Preston v Star City Pty Limited [2007] NSWSC 293

New South Wales Supreme Court

CITATION : Preston v Star City Pty Limited [2007] NSWSC 293

HEARING DATE(S) : 28/03/2007

JUDGMENT DATE : 3 April 2007

JUDGMENT OF : Hoeben J at 1

DECISION : The plaintiff's motion seeking further discovery is dismissed.; Plaintiff pay the defendant's costs of the motion.

CATCHWORDS : Discovery - motion seeking further discovery - conclusive nature of affidavit verifying - conflicting affidavits.

LEGISLATION CITED : Freedom of Information Act 1989

Beecham Group Ltd v Bristol Myers Co (1979) VR 273 at 276 CASES CITED : British Association of Glass Bottle Manufacturers Limited v Nettlefold (1912) AC 709 at 714 Fruehouf Corporation Pty Limited v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 Mulley v Manifold (1959) 103 CLR 341

PARTIES : Alexander Preston - Plaintiff Star City Pty Limited - Defendant

FILE NUMBER(S) : SC 20334/1998

COUNSEL : Mr M Coffey (sol) - Plaintiff Mr M Condon - Defendant

SOLICITORS : Gells Lawyers - Plaintiff Corrs Chambers Westgarth - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Tuesday 3 April 2007

20334/1998 – Alexander PRESTON v STAR CITY PTY LIMITED

JUDGMENT 1 HIS HONOUR: Between 1996 and 1998 the defendant conducted casinos known as the Sydney Harbour Casino and the Star City Casino. During that period the plaintiff attended those casinos. He has brought proceedings against the defendant asserting that it tortiously caused him to suffer losses amounting to $7 million and otherwise caused injury to him by its conduct during that period. 2 The proceedings were commenced on 8 September 1998. Since that date there have been a number of applications to strike out the Statement of Claim as failing to disclose a cause of action. Those applications have been unsuccessful although discrete portions of the Statement of Claim have been struck down. The current Statement of Claim is entitled the Sixth Further Amended Statement of Claim and it is anticipated that the plaintiff will seek to file a Seventh Further Amended Statement of Claim. 3 In parallel with those matters there have been disputes between the parties as to the adequacy of discovery by each side. The first order for discovery was made on 19 July 2000 and required that general discovery be given. As was pointed out by Mr Coffey, on behalf of the plaintiff, it is regrettable that this order did not comply with current practice and require that discovery be made by reference to categories. This he submits may well account for some of the problems which have arisen in relation to discovery over the years. 4 The plaintiff is the moving party in the present application. The motion on which the plaintiff moves was filed on 14 April 2005 and seeks further discovery without qualification. 5 By way of background, the defendant filed and served its List of Documents (the original List of Documents) in August 2000. Following an exchange of correspondence, the defendant provided a draft Supplementary List of Documents to the plaintiff on 13 February 2001. 6 Disputes continued concerning the adequacy of the defendant's discovery. In anticipation of that matter being resolved by the court, affidavits were prepared on each side. The primary affidavit for the plaintiff was that of Mr Coffey of 17 February 2004 and on behalf of the defendant, those of Mr Parker of 2 March 2000 and of Ms Hamilton of 1 March 2004. 7 In March 2004 the defendant learned of the existence of video footage of the plaintiff while he was at the casino. This material had not been previously included in the discovery made by the defendant. On or about 27 August 2004 the defendant provided a copy of the additional documents to the plaintiff. 8 In view of the fact that considerable amendments had been made to the original Statement of Claim and that the defendant's original List of Documents had been based on the allegations in that Statement of Claim, I ordered that each party provide further discovery if necessary. Some further documents were located by the defendant when seeking to comply with that order. As a result a Supplementary List of Documents was served on the plaintiff on 4 October 2006. This Supplementary List included all of the additional documents which had been discovered by the defendant since the original List of Documents was filed. The plaintiff continued to maintain that discovery by the defendant was inadequate. 9 In anticipation of this hearing, two further affidavits of Mr Coffey were filed, 7 February and 26 March 2007. On behalf of the defendant two affidavits of Simone Bridge of 23 January and 25 January 2007 were filed. That completed the evidence before me. 10 In submissions Mr Coffey, on behalf of the plaintiff, restricted the matters in relation to which complaint was made but there remained a substantial number of categories where it was asserted that discovery was insufficient. In other words, the plaintiff's complaint related to the amplitude of the defendant's discovery, ie whether all relevant documents in the possession of the defendant had been discovered.