Ivers v State of NSW - [2010] NSWDC 8

Reported Decision:
10 DCLR (NSW) 8

District Court

CITATION: Ivers v State of NSW [2010] NSWDC 8

HEARING DATE(S): 10 December 2009, 5 February 2010

JUDGMENT DATE:
16 February 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Interrogatories numbered 5(e) to 5(f), 6(d) to 6(f), 12(d) to 12(i), 12(s) to 12(ii), 68, 69, 75, 80, 82(d) to 82(f) and 82(h) to 82(i) are struck out;
2. Within 28 days the defendant is required to answer the remaining interrogatories not abandoned by the plaintiff and the defendant is to verify the answers by affidavit;
3. The defendant’s motion is otherwise dismissed;
4. The parties have leave to re-list the matter to determine the question of costs of the motion in the event they are unable to agree upon those costs;
5. The exhibits may be returned.

CATCHWORDS: PRACTICE AND PROCEDURE – Interrogatories – whether permitted – action for damages for wrongful arrest, false imprisonment and malicious prosecution following a discontinuation of the charge of murder against plaintiff – consideration of Uniform Civil Procedure Rules 2005 r 22.1 and r 22.2 – consideration of s 56 of Civil Procedure Act 2002 – consideration of public interest immunity in not requiring a police officer to answer certain interrogatories in context of an unresolved criminal investigation

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED: Boyle v Downs [1979] 1 NSWLR 192
Kalgeracos v Bomba [2009] NSWSC 1271
Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70
Nowlan v Marsland Transport Pty Ltd [2001] NSWCA 346
O’Brien v Little [2007] NSWSC 64
Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101
Seidler v John Fairfax & Sons [19983] 2 NSWLR 390
Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; (1969) 123 CLR 514
Spedley Securities Ltd (In Liq) v Yuill & Ors (1991) ACSR 758
White v Overland [2001] FCA 1333
Yamazaki v Mustaca & Anor [1999] NSWSC 1083

PARTIES: Colin John Ivers (Plaintiff)
State of New South Wales (Defendant)

FILE NUMBER(S): 5488 of 2008

COUNSEL: Mr D Stewart (Plaintiff)
Mr G Giagios (Defendant)

SOLICITORS: Logical Legal Solicitors (Plaintiff)
Crown Solicitor (Defendant)

JUDGMENT

Nature of case

1. The defendant has brought this notice of motion seeking interlocutory orders to strike out disputed interrogatories for which the plaintiff seeks answers. In the substantive case, the plaintiff Colin Ivers sues the State of New South Wales, claiming damages for wrongful arrest, false imprisonment and malicious prosecution. Mr Ivers had been charged with murder. A prosecution of that charge was discontinued against him following analysis of DNA evidence. Those circumstances have led to the present proceedings in which Mr Ivers claims damages. The murder for which Mr Ivers was originally arrested and charged, remains unsolved.

Procedural history

2. On 16 October 2009 the plaintiff brought a notice of motion before the court seeking to enforce a disputed request for particulars sought by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWDC 8
Decision Date: 16 February 2010

CaseChat Overview and Summary

Ivers filed a lawsuit against the State of New South Wales, claiming damages for wrongful arrest, false imprisonment, and malicious prosecution, after the charges of murder against him were dropped. The matter was before the court to decide on the admissibility of certain interrogatories submitted by the plaintiff. The key legal issues were whether certain interrogatories were permissible and if a police officer was exempt from answering them due to public interest immunity.

The court examined the Uniform Civil Procedure Rules 2005 and section 56 of the Civil Procedure Act 2002, considering the nature of the unresolved criminal investigation and the implications of public interest immunity. The court ruled that certain interrogatories were not permissible because they sought information that was irrelevant to the civil proceedings or privileged due to the ongoing criminal investigation. The interrogatories that were struck out included those that inquired into the details of the investigation or the reasons behind the discontinuation of the charges against the plaintiff.

The court ordered that specific interrogatories be struck out, while requiring the defendant to answer the remaining ones within a specified timeframe. The defendant's broader motion was dismissed, but the court allowed the parties to return to court to resolve the issue of costs if they could not reach an agreement themselves. The exhibits were to be returned to the parties.

Orders

Orders of the court

1. Interrogatories numbered 5(e) to 5(f), 6(d) to 6(f), 12(d) to 12(i), 12(s) to 12(ii), 68, 69, 75, 80, 82(d) to 82(f) and 82(h) to 82(i) are struck out;

2. Within 28 days the defendant is required to answer the remaining interrogatories not abandoned by the plaintiff and the defendant is to verify the answers by affidavit;

3. The defendant’s motion is otherwise dismissed;

4. The parties have leave to re-list the matter to determine the question of costs of the motion in the event they are unable to agree upon those costs;

5. The exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ivers v State of NSW [2010] NSWDC 8
HEARING DATE(S):	10 December 2009, 5 February 2010
JUDGMENT DATE:	16 February 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Interrogatories numbered 5(e) to 5(f), 6(d) to 6(f), 12(d) to 12(i), 12(s) to 12(ii), 68, 69, 75, 80, 82(d) to 82(f) and 82(h) to 82(i) are struck out; 2. Within 28 days the defendant is required to answer the remaining interrogatories not abandoned by the plaintiff and the defendant is to verify the answers by affidavit; 3. The defendant’s motion is otherwise dismissed; 4. The parties have leave to re-list the matter to determine the question of costs of the motion in the event they are unable to agree upon those costs; 5. The exhibits may be returned.
CATCHWORDS:	PRACTICE AND PROCEDURE – Interrogatories – whether permitted – action for damages for wrongful arrest, false imprisonment and malicious prosecution following a discontinuation of the charge of murder against plaintiff – consideration of Uniform Civil Procedure Rules 2005 r 22.1 and r 22.2 – consideration of s 56 of Civil Procedure Act 2002 – consideration of public interest immunity in not requiring a police officer to answer certain interrogatories in context of an unresolved criminal investigation
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	Boyle v Downs [1979] 1 NSWLR 192 Kalgeracos v Bomba [2009] NSWSC 1271 Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70 Nowlan v Marsland Transport Pty Ltd [2001] NSWCA 346 O’Brien v Little [2007] NSWSC 64 Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101 Seidler v John Fairfax & Sons [19983] 2 NSWLR 390 Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; (1969) 123 CLR 514 Spedley Securities Ltd (In Liq) v Yuill & Ors (1991) ACSR 758 White v Overland [2001] FCA 1333 Yamazaki v Mustaca & Anor [1999] NSWSC 1083
PARTIES:	Colin John Ivers (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	5488 of 2008
COUNSEL:	Mr D Stewart (Plaintiff) Mr G Giagios (Defendant)
SOLICITORS:	Logical Legal Solicitors (Plaintiff) Crown Solicitor (Defendant)