Collins v The Commissioner for Main Roads
[2012] WADC 14
•14 FEBRUARY 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: COLLINS -v- THE COMMISSIONER FOR MAIN ROADS [2012] WADC 14
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 25 JANUARY 2012
DELIVERED : 14 FEBRUARY 2012
FILE NO/S: CIV 3507 of 2010
BETWEEN: ANNIE-MARIE COLLINS
Plaintiff
AND
THE COMMISSIONER FOR MAIN ROADS
Defendant
Catchwords:
Practice and procedure - Further and better discovery - Principals governing - Turns on its own facts
Legislation:
Nil
Result:
Application allowed in part
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr G Hancy
Solicitors:
Plaintiff: Shine Lawyers
Defendant: Kott Gunning
Case(s) referred to in judgment(s):
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
DEPUTY REGISTRAR HEWITT: By chamber summons filed on 15 December 2011 the plaintiff to this action sought further and better discovery of various documents and nominated categories of documents of the defendant. Before embarking upon an analysis of the case and of the application, I shall first state my understanding of the general principals which relate to an application of this kind.
In my view the onus on an applicant making an application for further and better discovery is to demonstrate to a fairly high level of certainty that the documents of which discovery is sought exist, that they are relevant to the issues in the proceedings, and that they are or have been in the custody, control, possession or power of the respondent to the application. To the extent that authority is necessary to support such a proposition, I refer to the decision of Master Newnes and Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] – [6] which is couched in the following terms:
In determining whether to make an order for further discovery, the Court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Pty Ltd v Bristol Myers Co[1979] VR 273. The Court must be able to infer from the nature of the document in question that it is relevant; it will not speculate as to its relevance. Relevance may either appear from the nature of the document or its contents, and if the latter then there must be a prima facie case as to the contents before an order for further discovery will be made: Astra-National Productions Ltd v Neo‑Art Productions Ltd [1928] WN 218 at 219. Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant: see Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904 at 915 and the discussion in PDM Australia Pty Ltd v Kellogg Overseas Corporation & Ors, unreported; SCt of WA; Library No 6646; 26 March 1987 at [5–14].
In determining whether a document relates to a matter in question, and, therefore, whether it ought to have been discovered, the test is that set out in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (supra) as follows:
It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words 'either directly or indirectly' because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.
The matters in issue are to be determined by reference to the pleadings: Mulley v Manifold (1959) 103 CLR 341 per Menzies J at 345. But regard must also be had to the conduct and admissions of the parties and the nature of the action: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178 at 186.
It is also important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery: Kent Coal Concessions Ltd v Duguid (supra) at 910. Moreover, amendments to the Rules in more recent times, including the introduction of O 1 r 4B and O 26 r 7, emphasise the need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery.
Those being the relevant propositions of law, I now turn to the facts of the case.
It is alleged that the defendant has the care, control and management of the Pinjarra to Williams Road at Greens Hill near Dwellingup. The plaintiff alleges that on 9 December 2007 she rode a motor bike on that road in a westerly direction and by virtue of the dangerous condition of the road she suffered an accident. It is further alleged that by virtue of certain pleaded matters the defendant knew or ought to have known that the road was dangerous and posed a hazard to users particularly motorcyclists. Various bases upon which such knowledge is said to be imputed are cited in the statement of claim.
In my view the pleading does not accurately set out the legal test which is required. That is contained in s 5Z(2) of the Civil Liability Act 2002 which provides that a roads authority is not liable in proceedings for harm arising for a failure of the authority to carry out road work or to consider carrying out road work unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm. It therefore seems to me that the test propounded in the statement of claim is somewhat off the mark. Actual knowledge is required rather than proposition that the defendant ought to have known which is part of the case advanced by the plaintiff.
The case raises two issues. The first is the state of the road at the relevant place and whether it constituted a danger. The next issue is whether the defendant as a road authority had actual knowledge of the danger.
I now turn to consider the categories of documents that are sought. The first category of documents is described as follows. Documents concerning all attendances with the Murray Shire council and/or the defendant and its employees evidencing consultation regarding plans to restructure the road over the last 20 years. Even allowing for the fact that the statement of claim defines the road as being that portion at Greens Hill near Dwellingup it is still an extraordinarily wide category of documents. I am unable to discern in what manner, if at all, such documents have any bearing on any issue in this case. The general rule is that an affidavit of discovery, as has been provided in this case, has to be taken at face value unless it has demonstrated by fairly strong evidence that other documents should have been included. Although four separate affidavits have been filed in support of this application, in my view no information which is contained within any of those documents points to the existence of anything within the category I have described which should have been discovered. Additionally the category of documents appears to not only embrace documents in the possession of the defendant but also documents in the possession of Murray Shire.
The next category of documents of which further and better discovery is sought is documents relating to any investigations undertaken by Murray Shire council and/or the defendant concerning the dangers posed by the road and any action implemented in response to such investigations. Again it would appear that the plaintiff in part seeks discovery by the defendant of documents in the possession of a third party. It is not demonstrated that any such documents exist nor is it demonstrated that they are relevant to any issue raised on these pleadings. Again I would describe this category of documents as being a shot gun approach showing very little focus on the requirements of a further and better discovery order.
The next category of documents are documents relating to the April meeting of the works committee including recommendations, minutes of meeting and correspondence noting any proposed remedial action to be taken arising out of the works committee meeting in April. All such documents including those evidencing prior complaints made by whom so ever about the subject accident site stretch of road and road side barrier and all action taken by the defendant, if any, in response to complaints made and concerns raised. Again, in my view the category of documents is described in terms which in my view completely overlook the requirements to enable an order for further and better discovery to be made. I am not even altogether sure what April meeting is referred to but I have not troubled to ascertain whether there is some material somewhere buried in the affidavits in support which might enable me to identify it because the framing of the category of documents is so unsatisfactory.
The next category of documents which is sought are all documents and written memoranda concerning support from the Dwellingup and Pinjarra police and Mandurah traffic police to works required to the accident location. Even if I understood what the paragraph meant, which I do not, it is very difficult to understand how this material could possibly be relevant to the issues which are raised in this action.
The next category of documents sought is as follows:
(a)Details of the accident in which a motorist was fatally injured on 26 May 2006 (being generous one would assume that this relates to the accident on the relevant section of road but that certainly is not specified).
(b)Inspection records of the accident site following the incident on 26 May 2006.
(c)Minutes of meeting of inspection and attendance at the accident site.
(d)Responses and investigations taken in relation to the accident site.
(e)Any remedial action implemented as a result of the accident.
In my view nothing is put before me to suggest that the materials which have been provided by the defendant in its sworn affidavit of discovery omit any relevant documents in relation to the issues which have been specified.
The next category of documents is documents received from the Murray Shire council recommending actions implementations of works to improve the safety of the area for the period 2006 to date. To support that proposition there are produced some copies of what appears to be an undated newspaper report which forms part of the defendant's discovery and that refers to certain steps which were proposed to be taken by the Shire of Murray in relation to the relevant section of the road. In my view such documentation provides scant basis for implying that there are any documents of the kind suggested by the application or that they are relevant to any issue in the case. To the extent that this plaintiff seeks to prove actual knowledge of the state of the road and the danger which it represented I find the existence of the newspaper articles, undated and as far as I know from an unidentified publication, is a very unreliable basis to infer that relevant documents exist and have not been discovered.
The next class of documents which is sought by this plaintiff are further documents illustrating crash statistics – details of prior accidents ‑ crashes on the Williams Dwellingup Road and all relevant documents/correspondences pertaining to the community workshop in October 2011 including any information submitted by workshop participants. An application of the kind which is pursued by the plaintiff needs some level of focus. To present a great jumble of propositions in this manner makes my job almost impossible. What document are they seeking discovery of? Are the documents confined to the area in question or are they for the whole road? How are crash statistics on other sections of the road relevant to this issue? What information is it alleged was submitted by the community workshop in 2007 and what documentation is it said exists in relation to that workshop?
The application is so badly expressed that in my view it is incapable of being given effect. I decline to embark upon a process of refinement of the application to see if there might be some conceivable way that some relevant document might be captured within the vast bulk of information which is described. The application appears to have been drawn without regard to the onus which is faced in an application in these circumstances.
The next item sought is the November 2011 letter to the then Minister for Transport the Honourable Alannah MacTiernan MLA referred to in document 80 of the defendant's list of discoverable documents referred to at par 18 of Roger Sing's supplementary affidavit sworn 6 December 2011. In fact that letter appears to have been discovered and it may be that the plaintiff's copy of it is incomplete but nonetheless that is not an issue which need concern me on an application for further and better discovery.
The next category of documents sought are photographs, costing documents and the result of the vehicle speeds and traffic counts in referred to in document 87 of the defendant's list of documents referred to at par 20 of Roger Sing's supplementary affidavit sworn 2011. In fact all of those documents as far as I can see have been discovered and they form a succession of entries in the defendant's affidavit of discovery. There is certainly nothing which is put before me which persuades me that relevant material has been omitted. Precisely how some of this material and in particular costing documents and results of speed and traffic counts are relevant to this case is not explained to me, it is not obvious to me and I decline to make any order that further discovery of those documents be given to the extent that it has not already been done.
The next paragraph seeks audit reports, fatals and black spot information form referred to document 88 of the defendant's list of discoverable documents.
The basis of this aspect of the matter is an email from Mr D Moyses to Mr Alan McDonald which is dated 5 December 2006. That refers to some individual identified as Richard said to be undertaking a crash report into the section of the road. Although the portion of the relevant road is not identified, nonetheless the heading refers to the Pinjarra to Williams Road at what appears to be a particular location and refers to W‑beam barriers apparently existing in that location. Reference to another report by one Jan Karpinski suggests that the location is that which is relevant to this case. In my view these materials indicate with a sufficient degree of clarity that an individual within the organisation of the defendant was undertaking a crash report and that document together with an audit report and information concerning fatal accidents at the relevant area would be sufficient to support a nomination for funding to improve the road under the black spot scheme. It may well be that the documents which comprise the crash report are already included in the affidavit of discovery but it is not completely clear to me that that is the case. Certainly nothing answering the description of a black spot application or an audit report or some statistics concerning fatal accidents in the area has been discovered. As a consequence I take the view that the applicant plaintiff has established to a sufficient degree that such documents may exist and if they do exist they are relevant to this case.
The next series of documents which are sought to be discovered are documents evidencing all investigation into and reports arising out of and all notes concerning all attendances from the commissioner for Main Roads and its employees at the work committee of the Murray Shire between April 2006 and 9 December 2007. Once again the scope of the documents sought to be discovered is extremely broad and they are extremely vaguely expressed. There is little that I can see that supports the notion that I should be persuaded to the necessary degree of certainty that such documents exist and are relevant to this case.
The next series of documents which are sought are documents are all written memorandum whatsoever of:
(1)The subject stretch of road/accident site and road side barrier prior to the accident date 9 December 2007.
(2)Prior accidents/crashes at the subject site resulting in injury and/or fatality.
(3)Responses and investigations taking in relation to each accident, crash and remedial action implemented, if any, for prior complaints made by whom so ever about the subject accident site, stretch of road and road side barrier.
(5)Responses and investigations undertaken in relation to each complaint made and remedial action implemented.
(6)Crash data pertaining to the subject site prior to 9 December 2007.
(8)Remedial action to the subject site, stretch of road and road site barrier following the plaintiff's accident on 9 December 2007.
I do not consider that any of the identifying classes of documents have been demonstrated to:
(a)exist; and
(b)be relevant to the cause of action pursued by the plaintiff.
By way of overview, the defendant's have discovered documents, and I refer particularly to the report of Jan Karpinski which appears as RS21 to the affidavit in support application dated 6 December which clear evidence a knowledge on the part of the defendant of the existence of a dangerous section of road at the site of the plaintiff's accident. The disclosure of such a document which is a powerful asset in the hands of the plaintiff and the powerful detriment to the case maintained by the defendant suggests to me that the defendant has undertaken the process of discovery diligently and with a view to its obligations under the law. I am not readily persuaded, in the light of that discovery, that other relevant documents exist which the defendant has either overlooked or chosen not to discover.
I therefore find that apart from the document which I have earlier mentioned, there is no need for the defendant to give further and better discovery in this action. The order will therefore me that the defendant by its proper officer do give further and better discovery of all documents in its possession in relation to the crash report which is referred to in an email from David Moyses to Alan McDonald dated 5 December 2006 together with any audit report and summary of fatal accidents in the relevant region also referred to in that email. Additionally I order that any black spot nomination submitted by the defendant be also discovered. Save for those exceptions the application of the plaintiff is to be dismissed. In passing I mention the fact that in my view this application was almost wholly misconceived and was brought either in ignorance of or disregard for the relevant considerations for an application of this kind.
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