Colley v The State of Western Australia

[2000] WADC 246

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   COLLEY -v- THE STATE OF WESTERN AUSTRALIA [2000] WADC 246

CORAM:   COMMISSIONER GREAVES

HEARD:   14 SEPTEMBER 2000

DELIVERED          :   10 OCTOBER 2000

FILE NO/S:   CIV 70 of 2000

BETWEEN:   MARGOT LORRAINE COLLEY

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Procedure - Discovery - Preaction discovery - Evidence that prospective plaintiff sought leave of the Attorney General to commence proceedings against the State out of time - Discovery ordered because evidence established no more than that prospective plaintiff wishes to take proceedings and has not formed the firm intention to do so - Rules of the Supreme Court O 26A r 4(1) and (2)

Legislation:

Rules of the Supreme Court 1971

Result:

Application for discovery allowed

Representation:

Counsel:

Plaintiff:     Ms F A Stanton

Defendant:     Ms R A Yates

Solicitors:

Plaintiff:     McCallum Donovan Sweeney

Defendant:     State Crown Solicitor

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES: This is an originating summons under O 26A r 4. The plaintiff seeks an order that the defendant give discovery of any documents in its possession, custody or control relating to the escape of three detainees from the Riverbank Detention Centre on 18 January 1997 or the investigation of the circumstances surrounding their escape. The affidavit of the plaintiff's solicitor of 5 May 2000 reveals that on 18 January 1997 the plaintiff was at her home in Guildford when three male detainees from the Riverbank Detention Centre unlawfully entered her home, stole certain items from her and assaulted her, as a result of which she alleges she suffered injury and loss.

2. Order 26A r 4(1) and (2) provides:

   "(1)This Rule applies if a person who may have a cause of action against a person whose description has been ascertained ('the potential party') wants -

   (a)to commence proceedings against the potential party; or

   (b)to take proceedings against the potential party in the course of an action to which the person is a party,

   but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings.

   (2)If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this Rule."

3. On 13 December 1999, the plaintiff's solicitor wrote to the State Crown Solicitor in part as follows:

   "On 18 January 1997 our client was the victim of an aggravated burglary and robbery committed by two prisoners who had escaped from Riverbank Prison.

   …

   Our client alleges that the State of Western Australia failed to take reasonable steps to maintain and operate the prison so as to avoid an escape by the prisoners concerned.  Our client wishes to take action against the State of Western Australia seeking damages for negligence.  As our client has failed to comply with the limitation period prescribed by section 47A of the Limitations Act, we seek your advice as to whether the State will agree to an extension of time for the commencement of proceedings.  Our client is in a position to commence proceedings forthwith."

4. On 29 March 2000, the State Crown Solicitor advised the plaintiff's solicitor as follows:

   "I advise that the Attorney General has provided his consent to the bringing of an action against the State of Western Australia pursuant to section 6(2) of the Crown Suits Act 1947.  The consent is specifically for institution of proceedings against the State for injury suffered by your client in the assault upon her on 18 January 1997 on the grounds that the State negligently failed to maintain and operate Riverbank Detention Centre in such a way as to prevent the escape by the three detainees.

   The consent is without prejudiced to an application, if the State sees fit, to strike out any resultant statement of claim as disclosing no cause of action."

5. By her further affidavit sworn 14 June 2000, the plaintiff's solicitor deposes to the fact that she has been informed by the plaintiff and verily believes that the plaintiff has not made a decision whether she will proceed with the action and to the fact that if the defendant is able to provide her with evidence which shows that such an action would be likely to fail, the plaintiff would not proceed.

6. In support of the application, counsel for the plaintiff submitted that the evidence establishes that the plaintiff does not have sufficient information to make a decision whether or not to proceed and the belief that the plaintiff has not made a decision whether to issue proceedings.  Counsel submitted that the plaintiff would take a substantial risk in commencing proceedings and that the evidence establishes that she does not wish to do so if the anticipated action lacks merit.  She submitted that the documents sought are likely to establish whether or not there is a meritorious claim.  She further submitted that the plaintiff does not know how the detainees escaped from the Detention Centre and does not know what acts or omissions, if any, on the part of the defendant allowed the escape to occur.  She submitted that the plaintiff is not merely testing the strength of a known cause of action but rather anticipating the commencement of proceedings based on a belief that where such an escape has occurred, it is likely that there has been some act or omission on the part of the State in relation to the operation or the maintenance of the Detention Centre as a result of which the escape has been possible.

7. Counsel for the defendant submitted that the plaintiff is aware that she may have an action in damages based on an allegation that the defendant was negligent in failing to maintain and operate Riverbank Detention Centre in such a way as to prevent the escape by the three detainees. Counsel submitted that this is evident from the letter of 13 December 1999 in which the plaintiff identifies the cause of action against the defendant in negligence in failing to take reasonable steps to maintain and operate the prison so as to avoid an escape by the prisoners concerned. It is also to be observed that the plaintiff's solicitor says that the plaintiff is in a position to commence proceedings forthwith. Counsel for the defendant submitted that accordingly the Court should conclude that the plaintiff has already formed the firm intention to commence proceedings against the defendant. She submitted that the plaintiff cannot bring herself within O 26A r 4(1) as a person who has not been able to obtain sufficient information to enable a decision to be made whether to commence or take proceedings against the defendant.

8. In my opinion, the evidence in this case establishes no more than that the plaintiff wishes to take proceedings against the defendant and that consideration is being given to taking that course. It is in that context that the plaintiff sought the consent of the Attorney General to the commencement of proceedings against the defendant pursuant to s 6(2) of the Crown Suits Act 1947.  In my opinion, the Court should not conclude that the plaintiff has already formed the firm intention to commence proceedings against the defendant because she has sought the consent of the Attorney General to commence proceedings against the defendant.

9. It seems to me that in such circumstances the Court should order that the defendant give discovery of any documents in its possession, custody or control relating to the circumstances and manner in which the three detainees escaped from the Riverbank Detention Centre on 18 January 1997.

10. It goes without saying that the defendant may claim privilege from production of any such document or documents.  I will hear counsel on the orders to be made.