Meredith v State of New South Wales (No.2)

[2024] NSWSC 1281

Supreme Court

New South Wales

Medium Neutral Citation:

Meredith v State of New South Wales (No.2) [2024] NSWSC 1281

Hearing dates:

12 September 2024

Date of orders:

12 September 2024

Decision date:

12 September 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Extend the time for the service of the statement of Detective Inspector Woods to 15 July 2024.

(2)   Dismiss the balance of the Notice of Motion.

(3)   Order the defendant to pay the plaintiff's costs of the Notice of Motion.

Catchwords:

CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Application by the defendant to extend time for service of statements – Where the defendant failed to comply with court orders regarding the service of evidence – Where the defendant provided inadequate explanation for the delay – Whether the dictates of justice warranted an extension of the time to serve the statements – Extension granted for statement by a key witness due to disadvantage and prejudice to the defendant if it was not permitted to rely on the statement – Motion otherwise dismissed.

Legislation Cited:

Civil Procedure Act 2005

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Raya Meredith (P)
State of New South Wales (D)

Representation:

Counsel:
K Nomchong SC / A H Edwards (P)
M Hutchings / C Langford (D)

Solicitors:
Slater & Gordon (P)
Makinson d’Apice (D)

File Number(s):

2022/214157

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. On 26 August 2024, the defendant filed a Notice of Motion seeking orders relevantly in the following terms:

“1. Pursuant to s 61 of the Civil Procedure Act 2005 (NSW), r 1.12 and/or r 31.4(3) of the Uniform Civil Procedure Rules 2005 (NSW), grant leave to the Defendant, to the extent necessary to rely on the following witness statements:

…

e. The statement of SC Alison Stewart served on 24 June 2024.

f. The statement of Det Insp Matthew Woods served on 5 July 2004 (plus attachment MDW17 to the statement, served on 15 July 2004).”

2. The statements are intended to be relied upon at the initial hearing of these representative proceedings presently fixed for 5 May 2025.

History of Evidence Orders

3. By way of history, I note that these proceedings were commenced in 2022 and have been judicially case managed since that time.

4. Orders were initially made on 5 May 2023 for the filing of evidence by both the plaintiff and the defendant. On 13 December 2023, the Court made an order pursuant to r 31.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”), that the defendant was to serve on the plaintiff written statements of the oral evidence of any witness to be relied upon at the hearing on or before 29 March 2004. That order had the effect of extending a previous deadline by about six weeks, to take account of the Court's long vacation.

5. The defendant complied in part with that order by serving three statements on 28 March 2004, being the statements of Senior Constable Danielle George, Senior Constable David Jarnet, and Sergeant Malcolm Kentwell.

6. Prior to the matter next coming back before the Court on 3 May 2024, the defendant served 11 additional statements, two of which were served on 5 April 2024 and nine of which were served on 2 May 2024, being the day before the next Court directions hearing.

7. On 3 May 2024, the defendant sought an extension of time within which to serve the balance of its witness statements. Any extension of any period at all was opposed by the plaintiff.

8. In evidence before the Court on that day was an affidavit sworn by Mr Nicholas Regener, the solicitor for the defendant, dated 2 May 2024 in which he said the following:

“7.   The defendant intends to serve a statement from Detective Inspector Matthew Woods who was the Forward Commander for the Drug Detection Operation at Splendour in the Grass 2018 (Splendour). That statement is near finalised and I estimate that it can be served by 17 May 2024. The preparation of this witness statement has been delayed due to difficulty in working around shifts, policing duties (including murder trials and organising and working at Byron Bay Blues Fest which occurred on 28 March to 1 April).”

9. He also said:

“8.   In the course of preparation of statements, it became apparent the State would need to adduce evidence from the female officers rostered to assist the drug dog operation. Some of those officers are still serving police officers and some are not. Contact details were not held for some officers. Nine statements have been served and up to seven further statements may be served. Of those, two are near finalised. The defendant seeks a further 6 weeks to complete service of these statements.”

10. Based upon that material, counsel sought an extension of time for the service of the balance of the evidence until 14 June 2024. In so doing, counsel said, of the statement of Detective Inspector Woods, that it was "relatively imminent in terms of its availability for service". The following exchange occurred between the Bench and Counsel:

“Q.    Now I need to understand, Mr Hutchings, before I call on Ms Nomchong the level of confidence the defendant has that it can serve those statements by the time sought.”

“A.   Your Honour, the level of confidence in relation to that is that each of those officers who are still serving have been contacted. Some conferences are still to take place. In relation to two of the list who are no longer attached to the New South Wales Police Force, their contact details have been obtained, communications have commenced. On that basis, your Honour, we foreshadow the date in June as being a comfortable margin within which to complete the task.”

11. Senior Counsel for the plaintiff submitted that there was really no adequate explanation for the failure to comply with the evidentiary orders at any time within the six months or so prior to that day. She expressed a degree of frustration on the part of the plaintiff that the defendant was conducting itself in a way which meant that the timely preparation for the hearing in May 2025 was being put at risk and that the plaintiff was fearful that statements would continue to be served, in effect by drip feed, without any real attention to timely compliance with the Court’s orders.

Evidence of Explanation for Delay

12. The evidence before this Court is that unsigned versions of the statements of Senior Constable Alison Stewart and Detective Inspector Woods were served by email at 1.32pm on 14 June 2024. It appears that the signed statement of Senior Constable Alison Stewart was served on 24 June 2024 in an identical form to that which had been served on 14 June 2024.

13. I should note that the service of these two unsigned statements was 32 minutes after the deadline for service expired. In the circumstances of this Motion, and the issues to be argued, I do not regard that extra 32 minutes as being of any significance.

14. The signed statement of Detective Inspector Matthew Woods was served on 5 July 2024. It was not entirely identical with the earlier unsigned statement because annexed to it were exhibits not previously made available, being MDW7 and MDW11. A third exhibit, MDW17, a video film of a briefing given by Detective Inspector Woods twelve months after the particular Splendour in the Grass festival in 2018, was served for the first time on 15 July 2024. However, it is fair to say that the substance of the narrative of Detective Inspector Woods' statement was in the hands of the plaintiff on 14 June 2024.

15. In seeking the orders, the defendant relies on the evidence of Ms Rachelle Harrington in an affidavit affirmed on 26 August 2024. Ms Harrington, in paragraph 29 of her affidavit, apologises to the Court for the delay in the serving of the statements and proffers that apology on behalf of both the defendant and the solicitor on the record. She identifies the circumstances surrounding the lateness of the statement of Senior Constable Stewart in this way:

“44.   I had previously arranged a conference with SC Stewart for the purpose of signing her witness statement on 14 April 2024. However I was unable to make contact with her at 9am as arranged.

45.   I then learned that SC Stewart was off duty from 10am. While it was unclear when she would return, as at 3 May 2024, I assumed that she would do so in time for her statement to be signed and served by 14 June 2024.

46.   That assumption proved to be incorrect. In the event, SC Stewart returned to duty on Wednesday, 19 June 2024. She signed her witness statement on the same day.

“47.   I caused the signed statement to be served on 24 June 2024, the following Tuesday. The delay between 19 and 24 June 2024 was due to a miscommunication between myself and my secretary.”

16. With respect to the statement of Detective Inspector Woods, Ms Harrington proffers this explanation in part:

“50.    In the lead up to the directions on 3 May 2024, there had been a delay in preparing the statement of Det Insp Woods. This was largely due to the need to work around shifts and other policing duties, including the witness' participation in other trials and his role organising policing operations at Bluesfest, Byron Bay.

51.    Regrettably, there was further, unexpected delay in finalising and signing the statement of Det Insp Woods...

…

57.    Between 3 May 2024 and 26 June 2024, I attempted to contact Det Insp Woods on several occasions without success.

58.    I was not then aware of the difficulties with the availability of this witness to finalise his statement. I have since been informed by Det. Insp. Woods, and believe, that he was:

a. on sick leave between 6 and 25 April 2024;

b. on annual leave from 25 April 2024 to 7 May 2024;

c. on annual leave from 13 June to 26 June 2024;

d. occupied by policing duties and unable to attend to his witness statement between 7 May 2024 and 13 June 2024.

59.    I made contact with Det Insp Woods shortly after his return to work on 26 June 2024, for the purpose of finalising his witness statement.

60.    By 4 July 2024, Det Insp Woods had signed his statement and supplied the marked-up documents that became attachments “MDW7” and “MDW11”.

61.    I arranged for service of his signed statement on 5 July 2024.”

Discernment

17. It is apparent from the material put before this Court that insofar as Senior Constable Stewart is concerned, from 14 April 2024 to 19 June 2024, no contact was made by the solicitors for the defendant with Senior Constable Stewart. The assurances given by the solicitor on the record and counsel to the Court on 13 May 2024 was, with respect to Senior Constable Stewart, based on an assumption, the foundation of which is unexplained, and apparently non‑existent.

18. Having regard to the relatively straightforward contents of the statement of Senior Constable Stewart, I do not find that the explanation could be regarded as at all satisfactory. Nothing seems to have been done between 14 April 2024 and 3 May 2024, a time when the statement was in its final form and ready for signing. And nothing further was then done prior to 19 June 2024.

19. With respect to Detective Inspector Woods, it is clear from the material to which I have referred that there was no basis at all for the assumption by Mr Regener in his evidence that the statement of Detective Inspector Woods would be signed and completed within two weeks. That was because, at the very least, for the previous four weeks Detective Inspector Woods had been on leave and had not been in attendance at work. As well, it is clear that no contact could have been made with him by the solicitors for the defendant.

20. It is also apparent from the evidence that between 7 May 2024 and 12 June 2024, Detective Inspector Woods was at work, capable of being contacted and was apparently engaged in policing duties. The remark that a senior police officer is engaged in policing duties, if I may say, is self-evident. Insofar as the same police officer is required to give evidence in support of the conduct of police in litigation such as this, that seems to me to be as much a part of his policing duties as anything else. His failure to attend to his statement simply indicates to me a lack of adequate prioritisation of his policing duties. Perhaps he does not regard an order of this Court to be as important as doing his job as a policeman. However, it is unnecessary for me to form any ultimate conclusion about that.

21. Section 56 of the Civil Procedure Act 2005 provides that in making orders and exercising the power given to the Court under the Act or the UCPR, the Court must seek to give effect to the overriding purpose which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

22. Section 58 of the Civil Procedure Act provides that in deciding whether to make any case management order or give a direction for the purposes of case management, including any order of a procedural nature, the Court "must seek to act in accordance with the dictates of justice". Section 58(2) of the Civil Procedure Act sets out matters to which regard may be had when determining what the dictates of justice in the particular case require. Included in that is the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities. It includes also "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction".

23. It follows that the Court needs to consider the degree of injustice that would be caused to a party if it declined to make any identified case management order.

24. I turn to consider the position with respect to Detective Inspector Woods first. Detective Inspector Woods was the Forward Commander of the Drug Detection Operation. According to the statement, which is intended to be relied upon and in respect to which leave is sought, his role included preparing operational orders for the drug dog operation, delivering briefings to the participating officers, preparing rosters of staff, assigning officers to different teams and assigning team leaders and as well supervising the drug dog detection operation as it was carried out by attending the festival site, moving between areas where the operation was being carried out and receiving reports from the various teams. He prepared a situation report at the conclusion of the music festival and conducted a debrief process with senior management of the relevant police district after the festival.

25. His statement at some length describes what he did with respect to each of those tasks, and what he observed when he visited the site, what procedures were in force and what procedures he expected.

26. He also attaches various relevant documents which are, on their face, relevant to what occurred at the festival. Whilst he was, what was called the Forward Commander, he was subject to the supervision of an event commander, Chief Inspector Gary Cowan. No statement has been served from Chief Inspector Cowan and it is not said that he is to be a witness in the proceedings.

27. Detective Inspector Woods is a central witness for the defendant. He is the most senior officer to be called and his evidence will form a substantial part of the defence of the defendant. That, of course, makes it all the more surprising that his statement was not prepared, signed and served in a timely manner, but, nevertheless, the centrality of his role as a witness is an important factor in the weighing up of the dictates of justice.

28. I have already noted the inadequacy of the explanation for the delay in the service of Detective Inspector Woods' statement. However, I note that it was served in unsigned form with some exceptions broadly within time. The plaintiff has since 14 June 2024 had knowledge of the contents of the statement of Detective Inspector Woods. I raise this only because the plaintiff has had time to formulate, if it were so, any specific prejudice which she has suffered by the service of the statement out of time. No such specific prejudice is advanced.

29. On the other hand, it is plain to me that the defendant would suffer significant disadvantage and prejudice if it was not permitted to rely on the statement of Detective Inspector Woods. In such circumstances, it might readily appear that leave ought be granted. However, the plaintiff points to what she describes as the complete failure of the defendant to comply over a lengthy period of time with the series of dates fixed for the service of statements, the lack of any real explanation that could justify the lateness of the service of the statements and the overwhelming sense that the defendant, in preparing its case, is proceeding in a way which simply meets its own convenience and in so doing treating with disdain the orders of the Court.

30. The plaintiff submits that the interests of the administration of justice are not served by continually granting indulgences to parties who or which fail to comply with Court orders and who or which do not give any adequate explanation for such non-compliance. The plaintiff has good grounds for the making of those submissions in this case. And the interests of the administration of justice in ensuring that parties comply with Court orders and, where they don't, that they provide a full and timely explanation is not to be under-emphasised. Complex cases such as representative proceedings require the allocation by both parties of adequate resources, both from lawyers and from other staff of the parties who assist in the preparation of a case to ensure that Court orders are complied with. Parties are not free to ignore Court orders because it does not suit them or to treat them as a guideline or some other concept which is less than their full effect. After all, proceedings for contempt can be taken where Court orders are not complied with.

31. In coming to a conclusion on these matters, I should not be taken to accept the proposition that parties can expect and will receive indulgences for continual failure to meet Court deadlines. However, I must assess the matter with respect to Detective Inspector Woods' statement by reference to the dictates of justice in this particular case, and I do so knowing that the first date for hearing is about seven months away or more.

32. In my view, such would be the injustice to the defendant, if it were not permitted to rely on Detective Inspector Woods' statement and his evidence that, in the absence of any specific prejudice to the plaintiff, I should exercise my discretion, taking all of the factors into account to which I have earlier referred, to extend the time for the service of the statement of Detective Inspector Woods and all of its annexures to 15 July 2024.

33. I come then to consider the application with respect to Senior Constable Alison Stewart and her statement. I have earlier pointed to, or drawn attention to, the explanation which is given in respect of the lateness of the service of Senior Constable Stewart's report. Her statement touches upon what she did as one of the officers in attendance at the Splendour in the Grass festival on 20 and 21 July 2018. It appears to me from her statement that she made some notes recorded in her notebook, and some entries in the Police Computerised System with respect to what it is she did at the festival. She says that by reference to those records she was involved in three specific searches, and only one of which was a strip search. Of that strip search she says that she conducted it in a particular way by asking the subject of the search to voluntarily surrender the drugs in her possession, which she says is what occurred. She also gives some evidence, only to a limited extent, about her conduct of strip searches generally.

34. In light of all of the other evidence in the defendant's case, it cannot be said that the statement of Senior Constable Stewart plays a central or important role as has been said in respect of a statement of Detective Inspector Woods. I do not identify any disadvantage or prejudice to the defendant from the absence of the statement of Senior Constable Stewart in the presentation of their case in due course.

17. Addressing the dictates of justice in the particular case of that proposed witness, and in the absence of any such disadvantage being identified, and prejudice being identified, and in the absence of any adequate explanation as to why it was that contact was not made with the Police Officer in a timely way to obtain her statement in a form which could be served in accordance with the Court deadline, it seems to me that there is a wholly inadequate basis upon which to grant leave extending the time within which that statement is to be served.

18. As a result, I am prepared, for the reasons which I have given, to extend the time for the service of the statement of Detective Inspector Woods to 15 July 2024, but I am not prepared to extend the time for the service of the statement of Senior Constable Alison Stewart to 24 June 2024 as requested.

19. The plaintiff seeks her costs of the hearing of this Motion regardless of the result because the necessity for the Motion arises from the failure of the defendant to comply with Court orders, and the need to obtain an indulgence from the Court with respect to its conduct.

20. In my view this is a correct summary of how this Motion came to be before the Court, and I accept the plaintiff's submissions that she should have the costs of the hearing of the Motion.

21. I should note, and I have made orders, in respect of part of the Motion by agreement between the parties, or else for the reasons which I have given.

Orders

40. I make the following orders:

1. Extend the time for the service of the statement of Detective Inspector Woods to 15 July 2024.

2. Dismiss the balance of the Notice of Motion.

3. Order the defendant to pay the plaintiff's costs of the Notice of Motion.

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Decision last updated: 15 October 2024