraph 19 relates to, inter alia, paragraphs 10, 11, 23 to 52 of the SASC and paragraphs 2, 6 to 17 of the Amended Defence. The Plaintiff submits that paragraph 20 relates, inter alia, to paragraphs 10 and 11 of the SASC and paragraph 2 of the Amended Defence. The Plaintiff submits that paragraph 21 in the Plaintiff's Amended List relates to paragraphs 19 to 21 of the SASC. The Plaintiff submits that paragraph 30 relates to paragraphs 35 to 39 of the SASC and paragraphs 2, 3 and 11 of the Amended Defence. 158 I am satisfied that the documents sought in paragraphs 16 and 18 are relevant and that it has not been demonstrated that the process of discovery of these categories would be oppressive. Both categories relate expressly to the Plaintiff. These categories will be included in the order for discovery. 159 Paragraphs 19, 20 and 21 seek copies of all "rostering and tasking records" pertaining to Cabramatta, Liverpool and Green Valley Local Area Commands during a four-year period between 1997 and 2001 "for police officers in relation to investigations into criminal offences". Prima facie, these are broad categories of documents. They extend beyond daily, weekly or monthly rosters at the relevant police stations. They include so-called "tasking records". Sergeant Popov said in his affidavit (paragraph 12) that compliance with these paragraphs would involve an onerous exercise. It would be necessary to undertake a search of all documents held by each Local Area Command. Post-1999 records are held at the relevant Local Area Command Offices. Pre-1999 records are held at a central repository. 160 The Plaintiff submits that the management of the Cabramatta Local Area Command, its resourcing and its approach to the rostering and tasking for investigations into drug-related crime are essential to the allegations made by the Plaintiff in this matter. It is submitted that identical documents are sought for the Liverpool and Green Valley Local Area Commands for the purposes of comparing the way in which Cabramatta adopted a different approach for the investigation and arrest for drug-related crime in those areas. 161 However, paragraphs 19 to 21 are not confined to investigations into drug-related crime. The paragraphs refer to investigations into criminal offences generally without any further qualification or restriction. I consider that categories 19, 20 and 21 are specified in more general terms than are justified in the circumstances: Part 23 r 3(2) SCR. In my view, it would be oppressive to require discovery of these broad categories, in particular for such a lengthy period. I decline to order discovery in terms of paragraphs 19 to 21 of the Plaintiff's Amended List. 162 With respect to paragraph 30 of the Plaintiff's Amended List, the Defendant submits that the inclusion of the words "and all related documents" renders compliance with the paragraph oppressive. In my view, there is force in this submission. An order for particular discovery with respect to paragraph 30 excluding the words "and all related documents" may be appropriate. However, I am not asked to make an order in those terms and such a document might be obtained by way of subpoena or notice to produce. I consider that category 30 is specified in more general terms than are justified in the circumstances: Part 23 r 3(2) SCR. I am not prepared to make an order in terms of paragraph 30 in its present form. 163 Paragraphs 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 35 and 36 of the Plaintiff's Amended List seek discovery of the following categories of documents: "22. All documentation, memorandum and notes (in any format) relating to Operational Crime Review Records involving Cabramatta Police Station from 1997 to 2002.

Priest v State of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (151 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (55)

Cited By (41)