Lawrance v Pickles - [2005] NSWSC 718

CITATION:
Lawrance v Pickles [2005] NSWSC 718

HEARING DATE(S): 18/7/05

JUDGMENT DATE :

18 July 2005

JUDGMENT OF:
Bell J at 1

DECISION:
Dismiss the applicant's summons for preliminary discovery; It follows from that that it is not necessary to turn to the first defendant's motion to which I have referred. That motion is dismissed; Direct that the applicant is to pay the defendants' costs, as agreed or assessed

LEGISLATION CITED:
Disability Discrimination Act 1992
Sex Discrimination Act 1984
Supreme Court Rules 1970

CASES CITED:
Exley v Wyong Shire Council, unreported, 10 December 1976
Lawrance v The Guardianship Tribunal, CA 10 December 2004
Stewart v Miller (1979) 2 NSWLR 128

PARTIES:
Aroha Lawrance (Plaintiff)
Dr Margaret Pickles (1st Defendant)
Dr Rob McMurdo (2nd Defendant)
Andrea Taylor (3rd Defendant)
Fiona Stiff (4th Defendant)
Andrea Howard (5th Defendant)

FILE NUMBER(S):
SC 10420/05

COUNSEL:
In Person (Plaintiff)
G Curtin (1st Defendant)
M Windsor (2nd Defendant)
S McDonald (3rd and 5th Defendants)
In Person (4th Defendant)

SOLICITORS:
In Person (Plaintiff)
Ebsworth & Ebsworth (1st Defendant)
David Ian Brown, Solicitor (2nd Defendant)
Stuart J McDonald (3rd and 5th Defendants)
In Person (4th Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 18 July 2005

10420/05 Aroha Lawrance v Dr Margaret Pickles & Ors
JUDGMENT

1 HER HONOUR: The applicant commenced proceedings by summons filed on 8 February 2005. Her application was supported by an affidavit affirmed by her on that date.

2 Subsequently, by a document described as a statement of amendment filed on 16 March 2005, the applicant filed a further summons joining Andrea Howard as a fifth defendant, pursuant to leave granted by Greg James J.

3 By her summons filed on 16 March 2005 the applicant claims the following orders:

“1. An order that Dr Pickles attend before the Court and be orally examined as to the treatment she has provided to the plaintiff, and to produce all her medical records relating to the plaintiff.

2. An order that Dr McMurdo attend the Court and be examined as to his knowledge of the plaintiff’s medical history and the Frontline programme screen on the ABC on 11 December 1995, and to explain what he was referring to in his February 2004 correspondence to the plaintiff about Grace Bros and photographs. Further that he be examined upon the current medical treatment being administered to the plaintiff without her consent.

3. An order that Andrea Taylor attend the Court and be orally examined as to her knowledge of, and any involvement in medical treatment being administered to the plaintiff at any time; and her knowledge of, and, again where relevant, her involvement in, any related activity in relation to the plaintiff; and her knowledge of what it is that Peter Palmer has ever done in relation to the plaintiff that has been the subject of discussion or concern; and her email activity in relation to the plaintiff; and that she produce all email and other documents…

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.

Continue reading Lawrance v Pickles

Details

AGLC: Lawrance v Pickles [2005] NSWSC 718
Case: [2005] NSWSC 718
Decision Date: 18 July 2005

CaseChat Overview and Summary

Aroha Lawrance brought a summons for preliminary discovery against Dr Margaret Pickles, Dr Rob McMurdo, Andrea Taylor, Fiona Stiff and Andrea Howard, seeking orders that the defendants attend and be orally examined on various matters and produce documents in their possession relating to the plaintiff. The summons was filed pursuant to Part 3 rule 1 of the Supreme Court Rules 1970. The plaintiff claimed that she had been administered medical treatment without her consent and alleged discrimination under the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. The defendants opposed the summons and the first defendant filed a motion to dismiss the proceedings. Bell J found that the plaintiff had not made out a case for relief on the basis of her affidavits and the evidence before the court. The plaintiff's belief that she had been administered non-consensual medical treatment was not supported by any evidence. Bell J dismissed the plaintiff's summons for preliminary discovery and the first defendant's motion to dismiss the proceedings, and ordered that the plaintiff pay the defendants' costs.

The key legal issue was whether the plaintiff had established that she had any prospect of successfully bringing a cause of action against any of the defendants based on the material led in support of the application. Bell J found that the plaintiff had not made out a case for relief on the basis of her affidavits and the evidence before the court. The plaintiff's belief that she had been administered non-consensual medical treatment was not supported by any evidence. The court held that preliminary discovery was not appropriate in this case as it would be an instrument of oppression if it became a procedure in aid of speculative claims. The plaintiff's summons and the first defendant's motion were dismissed and the plaintiff was ordered to pay the defendants' costs.

Orders