AB v Rathjen
[2025] TASSC 30
•30 May 2025
[2025] TASSC 30
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | AB v Rathjen [2025] TASSC 30 |
| PARTIES: | AB |
| v | |
| RATHJEN, Peter David | |
| UNIVERSITY OF TASMANIA | |
| FILE NO: | 1977/2023 |
| DELIVERED ON: | 30 May 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 26 September 2024, 15, 21 October 2024, 4 November 2024 (written submissions) |
| JUDGMENT OF: | Daly AsJ |
| CATCHWORDS: |
Procedure – Civil proceedings in State and Territory courts – Discovery and interrogatories – Discovery and inspection of documents – Discovery of documents – Discretion of court and power to order - Application for discovery under r 386(2) limited to matter in question in a proceeding – Categories of documents not relevant to matters in question in the proceeding – Application dismissed.
Aust Dig Procedure [1229]
Procedure – State and Territory courts: Jurisdiction, powers and generally – Inherent and general statutory powers – Control of court procedure – Supreme Court's inherent powers relevant to these proceedings do not include the power to compel the plaintiff to serve the first defendant – Application dismissed.
Aust Dig Procedure [1015]
Procedure – Civil proceedings in State and Territory courts – Pleadings – Particulars – Further and better – Application for further and better particulars under r 253 – Particulars which were requested do not relate to the pleadings – Application dismissed.
Aust Dig Procedure [1188]
Legislation:
Supreme Court Rules 2000 (Tas) r 253
Supreme Court Rules 2000 (Tas) r 386
Supreme Court Civil Procedure Act 1932 (Tas) s 201
Limitation Act 1974 (Tas) s 5A
Cases:
Rhodes v O'Neill (2017) 28 Tas R 379
Allianz Australia Insurance Limited v Mercer (2016) 29 Tas R 121
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27
REPRESENTATION:
Counsel:
Plaintiff: A Mills Second Defendant: B Byrnes
Solicitors:
Plaintiff: Dobson Mitchell Allport Second Defendant: Gilchrist Connell
| Judgment Number: | [2025] TASSC 30 |
| Number of paragraphs: | 66 |
Serial No 30/2025 File No 1977/2023
AB v PETER DAVID RATHJEN and UNIVERSITY OF TASMANIA
| REASONS FOR JUDGMENT | DALY AsJ 30 MAY2025 |
1 These are my reasons for dismissing two interlocutory applications. The first is the plaintiff's interlocutory application applying for an order requiring the second defendant to discover documents related to the plaintiff's application to extend the limitation period within which to commence the principal proceedings. The second is the second defendant's application for: (i) an order for particulars of the plaintiff's claim and particulars of the application to extend time; and (ii) an order requiring the plaintiff to serve the first defendant with the originating process in the principal proceedings.
Introduction
2 The first defendant was, at the material time, the vice-chancellor of the second defendant, the University of Tasmania. The plaintiff has not served the first defendant with the originating process in the proceedings. The plaintiff's claim against the first defendant is for damages for personal injuries caused by assaults, non-consensual sexual contact or harassment alleged to have been committed by him at a time when he was employed as the University's vice-chancellor. The plaintiff alleges that on three separate occasions the first defendant perpetrated non-consensual contact and/or sexual harassment towards the plaintiff when he sexually assaulted her during events organised by the University. The plaintiff alleges that on each occasion the alleged conduct amounted to an intentional battery by the first defendant and also a breach of a duty of care owed to her by the second defendant.
3 In her action against the second defendant, the plaintiff alleges that the second defendant is vicariously liable for the first defendant's conduct. The plaintiff alleges that the second defendant is vicariously liable for the conduct of the first defendant. The plaintiff also alleges that the second defendant is directly liable to her for damages for personal injury caused when it breached its duty of care to protect her from the alleged sexual harassment by the first defendant and in failing to provide a safe workplace.
4 The plaintiff claims damages for post-traumatic stress disorder and exacerbation of certain other underlying medical conditions. The plaintiff also claims aggravated damages because of the egregious nature of the second defendant's breaches of its duties of care.
5 The principal proceedings were commenced by writ on 28 July 2023, but the facts giving rise to the plaintiff's claim against the first defendant occurred on three occasions nearly six years earlier on 22 September 2016; 23 August 2017 and 25 October 2017. The dates of any other events which might give rise to the second defendant's direct (as distinct from vicarious) liability to the plaintiff are not particularised in the statement of claim. By interlocutory application filed 16 August 2024, the plaintiff has applied for orders extending the time within which she may commence proceedings. That application is yet to he heard.
6 Relevantly to the present application, by letter dated 29 May 2024, the plaintiff provided the second defendant with a detailed request for discovery of certain categories of documents. By letter dated 10 July 2024, the plaintiff applied for a directions hearing to be convened so that she could seek an order, under r 386, requiring the second defendant to discover those documents. At the hearing of the discovery application, the plaintiff stated that discovery was sought relevant only to the application
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for the extension of time. During the hearing of this application, the plaintiff confined her application to only six of the nine categories previously sought. The plaintiff's application is not supported by any affidavit. On the hearing of the discovery application, the second defendant read the affidavit of Susannah Windsor, acting general counsel for the second defendant, sworn 5 September 2024 and Ms Windsor was cross-examined. The factual issue arising from Ms Windsor's evidence as to whether the impact of the plaintiff's request is oppressive to the second defendant is unnecessary to resolve.
7 To understand the discovery application, it is necessary to refer to the application to extend time. By application which was amended by my order on 15 October 2024, the plaintiff seeks inter alia the following orders:
1 A declaration that the plaintiff's action against the second defendant was not brought after the expiration of three years, commencing on the date of discoverability, within the meaning of s 2 and s 5A of the Limitation Act 1974 (Tas). 2 In the alternative, that pursuant to s 5A(5) of the Limitation Act 1974 (Tas), the period of limitation within which this proceeding may not be brought, be extended to be a period of six years commencing on the date of discoverability. 8 This discovery application under r 386 is limited to particular "matters in question" in the application to extend time, which are:
(i) the "date of discoverability" as defined in the Limitation Act 1974 s 2(1); and (ii) whether it is just and reasonable to extend the limitation period in all the circumstances: Limitation Act 1974 s 5A(5). 9 Issue (ii) above - whether it is just and reasonable to extend time - requires the Court to have regard to whether there is an arguable case: Hill v Iluka Corporation Ltd & Anor [2002] 113 at [23]. In this case, the second defendant concedes that the plaintiff has an arguable case in respect of her causes of action and so that is not in question. Whether it is just and reasonable to extend the limitation period also requires consideration of (a) whether the plaintiff has a reasonable explanation for her delay in issuing the writ and (b) the degree of prejudice which any delay has caused or will cause the second defendant. However, on the hearing of the discovery application, the parties were primarily occupied with the issue of the "date of discoverability".
10 For the plaintiff to succeed on the discovery application, she must satisfy the Court that discovery is necessary at this stage and that the documents have direct relevance to the matters in issue on the application to extend time, as relevance is defined in rr 382(1)(a) and 382(2). The relevance of the documents for the purposes of r 386 is also to be determined according to the ordinary concepts of relevance : Channel Seven Adelaide Pty Ltd v Lane (2004) 234 LSJS 225; [2004] SASC 177 at [22]– [25].
11 It is necessary to say something briefly about the "date of discoverability" in order to evaluate the relevance of the documents to that issue. In this context the Limitation Act 1974 operates so that time runs by reference to the plaintiff's knowledge about the relevant injury and that expression is defined in s 2(1) in the following terms:
"date of discoverability, in the case of an action for damages for personal injuries, the date when the plaintiff knew or ought to have known that the personal injury or death –
(a) had occurred; and
(b) was attributable to the conduct of the defendant; and3 No 30/2025
(c) was sufficiently significant to warrant bringing proceedings;"
12 Relevantly to the application before me, in relation to par (c) of the definition of "date of discoverability" in the Limitation Act 1974, s 2(1) (the Act) in Rhodes v O'Neill (2017) 28 Tas R 379;
[2017] TASFC 1 ('O'Neill'), Brett J stated at [65]:
"[65] …that, for the purpose of determining the date of discoverability, there are two aspects to the requisite consideration in relation to the existence of actual knowledge. Firstly, there is a subjective consideration of the extent of the respondent's knowledge of the injury. Hence, if the aspects of the injury which make it significant enough to warrant the commencement of proceedings are latent or still developing, then unless it can be established that the injured person knows or ought to know of those aspects, time will not commence to run. The second aspect of the consideration is to assess on an objective basis, whether the injury, as it is known or ought to be known by the injured person, is sufficiently significant to warrant bringing proceedings."
13 In O'Neill, Wood J at [1]-[3] took a slightly different approach to par (c) of the definition of "date of discoverability" in s 2(1) of the Act. Her Honour preferred the approach taken by Porter J in Allianz Australia Insurance Limited v Mercer (2016) 29 Tas R 121; [2016] TASFC 2, referring particularly to pars [84], [85] and [86]. On that approach, time does not run until the plaintiff has an actual awareness that that the injury was sufficiently significant to warrant bringing proceedings. The question whether the plaintiff has that knowledge is answered having regard to the circumstances of each case, taking into account matters such as the statutory threshold in the Civil Liability Act 2002, s 27 (involving actual knowledge of the existence of the relevant threshold and whether the relevant injury has given rise to the degree of impairment exceeding the threshold) and any legal or medical evaluation of the injury in this context.
14 On this application, it is not for this Court to make any determination relating to the date of discoverability, merely to have an appreciation of that issue as a matter in question in the application to extend time, in order to evaluate the relevance of the documents being sought on the discovery application.
Revised categories
15 The scope of the categories of documents sought by the plaintiff was refined throughout the course of the proceedings. The plaintiff's final version of the categories of documents, the subject of the application, was provided on 4 November 2024. The Court is not asked to determine any dispute in relation to categories 1, 3(a), 3(c), 3(d), 3(e), 3(f) and 3(g) and 4. The plaintiff's interlocutory application for discovery now relates only to document categories 2, 3(b), 3(h), 4 and 5-9 inclusive. The plaintiff's description of each category is as described below:
"Category 1 - [no determination required].
Category 2 – All employee emails and other correspondence relating to the
Plaintiff(a) All emails and other correspondence or communication in the possession, custody or power of the University and its employees that directly concern [the Plaintiff’s] complaint of bullying and harassment made against employees of the University School of Medicine made in 2013, including but not limited to communication generated by:
(i) Vice Chancellor Peter Rathjen;
(ii) Kristen Derbyshire;
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(iii) Professor Denise Fassett;
(iv) Alan Champion;
(v) All past and present members of the People and Wellbeing Team; and
(vi) All past and present University of Tasmania Council Members.
(b) All emails and other correspondence and communication in the possession, custody or power of University of Tasmania and its employees that directly concern [AB's] complaint of misconduct against Vice Chancellor Peter Rathjen, including but not limited to emails and other correspondence and communication generated by:
(i) Vice Chancellor Rufus Black;
(ii) Kristen Derbyshire;
(iii) Jill Bye;
(iv) Julie Homer;
(v) James Vickers;
(vi) All other past and present members of the People and Wellbeing Team;
(vii) All past and present University of Tasmania Council Members; and
(viii) Members of the Risk Audit Committee.
Category 3 – Second Defendant’s Workplace Policies and Procedures
…
(b) Copies of all documents relating to the University’s “governance process” of reviews or investigations of University policies, procedures, by laws, ordinances and like documents relating to the employment of employees of the University from 2010 to the present limited to sexual assault, harassment, bulling and discrimination;
…
(h) Copies of all documents which relate to University employees or officers who received any allegations or complaints against Peter Rathjen of any breach of University policies, procedures and ordinances relating to sexual assault, sexual harassment of employees of the University from 2010 to the present.
Category 4 – [no determination required]
Category 5 – Allegations by University employees against Vice Chancellor Peter
Rathjen.(a) A copy of all documents relating to allegations of sexual misconduct against Vice Chancellor Peter Rathjen made to the University of Tasmania by employees of the University;
(b) A copy of all communications between the University of Tasmania and
Universities Australia concerning any allegations of sexual misconduct made against
Rathjen by employees of the University of Tasmania;
(c) A copy of all communications between the University of Tasmania and the Tasmanian Integrity Commission concerning any allegations of sexual misconduct made against Rathjen by employees of the University of Tasmania:
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(d) A copy of all documents relating to any involvement by the University of Tasmania in the 2022 inquiry by the Legislative Council of the Tasmanian Parliament into the provisions of the University of Tasmania Act 1992 concerning institutional management of sexual assault and harassment;
(e) A copy of all communications between the University of Tasmania and State
and/or Federal Police concerning any sexual allegations made against Rathjen by
employees of the University of Tasmania.
The names of all complainants other than the Plaintiff should be redacted where there is an obligation for confidentiality or by virtue of the Privacy Act.
Category 6 – Appointment of Maree Norton
(a) A copy of the Terms of Reference for an investigator in relation to the investigation of complaints against Rathjen; and
(b) A copy of Maree Norton’s report; and (c) A copy of all documents relating to the University’s response to and implementation of the findings and recommendation of the Maree Norton report regarding the complaints of sexual misconduct by Peter Rathjen and the University’s processes of receiving and responding to the complaints and regarding the prevention of such sexual misconduct.
The names of all complainants other than the Plaintiff should be redacted where there is an obligation for confidentiality or by virtue of Privacy Act.
Category 7 – Protection of complainants once complaints were made against
Vice Chancellor Peter Rathjen(a) A copy of all emails, correspondence, and other documents relating to any care, protection and/or support provided by the University of Tasmania to the Plaintiff in response to her complaints of misconduct against Vice Chancellor Peter Rathjen; and
(b) A copy of all emails, correspondence, and other documents leading up to and
concerning the determination to issue a direction to Rathjen not to enter University
land or campuses.
The names of all complainants other than the Plaintiff should be redacted where there is an obligation for confidentiality or by virtue of Privacy Act.
Category 8 – University’s response to the Norton report
Unless already produced under category 6(c) above, a copy of all documents including, but not limited to, emails, diary notes, minutes, resolutions, public announcements, press releases and other correspondence generated on behalf of the University of Tasmania in response to the findings of the Norton Report regarding the complaints of sexual misconduct by Peter Rathjen and the University’s processes of receiving and responding to complaints of sexual harassment or sexual assault and the prevention of such sexual misconduct which were prepared or created by:
Vice Chancellor Rufus Black;
University of Tasmania Council;
Michael Field;
Kirsten Derbyshire; and
Jill Bye.6 No 30/2025
The names of all complainants other than the Plaintiff to be redacted where there is an obligation for confidentiality of by virtue of the Privacy Act.
Category 9 – The University of Tasmania Council
A copy of all University of Tasmania Council minutes and council papers from January 2010 to present relating to allegations by Second Defendant employees (including the Plaintiff) against Vice Chancellor Peter Rathjen."
Category 2
16 In relation to Category 2(a), the plaintiff submits generally that the documents are relevant to the date of discoverability, delay, and paragraphs 10 and 11 of the statement of claim.
17 The plaintiff submitted that these documents are capable of showing how the second defendant dealt with her the prior complaint of bullying - a complaint which she made to the University in 2013. She submits that this would help to explain her delay in complaining about the first defendant's conduct as pleaded in pars 8 and 9 of the statement of claim.
18 The plaintiff also submits that the documents go to the second defendant's knowledge of the plaintiff's "vulnerability" and what system should have been in place in 2016 and 2017, and before the second defendant's Behaviour Policy was introduced in 2020. That submission appears to me to be directly relevant to whether the plaintiff has an arguable case – which is not a matter in issue for the purposes of the application to extend time, because the second defendant has conceded that issue.
19 The second defendant submitted that the plaintiff's complaint that she was bullied by employees of the second defendant's School of Medicine in 2013 does not form part of her allegations in these proceedings. Even so, the second defendant submitted that:
"…any documents about that issue which may be relevant to the Extension of Time
Application will be produced as part of Category 1".
The plaintiff did not challenge the second defendant's submissions in this regard. Category 1 includes all documents and files in the possession, custody or power of the second defendant and its employees directly relating to the plaintiff. I will proceed on the basis that the Category 2(a) documents will be discovered within the Category 1 documents. That is the first reason that there is no need to make an order in relation to this category. Such an order might otherwise have been made as being relevant to the issue of delay. The second reason is that documents in this category are relevant only to the conceded issue - whether the plaintiff has an arguable case - and so it is not necessary to make an order that they be discovered at this stage.
20 The plaintiff submits that the documents in Category 2(b) are relevant to "date of discoverability particularly vicarious liability, negligence, delay and prejudice and paragraphs 10, 11 and 12 of the "statement of claim".
21 As to the date of discoverability, the applicant did not explain how these documents might assist in establishing what she knew (as that concept is discussed in Mercer and O'Neill) relevant to that issue.
22 As to the plaintiff's reference to pars 10 and 11 of the statement of claim, those paragraphs relate to her complaint to the second defendant about the first defendant's conduct towards the plaintiff and the legal bases upon which liability is alleged. Paragraph 12 relates to the loss and damage which the plaintiff alleges she has suffered. The documents are obviously relevant to whether the plaintiff has an arguable case, (which, for these purposes, subsumes the issues of vicarious liability and
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negligence). The only relevance of these paragraphs of the statement of claim is to whether the
plaintiff has an arguable case, a matter which is no longer in issue.23 In relation to the issues of delay and prejudice, the plaintiff made no specific submission addressing any logical connection between the documents being sought and those two issues; and it is not otherwise apparent how the documents have any relevance to those issues. The Court was effectively left to speculate upon any logical connection between the asserted conclusions contended for (on the one hand) and the nature of the document (on the other). There is no attempt to explain how the documents might have relevance to the particular issues.
24 While the plaintiff accepted that she bears the onus of demonstrating the nexus between a matter in question on the application to extend time and the documents, she has not discharged that onus.
25 I am not satisfied that discovery of documents in Category 2 is necessary at this stage.
| Category 3 |
26 In relation to Categories 3(b) and 3(h), the plaintiff submits that the documents are relevant to the "date of discoverability, particularly vicarious liability and negligence, and paragraphs 5, 7, 10 and 11 of the Statement of Claim".
27 Paragraph 5 of the statement of claim pleads the second defendant's duties of care, par 7 pleads implied terms of the employment contract in identical terms to the alleged duties of care in par 5. Paragraph 10 pleads the first defendant's alleged misconduct and par 11 pleads the manner of the second defendant's alleged breaches of duty in tort and contract.
28 The plaintiff's reference to pars 5, 7, 10 and 11 suggests that the documents are principally relevant to the issue of whether the plaintiff has an arguable case; as does the reference to vicarious liability and negligence. The plaintiff did not explain how University Council minutes and papers might assist in establishing what she knew at any relevant time (as that concept is discussed in Mercer and O'Neill).
29 The second defendant submits that "internal reviews or investigations of the University's policies" are not necessary to determine the plaintiff's constructive knowledge of her injury or its causes, or explain the reasons for the delay in commencing proceedings.
30 The plaintiff has not established how the documents relating to the second defendant's governance processes might be logically probative of anything to do with her awareness that her injuries were sufficiently significant to warrant the bringing of proceedings, nor any other matter in question on the application to extend time.
31 The documents in Category 3(h) relate to matters within the second defendant's knowledge. The plaintiff has not established how documents relating to complaints received by the second defendant about the first defendant sexually assaulting or harassing any of the second defendant's employees during the period from 2010 to the present, might be logically probative of anything to do with her awareness that the pleaded injuries were sufficiently significant to warrant the bringing of proceedings.
32 The plaintiff has not established that the Category 3 documents are relevant to any matter in question on the application to extend time. I am not satisfied that it is necessary to order discovery of this category at this stage.
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Category 5
33 The plaintiff submitted that the documents in Category 5 are relevant to the date of discoverability, particularly vicarious liability and negligence, and pars 5, 7, 10, 11, 13 and 14 of the Statement of Claim. I have summarised pars 5, 7, 10 and 11 above. Paragraphs 13 and 14 plead the claim for aggravated and exemplary damages respectively. The plaintiff submitted that documents in Category 5 are "clearly relevant to the plaintiff's knowledge that her injuries were attributable to the conduct of the second defendant by virtue of vicarious liability or negligence".
34 The second defendant's counsel submits that none of the documents in Category 5 are relevant to the date of discoverability because they do not tend to establish the plaintiff's actual or constructive knowledge relating to her injuries, and they go beyond what is necessary to make out an arguable case. I agree.
35 Documents in Category 5 might well be relevant to whether the plaintiff has an arguable case, but that will not be a matter in question on the application to extend time. The plaintiff has not established any logical connection between the second defendant's documents in this category and her own knowledge of the kind discussed in Mercer and O'Neill relevant to the "date of discoverability" for the purposes of the Limitation Act, s 5A. It is not clear how allegations made by other employees of the second defendant might help to show that the plaintiff had the relevant kind of knowledge. Nor is it clear how any documents relating to the second defendant's involvement in the Legislative Council inquiry into the University of Tasmania Act 1992 could concern any matter in question.
36 For these reasons, it is not necessary to discover the documents in Category 5 at this stage.
| Category 6 |
37 The plaintiff submits that the Category 6 documents are relevant to the date of discoverability, particularly vicarious liability, delay, and pars 5, 7, 8, 9, 10 and 11 of the statement of claim. Paragraph 8 of the statement of claim pleads the first defendant's three acts of assault, non-consensual sexual contact and/or sexual harassment and par 9 provides particulars of each occasion.
38 The plaintiff has not established any sufficient relationship between the Category 6 documents and a matter in question in the application to extend time. It is unclear how documents relating to Ms Norton's report and the implementation of its recommendations could influence the determination of the plaintiff's actual or imputed knowledge as addressed in O'Neill, the date of discoverability more generally, or indeed any matter in question on the application to extend time.
39 I am not satisfied that discovery of documents in Category 6 is necessary at this stage of the
proceedings.
Category 7
40 Category 7 documents are (a) communications between the second defendant and other complainants and (b) internal emails leading up to and concerning the direction to the first defendant not to enter the second defendant's property. The plaintiff submits that the documents are relevant to the date of discoverability, particularly vicarious liability and negligence and delay, pars 5, 7, 10, 11, 13, and 14 of the statement of claim. The plaintiff has not established how these documents throw any light on any matter still in question on the application to extend time. The observations made above in relation to Categories 5 and 6, are also applicable on this category.
41 I am not satisfied that discovery of documents in Category 7 is necessary at this stage of the
proceedings.
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Category 8
This category is somewhat similar to Category 6, also dealing with documents generated in response to the findings in the Norton report. The plaintiff submits that the documents are relevant to "the date of discoverability, particularly vicarious liability, negligence, delay, and paragraphs 5, 8, 9, 10, 11 and 12 of the Statement of Claim". The second defendant submitted that at the date of the Norton report, the plaintiff had already made her complaint to the investigation which preceded the report.
43 I agree with the submission put by the second defendant, that the internal deliberations which may be evident within the documents in Category 8, do not appear to be capable of influencing the determination of the plaintiff's actual or imputed knowledge as addressed in Mercer and O'Neill. Nor could they influence the determination of the date of discoverability more generally, or indeed any matter in question in that application.
44 I am not satisfied that the documents in Category 8 are relevant to the matters in question on the extension of time application. No order for discovery of documents in Category 8 is necessary at this stage of the proceedings.
Category 9
45 Category 9 was substantially amended during the course of the hearing and now relates only to the University Council's documents relating to allegations by the second defendant's employees, including the plaintiff, against the first defendant.
46 The defendant submits that the documents have no relevance to the application to extend time. I agree. The plaintiff has not established how documents in Category 9 might influence the determination of any issue or shed light on any particular issue. The plaintiff has not sufficiently explained what logical connection exists between the documents and the plaintiff's actual or imputed knowledge as addressed in Rhodes v O'Neill, the date of discoverability more generally, or indeed any matter in question in that application.
47 The plaintiff has not established that the documents in Category 9 are relevant to the matters in question on the extension of time application. No order for discovery of documents in Category 9 is necessary at this stage of the proceedings.
Further comments
48 I have approached this application on the basis that the knowledge to be considered for the purposes of the Act s 5A(3) is the plaintiff's own knowledge; and that there is insufficient material to support any conclusion that the knowledge of the second defendant, or the state of mind of any of the other individuals referred to in the plaintiff's request, is relevant to that question. The plaintiff has not explained how, on any objective basis, the documents sought by the plaintiff might support any inference relevant to any matter in question on the extension of time application.
49 The circumstances of this application can be usefully contrasted with those in both Mercer and O'Neill. In those cases - insofar as they are presently relevant to the application before me - the Court focused mainly on the information which was in the possession of the plaintiff, in order to assess whether each of Mr Mercer and Mr O'Neill had the knowledge relevant to par (c) of the definition of date of discoverability (whether the relevant injury was sufficiently significant to warrant the commencement of proceedings). In each case, the evidence and analysis related to what the plaintiff in each case knew or what knowledge should be attributed to them because of the circumstances of the medical and legal advice they had received. The plaintiff she has not established
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any logical connection between the nature or content of the documents and any matter in question on
the application to extend time.50 For the above reasons, I dismiss the plaintiff's application for discovery of the documents in the categories set out in the plaintiff's "revised list of documents requested for discovery", filed on 4 November 2025. I conclude that discovery of these documents is unnecessary at this stage of the proceedings.
Second defendant's interlocutory application
51 By interlocutory application filed on 25 September 2024, the second defendant seeks the
following orders:
"3a that the Plaintiff file (sic) a Statement of Claim on the First Defendant; and 3b
pursuant to rule 253 of the Rules that further and better statement of the nature of the claim be provided to the Second Defendant as requested in its correspondence of 27August 2024;"
Service of statement of claim on the first defendant
52 For the following reasons, I dismiss the second defendant's application for an order that the plaintiff serve the statement of claim on the first defendant.
53 The second defendant called upon the Court to exercise its inherent jurisdiction to direct the plaintiff to serve her statement of claim on the first defendant. The second defendant's submissions are summarised as follows:
- The Supreme Court Civil Procedure Act 1932, s 201 "reserves to the Court the power to make
such orders as may be necessary to meet the case".-
The Court's inherent jurisdiction extends to making orders where that is necessary to prevent prejudice to the proper administration of justice: Assistant Commissioner Condon v Pompano Pty Ltd [2013] 252 CLR 38, at [41] and [187].
-
The first defendant is a necessary party to the proceedings and ought to be joined. If not joined, the first defendant would also have a right to set aside any order of the Court made in his absence which affected him and for that reason should be a party to ensure the Court can resolve all the issues raised by the pleadings in one set of proceedings.
-
The second defendant has served the first defendant with a notice of indemnity under r 211 and "now that the first defendant is no longer a defendant and is not required to file a notice of appearance, the second defendant would need to seek leave of the Court to file a third party notice against him pursuant to rule 202(b) of the rules. And once a third party notice has been served on the first defendant, the second defendant could apply for directions under rule 208".
-
It would serve the efficient administration of justice to direct the plaintiff to serve the first defendant with a statement of claim because it would avoid the second defendant having to make further interlocutory applications to be determined by the Court which would bring about having the first defendant as a party to the proceedings and subject to the requirement of the leave of the Court and directions being made by the Court.
- The second defendant would require a grant of leave before it could issue third party proceedings
against the first defendant: r 202.11 No 30/2025
54 The plaintiff submitted that:
- The conduct of the plaintiff's claim against the first defendant is a matter for the plaintiff. - The inherent power of the Court should only be exercised when necessary. In this matter, it is not
necessary that any orders be made.- The Court does not have power to direct the plaintiff how she wishes to run her case in terms of whether, how and when a named defendant is served. To make such an order is not necessary and would be contrary to the scheme of the way litigation is run and set out by the rules, namely that the plaintiff decides who the defendants will be and how those claims are prosecuted. - The plaintiff will decide in due course whether the first defendant will be served. It is open to the
second defendant to take whatever action it considers necessary.55 The second defendant did not elaborate on its submission that the first defendant is "no longer a defendant and is not required to file a notice of appearance". I will refrain from comment because I could not see for myself how r 211 operated in this way and the parties did not make detailed submissions on that point. In relation to the second defendant's submission relating to the Supreme Court Civil Procedure Act 1932, s 210, I am not satisfied that this is a case in which no manner of procedure is provided for. Without saying anything as to the correctness of her assessment, counsel for the second defendant acknowledged that the second defendant may apply for leave to issue a third party notice against the first defendant. Ms Byrnes' final submission contemplated that the second defendant might make further interlocutory applications to be determined by the Court which would have the ultimate effect of having the first defendant as a party to the proceedings.
56 The second defendant's submission that the Supreme Court's inherent powers relevant to these proceedings include the power to compel the plaintiff to serve those proceedings on the first defendant, is without merit and I reject it. It is an essential feature of the adversary system of civil justice that a party who commences an action by writ chooses for itself the party against whom those proceedings will issue. That is fundamental. Whether, having issued proceedings, the plaintiff ever serves the writ on the defendant against whom the proceedings were commenced is, on the case before me, a choice for the plaintiff alone. In this case, the Court has no warrant to resort to the use of its inherent power to order the plaintiff to serve the first defendant with the originating process.
Particulars
57 For the following reasons, I dismiss the second defendant's application for an order under r 253 that, as requested in its correspondence of 27 August 2024, the plaintiff provide a further and better statement of the nature of her claim.
58 Where, after the delivery of a defence, a party seeks a further and better statement of the nature of a plaintiff's claim, or of any matter stated in any pleading, r 253 confers power on the Court to order a party to do so, provided that is necessary or desirable. By letter dated 27 August 2024, the second defendant sought particulars from the plaintiff by a request which contained 15 questions which containing in excess of 60 constituent parts. The request was couched in the following terms:
"In order to ascertain whether the orders for discovery in terms of your discovery request are necessary at this stage of the proceedings, we request that the plaintiff provide the following particulars of the plaintiff's extension of time application and the relevant claims in the statement of claim." (my emphasis)
59 As the underlined words above show, the second defendant's application by letter requested particulars of both the statement of claim and of the plaintiff's application to extend time.
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60 During oral argument, counsel for the second defendant confirmed that this was the basis for bringing the application for particulars: so that the second defendant might better meet the plaintiff's application to extend time:
"It would take the defendant by surprise not knowing the approximate date the plaintiff pleads is the date of discoverability and the facts and circumstances supporting an extension of time under subs5(A) of the Limitation Act. The plaintiff has not pleaded this in a reply but instead has made an interlocutory application where she is seeking specific orders by the Court, first, for a declaration that the case is not time barred under the Limitation Act and alternatively, that any extension of time be granted. In both cases the second defendant is entitled to know the case the plaintiff intends to bring so that it can be apprised of that matter and can meet that case at trial."
The references to "both cases" and "at trial" can only refer to the application to extend time.
61 To the extent that the second defendant's focus shifted during the course of the hearing and the second defendant sought an order for particulars more generally, that would amount to the application being put on a basis in conflict with the clear terms of the letter of 27 August 2024. I have now determined the discovery application referred to in the second defendant's letter and so there is no longer any need for the second defendant to ascertain for itself whether those orders for discovery are necessary. That should be sufficient to dispose of the entirety of the second defendant's application for particulars. However, it may be prudent to make some further comments.
62 Questions 1-3 of the second defendant's request relate to "Particulars of the Plaintiff's Extension of Time Application". Questions 1 and 2 expressly relate to particulars of the date of discoverability; and question 3 expressly relates to the question of why it would be "just and reasonable" to extend time. None of those issues are pleaded in the plaintiff's statement of claim. That takes the second defendant's request (and its application) outside the scope of r 253. It is clear that these three questions are not matters which could possibly fall within the scope of r 253. It is no part of any cause of action pleaded by the plaintiff against the second defendant that it is not statute barred: see Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at p 76. It should be unnecessary to say that the onus of proof in relation to the second defendant's limitation defence is borne by the second defendant alone.[1]
[1] Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at p 76; Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159 at [52]; Segal v Fleming [2002] NSWCA 262 at [27]; re Monger; ex parte Cross [2004] WASCA 176 at [69].
63 That is to be contrasted with the position on the application to extend time, where the plaintiff alone will carry the onus of satisfying the Court of the date of discoverability and whether in the circumstances of the case, it is just and reasonable that time be extended: the Act, s 5A(5). Pleadings play no part in the application for an extension of time. That application will proceed on evidence on affidavit: r 528(1). Rule 253 does not confer power on the Court to make an order that a party provide particulars of an interlocutory application. Questions 15.1, 15.2, 15.4, 15.5, 15.7, 15.8, 15.9, 15.11, 15.12 and 15.13 all relate directly to the issue of the date of discoverability, being an issue arising on the application to extend time. That issue does not arise on the plaintiff's pleading.
64 The plaintiff's interlocutory application seeking orders extending time to commence proceedings is not an occasion for the plaintiff to provide particulars of her statement of claim. In this context, those particulars can reasonably be relevant only to the question whether there is an arguable case, and the second defendant has already conceded that issue case for the purposes of that application. Viewed in the context of the application to extend time, the particulars sought by the second defendant by pars 4-14 of its letter of request dated 27 August 2024, relate solely to facts
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relevant to whether the plaintiff has an arguable case. That issue will not concern the Court at the hearing. The subject matter of questions 15.3, 15.6, 15.10 and 15.15 also relate to whether the plaintiff has an arguable case.
65 The plaintiff's counsel made all these points during her oral submissions and I accept them. I refuse the application for particulars. The second defendant's interlocutory application dated 25 September 2024, is dismissed insofar as it concerns pars 3a and 3b.
66 I will hear the parties as to whether any further orders are sought.
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