De Jong v State of New South Wales

Case •

[2020] NSWSC 99

•

18 February 2020

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: De Jong v State of New South Wales [2020] NSWSC 99
Hearing dates: 18 February 2020
Decision date: 18 February 2020
Jurisdiction:Common Law
Before: Adamson J
Decision:

(1) The plaintiff’s subpoenas to produce documents returnable 9 November 2019 issued to Dr Patrick Renshaw, Kooringal Road Surgery, Dr Hanna Mishricky and Dr John Preddy be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW).
(2)   Orders (2), (3), (5), (7), (9), (10) and (13) of the orders made on 22 October 2019 are varied as set out in (3)-(10) below.
(3)   The plaintiff is to serve any further report of Professor Tronc by 27 February 2020.
(4)   The defendant is to serve any further report of Dr Little by 27 March 2020.
(5)   Direct the parties to confirm that service of expert reports is complete by 30 March 2020.
(6)   Direct the parties to agree on questions, assumptions and materials for the joint conference by 9 April 2020.
(7)   Direct that joint conferences are to be held by 30 April 2020.
(8)   Direct that joint reports are to be provided to the parties and the Court by 29 May 2020.
(9)   Vacate the directions hearing which was previously listed on 5 May 2020.
(10)   List the matter for further directions before me at 9.15am on 10 June 2020.
(11)   The plaintiff to pay the defendant’s costs of the notice of motion filed on 16 December 2019.
(12)   Note that orders (1)-(10) were made by consent of the parties.

Catchwords:

CIVIL PROCEDURE — Subpoenas — Application to set aside

  COSTS — Party/Party — where orders made by consent — where defendant’s position made clear to plaintiff prior to filing of notice of motion — plaintiff’s ultimate agreement a capitulation
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 33.4
Cases Cited: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category:Costs
Parties:

Proceedings 2016/383512
Aaron De Jong (Plaintiff)
State of New South Wales (Defendant)

  Related proceedings 2016/383516
Amanda De Jong (Plaintiff)
State of New South Wales (Defendant)
Representation:

Counsel:
J Hillier (Plaintiff)
G Sarginson (Defendant)

  Solicitors:
Commins Hendriks Solicitors (Plaintiff)
Crown Solicitor’s Office (Defendant)
File Number(s): 2016/383512; 2016/383516

Judgment (EX TEMPORE)

  1. This matter was listed before me today for the hearing of the defendant’s notice of motion to set aside subpoenas issued at the request of the plaintiff’s solicitor to Dr Patrick Renshaw, Kooringal Road Surgery, Dr Hanna Mishricky and Dr John Preddy (the Doctors). The subpoena was issued in the present proceedings (2016/383512) brought by Aaron De Jong, as plaintiff, but the documents are also relevant to related proceedings brought by Amanda De Jong (2016/383516). The notice of motion which was filed on 16 December 2019 was supported by the affidavit of Bruce Cantrill of 16 December 2019.

  2. After the evidence had been read, which included a very lengthy affidavit sworn by Jeffrey Potter, the solicitor for the plaintiff, dated 17 February 2020, Ms Hillier, who has recently been instructed on behalf of the plaintiff, informed me that she thought the matter could be resolved by agreement, and asked that there be a short adjournment of the matter to permit discussions between the parties.

  3. Mr Sarginson, who appeared on behalf of the defendant, agreed with that course, and the parties, having been given the opportunity to have discussions, agreed on certain orders, including an order as sought in the defendant’s notice of motion that the relevant subpoenas referred to there be set aside.

  4. The parties, in the course of that short adjournment, have also been able to come to an agreement about directions which became necessary as orders I made on 22 October 2019 have not been complied with. The report of Professor Tronc, the plaintiff’s expert, has not been served in accordance with the timetable directed by the Court. The parties have agreed that an extension be granted to the plaintiff for the service of that report. This has necessitated consequential extensions to the balance of those orders. At the conclusion of these reasons I will make those orders by consent.

  5. The only remaining issue between the parties is the issue of the costs of the notice of motion. Mr Sarginson submits that the defendant has been successful and that, in effect, the plaintiff has capitulated in the relief sought by the notice of motion. He submitted that, in these circumstances, the principles enunciated by the High Court in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625 (McHugh J); [1997] HCA 6 are applicable. In that decision the High Court considered that where there was a resolution by agreement, the issue of costs turns on questions which include: whether the other party has acted so unreasonably that a costs order ought be made; and whether it can confidently be said that the defendant would have succeeded had the issue been litigated to its conclusion rather than resolved. The High Court also referred to the undesirability of a court, when an agreement has been reached between the parties, going into the interstices of the dispute merely for determining a question of costs.

  6. Ms Hillier opposes the making of a costs order against her client, and submits that it would be appropriate that costs be costs in the cause. She submitted that there was forensic value in today, in that she was able to agree with Mr Sarginson as to the form of a further subpoena which could be issued without fear of an application being made to set it aside. I note that Mr Sarginson read on to the record the agreement reached between the parties: namely, the defendant accepted that the plaintiff had a legitimate forensic purpose in obtaining documents recording or constituting communications between the Doctors and the defendant or the school relating to the physical and psychological health of two children implicated in the events which caused the death of the plaintiff’s daughter.

  7. In my view, this matter falls within the category of cases referred to by McHugh J in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin: namely, those in which one can be confident that the defendant would have succeeded. It would appear that Ms Hillier, who, as I have said, was recently briefed, saw, once she had heard Mr Sarginson address the court orally, the considerable force in the defendant’s submissions and appreciated the inevitability of the orders sought in the notice of motion being made, because the plaintiff’s legitimate forensic purpose was insufficient to justify the subpoenas in their current form.

  8. I note, from the extensive correspondence between the parties, that the Crown Solicitor’s Office was at pains, before filing the notice of motion, to explain its position to the plaintiff’s solicitor. The defendant’s position has been consistent throughout. It accepts that what it knew about the physical and psychological condition of the two children, relevantly referred to in the subpoenas, was the relevant consideration but contends that their physical and psychological health per se is not relevant, in so far as those matters were not known to the defendant. That position was explained to the plaintiff’s solicitors on more than one occasion before the notice of motion was filed.

  9. In the second such letter, dated 6 December 2019, Mr Cantrill, the solicitor for the defendant, concluded his correspondence with the following paragraph:

“If you do not consent to the subpoenas being set aside we will rely on this correspondence on the issue of costs.”

  1. In that letter Mr Cantrill set out essentially the position which is taken by the defendant today through its counsel Mr Sarginson.

  2. In these circumstances, I am satisfied that it is appropriate to order the plaintiff to pay the defendant’s costs of the notice of motion.

  3. Whilst it is commendable that Ms Hillier has made the concession she has made and obtained instructions in the course of the adjournment to consent to an order in terms of the notice of motion, her forensic judgment came too late to save the plaintiff from the consequences of the earlier conduct by her solicitor, which has had the effect of causing the defendant to incur costs in pressing the claim for relief in the notice of motion.

Orders

  1. For these reasons I make the following orders and notation.

  2. The Court orders:

  1. The plaintiff’s subpoenas to produce documents returnable 9 November 2019 issued to Dr Patrick Renshaw, Kooringal Road Surgery, Dr Hanna Mishricky and Dr John Preddy be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW).

  2. Orders (2), (3), (5), (7), (9), (10) and (13) of the orders made on 22 October 2019 are varied as set out in (3)-(10) below.

  3. The plaintiff is to serve any further report of Professor Tronc by 27 February 2020.

  4. The defendant is to serve any further report of Dr Little by 27 March 2020.

  5. Direct the parties to confirm that service of expert reports is complete by 30 March 2020.

  6. Direct the parties to agree on questions, assumptions and materials for the joint conference by 9 April 2020.

  7. Direct that joint conferences are to be held by 30 April 2020.

  8. Direct that joint reports are to be provided to the parties and the Court by 29 May 2020.

  9. Vacate the directions hearing which was previously listed on 5 May 2020.

  10. List the matter for further directions before me at 9.15am on 10 June 2020.

  11. The plaintiff to pay the defendant’s costs of the notice of motion filed on 16 December 2019.

  12. Note that orders (1)-(10) were made by consent of the parties.

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Decision last updated: 19 February 2020

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