Goulthorpe v State of New South Wales [2000] NSWSC 329

New South Wales Supreme Court

CITATION : Goulthorpe v State of New South Wales [2000] NSWSC 329 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20582 of 1997 HEARING DATE(S) : 17 April 2000 JUDGMENT DATE : 18 April 2000

Daryl Goulthorpe by his next friend Rosemary PARTIES : Wendy Sanders v State of New South Wales JUDGMENT OF : Master Malpass

COUNSEL : Mr A Porthouse (Plaintiff) Mr H J Mater (Defendant) SOLICITORS : Ford Gaitanis (Plaintiff) Crown Solicitor - I V Knight (Defendant) CATCHWORDS : Discovery - two procedures - special reasons and otherwise order - discretionary considerations. LEGISLATION CITED : Supreme Court Rules 1970, r 2, r 3, r 4, r 5. CASES CITED : Stavert v Stavert 30 July 1998. DECISION : See paragraph 21.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

TUESDAY 18 APRIL 2000

20582 OF 1997 DARYL GOULTHORPE by his next friend ROSEMARY WENDY SANDERS v STATE OF NEW SOUTH WALES JUDGMENT 1 At all material times, the plaintiff was a prisoner in an institution in this State. It is alleged that on or about 16 June 1994, he suffered personal injury (severe hypoxic brain damage) by ingestion or injection of drugs. The alleged cause of action is founded on negligence. 2 His Statement of Claim was filed on 13 June 1997. It contains the following particulars of negligence:- "(a) Failure to devise, institute, maintain and enforce a system to prevent prisoners in the position of the plaintiff obtaining and using drugs and narcotics; (b) In the alternative, failure to devise, institute, maintain and enforce a system to protect prisoners in the position of the plaintiff from assaults by other prisoners; (c) Failure to devise, institute, maintain and enforce a system to monitor prisoners on a regular basis to ensure the prisoners health; (d) Failing to adhere to Department guidelines with respect to the monitoring of prisoners; (e) Delay in obtaining appropriate medical treatment;" 3 A Defence was filed on 21 September 1999. An Amended Defence was filed in court on 17 April 2000. Largely, it traverses the allegations made in the Statement of Claim. In addition it pleads certain special defences (including illegality). 4 On 14 February 2000, the plaintiff filed a Notice of Motion. It sought the discovery of the documents itemised in an annexed Notice for Discovery. This notice extends over some four pages and contains thirteen paragraphs. Each paragraph is expressed in the most general of terms. 5 The application was opposed. It was heard on Monday 17 April 2000. The plaintiff did not rely on any affidavit material. There was an affidavit sworn by Jane Graham (a solicitor on the defendant's side of the record). An admission was made on behalf of the defendant (to the effect that as presently advised the plaintiff has been in a severely disabled state since 16 June 1994 which would restrict the instructions that he could give to his legal advisers). 6 Shortly after the commencement of the hearing, a claim for part of the material set forth in the Notice for Discovery was abandoned (including the documentation sought in paragraphs 9, 10 and 11). During the course of argument certain of the paragraphs were also expressed to be cast in terms that were too wide (including paragraph 4). 7 As these proceedings were commenced on or after 1 October 1996, the application falls to be determined by the regime that was introduced in 1996. 8 This regime provides two procedures for obtaining discovery and inspection of documents. 9 Rule 2 of the Supreme Court Rules 1970 provides a procedure which enables the serving of a notice. It is restricted to specific documents clearly identified in the notice and relevant to a fact in issue. The maximum number of documents is fixed at fifty. 10 Rule 3 enables application to be made to the court for an order. This procedure is restricted to a class or classes of documents specified in the order. Sub-rule (2) contains a prohibition as to the specification of a class of documents (they are not to be specified in more general terms than the court considers to be justified in the circumstances). Sub-rule (3) is directed to the manner of the specification. 11 Rule 4 confers certain powers on the court (including powers to deal with cases of non-compliance with rule 2). 12 Rule 5 has application to personal injury claims (such claims include proceedings on a common law claim for damages arising out of bodily injury to any person). It was common ground that this rule had application in the present case. It provides that rule 2 (1) (b) and rule 3 shall not apply to such proceedings unless the court, for special reasons, otherwise orders. 13 At this stage, it is convenient to observe that the principal purpose of the regime was to limit unnecessary discovery and to restrict the discovery to either specified documents or classes of documents (as opposed to general discovery). 14 The present application as brought appears to be founded on misconception as to the procedures provided by the rules. It remained unclear as to which rules were being relied on by the plaintiff to obtain relief. Whichever one was relied on, the application was confronted by a variety of problems. 15 Whilst it appears to have been brought with rule 2 in mind, the Notice for Discovery is not a document contemplated by rule 2. It does not restrict itself to a limited number of clearly identified specific documents. All paragraphs relate to categories of documents and the requisite specification is lacking. The categories are expressed in the most general of terms and have the potential to catch a formidable array of documentation. The scope of the material that is sought renders the process akin to general discovery. 16 I now turn to the specific requirements of rule 5. The plaintiff must obtain an otherwise order under that provision. He bears the onus of satisfying the court that such an order should be made. The court can only make such an order where there are special reasons (see inter alia Stavert v Stavert 30 July 1998). If and when these special requirements are satisfied, the court then has a discretionary power to allow discovery. This discretion is exercised having regard to the relevant circumstances of the particular case before the court. Again, the onus rests with the plaintiff to demonstrate that this power should be exercised in his favour. 17 The plaintiff has chosen not to place any affidavit evidence before the court. The available material was sparse. What was said to be special reasons arise from the personal circumstances of the plaintiff himself. Apparently, there is uncertainty as to whether or not the drugs were self administered. Also, there is uncertainty as to whether or not the administration of the drugs was preceded by an assault. Since the suffering of the personal injury, the plaintiff's condition disables him from giving instructions to his legal advisers. 18 In an appropriate case, such a condition may well have the potential at least to go towards the establishing of special reasons in the sense required by the rules. In the present case, the problem is to relate his circumstances to the formidable array of material in respect of which this application is directed. In the circumstances of this case, I am not satisfied that the plaintiff has demonstrated special reasons in respect of the discovery that is sought in this application. Whilst this finding is sufficient to determine the present application, I should mention some of the other problems. 19 Generally speaking, what is sought is far too wide and the requisite specification is missing. There is much which lacks of relevance to matters in issue. There is much which can be described as a fishing exercise. The discovery as sought is oppressive and would impose an onerous burden on the defendant. It falls well outside what was contemplated by the regime. It would not be a productive exercise to endeavour to perform "a scissors and paste" operation on the notice. 20 I am not satisfied that an otherwise order should be made in this case. Even if I had been of a different view, I would not have been satisfied that an order should be made in respect of any of the paragraphs of the Notice for Discovery which are now pressed. 21 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. **********