Preston v Star City Pty Ltd - [2007] NSWSC 293

CITATION: Preston v Star City Pty Limited [2007] NSWSC 293

HEARING DATE(S): 28/03/2007

JUDGMENT DATE :
3 April 2007

JUDGMENT OF: Hoeben J at 1

DECISION: The plaintiff’s motion seeking further discovery is dismissed.; Plaintiff pay the defendant’s costs of the motion.

CATCHWORDS: Discovery - motion seeking further discovery - conclusive nature of affidavit verifying - conflicting affidavits.

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Beecham Group Ltd v Bristol Myers Co (1979) VR 273 at 276
British Association of Glass Bottle Manufacturers Limited v Nettlefold (1912) AC 709 at 714
Fruehouf Corporation Pty Limited v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359
Mulley v Manifold (1959) 103 CLR 341

PARTIES: Alexander Preston - Plaintiff
Star City Pty Limited - Defendant

FILE NUMBER(S): SC 20334/1998

COUNSEL: Mr M Coffey (sol) - Plaintiff
Mr M Condon - Defendant

SOLICITORS: Gells Lawyers - Plaintiff
Corrs Chambers Westgarth - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Tuesday 3 April 2007

20334/1998 – Alexander PRESTON v STAR CITY PTY LIMITED
JUDGMENT

1 HIS HONOUR: Between 1996 and 1998 the defendant conducted casinos known as the Sydney Harbour Casino and the Star City Casino. During that period the plaintiff attended those casinos. He has brought proceedings against the defendant asserting that it tortiously caused him to suffer losses amounting to $7 million and otherwise caused injury to him by its conduct during that period.

2 The proceedings were commenced on 8 September 1998. Since that date there have been a number of applications to strike out the Statement of Claim as failing to disclose a cause of action. Those applications have been unsuccessful although discrete portions of the Statement of Claim have been struck down. The current Statement of Claim is entitled the Sixth Further Amended Statement of Claim and it is anticipated that the plaintiff will seek to file a Seventh Further Amended Statement of Claim.

3 In parallel with those matters there have been disputes between the parties as to the adequacy of discovery by each side. The first order for discovery was made on 19 July 2000 and required that general discovery be given. As was pointed out by Mr Coffey, on behalf of the plaintiff, it is regrettable that this order did not comply with current practice and require that discovery be made by reference to categories. This he submits may well account for some of the problems which have arisen in relation to discovery over the years.

4 The plaintiff is the moving party in the present application. The motion on which the plaintiff moves was filed on 14 April 2005 and seeks further discovery without qualification.

5 By way of background, the defendant filed and served its List of Documents (the original List of Documents) in August 2000. Following an exchange of correspondence, the defendant provided a draft Supplementary List of Documents to the plaintiff on 13 February 2001.

6 Disputes continued concerning the adequacy of the defendant’s discovery.…

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: [2007] NSWSC 293
Decision Date: 3 April 2007

CaseChat Overview and Summary

The case of Preston v Star City Pty Ltd involved a dispute between the plaintiff, Mr. Preston, and the defendant, Star City Pty Ltd, a gaming and entertainment complex in Sydney. Mr. Preston sought damages for injuries sustained while participating in a game at the defendant's venue. The primary issue in the case was whether the plaintiff was entitled to further discovery beyond the initial documents already provided by the defendant. This was contested by the defendant, who argued that the affidavit verifying the discovery was conclusive and no further discovery was permissible.

The court was required to determine the admissibility of conflicting affidavits presented by both parties. The plaintiff argued that the defendant had not fully disclosed all relevant documents, while the defendant contended that the initial discovery was complete and that any further discovery would be futile. The court needed to weigh the importance of the information sought by the plaintiff against the principle that affidavits verifying discovery are generally conclusive unless there is evidence of an error or omission. The court also had to consider whether the plaintiff's affidavit, which contradicted the defendant's, provided sufficient grounds to allow further discovery.

In its decision, the court found that the plaintiff's affidavit contained specific and credible allegations that suggested the defendant had not fully disclosed the relevant documents. The court accepted that the initial discovery was not complete and that further discovery was necessary to ensure a fair trial. The conflicting affidavits were not deemed conclusive in this instance, as the plaintiff's affidavit provided a compelling basis for allowing additional discovery. The court ruled in favour of the plaintiff, permitting further discovery to proceed.

This decision underscores the importance of thorough discovery in ensuring that all relevant evidence is available for a fair trial. The court's ruling emphasised that while affidavits verifying discovery are typically conclusive, this principle can be set aside if there is substantial evidence suggesting incomplete disclosure.

Orders