Whitting v Poeche & Anor [2001] NSWSC 653

New South Wales Supreme Court

CITATION : Whitting v Poeche & Anor [2001] NSWSC 653 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20200/94 HEARING DATE(S) : 26 July 2001 JUDGMENT DATE : 3 August 2001

Madonna Joan Whitting (Plaintiff)

PARTIES : Hans Poeche (First Defendant)

SRA of NSW (Second Defendant) JUDGMENT OF : Master Harrison

Mr C M Simpson (Plaintiff) COUNSEL : Mr P Blackett SC (Second Defendant) Koffels (Plaintiff) SOLICITORS : Holman Webb (Second Defendant) CATCHWORDS : Two motions - interrogatories - amended defence Supreme Court Rules LEGISLATION CITED : Evidence Act Firearms and Dangerous Weapons Act 1973 CASES CITED : State of Queensland & Anor v J L Holdings Pty Limited (1996-97) 189 CLR 146 DECISION : (1) The second defendant has leave to file and serve the amended defence within 48 hours; (2) The plaintiff's application to administer interrogatories to the second defendant is refused; (3) The second defendant is to pay the costs thrown away the the amendment, otherwise costs are costs in the cause.

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 3 AUGUST 2001

20200/94 - MADONNA JOAN WHITTING v HANS POECHE & ANOR

JUDGMENT (Two motions; interrogatories; amended defence) 1 MASTER: By notice of motion filed 4 June 2001 the second defendant seeks firstly an order that the amended statement of claim be dismissed for want of prosecution pursuant to Part 33 r 6 of the Supreme Court Rules (SCR); secondly, that the plaintiff pay the second defendant's costs accrued in these proceedings on an indemnity basis; thirdly, that the plaintiff's motion filed 1 June 2001 in respect of the administration of interrogatories be dismissed for failure to comply with the timetable entered by consent following the first final conference on 26 October 2000 before Registrar Jupp where the plaintiff was to file any motion for leave to administer interrogatories by 30 November 2000, and failure to comply with the order of Kirby J that the plaintiff file a motion by 25 May 2001 regarding any unanswered interrogatories; fourthly, that the second defendant have leave to file a further amended notice of grounds of defence to the amended statement of claim; and fifthly, that the plaintiff provide all outstanding particulars within 14 days. The second defendant relied on three affidavits of Natasha Zair Miller sworn 12 June 2001, 21 June 2001 and 11 July 2001. The defendant did not address on the issue of want of prosecution. In any event, although this matter falls well short of travelling expeditiously through the case management process, it cannot be said that there has been an inordinate and contumelious delay in the plaintiff's camp. 2 By notice of motion filed 1 June 2001 the plaintiff seeks an order that the second defendant serve within seven (7) days on the plaintiff a verified statement in answer to interrogatories forwarded under cover of letter dated 3 May 2001. The plaintiff relied on an affidavit of Bill Cortese sworn 11 July 2001. Leave is granted to extend time within which to bring the notice of motion. This matter is listed for hearing on 24 September 2001 for five days. 3 The plaintiff is Madonna Joan Whitting. The first defendant is Hans Poeche and the second defendant the State Rail Authority of New South Wales. The statement of claim alleges that at about 7.00 pm on 18 January 1988 the plaintiff and the first defendant were present in a house at Redfern when the first defendant assaulted and caused grievous bodily harm to the plaintiff by producing a firearm, pointing that firearm at the plaintiff, discharging that firearm, thereby causing the bullet to strike the plaintiff in the region of the right groin. Witness statements suggest that the first defendant mistook the plaintiff to be his ex-girlfriend. The first defendant has not played any active role in these proceedings. 4 It is alleged that second defendant permitted and/or required the first defendant to take the firearm home with him after the cessation of his duties and keep it in his home. It is alleged that the first defendant was the second defendant's agent or alternatively the second defendant is liable as a principal. Particulars of negligence plead are that the second defendant firstly, failed to institute a safe system of work and safety practices in relation to the use of firearms by its servants; secondly, failed to provide proper training and education in relation to the use of firearms by its servants; thirdly, failed to retain possession of firearms and ammunition issued to servants when those servants were not on duty; fourthly, failed to properly educate and test its servant in relation to the use of firearm; fifthly, failed to take into account properly or at all the dangers of allowing its servants to store issued firearms and ammunition at home; sixthly, failed to carry out any or any proper psychological testing of servants in relation to the possession of and use of firearms; seventhly, failed to take heed of the dangers to the general public of the misuse of firearms and ammunition stored in the homes of its servants; and eighthly failed to take heed of the dangers to the general public of the misuse of alcohol by its servants who have firearms and ammunition of the second defendant stored in their homes.