Papadimitriou v Wright

[1989] TASSC 120

Serial No B42/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Papadimitriou v Wright [1989] TASSC 120; B42/1989

PARTIES:  PAPADIMITRIOU
  v
  WRIGHT

FILE NO:  773/1989
DELIVERED ON:  17 October 1989
JUDGMENT OF:  The Master

Judgment Number:  B42/1989
Number of paragraphs:  10

Serial No B42/1989
File No 773/1989

PAPADIMITRIOU v WRIGHT

REASONS FOR JUDGMENT  THE MASTER

17 October 1989

1. The plaintiff has filed an interlocutory application seeking an order that the defendant make, file and serve a list of documents verified by affidavit.

1. The action between the parties results from a motor collision between vehicles driven by them on 21 August 1987 at the intersection of Murray and Brisbane Streets, Hobart.

1. Order 33, r13(1) of the Rules of the Supreme Court provides for the mutual discovery by parties after the close of pleadings in an action. This provision is subject to O33 r13(3) which provides as follows:–

"(3)    Unless the Court otherwise orders, a defendant to an action arising out of an accident on land due to a collision or apprehended collision involving a vehicle shall not make discovery of any document to the plaintiff under sub–rule (1) of this rule."

1. Normally an affidavit is required to support an application under r13(3), but I was informed by counsel for the parties, without objection, of the following facts:–

1The defendant has admitted negligence for the collision, but alleges that the plaintiff was guilty of contributory negligence which remains in issue.

2The defendant's solicitors have had difficulty in locating the defendant. The Motor Accidents Insurance Board is the real defendant in the action. Under s17 of the Motor Accidents (Liabilities and Compensation) Act 1973, the Board is entitled to take control of the proceedings.

3Shortly after the collision the defendant made a written statement to the police which he signed and had endorsed upon it "not for release in civil proceedings" or words to that effect.

1. Mr Denehey of counsel for the defendant submitted that it is only in "special circumstances" that discovery should be ordered against a defendant in a motor collision case, and that there is nothing to prevent the plaintiff's solicitors interviewing the police officer who took the statement from the defendant and from obtaining its contents in that manner. It may be that the police officer would refuse to disclose the contents of the defendant's statement to the plaintiff's solicitors because of the endorsement made upon the statements. Such endorsements appear to be of relatively recent origin and in my view do not attach, by such a unilateral declaration, any legal privilege or immunity from disclosure.

1. Order 33, r13(3) is a provision designed to eliminate unnecessary expense and delay in motor vehicle collision actions as in many cases discovery is not relevant. But discovery may be necessary in some such actions for a fair trial and the determination of the real questions in issue between the parties. What is "necessary" for the purpose of discovery means what is reasonably necessary for disposing fairly of the case or matter or necessary in the interests of a fair trial. (See Boyle v Downs [1979] 1 NSWLR 192). The plaintiff is entitled to the discovery of and the benefit of the use of any statement, if he sees fit, which was made to the police by the defendant. Likewise the plaintiff should be placed in an equivalent position on any statement made by him to the police, whether endorsed or not.

1. I am satisfied that, if the defendant's statement is in his possession, or is in the hands of his solicitors, who are his agents, then the document in question should be discovered as I hold that it is likely to be relevant to the issue of contributory negligence between the parties.

1. The court has power to limit the expense and ambit of discovery. (See O33, r13(6)(a)). I order that the defendant make discovery on oath of a list of documents in accordance with Form 9 (O33, r16), but limited to the police statement which he made to the police shortly after the collision referred to in this action.

1. Counsel made brief submissions as to the requirement of a party to obtain documents which had never been in his power or possession, but which are relevant to the issues between them. Mr Pickard of counsel for the plaintiff referred to Palmdale Insurance Ltd. (in liquidation) v L Grollo & Co Pty Ltd [1987] VR 113, in which case Marks J. said that the court had power, when dealing with a commercial cause, to direct a party to take steps to obtain access to and discover documents, which that party has lodged with a public authority, where there is a real likelihood that it would be given access to the documents upon request, whereas Mr Denehey referred me to Theodore v Australian Postal Commission [1988] VR 272, in which case Murphy J. limited the obligation upon a party to discover documents which are not and never have been in his possession, custody or power.

1. If, after making the affidavit and list of documents, it appears that the police statement is not presently in the hands of the defendant, or his solicitors, and never has been, then I will hear counsel further on this aspect. As I have said it would be rather extraordinary in a Supreme Court action that the defendant's solicitors had not in preparation for trial obtained a copy of a statement made by the defendant to the police about the circumstances of the collision and as a result of which contributory negligence remains in issue.