Supreme Court New South Wales Medium Neutral Citation: Hoxton Park Resident's Action Group Inc. v Liverpool City Council [2014] NSWSC 705 Hearing dates: 23 May 2014 Decision date: 23 May 2014 Jurisdiction: Equity Division Before: Young AJA Decision: Application for stay of proceedings dismissed. Leave to seek further or supplementary discovery denied. Catchwords: STAY OF PROCEEDINGS - Whether Plaintiffs' application for stay of proceedings should be granted and hearing dates vacated pending appeal to the Court of Appeal regarding earlier decision of Ball J to strike out plaintiffs' replies to defences of the third and fourth defendants, reserved judgement of the High Court of Australia in Williams Case No 2, and resolution of alleged insufficient discovery by defendants. FORM OF REPLY - Whether a reply must be responsive to pleadings. DISCOVERY - Whether affidavit of discovery is to be accepted as conclusive proof of full compliance with discovery orders. Legislation Cited: Judicature Act 1873 (UK) Civil Procedure Act 2005 (NSW) s 56, s 57, s 58, s 59 Uniform Civil Procedure Rules 2005 (NSW) Pt 4, r 14.14, r 51.44 Cases Cited: Lyell v Kennedy (1884) 27 ChD 1 Dai v Zhu [2013] NSWCA 412 Fruehauf Finance Corp Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 Category: Procedural and other rulings Parties: Hoxton Park Residents Action Group Inc (first plaintiff) Marella Harris (second plaintiff) Liverpool City Council (first defendant) Malek Fahd Islamic School Limited (second defendant) Australian Federation of Islamic Councils Inc (third defendant) State of New South Wales (fourth defendant) Commonwealth of Australia (fifth defendant) Representation: Counsel: Mr P King (first and second plaintiff) No appearance (first defendant) Ms E Glover (second and third defendant) Mr H El Hage (fourth defendant) Mr S Free (fifth defendant) Solicitors: Robert Balzola and Associates (first and second plaintiff) No appearance (first defendant) Goldrick Farrell Mullan (second and third defendant) Crown Solicitor (fourth defendant) Australian Government Solicitor (fifth defendant) File Number(s): 2009/00289796 Publication restriction: None Judgment 1There is before me today an amended notice of motion dealing with various procedural matters. However, we have not yet really got into that motion because a preliminary matter is whether there should be a stay of the whole proceedings including the stay of the hearing fixed for 10, 11, 12 and 13 June. 2The proceedings were commenced in 2009. They have been dealt with in this Court and in the Court of Appeal and were fixed in September 2013 for hearing. At that stage there were some outstanding issues as to discovery which basically were dealt with by Hallen J in February 2014. 3The reason why it is said there should be a stay of proceedings and the hearing date vacated comes into three branches: (a)That the matter should not proceed further until the Court of Appeal has considered Ball J's decision given in a procedural matter last week; (b)That what is popularly known as the Williams Case No 2, recently heard by the High Court of Australia, where judgment has been reserved, should have its decision published before we deal with the matter further because the decision of the High Court may affect the proceedings in a radical way; and (c)That there has been insufficient discovery and it will be unfair for the matter to proceed until that is finalised. 4Mr King of counsel urges that, in all fairness and justice, the stay and the vacation of the hearing should be granted. That is opposed by Mr Free of counsel for the Commonwealth, Mr El-Hage for the State and Ms Glover for the second and third defendants. 5So far as Ball J's decision is concerned, it is basically that the replies which were filed by the plaintiff should be struck out because they essentially attempted to raise the same issues as already had been struck out when dealing with the statement of claim. 6Mr King says that the reply was in exercise of his client's right to file replies in accordance with pt 14 of the Uniform Civil Procedure Rules. He admits that some of the matter in the reply was not responsive to the previous pleading but says, particularly in reliance on r 14.14, it does not have to be. 7I am not dealing with whether I would allow an appeal against Ball J's decision, I am merely considering whether the chance of success of such a motion is a reason for delaying the trial. 8With respect, I cannot accept the proposition that a reply does not have to be responsive. Under the traditional system of pleading set out in the rules of Hilary Term 1834, the whole purpose of pleadings is to get an issue which the tribunal of fact can answer yea or nay. That is of course nowadays an over simplification but basically it is still right. 9So then to every pleading the opposite party really has three options: (a)to admit; (b)to confess and avoid; or (c)to deny. 10There is of course a fourth option of challenging a matter on a point of law, but we can put that to one side. 11The reason for those options being restricted is that unless they are observed, you cannot get an issue for trial. Part 14.14 makes clear that you must raise a matter which, if not raised, would take the other side by surprise. That is not an exception to the general rule. If the matter is responsive to the previous pleading, it can be dealt with in reply. Otherwise it is necessary to go back and amend your statement of claim. 12I cannot see, with respect, any substantial ground for saying Ball J came to the wrong decision. In any event, on a procedural matter leave to appeal is required. There has not yet been any application for leave to appeal. I accept the submission that r 51.44 cannot apply until such a motion for leave to appeal has been filed, which has not occurred yet. So it is not really a matter of applying r 51.44. Even if it were, I do not consider there is sufficient basis for granting a stay because of that matter. 13As to (b), I am not convinced at the moment that any likely decision in Williams Case No 2 will bear on the considerations in this case. I admit that early on I was of a view that might be so, but I am no longer of that view and I have not been persuaded it is so by any argument in this case. 14As to discovery, the practice of discovery from 19th century on is that discovery is only granted when necessary and that, prima facie, the affidavits of discovery are correct unless it is clearly demonstrated to the contrary. At the moment I am not convinced it has been clearly demonstrated to the contrary, but I ought consider that if the motion for discovery is pursued today, there is the additional complication that the plaintiff would charge the State and the Commonwealth with contempt of court and it would normally be in a situation where one would deal with those serious charges first, before dealing with discovery. But it would seem they were not ready, willing and able to pursue discovery today. That is another reason why I do not think this matter is a reason for staying the action. 15Superadded on that are the considerations under ss 56 to 59 of the Civil Procedure Act 2005, which lay a duty on the court to ensure no questions of procedure or otherwise delay the final hearing of the proceedings unless they are vitally necessary. This case, as I say, was set down nine months ago. The only issue that seems to bear on the hearing is the matter of discovery. That can be dealt with today. 16I think this case involves the public interest. It involves a community issue in Hoxton Park, and involves important constitutional issues. Every delay means that, whilst there is no real prejudice on the plaintiff, the prejudice is to the second and third defendants as they cannot get their enterprise going, if it is something that can be got going. For all these reasons, it seems to me I should not grant any stay or an adjournment of the proceedings. 17[His Honour then heard evidence and submissions and later in the day gave the following additional reasons.] 18I am hearing a notice of motion which has three aspects to it: (a)whether the final hearing of these proceedings which is set down for 10 June to go four days should be vacated and the proceedings stayed, (b)whether there should be contempt made out against the various defendants for not complying with discovery, and (c)whether leave should be given to the plaintiff to seek orders for further discovery or, to put it another way, to declare whether the discovery already given is inadequate to comply with orders that Hallen J and I made earlier this year. 19I dealt with (a) this morning and gave an ex tempore judgment. I indicated that I would dismiss (b) and give my reasons later and so these reasons are now dealing with (c). 20At the end of March I ordered that no further matters of discovery be agitated without leave, so that what is really being dealt with is whether leave should be given, but I indicated this morning that I would deal with the question of leave and the substantial question in one concurrent hearing. 21Before the Judicature Act there was no discovery at law and one had to go to Equity to get an order which Equity would only give if there was shown to be some necessity for it. With the coming of the Judicature Act in England and with relaxing procedural rules in New South Wales discovery became more available in all pieces of litigation, even at law. That, at the end of the 20th Century, threw up the problem that in many cases discovery and interrogatories and even requests for particulars were being used to delay litigation being heard and to massively increase its cost. 22Accordingly in this Century and early in the latter part of last Century discovery and interrogatories have been severely curtailed and in places like Germany and China have been abolished altogether. The change of attitude has then been reinforced by sections such as ss 56, 57, 58 and 59 of the Civil Procedure Act 2005 which makes the court direct its mind not to what entitlements parties might have to procedural rules (and of course it must be remembered that there are lots of dicta which say that no-one has any rights in procedure in the court) but rather to the ultimate aim of having a fair trial as speedily as possible of the real issues between the parties at the least expense possible. 23The present case was started in 2009 and between 2009 and now it has been struck out in this court and restored in the Court of Appeal and there have been applications to the High Court, but in September 2013 it was fixed for hearing, I think in May of this year. 24There was an application made for discovery which initially was fixed for hearing before a judge in December 2013 but in due course came on for hearing before Hallen J on the 3 and 26 February 2014 and his Honour gave reasons on 25 March 2014. His Honour did not accept the width of discovery which was sought by the plaintiff but, on the other hand, did order some substantial discovery. 25There was a review or attempted review of that decision before Hallen J and his Honour dealt with that I think in April. It was about that time that I started becoming involved with directions hearings and case management and at that stage I think I made it fairly clear that it was in the public interest that the important points in this litigation had to be dealt with, with expedition but with careful expedition, so that the community generally would have decisions on both whether the projects at Hoxton Park would take place but also on the key question as to the limitation, if there be a limitation, of Commonwealth funding of what are called faith schools. 26It seemed to me then and it seems to me now that as much as possible satellite litigation should be avoided and we should get through to the main thrust of the case. It was in that context that I indicated at the end of March that there was to be no further debate on discovery (seeing that Hallen J had already taken this on board and dealt with it on two occasions) without leave. 27That attitude is also in accordance with the authorities. Way back in the 19th Century in the leading case of Lyell v Kennedy (1884) 27 ChD 1 at 10, Cotton LJ said that in all questions of discovery the oath of the party giving the discovery is conclusive against the oath of the party requiring the discovery and that was said because the courts were, even in the 19th Century, conscious that discovery must not be used to produce unending satellite litigation on procedural matters rather than get to the core of the case. That meant, and it was accepted for a hundred years or more that, to put it shortly, the affidavit of discovery was virtually conclusive, unless it could be clearly shown that there was something wrong. 28I was referred by counsel for the Commonwealth to the recent Court of Appeal decision in this State in Dai v Zhu [2013] NSWCA 412 especially commencing at [124]. That was a decision of a Court of Appeal consisting of Barrett and Leeming JJA and Sackville AJA, the last mentioned judge giving the leading judgment with which the other two judges agreed. Sackville AJA pointed out again, with reference to more recent authority such as Fruehauf Finance Corp Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 at 366 that in general an affidavit of discovery is conclusive. As Sackville AJA points out at [125] there are exceptions but when considering the exceptions one must bear strongly in mind the basal principles set out by Cotton LJ and otherwise. 29It would be possible and, indeed, Mr King of counsel who appears for the plaintiff suggested this morning that we could put aside two days of the four days that have been set out for the trial to deal with questions of discovery. I am quite sure we could occupy two days if we really wanted to dealing with the matter, because I must confess that, even though I have some familiarity with this case from previous case management hearings, the amount of material which was thrust at me with very little notice, I found almost overwhelming. It is clear, however, that the plaintiff's lawyers are well aware of the existence of various relevant reports. Although I have tried to pay attention to detail it does seem to me that despite the forcefulness with which Mr King has presented the material there is not that degree of suspicion about the completeness of the discovery as would justify me in either, (A) saying that there has been inadequate discovery, or (B) that there should be supplementary discovery. 30A particular issue seems to be just how far the State of New South Wales should give discovery of documents concerning activities connected with the subject schools in which purely State matters have been dealt with. The Board of Studies, it is put, is purely a State instrumentality dealing with matters solely involved with the provision of educational facilities as part of its jurisdiction over education. 31Mr King says that moneys pass through from the Commonwealth to the State into the State instrumentalities and that State instrumentalities such as the Board of Studies are involved in the application of that money through what they do. It seems to me that Hallen J has already rejected that proposition and that the submissions that are based on it should not make me order any fresh discovery. 32Accordingly, I decline to give any leave for there to be further agitation of the question of discovery and I think that that means that the whole motion now can be dismissed with 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2014