Giles v Commonwealth of Australia (No.2) [2014] NSWSC 1531

Supreme Court New South Wales

Medium Neutral Citation: Giles v Commonwealth of Australia (No.2) [2014] NSWSC 1531 Hearing dates: 30/05/2014, 04/07/2014 (final written submissions) Decision date: 14 November 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Notice of Motion filed 5 May 2014, seeking orders against the first and second defendants dismissed. (2) Order the third defendant to give discovery on or before 30 January 2015: (a) by providing a list of documents which nominate the category of the documents by subject matter, file name or description, date range and the number of documents in the category; (b) such list will not need to include any reference to documents in compliance with r 21.3(2)(a)(ii) and r 21.3(2)(c) of the Uniform Civil Procedure Rules; and (c) by providing an affidavit verifying the list which accords with [87] of the reasons for judgment. (3) Costs of the Motion are costs in the cause. (4) Liberty to apply on 72 hours' notice. (5) Stand proceedings over for further directions to Friday 27 February 2015 at 9.30am. Catchwords: PROCEDURE - civil - interlocutory issues - discovery - oppression - further discovery would place onerous and oppressive burden on defendants, whether - further discovery would be an abuse of process, whether - Uniform Civil Procedure Rules 2005 - balancing exercise - right to discovery - need to identify class of documents relevant to a fact in issue - not relevant to chain of inquiry or credit - personal injury claim - threshold requirement - special reasons- plaintiffs were children at time of events - existence of special reasons - considerations against discovery - other avenues for obtaining documents - inquiry - many documents produced there provided to parties - previous orders for discovery - production of documents - difficulties in obtaining documents - considerations for discovery - nature of proceedings - requires plaintiff to expose relevant knowledge and negligent inaction on part of defendants - need for documents in possession of defendants - aids to clarify the real issues in proceedings - early resolution PROCEDURE - civil - interlocutory issues - discovery - relevance - categorised discovery - categories irrelevant, whether - overriding purposes of Civil Procedure Act 2005 - just quick and cheap resolution of the issues in the proceedings - discovery would enable plaintiffs to obtain relevant categories of documents - issue of whether the documents exist - forensic advantage - availability of tenderable documents assisting case - availability of inference adverse to defendants case - prejudice, whether - abuse of process, whether - costs to be incurred, whether excessive - result in extensive delay, whether PROCEDURE - civil - interlocutory issues - discovery - relevance - categorised discovery - categories irrelevant, whether - categories identical to previous discovery, whether - continuing obligation to give discovery PROCEDURE - civil - interlocutory issues - discovery - method of discovery - an order for verified list; application for - onerous - modified form of discovery COSTS - costs in the cause Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 Commonwealth v Cornwell [2007] HCA 16; (2007) 81 ALJR 933 Cornwell v Commonwealth [2005] ACTSC 14 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Giles v Commonwealth of Australia [2014] NSWSC 83 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Category: Interlocutory applications Parties: Geraldine Giles (P1) Vivian Catherine Drady (P2) Commonwealth of Australia (D1) State of New South Wales (D2) The Fairbridge Foundation (D3) Representation: Counsel: P Semmler QC / A P Cheshire (P1, P2) D Brogan (D1) C Bridge SC / N Case (D2) G Blake SC/ J Lonergan SC (D3) Solicitors: Slater & Gordon (P1, P2) Australian Government Solicitor (D1) NSW Crown Solicitor (D2) Emil Ford & Co (D3) File Number(s): 2009/329777 Publication restriction: N/A