Beckett v State of New South Wales
[2011] NSWSC 626
•27 June 2011
Supreme Court
New South Wales
Medium Neutral Citation: Beckett v State of New South Wales [2011] NSWSC 626 Hearing dates: 17 June 2011 Decision date: 27 June 2011 Jurisdiction: Common Law Before: Harrison J Decision: The defendant to give discovery limited to the 38 categories identified in numbered paragraphs in exhibit A
Catchwords: PROCEDURE - discovery and inspection of documents - whether to grant order for discovery in 56 nominated categories - order made for discovery in 38 of the nominated categories Legislation Cited: Civil Procedure Act 2005
Criminal Appeal Act 1912
Police Act 1990
Police Regulation (Allegations of Misconduct) Act 1978Cases Cited: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
Hamod v State of New South Wales [2007] NSWSC 425
Priest v State of New South Wales [2006] NSWSC 12
R v Saleam (1989) 16 NSWLR 14Category: Interlocutory applications Parties: Roseanne Beckett (Plaintiff)
State of New South Wales (Defendant)Representation: - Counsel:
P E Blackett SC (Plaintiff)
A N Williams (Defendant)
- Solicitors:
Turner Freeman (Plaintiff)
I V Knight, Crown Solicitor (Defendant)
File Number(s): 2008/289411
Judgment
HIS HONOUR : By notice of motion filed on 18 May 2011 the plaintiff seeks an order for discovery in nominated categories. The plaintiff's motion is supported by an affidavit of Terence Louis Goldberg sworn on 11 May 2011. The defendant also filed a notice of motion seeking certain relief from the production of documents if discovery is ordered. The defendant relies upon the affidavits of Lynley Tretheway affirmed on 24 May 2011 and David Brumby affirmed on 25 May 2011.
The motions came before Harrison AsJ on 1 June 2011 but her Honour was unable to dispose of them on that occasion. The parties are agreed that her Honour did not become part heard. In the events that have occurred, the matter then came before me in my capacity as the judge case managing the proceedings. I agreed to deal with the motions having regard to the fast approaching hearing date commencing on 1 August 2011. The parties also agreed that I should do so upon the basis of their written submissions filed with the Court.
In general terms, the proceedings involve a claim for damages for malicious prosecution against the police. They were originally commenced by statement of claim filed in August 2008. Notwithstanding their relative antiquity, the pleadings were not finalised until the filing of a defence to the plaintiff's amended statement of claim on 21 January 2011. The matter is estimated to require between six and eight weeks of hearing time to complete. I allocated the hearing date as recently as 25 February 2011. The defendant opposed the matter being set down for hearing at that time for reasons that included that the matter was not ready.
The defendant's position
The defendant contends that discovery should not be ordered as on its view the pleadings closed in November 2008 so that the plaintiff's application should be rejected as having been made too late. More particularly, the defendant opposes discovery for the following reasons. First, discovery is discretionary. By reason of the lateness of the request, the defendant says that it is oppressive. Secondly, it is said that many of the proposed categories lack an obvious relationship to any fact in issue in the proceedings. The defendant submits that these categories are in the nature of a fishing expedition or go only to the possible issue of the credit of potential witnesses. Thirdly, many of the categories are said to be too wide and are presumably for that reason oppressive. Finally, although the tort sued upon is one of abuse of process, it is said to be so analogous to a claim for personal injuries that discovery should be declined for that reason as well.
In further elaboration of these contentions the defendant prays in aid the provisions of the Civil Procedure Act 2005 , in particular Part 6 and ss 56 to 59 inclusive. The defendant submitted that having regard to the relatively late stage of the proceedings, it would be inimical to the overriding purpose to order discovery now. The defendant draws attention to the matters listed in s 58(2)(a) and (b) as support for its opposition. Those matters are as follows:
" 58 (2) For the purpose of determining what are the dictates of justice in a particular case, the court :
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."
The defendant also emphasised s 59 of the Act as requiring proceedings to be conducted in a manner that tends to eliminate delay in getting the matter ready for trial. The precise terms of s 59 are worth noting:
" 59 Elimination of delay
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial."
The defendant especially observed that the request for discovery came two and a half years after the proceedings had been commenced and after they had been set down for hearing. Significantly, that has to be viewed against a background of events that give rise to the proceedings that are themselves quite old. That last factor would not of itself be fatal to the application but is said to have a greater significance in this case in terms of the practicalities affecting the location, retrieval and production of many of the documents in many of the nominated categories. In this respect the defendant relies upon the evidence of Mr Brumby and his estimates for the time and the effort that he considers will be required, as well as the associated difficulties that the defendant might be expected to encounter, in attempting to comply with an order for discovery in the plaintiff's currently nominated categories.
The defendant also complains that the categories promoted by the plaintiff lack relevance to any discernible fact in issue. This is said to inform both the question of whether discovery should be granted at all as well as the categories that should be allowed if discovery is ordered. The defendant draws attention to UCPR 21.2 in this context, which is as follows:
" 21.2 Order for discovery
(1) The court may order that party B must give discovery to party A of:
(a) documents within a class or classes specified in the order, or
(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.
(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.
(3) Subject to subrule (2), a class of documents may be specified:
(a) by relevance to one or more facts in issue, or
(b) by description of the nature of the documents and the period within which they were brought into existence, or
(c) in such other manner as the court considers appropriate in the circumstances.
(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue."
It will be necessary to refer to the proposed categories in at least some detail later in these reasons in order properly to assess this contention.
It is possible at this stage however to reject the contention that the proceedings are in the nature of a claim for damages for personal injury so that discovery is less likely to be ordered. In such proceedings an order for discovery may not be made unless the court for special reasons orders otherwise. Her Honour Harrison AsJ dealt with this issue in Hamod v State of New South Wales [2007] NSWSC 425 at [4]-[5] as follows:
"[4] The plaintiffs submitted that their claim is not "for damages arising out of...bodily injury". The first defendant submitted that the damages do arise out of bodily injury and even if it does not, there are no special circumstances that warrant the making of an order for discovery. The first plaintiff's claim for damages arises out of malicious prosecution, injurious falsehood, false imprisonment and detinue. The injury to the person that is alleged is a consequential injury flowing from the emotional upset, anxiety and distress caused by the commission of the torts alleged, as was the case in Houda v New South Wales [2005] NSWSC 1053 at [322] - [368]. In my view, the plaintiff's claim is not one which arises entirely out of bodily injury.
[5] Even if I am wrong, it is my view that special reasons exist for discovery (see Priest v New South Wales [2006] NSWSC 12). They are that firstly, the first plaintiff's case arises in extraordinary circumstances and falls outside the normal range of personal injury cases; secondly, that primary claim of the first plaintiff is for economic loss occasioned by reason of the intentional acts of the first defendant; thirdly, the very nature of the cause of action malicious prosecution is such that discovery is necessary in the interests of a fair trial. A central element of the cause of action is the absence of reasonable and probable cause. A determination of the presence or absence of reasonable and probable cause is based on the state of knowledge of prosecutors at the time of prosecution; fourthly, such state of knowledge includes information and documentation in the prosecutors possession at the time of prosecution, not merely the brief of evidence provided to the first plaintiff in the Local Court."
There does not seem to me to be any reason in this case not to adopt and to apply the same approach as that exposed in this extract from her Honour's reasons for judgment. I would not decline to order discovery in the present case based upon the defendant's argument in this respect. Moreover, the very nature of the proceedings makes discovery more important and more likely than otherwise.
However, the defendant raises a matter of considerably more importance in the following way. The Court of Criminal Appeal earlier remitted certain matters to Acting Judge Davidson pursuant to s 12(2) of the Criminal Appeal Act 1912 . The plaintiff was represented in those proceedings in the course of which large amounts of material relating to the original charges against the plaintiff and her subsequent trial were made available. This included large amounts of material that was said to be fresh. The defendant contended on this application that the plaintiff has in these circumstances had available to her, albeit in a different context, significant material that might not otherwise be available to a plaintiff in similar circumstances. The defendant argued, therefore, that the need for discovery had to be assessed in the light of that fact and having regard to the dilution or removal of the advantage that a defendant in proceedings alleging malicious prosecution might ordinarily be expected to enjoy. The defendant contended that the plaintiff has in effect been an active party to separate proceedings that examined the material upon which the defendant's decision to prosecute was based. This was said to be a matter of some weight on the exercise of the discretion to grant or to refuse an order for discovery.
When the application was before Harrison AsJ, her Honour marked the list of the 56 categories of discovery for which the plaintiff contends as Exhibit "A". A copy of that exhibit is appended to these reasons. The defendant's particular objections to these categories are dealt with and explained in the defendant's written submissions as follows.
Categories 1 and 2
The plaintiff alleges that the conduct of Peter Thomas in investigating the plaintiff for arson in 1983 is relevant to the question of malice. However, the defendant contends that what the plaintiff seeks in these categories goes far beyond that purpose. The details sought might conceivably be relevant and proper for discovery were the arson investigation itself the subject of a suit for malicious prosecution. The defendant asserts that it is not. Any alleged absence of reasonable and probable cause for that prosecution is not in itself a fact in issue in the proceedings.
Categories 3, 46 , 47, 54-56
These documents seek material that will clearly be privileged under either s 170 of the Police Act 1990 or the earlier s 59 of the Police Regulation (Allegations of Misconduct) Act 1978 as amended from time to time. The defendant contends that in those circumstances it would be futile to order that discovery be given, and that notwithstanding the remarks of the court in R v Saleam (1989) 16 NSWLR 14 , the position should now be seen as different given the terms of UCPR 21 and Part 6 of the Civil Procedure Act . Further, the defendant submitted that these categories are drawn far too widely for the purpose stated. In particular, the relevance of complaints made by the plaintiff with respect to James Henry Morris is questionable, where it is not pleaded that he was a prosecutor for the purposes of the allegation of malicious prosecution. The entire personnel file, without limitation as to subject matter , is sought for Messrs Thomas, Paget and Morris. The defendant submitted that such an approach is contrary to UCPR 21.2(2).
Category 4
The plaintiff has stated the basis for seeking this material in the letter of 24 May 2011, which is annexed to the affidavit of Mr Goldberg sworn 24 May 2011. That includes, among other things, references to sub-paragraphs 99(a) and (e) of the amended statement of claim. The defendant contends that allegations of intimidation of Shane Golds, Greg Baggs and Bill Ferguson can have nothing to do with material stated by Adrian Newell with respect to six other named people.
Category 5
While the plaintiff alleges in paragraph 55 of the amended statement of claim that there was such a charge and sentencing proceeding, the defendant says that it is not clear to what issue that goes in the proceedings. Paragraph 55 is included in a section under the heading "The Marriage of the Plaintiff and Barry Catt". The pleaded matters appear to be included merely by way of background. The events of 19 August 1988 are not otherwise referred to in the pleadings and do not apparently go to any element of the tort of malicious prosecution or fact in issue in the proceedings.
Category 6
This category is stated very broadly, and in effect seeks every document relating to the investigation and prosecution of Barry Catt. The category is apparently sought to support allegations of malice by Peter Thomas. According to the defendant, the documents asked for go far beyond anything that could relevantly bear on the question of Thomas's malice. What is sought is in effect every document relating to an investigation into a non-party (who is not pleaded to be a prosecutor for the purposes of malicious prosecution). That non-party was acquitted by a jury at his trial. The category is not in terms limited by anything to do with Peter Thomas or Carl Paget, who are said to have been the plaintiff's prosecutors.
Category 8
This category is apparently justified by reference to the pleaded malice of Peter Thomas at paragraph 74 of the amended statement of claim. It is alleged that Thomas investigated the private prosecution and the conduct of the officers of FACS. That paragraph is to be found under the heading "Commencement of Thomas' investigation into the Plaintiff". The defendant contended that no more than the fact of that investigation could be relevant (if indeed there was such an investigation), and certainly not every detail of it. The category is in broader terms than should be permitted, even if it is accepted that the documents sought are relevant to a fact in issue in the proceedings.
Category 11
The defendant does not accept that the question of whether there was any third party permission or authority for Peter Thomas to use premises belonging to Adrian Newell is relevant to a fact in issue in the proceedings.
Category 12
Similarly, the defendant does not accept that the question of whether there was any third party permission or authority for Peter Thomas or Adrian Newell to perform investigative tasks is relevant to a fact in issue in the proceedings.
Category 13
Nor is it accepted by the defendant that the question of whether there was any third party permission or authority for Peter Thomas to request analytical testing is relevant to a fact in issue in the proceedings.
Category 14
The defendant does not accept that all documents relating to chain of custody of certain samples are relevant to a fact in issue in the proceedings.
Category 15
The defendant does not accept that the fact of investigation of James Morris is capable of being relevant to any fact in issue in the proceedings. Further, the documents sought appear to require discovery of police investigation documents with respect to Mr Morris, whereas what is pleaded at paragraph 89(k) refers to an investigation by FACS (and not by the police). There is no pleaded allegation that Thomas knew of that investigation, or that if he knew, it should have had or did in fact have an impact upon his decision to prosecute the plaintiff. On the contrary, given what is pleaded about the relationship between Mr Thomas and FACS, the defendant contended that it is counter-intuitive to suggest that Thomas would have been aware of an investigation by FACS (at least in terms of the plaintiff's case).
Category 16
The defendant perceives that the plaintiff puts in issue Mr Thomas continuing as an investigator after 22 November 1989. It is not pleaded that he ought not to have been an investigator prior to that point. The proposed category seeks documents that pre-date 22 November 1989.
Categories 17-23
These categories relate to the searches that took place on 24 August 1989. Apart from the general oppression of a late request for discovery in a large number of categories, the details of the search were dealt with in detail on referral before Acting Judge Davidson. The plaintiff was represented at those proceedings. Further, to the extent the material sought constitutes things that were part of the original Crown brief or exhibits at the 1991 trial, these have already been the subject of a notice to produce issued by the plaintiff to the defendant on 6 January 2011 (and forming annexure "A" to the affidavit of Lynley Tretheway affirmed 24 May 2011, part of the reply to which forms annexure "B" to that same affidavit). The plaintiff seeks discovery in terms that duplicate a notice to produce already served in the proceedings. The defendant submitted that it should not be permitted.
Categories 24, 25, 27 and 29
The defendant disputes the relevance to a fact in issue in the proceedings of any material relating to Detective Boyd-Skinner in the context of these categories.
Category 37
This category seeks documents relating to an alleged decision not to test certain tablets found in the course of the execution of a search warrant. It is said by the plaintiff to be relevant to the pleaded lack of reasonable and probable cause with respect to count 5. In support of this category the plaintiff points to sub-paragraphs 88(w) and (x) of the amended statement of claim, which deal with a failure to have the tablets tested, and the allegation of a "plant" of certain substances by Mr Thomas and/or Mr Paget. Both are said to be relevant to an absence of reasonable and probable cause. It is unclear to the defendant how the failure to have tested things found on a search could be said to be demonstrative of an absence of reasonable and probable cause, or how that failure could be said to have anything to do with an alleged "plant" of evidence at all.
Categories 44-45
These have already been made the subject of a notice to produce to the defendant by the plaintiff.
Categories 50-52
The defendant contended that these categories are far too broad, both in respect of their subject matter and the period to which they are said to relate. The policy documents sought, to the extent that they are relevant at all, are only capable of being relevant up to a period concluding just after the arrest and charge of the plaintiff on 24 August 1989, but not until 18 October 1991 when Mathews J sentenced the plaintiff.
Category 53
According to the defendant, this proposed category is a blatant attempt to obtain material going to the general credit of the people named, as opposed to some particular point of credibility that might bear some relevance to the proceedings. It constitutes a fishing expedition. So much is said to be clear from the fact that the criminal records sought are not limited as to time or subject matter.
The plaintiff's position
The plaintiff approached the application for discovery in the context of the difficulties that she anticipates she will have to confront in the proof of her case. In this respect she refers to what was said by the High Court in A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [60] - [61] as follows:
"[60] It is important to recognise that, in an action for malicious prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause). The forensic difficulty of proving a negative is well known. At least some of the questions presented in this appeal arise because there is an inevitable tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to institute criminal proceedings. The logical relationship between the two forms of question tends to obscure first, the importance of the burden of proof, and secondly, the variety of factual and forensic circumstances in which the questions may arise.
[61] Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by inference and, if the defendant gives evidence, by cross-examination. The shape of the forensic contest in the particular case will inevitably dictate the way in which the plaintiff puts the argument that absence of reasonable and probable cause is established. In particular, what, if anything, the defendant prosecutor says in court, or has said out of court, about why he or she launched the prosecution, will loom very large in the plaintiff's contentions about absence of reasonable and probable cause. It must be recognised that much of what is said in the decided cases about want of reasonable and probable cause is moulded by the nature of the forensic contest in the particular case."
The plaintiff also referred to what was said at [71]:
"[71]... The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion...".
The plaintiff submitted that her arrest and charging were actuated by improper considerations on the part of the arresting officer Mr Thomas, including motives of personal revenge for her complaints against him, as well as attempts to discredit her so that her estranged husband Barry Catt might regain assets under her control and so that her allegations against Mr Catt of sexual misconduct against children might be defeated. The plaintiff's case generally involves connivance of Mr Thomas and Constable Paget with Mr Catt and a Mr Newell to bring false charges against her.
The plaintiff also adopted what was said by Harrison AsJ in Hamod at [4] - [5] referred to earlier.
The plaintiff submitted that the proceedings before Acting Judge Davidson were directed to an entirely different question to the one called up in these proceedings. There the Court was inquiring into whether there was doubt attending the plaintiff's conviction. The plaintiff conceded that there may be some overlap between documents produced then and documents now sought by way of discovery but submitted that the overlap was by no means complete.
UCPR 21.1(2) is in these terms:
"(2) For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence."
The plaintiff submitted that any suggestion by the defendant that a document or a category of documents should not be discovered because it was directed only to attempts to discredit witnesses should not be accepted, especially in the light of this provision. This was said particularly to be so in the present case where questions of malice and improper motive were likely to emerge as matters of significance.
Consideration
The original prosecution of the plaintiff arose out of an extremely complex set of circumstances involving a number of police officers and witnesses who gave evidence for both sides in numerous proceedings. Those proceedings were as follows.
There was a private prosecution instituted by the plaintiff against Barry Catt arising out of count 1, the assault known as the Rock Incident. The plaintiff's witnesses included her son Peter Bridge and Shane Golds who was regarded by the Crown as a principal in the subsequent proceedings instituted by the Crown against the plaintiff and Peter Bridge for assaulting Barry Catt in 1989.
After that alleged assault but prior to the prosecution, the Crown brought proceedings against Barry Catt on 10 February 1989 alleging a large number of counts of sexual molestation of his own children. He was subsequently acquitted of those charges on 11 December 1990 following a trial before Wood J and a jury. Witnesses for the Crown included the Catt children and the plaintiff. Witnesses for the defence included Barry Catt, his sister Mary Warwick, Marie Dawn Whalan, Carl Paget, Peter Thomas, Barry O'Brien and Vernon Taylor.
Peter Bridge was tried separately between 29 May 1995 and 2 June 1995. He was charged with assaulting Barry Catt on 2 May 1988 occasioning actual bodily harm. The prosecution witnesses included Barry Catt, Mary Warwick and Shane Golds who now gave evidence as he had at the plaintiff's trial for the Crown contrary to the evidence that he had given at the private prosecution commenced by the plaintiff. Peter Thomas gave evidence of his arrest of Peter Bridge and later interview with him on 24 August 1989.
The plaintiff's trial commenced before Matthews J on 7 May 1991. It included nine counts. Count 8 was that she encouraged Leslie O'Brien to murder Barry Catt. She was acquitted on that count. Witnesses who gave evidence against the plaintiff at her trial included Barry Catt, Detectives Thomas and Paget, James Morris, Vernon Taylor, Adrian Newell and Marie Whalan who was a former housekeeper and friend of Barry Catt.
The credibility of all of these witnesses was the subject of a fierce contest at the trial. The plaintiff's case was always that the police and the witnesses acted in concert falsely to accuse her. Barry Catt had been committed for trial on the charges of sexually abusing his children on 1 August 1989. The following day Mr Thomas directed that no action be taken as a result of the plaintiff's allegations and on 24 August 1989 he arrested her.
Marie Whalan was arrested for the murder of her husband allegedly on 31 October 1989. On 12 October 1990 Wood J sentenced her to five years imprisonment for manslaughter. Adrian Newell gave character evidence for her at the sentencing hearing.
Leslie O'Brien did not give evidence for the prosecution on count 8 at the plaintiff's trial. He was charged and went to trial on 28 October 1991 on a charge that between 1 May 1989 and 30 June 19189 he conspired and agreed with the plaintiff to murder Barry Catt. He was acquitted. Witnesses for the prosecution included Barry Catt, Peter Thomas, Carl Paget and Adrian Newell.
It is evident that the interrelationship of the various players in these dramas of charge and counter charge is one of significant complexity. Officers Thomas and Paget and Barry Catt, Marie Whalan and Adrian Newell are at the heart of most of the events. The present proceedings give rise, on the plaintiff's analysis, to the need closely to scrutinise these witnesses and their roles in the prosecution of the plaintiff and their respective motivations for doing so. The fact that allegiances are said to have changed in the case of some of them is said to be relevant. The plaintiff contends that the nominated categories in one way or another are relevant to unravelling these relationships and to the establishment of the two-stage test of absence of reasonable and probable cause and malice.
The evidence of Mr Brumby has not been tested in cross-examination. It is general and, according to the plaintiff, purely hypothetical. Mr Brumby has not suggested that he has yet commenced the task of locating or producing any documents in any categories that he asserts are so difficult and time consuming to produce. He has not even made a preliminary search. In Priest v State of New South Wales [2006] NSWSC 12 at [137] Johnson J said this:
"[137] With respect to the issue of oppression, the Court is required not to specify a class of documents in more general terms than the Court considers to be justified in the circumstances: Part 23 r 3(2) SCR. It may be taken that the task of complying with discovery is, to some extent, burdensome. To comply with the order, a party is required to undertake often extensive searches for documents. The test of oppression must be considered against this background. The term " oppressive " is often used to signify considerations which justify the exercise of the power to control procedures to prevent injustice where the procedures are " seriously and unfairly burdensome, prejudicial or damaging " and " productive of serious and unjustified trouble and harassment ": Hamilton v Oades (1988-1989) 166 CLR 486 at 502; Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90 at 102-103."
The present case necessarily and of its very nature calls up the need to examine a large and disparate range of documents of varying degrees of significance and dissimilar provenance. It is difficult to assess with any accuracy, except in the course of the hearing as the evidence unfolds, precisely what documents will become part of the evidence and what their role in the disposition of the issues in the case might turn out to be. There is an obvious disinclination on the part of the defendant to proceed with the tasks identified by Mr Brumby, even accepting that the scope of the work identified by him may be the most pessimistic prediction of what is involved. Clear identification of whether or not a document or a category of documents can confidently be corralled as not being relevant to the proof of a fact in issue in the proceedings can only be attempted at this stage at the outer limits of generality.
The plaintiff has sought from the defendant but has not yet been provided with a reliable copy or the original of the Crown brief in her case. It will undoubtedly be a matter for the trial, but that document has an obvious importance and its location and production are presumably being attended to even now by the defendant, if only as a model litigant, if not otherwise as a respondent to the plaintiff's allegations concerning her prosecution based upon it. Up until the production of that brief the plaintiff remains at some small disadvantage. That disadvantage is not entirely ameliorated by the knowledge presumably gleaned by the plaintiff in the course of the s 12(2) proceedings. The defendant should be required to give discovery but only in some of the nominated categories.
Conclusion
Doing the best I can I consider that the defendant should be required to give discovery limited to the following 38 categories, identified by numbers contained in Exhibit "A":
1, 2, 3 (but limited to Messrs Thomas and Paget), 4, 6, 8,16,17 to 33 inclusive, 35 to 38 inclusive, 40 to 42 inclusive, 44 and 45, 46 and 47 (but limited in each case to Messrs Thomas and Paget), 50 to 52 inclusive up to 24 August 1989.
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Decision last updated: 06 July 2011
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