New South Wales Supreme Court CITATION : Gerard Michael McGuirk v The State of New South Wales [2009] NSWSC 616 HEARING DATE(S) : 13 October 2008 JUDGMENT DATE : 6 July 2009 JUDGMENT OF : Hidden J DECISION : Leave to withdraw admissions granted. CATCHWORDS : PRACTICE AND PROCEDURE - notice to admit facts and authenticity of documents - notice disputing facts and authenticity of documents not served in time - deemed admissions - leave to withdraw admissions LEGISLATION CITED : Uniform Civil Procedure Rules Evidence Act 1995 CATEGORY : Procedural and other rulings RAK v Coles Myer Limited (1996) 68 SASR 272 CASES CITED : Millane v Nationwide News Pty Ltd [2004] NSWSC 1023 McGuirk v State of New South Wales [2008] NSWSC 372 PARTIES : Gerard Michael McGuirk (Plaintiff) The State of New South Wales (Defendant) FILE NUMBER(S) : SC 30026/2007 COUNSEL : Self represented (Plaintiff) M Hutchings (Defendant) SOLICITORS : I V Knight, Crown Solicitor (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J 6 July 2009 30026/2007 Gerard Michael McGUIRK v STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff, Gerard Michael McGuirk, has brought proceedings by statement of claim against the defendant, the State of New South Wales, upon the basis that it is vicariously liable for the actions of certain police officers. He issued a notice to admit facts and authenticity of documents, pursuant to Pt 17, r 3 and r 4 of the Uniform Civil Procedure Rules. The defendant failed to respond to the notice within the time limited by those rules, so as to be deemed to have made the admissions sought. 2 Before me is an amended notice of motion by the defendant seeking orders that the notice be set aside or, alternatively, that it be permitted to withdraw most of the deemed admissions. Provision for the withdrawal by leave of admissions of fact or of the authenticity of documents is to be found in r 17.3(3) and r 17.4(3) respectively. The notice of motion refers only to the first of those subrules but, should it be necessary, the defendant has leave to amend it by adding the second. The statement of claim was issued by solicitors representing the plaintiff, but they no longer act for him. At the time the notice was issued he was unrepresented, as he was at the hearing of the motion. 3 It is necessary to sketch the nature of the proceedings and the background to them, as set out in the statement of claim. The plaintiff alleges that police acted improperly and beyond their authority when they arrested him on three occasions. 4 The statement of claim recites that in the evening of 11 August 2006 the plaintiff accompanied Ms Robyn Buchanan, with whom he had previously had a relationship, to her home at Drummoyne. It is alleged that, after arriving there, Ms Buchanan became agitated and physically aggressive towards the plaintiff, such that he called police. Some officers attended but, after speaking to the plaintiff and Ms Buchanan, left without taking any action. Later, in the small hours of 12 August 2006, the plaintiff again had occasion to call police because of Ms Buchanan's behaviour. Three officers arrived and, after speaking to Ms Buchanan, asked the plaintiff to leave the premises. He declined to do so, protesting that he was entitled to be there. He was arrested, carried to a caged police vehicle, and conveyed to Burwood Police Station. 5 At the police station he was held in custody for a period of time, and was charged with remaining on enclosed lands and resisting officers in the execution of their duty. He was released on bail, with conditions that he not approach Ms Buchanan's home and not contact her, directly or through a third person. Arising from this incident, the statement of claim seeks declarations that the arrest of the plaintiff and the imposition of bail conditions upon him were not authorised by relevant legislation, or constituted an improper exercise of the officers' discretion, so as to be unlawful. 6 On 15 February 2007 the plaintiff was confronted by four police officers at his home. He was arrested for alleged breach of the bail conditions, and again transported to Burwood Police Station. He was held in custody for some time before being conveyed to the custody of Corrective Services officers at Burwood Court. In the afternoon he was brought before a magistrate, who made no finding relating to the alleged breach of bail and ordered his release on the same conditions. As to this incident, the statement of claim seeks declarations that the arrest was unlawful, again on the basis that it was not authorised by relevant legislation or constituted an improper exercise of the officers' discretion. 7 On 19 February 2007, three police officers attended the plaintiff's home and arrested him for a further alleged breach of the bail conditions. Yet again he was taken to Burwood Police Station, where he was held in custody before being transferred to Corrective Services custody at the court. Whilst still in police custody, he was strip searched by two officers. He was brought before the same magistrate, who again made no finding in relation to the alleged breach of bail and directed his release on the same conditions. Arising from this incident also, the statement of claim seeks declarations that his arrest was unlawful, being unauthorised by law or an improper exercise of discretion. A further declaration is sought that the strip search was unauthorised by relevant legislation and was unlawful. 8 As a result of all three incidents, the plaintiff seeks damages, including aggravated and exemplary damages, for wrongful arrest and false imprisonment. As it happens, the prosecution of the charges against him was subsequently stayed permanently. That fact, and the reasons for it, are not relevant for present purposes. 9 The notice to admit facts and authenticity of documents sets out eighteen assertions of fact (pars 1 – 18) and refers to some sixty-six documents (pars 19 – 84). For the purpose of the motion I allowed an affidavit of the plaintiff of 5 November 2007 to be read, but only insofar as it elucidated the nature and significance of the documents. Also read was an affidavit of Ms Catherine Penhallurick, a solicitor employed at the Crown Solicitor's Office, explaining the circumstances of the defendant's failure to respond to the notice within time. At the time of the hearing of the motion Ms Penhallurick was overseas. The plaintiff wished to cross-examine her but, for reasons which I shall explain, it was apparent that the purpose of that cross-examination was misconceived. 10 As I have said, the amended motion seeks firstly an order that the notice be set aside. At the hearing counsel for the defendant, Mr Hutchings, was content with the alternative order sought, that is, that leave be granted to withdraw all but four of the deemed admissions. The four exceptions are admissions of the facts in pars 8 and 12 and of the authenticity of the documents in pars 19 and 50. The two admissions of fact relate to the arrival of certain police officers at Ms Buchanan's home in the morning of 12 August 2006, and the plaintiff's custody at Burwood Police Station that same day until he was released on bail. The documents in the notice are identified as annexures to the plaintiff's affidavit to which I have referred. Admissions are maintained as to the authenticity of copies of documents relating to the plaintiff's arrest and detention on 12 August, annexure AA, and a copy of an apprehended domestic violence order served on the plaintiff on 17 April 2007, annexure BF. 11 I need refer only briefly to the rationale of a notice to admit facts and authenticity of documents. This was considered, in the context of the conventional steps taken in civil litigation, by Lander J in RAK v Coles Myer Limited (1996) 68 SASR 272 at 275 ff. Although directed to South Australian provisions, what his Honour had to say is apt to describe the process of litigation in this State. Speaking of recent South Australian reforms and of the modern approach to civil procedure generally, he said (at 278): … it can be seen that the intention of both the Parliament and the courts is to ensure that any matter that is not subject to any genuine dispute, or any document about which there is no real dispute, ought to be proved quickly and without the previous requirement of formality. The whole object is to require the parties to focus their attention on the matters genuinely in dispute so as to avoid the parties incurring the needless cost involved in lengthy litigation, and to avoid the State bearing the cost of the administration of justice. 12 Of course, as Lander J pointed out (at 275), the first step in litigation is the definition of the issues between the parties by the pleadings. Admissions sought by a notice to admit facts or the authenticity of documents must be relevant to those issues, identified in the present case by the statement of claim. It is convenient to deal with the admissions of fact sought by the plaintiff which are in contention before turning to the documents. 13 Mr Hutchings has persuaded me that some of the facts are irrelevant and that others, for one reason or another, are not properly the subject of admission. Paragraph 17 of the notice asserts that the plaintiff remained subject to the bail conditions set at Burwood Police Station on 12 August 2006 until 19 October 2007, when the magistrate dealing with the case lifted them. Paragraph 18 asserts that the defendant has been aware that the plaintiff has been free of those bail conditions since that date. Exactly what admission is sought through those paragraphs is not clear, and it is not apparent how either of them is relevant to the issues in the case. The plaintiff put no argument in support of them. 14 Paragraphs 3 and 4 state that on 17 April 2007 Ms Buchanan caused to be served on the plaintiff an application for an apprehended domestic violence order, in which she described her relationship to him as "ex partner", and that she has since withdrawn that application. Again, it is not clear what admission is sought and how either of those paragraphs is relevant, with the possible exception of Ms Buchanan's assertion that the plaintiff had previously been her partner. To that matter I shall turn, but otherwise the plaintiff did not explain in argument how these paragraphs might bear on the case. 15 Several paragraphs deal with the relationship between the plaintiff and Ms Buchanan as at 12 August 2005 and their movements during the previous evening. Paragraph 1 asserts that they had been in a relationship for about ten weeks, and par 2 adds that the plaintiff resided at Ms Buchanan's home from time to time, maintained some of his clothes and possessions there, and had been provided with a key to the premises. Paragraph 5 asserts that in the evening of 11 August the plaintiff met Ms Buchanan at a club and then, at her request, accompanied her to her home. 16 As to pars 1 and 5, Mr Hutchings pointed out that the relationship between the plaintiff and Ms Buchanan and their movements on the evening prior to the first arrest are not matters within the knowledge of the defendant and, accordingly, should not be the subject of admission. To this the plaintiff responded that the defendant could make its own inquiries and, in particular, could be acquainted with those matters by reference to the summary proceedings in the Local Court. In effect, his argument was that the Crown is a party to both the proceedings in this Court and in the Local Court, and its left hand should know what its right hand is doing. Relevantly for present purposes, this was the matter about which he wished to cross-examine Ms Penhallurick. 17 This argument misconceives the position. The point legitimately made by Mr Hutchings was that these are matters peculiarly within the knowledge of the plaintiff and, whether or not they prove to be controversial, should be the subject of evidence produced by him. The defendant should not be put to its own inquiries about them, on pain of the costs sanction associated with a notice to admit. 18 The question of the relationship between the plaintiff and Ms Buchanan is also of significance as background to the assertion in par 2 of the notice, to which I have referred, that the plaintiff resided at Ms Buchanan's home from time to time and had access to the premises. This, in turn, bears upon a series of assertions in the notice concerning the events of 12 August itself. 19 Paragraphs 6 and 7 assert that at about 3.30am that day Ms Buchanan requested the attendance of police, complaining that the plaintiff had refused to leave when requested to do so, but that she did not then or at any later time allege that he had acted violently towards her. Paragraphs 9 and 10 state that, upon arrival at the premises, one of the police officers asked the plaintiff to leave, to which he responded that he had a key to the premises and resided there from time to time at Ms Buchanan's invitation, and that he had a right to remain there. Paragraph 11 states that police carried him from the home to a caged police vehicle, whereupon he was transported to Burwood Police Station. 20 The relevance of par 7, that Ms Buchanan had made no allegation that the plaintiff had acted violently towards her, is questionable. However that may be, all these paragraphs deal with events which are at the heart of the proceedings and bear directly upon the question whether the police were entitled to act as they did in arresting the plaintiff and removing him from the premises. Mr Hutchings pointed out, rightly, that these events should not be the subject of admission but should be proved by evidence, properly tested. 21 He referred to Millane v Nationwide News Pty Ltd [2004] NSWSC 1023, in which Hoeben J at [20] said that the costs sanction attached to a notice to admit facts was "not intended to provide a mechanism whereby the factual substratum of a party's case can be challenged and if the challenge is successful, for indemnity costs to be payable". At [21] his Honour said of the notice in that case, which had been served by the defendant: … the Notice to Admit Facts did not raise only issues which should properly have been admitted but sought admissions favourable to the defendant in relation to the entire factual basis for the plaintiffs' case. This involved a number of matters which were clearly contentious. 22 Those observations, with which I respectfully agree, are apposite here. They apply not only to the paragraphs of the notice to which I have already referred, but also to further paragraphs dealing with the plaintiff's detention at Burwood Police Station on 12 August. These are pars 13 -16, asserting that in the afternoon the custody manager at the police station told the plaintiff that he would be released only after he entered bail, that he refused to tell the plaintiff what the conditions of the bail were until he agreed to sign them, and that the plaintiff signed the bail form under protest. 23 Ms Penhallurick's affidavit provides what I find to be a satisfactory explanation for the defendant's failure to respond to the notice within the 14 day period fixed by the rules. She frankly acknowledged that the matter had been overlooked. Further, shortly thereafter the defendant sought an order that a substantial part of the statement of claim be struck out. That application was heard by Hislop J who, after reserving judgment, dismissed it: McGuirk v State of New South Wales [2008] NSWSC 372. The defendant thought it inappropriate to take any action in relation to the notice while that judgment was pending. Promptly after it was delivered, the notice of motion seeking the withdrawal of the admissions was filed in accordance with a direction by Registrar Bradford. 24 In the light of that explanation, and having found that the paragraphs of the notice which are in contention refer to facts not properly the subject of admission, leave to withdraw those admissions should be granted. 25 Let me turn, then, to the documents in respect of which admissions of authenticity are sought. Of course, I put aside the two documents in respect of which an admission of authenticity is maintained. Although the documents in contention are numerous, a detailed analysis of them is not necessary to determine the defendant's application. Most of them are, broadly speaking, related to the plaintiff's dispute with the police. These are the documents referred to in pars 20 – 49 and 51 – 70 of the notice: annexures AB - BE and BG - BY to the plaintiff's affidavit. The question is whether they are relevant to the issues disclosed by the statement of claim, that is, whether they could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings: s 55(1) of the Evidence Act 1995. 26 A large number of the documents are copies of complaints written by the plaintiff to the Commissioner of Police and other senior officers about the conduct of the police officers who dealt with him, together with responses to those complaints. Some of the complaints relate to attempts by the police to contact the plaintiff after the events the subject of the statement of claim, which he characterises as harassment. The documents are those referred to in pars 19 – 26 of the notice (annexures AB – AH), pars 37 and 38 (annexures AS and AT), pars 41 – 52 (annexures AW – BH) and pars 60 and 61 (annexures BP and BQ). Among this series of documents is a copy of a fax from the plaintiff to Mr Hutchings. 27 Other documents relate to the conduct of the proceedings in the Local Court, including various procedural steps taken in those proceedings. These are the documents referred to in pars 27 – 35 (annexures AI – AQ) and 62 – 70 (annexures BR – BY). In addition, reference is made to several documents concerning steps taken by the plaintiff after the service on him of the apprehended domestic violence order on 17 April 2007, to which I have referred: pars 54 – 59 (annexures BJ – BO). Paragraphs 36, 39 and 40 (annexures AR, AU and AV) relate to earlier stages of the proceedings in this Court. 28 It is not apparent how any of these documents could be relevant and admissible in the present proceedings. At no stage in the plaintiff's lengthy submissions before me, both written and oral, did he articulate any basis upon which they might be. 29 The remaining documents referred to in the notice, pars 71 – 84 (annexures BZ – CM) have no bearing on this case whatsoever. They arise from a dispute between the plaintiff and the University of New South Wales, which led him to institute a private prosecution in the Local Court against some members of the University's staff. In the main, their focus is the appropriateness of the involvement of the Crown solicitor in those proceedings. The plaintiff challenged the propriety of the defendant's conduct in the present proceedings and, indeed, of his representation by the Crown solicitor and Mr Hutchings. Of course, that is not a matter which I could or should consider in determining this application. I say no more than that nothing in the material before me could impugn the defendant's conduct or suggest that the Crown solicitor and Mr Hutchings have acted otherwise than in the responsible discharge of their professional duty. 30 Accordingly, again taking into account Ms Penhallurick's affidavit, the defendant should also have leave to withdraw the admissions relating to these documents. 31 Generally, the plaintiff's wide ranging submissions failed to focus upon the issues raised by the motion, and provided no answer to it. I should record that, after I reserved judgment, he brought to my attention by fax some additional authorities dealing with the discretion of a court to permit a party to withdraw admissions. However, neither he nor Mr Hutchings wished to make any further submission arising from those cases, and I need not refer to them. 32 In accordance with par 2 of the defendant's notice of motion, I grant the defendant leave to withdraw its admissions of the facts asserted in pars 1 – 7, 9 – 11 and 13 – 18 of the notice to admit facts and authenticity of documents, and its admissions of the authenticity of the documents set out in pars 20 – 49 (annexures AB – BE) and pars 51 – 84 (annexures BG – CM) of that notice. If necessary, I shall hear the parties on costs. ********** 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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