Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1560

Supreme Court New South Wales

Medium Neutral Citation: Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1560 Hearing dates: 29/09/2014 Decision date: 07 November 2014 Jurisdiction: Common Law Before: Campbell J Decision: See [45] Catchwords: PROCEDURE - civil - preliminary discovery - whether filing statement of claim precludes application for preliminary discovery - whether requirements for preliminary discovery met - whether rules 5.2 and 5.3 Uniform Civil Procedure Rules impermissibly blended - whether cause of action identified - whether categories of discovery too broad Legislation Cited: Uniform Civil Procedure Rules (2005) NSW rr 5.2 and 5.3. Cases Cited: Cape Australia Holding Pty Ltd v Iannello [2000] FCA 709 E.D. Oates Pty Ltd v Edgar Edomonson Imports Pty Ltd [2012] FCA 607 Hatfield v TCN Channel 9 (2010) 77 NSWLR 506 Lynx Engineering Consultants Pty Ltd v ANI Corporation Limited (No 2) [207] FCA 1510 Survival & Industrial Equipment (Newcastle) Pty Ltd t/as SIE Liferaft Service v Owners of the Vessel 'Alley Cat' (1992) 36 FCR 129 Category: Interlocutory applications Parties: Scottie Allen Brydon (Plaintiff) Australian Rail Track Corporation Limited (Defendant) Representation: Counsel: D J Hooke SC with J Wynyard (Plaintiff) K Dawson (Defendant) Solicitors: Boyd & Longhurst (Plaintiff) Wallmans Lawyers (Defendant) File Number(s): 2014/00258901

Judgment 1By summons filed on 24 September 2014 the plaintiff claims preliminary discovery under either rr 5.2 or 5.3 Uniform Civil Procedure Rules 2005 (NSW). 2From the affidavit of Paul Gerard Longhurst, the plaintiff's solicitor, the plaintiff suffered catastrophic injury involving T8 paraplegia when he crashed his motor cycle on 22nd September 2011. The accident occurred in outback South Australia, although at the time the plaintiff was a resident of Broken Hill, New South Wales. 3The accident happened when the plaintiff was riding his motor cycle on an unsealed service road adjacent to a railway line running parallel to the North Barrier Highway on the one side, and fenced private land on the other. 4The plaintiff and some of his legal advisors attended a view at the scene of the accident on 8th March 2014. From this, Mr Longhurst believes that the active railway line depicted in the photographs forming part of Annexure K to his affidavit runs between Wompinie and Mingary Creek, South Australia. 5The accident happened when the front wheel of the plaintiff's motor cycle "struck a partially concealed concrete pylon that appears to have formed part of a disused and decommissioned railway bridge over Mingary Creek". The plaintiff was thrown off his motor cycle, striking a metal stanchion which presumably inflicted his severe spinal injury. A photograph forming part of Annexure K shows the general location of the accident. Moreover, a vehicle collision report dated 22nd September 2011 prepared by a South Australian Police officer who attended the scene of the accident records that the plaintiff's motor cycle "collided with disused bridge support at concrete base".