Haywood v Collaroy Services Beach Club

[2004] NSWSC 356

CITATION:	Haywood v Collaroy Services Beach Club [2004] NSWSC 356
HEARING DATE(S):	29 April 2004
JUDGMENT DATE:	30 April 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion.
CATCHWORDS:	Subpoena for production and interrogatories - fishing expedition - relevance and necessary order.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 24 r 5, r 5 (1) and (2).
CASES CITED:	Haywood v Collaroy Services Beach Club [2002] NSWSC 991. Markovic v Northern Sydney Area Health Service & Anor [2001]NSWSC 252.
PARTIES :	Anthony Neville Haywood (Plaintiff) v Collaroy Services Beach Club Limited (Defendant)
FILE NUMBER(S):	SC 20252 of 2001
COUNSEL:	Mr R Scruby (Plaintiff) Mr G Gemmell (Defendant)
SOLICITORS:	TD Kelly & Co (Plaintiff) Hunt & Hunt (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 30 April 2004

20252 of 2001 Anthony Neville Haywood v Collaroy Services Beach Club Limited

JUDGMENT

1 MASTER: The proceedings have had a lengthy interlocutory history. The present application further adds to that history.

2 The plaintiff served a subpoena for production upon the secretary of the defendant. The defendant produced documents in response to paragraphs 1 – 5 of the schedule thereto. On 7 November 2003, the defendant filed a Notice of Motion seeking orders that paragraphs 6 – 8 of the schedule to the subpoena be struck out or set aside. On 13 November 2003, the plaintiff filed his own Notice of Motion. It sought orders in relation to the subpoena, leave to administer interrogatories and discovery of certain security camera footage.

3 Both Notices of Motion came before Assistant Registrar Howe. On 2 February 2004, he delivered his reasons for decision. He granted the relief sought by the defendant. He dismissed the plaintiff’s Notice of Motion.

4 On 23 February 2004, the plaintiff filed a further Notice of Motion. It seeks a review of what was done by the Registrar and the setting aside of his orders.

5 There is no issue between the parties as to the review process. The task of the court is to have a look at what was done by the Registrar.

6 Before proceeding further, I should mention that the order sought for discovery was not pressed.

7 The nature of the claim has been set forth in other decisions of the court (including the written reasons provided by the Registrar and Haywood v Collaroy Services Beach Club [2002] NSWSC 991). The plaintiff’s legal advisers do not know how the accident happened. All that is known is that he may have fallen backwards over a railing on a stairway in the Club premises.

8 The plaintiff relies on an affidavit sworn by Grant Watson. The defendant relies on an affidavit sworn by David Robert Grant.

9 The affidavit of Mr Watson annexes various documents (including a copy of the subpoena). The proposed interrogatories are Annexure A to the plaintiff’s Notice of Motion.

10 The plaintiff has no memory of the accident. There are no known witnesses to the fall itself. He was seen before and after the accident. The premises have been inspected on at least two occasions (inter alia by an expert who has produced two reports). There has been a police investigation. A statement was obtained from his girlfriend. She, together with other friends attended the Club with the plaintiff on the evening of the accident.

11 I shall first turn to the question of the subpoena. The relevant paragraphs are as follows:-

“6. All and any records, statements, reports, notifications or the like or copies thereof relating to any accident sustained by persons using the said stairway in the Defendant’s premises between 1 July 1995 and 9 February 2001 inclusive.
7. All and any records, statements, reports, notifications or the like or copies thereof relating to any accident sustained by persons using the said stairway in the Defendant’s premises from 9 February 2001 to date.
8. All Visitor’s Books and records of entry of patrons into the Defendant’s Club at Pittwater Road, Collaroy Beach on 9 February 2001.”

12 It can be seen that paragraphs 6 and 7 in their present form relate to documentation concerning any accident sustained by persons using the stairway during a specified period (from 1 July 1995 to date). Paragraph 8 concerns Visitor’s Books and records of entry of patrons into the Club on the day of the accident.

13 What is sought in paragraphs 6 and 7, in certain respects, has had previous ventilation in the earlier interlocutory litigation concerning discovery. The scope has been somewhat narrowed since then. Further, although no amendment has been made, it has been indicated in correspondence that the plaintiff would be prepared to read it down to effectively apply to “accidents involving tripping upon the steps of and falling on the said stairway or over the said stairway”. Even if the paragraphs be so read, it still seems to me that they are oppressive. Apart from questions of width and relevance, it may be difficult to find a clearer case of what is referred to as a fishing expedition. The purpose is to obtain information which may enable the plaintiff to present an actionable case.

14 What is sought by paragraph 8 suffers from similar problems. The aim is to get names of people so that they can be interviewed to see if any of them can give evidence to advance a case on behalf of the plaintiff.

15 I next turn to the question of the interrogatories. At the outset it may be observed that certain of what has been earlier said in relation to the subpoena applies to the proposed interrogatories.

16 There are 9 interrogatories. During the course of argument Nos 5 and 6 were abandoned. No 9 was abandoned prior to the commencement of argument.

17 Interrogatories Nos 1 – 4 relate to the stairway. What is sought by No 1 is capable of ascertainment by other means. There are witnesses available to the plaintiff and an admission may be sought by the plaintiff. It does not seem to be a matter really in issue, as the defendant’s expert has used the same photographs for the purpose of his report. Similar considerations apply to No 4. In response to paragraphs 1 – 5 of the schedule to the subpoena, the defendant has already produced documentation concerning matters raised by the interrogatories Nos 1 – 4 and there has been no complaint as to failure to comply with that part of the subpoena.

18 Interrogatories Nos 7 – 8 cover somewhat similar but wider territory to that which appears in paragraphs 6 – 7 of the schedule to the subpoena. There are four categories of accident.

19 The plaintiff seeks an order pursuant to Pt 24 r 5 of the Supreme Court Rules 1970 (the Rules). Subrule (2) thereof provides that the court shall not make an order under that provision unless satisfied that the order is necessary at the time when the order is made. In my view, whatever approach may be taken to the meaning of the term “necessary” (see Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252), the threshold requirement imposed by the Rules has not been satisfied in this case. Even if a different view were to be taken on that matter, I am satisfied that there are circumstances which would lead the court to the view that the discretionary power conferred by subrule (1) should not be exercised in this case.

20 I have conducted the review sought by the plaintiff. I am not satisfied that any basis has been demonstrated for the disturbing of the decisions made by the Registrar.

21 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion.

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Last Modified: 05/11/2004