Atkinson & Ors v State of New South Wales [2005] NSWSC 400

New South Wales Supreme Court

CITATION : Atkinson & Ors v State of New South Wales [2005] NSWSC 400

HEARING DATE(S) : 27 April 2005

JUDGMENT DATE : 29 April 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Master Malpass at 1

DECISION : The defendant's notice of motion is dismissed; the exhibits may be returned; all questions of costs are reserved.

CATCHWORDS : Review - additional discovery following agreed discovery - fishing expedition and oppression - excluded and other documents created after accrual of cause of action - discretionary powers conferred by rules 3 & 4 - special reasons.

Rural Fires Act 1997, s63 LEGISLATION CITED : Supreme Court Rules 1970, Pt 23 rules 1, 3, 4 and 5

CASES CITED : Nelson v John Lysaght (Australia) Ltd (1974-1975) 132 CLR 201

Roger Stafford Atkinson (First Plaintiff) Nerida Anne Atkinson (Second Plaintiff) PARTIES : And the 31 other plaintiffs set out in the schedule attached to Defendant's notice of motion filed 12 January 2005 State of New South Wales (Defendant)

FILE NUMBER(S) : SC 20371/02

Mr F Kunc (Plaintiff/Respondent) COUNSEL : Mr S A Gregory (Defendant/Applicant)

Blake Dawson Waldron (Plaintiff) SOLICITORS : Francess Allpress (Defendant)

LOWER COURT JURISDICTION :

LOWER COURT FILE NUMBER(S) : 20371/02

LOWER COURT JUDICIAL OFFICER : Assistant Registrar Howe

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

29 April 2005

20371 of 2002 Roger Stafford Atkinson & Ors v State of New South Wales

JUDGMENT 1 Master: The plaintiffs brought these proceedings in September 2002. The case presently propounded is that pleaded in the third amended statement of claim. It was filed in December 2003. 2 The plaintiffs are farmers who carried on their business activities within about 14 km of Goobang National Park (the Park) near Parkes. 3 The State of New South Wales is sued in respect of the National Parks and Wildlife Service and the Minister for the Environment. 4 The Director-General of National Parks and Wildlife has the care, control and management of the Park. In December 2001, there were two fires in the Park. It is alleged that the second fire escaped from the Park and caused damage to the plaintiffs. 5 On 9 November 2004, the plaintiffs filed a notice of motion. It sought for discovery of documents created between January 2002 and 1 November 2004. The application came before Assistant Registrar Howe on 6 December 2004. There was dispute as to the relief sought in paragraph 1(a) of the plaintiffs' notice of motion. 6 The application was in the nature of one seeking discovery additional to that which had already taken place. It was opposed on a number of grounds. The defendant categorised the application as a "classic fishing expedition". It adduced evidence of the enormity of the previous discovery. It submitted that, in part, what was being required was to give discovery of "excluded documents". 7 Whilst the defendant's primary stance was that no order should be made, it did submit in the alternative that if an order was to be made, it should be in the following terms:- That the defendant within 7 days, give verified discovery of all documents created between December 2001 and November 2004: i. evidencing or referring or relating to the NPWS' fire management policy in that period for Goobang National Park. ii. referring or relating to hazard reduction activities carried out by NPWS in that period in Goobang National Park. 8 The Registrar delivered a short ex tempore judgment. He reached the decision that an order should be made in the terms of the alternative submission made by the defendant. 9 On 12 January 2005, the defendant filed a notice of motion. It seeks a review of the decision of the Registrar. The review was undertaken on 27 April 2005. 10 The nature of the review process is well established. Largely, the function of the Court is to look at what was done by the Registrar. The moving party bears the onus of satisfying the Court that what has been done by the Registrar should be disturbed. 11 The powers of the Court to make orders in relation to discovery may be found in Pt 23 rules 3 and 4 of the Supreme Court Rules 1970. Rule 3 enables the Court to, inter alia, order that discovery be given of documents within a class or classes specified in an order. Rule 4 confers a variety of other powers. 12 The review was undertaken on 27 April 2005. A lengthy hearing took place. Both sides relied on written submissions. The written submissions were supplemented by oral argument. 13 The case for the plaintiffs is founded on both common law and statutory duty. The common law duty is expressed to be one to prevent the occurrence, contain within and minimise the effect of bushfires emanating from the Park. The narrower statutory duty is said to arise from the provisions of s63 of the Rural Fires Act 1997. The section imposes a duty to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bushfires on, and to minimise the danger of the spread of bushfires on or from the Park. 14 The defendant denied that it had any common law duty. It admitted owing a statutory duty. 15 It is alleged that between December 1995 and December 2001, there was a failure to undertake any or any adequate prescribed burning off, with the consequence that in December 2000 fuel levels in the Park were very high and increased the risk of uncontrollable fire. 16 Basic to the contentions of the defendant are the generality of the pleaded allegations and the lack of specificity in what is said to be breach on its part. Further and better particulars have been sought. The response has been largely of the nature that the information sought relates to matters of evidence. 17 The power to make the order sought by the plaintiffs was a discretionary one. The class of documents were sought to be specified by description of the nature of the documents and the period within which they were brought into existence (a manner of specification contemplated by r 3(3)(b)). 18 The period ultimately arrived at ran between December 2001 and November 2004. The fire took place in December 2001. November 2004 was selected as an arbitrary date (it allowed for a period of about three years since the fire). The period related to time both prior to and subsequent to the commencement of proceedings. 19 The list required to be served by r 3(5) does not contemplate the inclusion of excluded documents. For present purposes, the excluded documents are those which came into existence after the commencement of the proceedings (see definition contained in r 1). 20 An order for discovery in relation to excluded documents may be made pursuant to r 4(a). Under that provision, the Court may extend any of the obligations arising under, inter alia, r 3. This provision confers further discretionary powers on the Court. As in the case of r 3, the power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. I do not accept the submission that special circumstances or reasons need to be demonstrated (compare r 5). The onus rests with the party seeking inter alia the extension of obligation. 21 There is no dispute that the defendant has devoted an enormous amount of time and costs to discovery (as well as interrogation). What has been done may be found in an affidavit sworn by Mr Doherty on 26 November 2004. 22 Paragraph 16 of that affidavit is in the following terms:- At the meeting on 16 March 2004 the parties agreed to restrict draft categories 6(a) and 12 to the period between December 1995 and December 2001. Shortly after the meeting this was confirmed in correspondence. Draft categories 6(a) and 12 were re-numbered as categories 9 and 5 respectively, and a further category 8 (which was also relevant) to the First Further Proposed Category was drafted. Categories 6(a) and 12 were re-drafted as follows: "5. All documents referring or relating to the steps taken by the State since December 1995 up to and including December 2001 to prevent the occurrence of and spread of bushfires in and from Goobang." "8. All documents created between December 1995 and the date of commencement of proceedings evidencing NPWS' general State wide policy for hazard reduction activities including, but not limited to, prescribed burning." "9. All documents created between December 1995 and the date of commencement of proceedings referring or relating to particular hazard reduction activities carried out by NPWS between December 1995 and December 2001 in Goobang National Park, Conimbla National Park, Nangar National Park and Weddin Mountain National Park." 23 Work done thereafter in relation to the matter of discovery is identified in paragraphs 18-27 of that affidavit. 24 Generally speaking, it can be said that what was agitated before the Registrar was re-agitated during the review. I do not propose to reproduce the detailed argument that has been expressed at great length in both the written and oral submissions. 25 In summary, the principal case advanced on behalf of the defendant sees the application as a "classic fishing expedition" and says that "enough is enough" (meaning thereby that the reasonable limits which justice demands have been exceeded). Further, it is said that there is a need to show an entitlement to an order for discovery in respect of excluded documents (r 4(a)). 26 It seems that in the latter part of last year the plaintiffs became aware that a "Goobang National Park project brief" had been initiated as a result of the December 2001 fires and that pursuant to that brief various policies had been implemented and hazard reduction activities proposed and completed. 27 By letter dated 2 September 2004, the solicitors for the plaintiffs sought discovery of a further class of documents that embraced the matters of which they had become aware. There was no agreement to the taking of this course. Whilst the defendant did not dispute that further documents had been created and that action had been taken, it took the view that steps taken after the fires could not have any probative relevance to the question of steps which were available to the be taken prior to the fires. This approach saw the matter of the additional discovery being litigated before the Registrar. 28 The Court has been referred to a number of decided cases (including Nelson v John Lysaght (Australia) Ltd (1974-1975) 132 CLR 201) and the cases have been the subject of argument. It suffices to say that there is no dispute that there are cases which demonstrate that evidence of what is done after an event may be admissible to prove that what was done was practicable to have been before the event to prevent or minimise the occurrence of that event. 29 The plaintiffs say that the further class of documents are relevant to facts in issue (and in so doing rely on the definition contained in r 1(d)). On this question, the defendant maintained its earlier stance. 30 It seems to me that the Registrar was entitled to take the view that the further class of documents had relevance. They could contain material which could rationally affect the assessment of the probability of the existence of relevant facts. Whether or not they will be placed on evidence is presently immaterial. The admissibility of the documents is a separate question and is not a requirement to make them discoverable. 31 The defendant has and continues to forcefully oppose the discovery ordered by the decision of the Registrar. However, it seems to me that the main thrust of what has been put, both before the Registrar and during the review, may be seen as being more pertinent to the resisting of discovery that took place by way of agreement. 32 Whilst the decision of the Registrar will put the defendant to further trouble and expense, there was no evidence before him that it would be oppressive. I am not satisfied that what will have to be done would involve a revisiting of that which has already been done. 33 Whilst it was not expressly addressed by the Registrar, it seems to me that the plaintiffs are entitled to an order pursuant to r 4(a) extending the obligations pursuant to r 3 to discovery of those documents that fall within the category of excluded documents. 34 The review has led me to a position where I am not satisfied that the defendant has demonstrated a basis for the disturbing of that decision. 35 The defendant's notice of motion is dismissed. The exhibits may be returned. By consent, I reserve all questions of costs. **********