New South Wales Supreme Court CITATION : Haywood v Collaroy Services Beach Club [2002] NSWSC 991 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20252 of 2001 HEARING DATE(S) : 11 October 2002 JUDGMENT DATE : 24 October 2002 Anthony Neville Haywood (Plaintiff) PARTIES : v Collaroy Services Beach Club Limited (Defendant) JUDGMENT OF : Master Malpass LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20252 of 2001 FILE NUMBER(S) : LOWER COURT Assistant Registrar Howe JUDICIAL OFFICER : COUNSEL : Mr S Davis (Plaintiff) Mr P J Gow (Defendant) SOLICITORS : TD Kelly & Co (Plaintiff) Hunt & Hunt (Defendant) CATCHWORDS : Review - discovery regime - classes of documents - personal injury claims - meaning of "special reasons" - threshold requirements - discretionary power - review is not a vehicle for entertaining what is a fresh application. LEGISLATION CITED : Supreme Court Rules 1970, Pt 23 r 2 (1) (b), r 3, r 3 subrules (2) and (3), r 5. Goulthorpe v State of New South Wales [2000] NSWSC 329. CASES CITED : Makita (Australia) Pty Limited v Sprowles [2001] 52 NSWLR 705. Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252. DECISION : See Paragraph 28. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Thursday 24 October 2002 20252 of 2001 Anthony Neville Haywood v Collaroy Services Beach Club Limited JUDGMENT 1 Master: It is alleged that the plaintiff suffered personal injury after falling over a railing of a stairway on the defendant's premises on 9 February 2001. In these proceedings he brings a common law claim for damages arising out of that injury. 2 On 18 June 2002, the plaintiff filed a Notice of Motion. It came before Assistant Registrar Howe. His decision was published on 22 July 2002. He has given written reasons for that decision. 3 The Notice of Motion contained four prayers for relief. However, in fact, the hearing appears to have been restricted to relief sought in paragraph 2 thereof (this related to discovery). The documents in respect of which discovery was sought are enumerated in Annexure A to the Notice of Motion. 4 The decision of the registrar gave discovery in respect only of the material detailed in paragraph 8 of Annexure A. The paragraph is in the following terms:- "All and any records, statements, reports, notifications, plans, photographs, notes, video or digital or electronic images or copies thereof relating to an accident on the Defendant's premises on 9 February 2001 in which the Plaintiff was injured and created between 9 February 2001 and 1 April 2001 inclusive." 5 On 1 August 2002, the plaintiff filed a further Notice of Motion. It seeks a review of the decision made by the registrar in respect of paragraphs 1 – 7 and an order that the plaintiff have discovery in respect of all the documentation enumerated in Annexure A. 6 In other cases (including Goulthorpe v State of New South Wales [2000] NSWSC 329), I have made observations concerning the regime as to discovery which came into force in 1996. It is a regime which requires personal injury claims to be treated differently from other claims. The prohibition against the making of an order unless the threshold requirement of the court being satisfied that the order was necessary at the relevant time has been jettisoned (see Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252). 7 This is a case where r 5 of Pt 23 of the Supreme Court Rules 1970 has application. Accordingly, r 2 (1) (b) and r 3 do not apply to these proceedings unless the court, for special reasons, otherwise orders. The applicant bears the onus of satisfying the court that an otherwise order should be made. 8 If the court does make an otherwise order, then an order for discovery may be made pursuant to r 3. Rule 2 is not presently relevant (it operates by the giving of a notice). Under r 3, discovery may be given in respect of classes of documents. It also makes provision for the specification of a class of documents (sub-rules (2) and (3) ). 9 A purpose of the regime was to limit unnecessary discovery. The rules no longer provide for the giving of general discovery. 10 It seems to me that what are to be regarded as special reasons will be determined by having regard to the circumstances of the particular case before the court. The rules do not provide any guidance as to what is to be regarded as being special reasons and it may be unproductive to elaborate on the literal meaning of "special". In such a context, it could be expected to contemplate that which is different from what is ordinary or usual. It is clearly intended that the process of discovery is to have limited application in personal injury claims. 11 When an otherwise order is made, the court may then exercise the discretionary power conferred by r 3. This power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. Again, the moving party bears the onus. 12 In the present case, the putative special reasons are largely said to arise by reason of the lack of evidence available to the plaintiff (inter alia by reason of his post accident condition and the lack of eye witnesses to the incident). It is also said that there are particulars of the claim which cannot be given until discovery is had. 13 The evidence placed before the registrar consisted of an affidavit sworn by Gabrielle Anne Gould and the annexures to what is now an affidavit sworn by Susan Gill. 14 It appears from the material and what was said from the Bar table that the legal advisers of the plaintiff are unaware of certain aspects of the accident (including the cause of the fall). There was no dispute as to matters such as the condition of the plaintiff and the lack of eyewitnesses. 15 The alleged particulars of negligence may be found in paragraph 9 of the Statement of Claim filed on 2 April 2001. The particulars are as follows:- "(a) Failing to place and maintain a railing of adequate height along the perimeter of the stairway by the edge of the stairs. (b) Failing to place and maintain a railing along the wall side of the stairway. (c) Failing to place and maintain ani-slip devices on the said stairs. (d) Constructing and/or maintaining on the said stairway steps of a dangerously narrow width and step height. (e) Res ipsa loquitur." 16 The premises at which the fall took place are a licensed club. It does not seem to be in dispute that the premises may have a number of stairways, railings or stairs. 17 On behalf of the plaintiff, an expert has been retained. He is a chartered architect (Mr Bryant). He has attended the premises. He has prepared a report in relation to the curved staircase from which the plaintiff fell. He has taken photographs. A copy of his report is an annexure to the affidavit sworn by Gabrielle Anne Gould. The report proceeds on the understanding that the plaintiff fell over the balustrade on his right-hand side about 7 steps down from the first-floor landing. It presents three alternatives for the cause of the fall. He saw the steps and the balustrade as being relevant to the possible occurrences. The report also addresses the particulars of negligence alleged in the Statement of Claim. It expresses disagreement with at least two of the alleged particulars. It expressed the view that the stairs were of dangerously narrow width and non-conforming. 18 In addition to this material, there is a police report of the accident. It appears that a copy of this report is had by the plaintiff's legal advisers and was made available to the expert for the purposes of the preparation of his report. 19 The court has been told that a surveillance camera filmed at least part of the fall (the last part). A video has been made available to the plaintiff. The plaintiff remains entitled to whatever forensic advantages may flow from the decision of the registrar giving discovery in relation to the other material identified in paragraph 8 of Annexure A (which deals with material had by the defendant as to the accident itself). 20 In respect to what is the subject of the review sought by the plaintiff, it does not seem to me to be necessary to further dwell on the question of what meaning should be given to the words "special reasons". For present purposes it suffices to say that in the circumstances of this case, I am not satisfied that an otherwise order should be made. 21 Even if a different view were to be taken on that question, it seems to me that the application must otherwise fail. I am not satisfied that the discretionary power conferred by r 3 should be exercised in respect to the present application. 22 Various considerations have led me to this view. Apart from that which has already been referred to I shall make express mention of certain others. The mention is not intended to be exhaustive. Some of the problems are obvious when regard is had to the content of paragraphs 1 – 7 of Annexure A. 23 What is sought is clearly far too wide and well outside what was contemplated by sub-rules (2) and (3) of r 3. It is not limited to material that may be relevant to facts in issue. It is not even limited to the stairway which is alleged to be the subject of the injury (it seeks discovery of material "relating to stairways or the railings or stairs" in "Club premises or premises licensed for the sale of alcohol"). I regard the discovery as sought as being oppressive and imposing an onerous burden upon the defendant. It has the unmistakable characteristics of a fishing expedition. 24 In both written and oral submissions, counsel for the plaintiff drew the attention of the court to the case of Makita (Australia) Pty Limited v Sprowles [2001] 52 NSWLR 705. I have considered that case and the submissions made in respect of it. In my view, the case does not assist the plaintiff in his present application for discovery. 25 I have conducted the review sought by the plaintiff. I am not satisfied that any basis has been demonstrated for the disturbing of that part of the decision of the registrar which is the subject of the review. 26 In the event that the plaintiff is unsuccessful in the review, he seeks to propound an alternative form of relief. It is said to involve a more limited form of discovery and is restricted to the subject stairs. It is embodied in a document described as Schedule A1. 27 It may be observed that this document appears to suffer from problems that beset its predecessor. Be that as it may, it would not now be appropriate to entertain this alternative application in the process now before the court. The court is engaged in the conduct of a review not an exercise of the jurisdiction at first instance. The entertaining of such application would not involve the court in a review of the decision of the registrar but see it embarking on the hearing of a fresh application. If the plaintiff wishes to pursue such a matter, he should do so by way of a fresh application before a registrar. 28 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. ********** Last Modified: 10/28/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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