Priest v State of New South Wales

[2006] NSWSC 12

CITATION:	Priest v State of New South Wales [2006] NSWSC 12
HEARING DATE(S):	23 June 2005
JUDGMENT DATE :	31 January 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	See paragraphs 167 - 170 inclusive of judgment.
CATCHWORDS:	PRACTICE AND PROCEDURE - Claim for damages in negligence against State of New South Wales by former police officer - psychiatric injury resulting from alleged victimisation and harassment of Plaintiff by senior police officers - application by State to strike out statement of claim on pleading grounds - application by State to set aside Plaintiff's requisition for trial by jury - relevance of pre-trial media publicity favourable to Plaintiff and unfavourable to NSW Police on application to dispense with jury - application by Plaintiff for discovery
LEGISLATION CITED:	Supreme Court Act 1970 Civil Procedure Act 2005 Police Act 1990 Occupational Health and Safety Act 2000 Bill of Rights 1688 (Imp) Imperial Acts Application Act 1969 (NSW) Courts Legislation Amendment (Civil Juries) Act 2001 Criminal Procedure Act 1986 Limitation Act 1969 Uniform Civil Procedure Rules
CASES CITED:	Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 Gunns Ltd v Marr [2005] VSC 251 Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276) Hall v Nominal Defendant (1966) 117 CLR 423 Licul v Corney (1976) 180 CLR 213 Goldsmith v Sandilands (2002) 190 ALR 370 Williams v Milotin (1957) 97 CLR 465 Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 State of New South Wales v Paige (2002) 60 NSWLR 371 O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 Water Board v Moustakas (1988) 180 CLR 491 Enever v The King (1906) 3 CLR 969 Attorney-General for NSW v Perpetual Trustee Company Limited (1954) 92 CLR 113 Koehler v Cerebos (Aust) Limited (2005) 214 ALR 355; [2005] HCA 15 State of New South Wales v Seedsman (2000) 217 ALR 583 Wheadon v State of New South Wales (District Court of New South Wales, Cooper DCJ, 2 February 2001) Hollis v Vabu Pty Limited (2001) 207 CLR 21 Chate v Commissioner of Police (1997) 76 IR 70 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Mannall v State of New South Wales [2001] NSWCA 327 State of New South Wales v Mannall [2005] NSWCA 367 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 Tame v New South Wales [2002] 211 CLR 317 Webster v Lampard (1993) 177 CLR 598 Robinson v Woolworths Ltd [2005] NSWCA 426 Uren v John Fairfax and Sons Ltd (1979) 2 NSWLR 287 Mundey v Askin (1982) 2 NSWLR 369 R v Jackson (1987) 8 NSWLR 116 Della Bosca v Arena [1999] NSWSC 1057 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Combined Excavations and Supplies v Bowis [2000] NSWCA 298 Webb v South Eastern Sydney Area Health Service [2003] NSWSC 329 Commonwealth of Australia v Cook (Court of Appeal, 11 November 1994, BC9403513) Swain v Waverley Municipal Council (2005) 220 CLR 517 Moran v Moran [1999] NSWSC 977 The Queen v Glennon (1992) 173 CLR 592 R v Yuill (1993) 69 A Crim R 450 Germain v Cordina Chicken Farms Pty Limited [2002] NSWCA 56 Sharp v Guinery (NSW Supreme Court, Ireland J, 13 February 1998) Cooper v Smee (NSW Supreme Court, Bell J, 6 February 2000) R v Yildiz [2002] ACTSC 41 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 Muir v Council of Trinity Grammar School [2005] NSWSC 555 Haywood v Collaroy Services Beach Club Limited [2003] NSWSC 43 B v Gould (1993) 67 A Crim R 297 Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 Binks v North Sydney Council [2001] NSWSC 27 Percy v General Motors Holden Pty Limited (1975) 1 NSWLR 289 Mulley v Manifold (1959) 103 CLR 341 National Australia Bank Limited v Idoport Pty Limited [2000] NSWCA 8 Economos v Bowlers Club [2000] NSWSC 1065 Falk v Finlay [1999] NSWSC 1284 Hamilton v Oades (1988-1989) 166 CLR 486 Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90 Lucas Industries Limited v Hewitt (1978) 18 ALR 555 Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 Southern Pacific Hotels Services Inc v Southern Pacific Hotel Corporation Limited (1984) 1 NSWLR 710
PARTIES:	Michael Patrick Timothy Priest (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 20927/01
COUNSEL:	Mr P Semmler QC; Ms K Nomchong (Plaintiff) Mr J Maconachie QC; Mr P Sternberg (Defendant)
SOLICITORS:	Marsdens Law Group (Plaintiff) IV Knight - Crown Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Johnson J

31 January 2006

20927/01 Michael Patrick Timothy Priest v State of New South Wales

JUDGMENT

1 JOHNSON J: The Plaintiff, Michael Patrick Timothy Priest, served as a New South Wales police officer from May 1983 to August 2002 (excluding a period between June 1991 and October 1994). He has sued the Defendant, the State of New South Wales, seeking damages in negligence and for breach of contract. In broad terms, it is alleged that the Defendant breached its duty of care to the Plaintiff and breached its contract of employment with the Plaintiff by way of acts and omissions occurring from November 1998 surrounding the Plaintiff’s service as a police officer at Cabramatta Police Station, thereby causing psychiatric injury to the Plaintiff.

Three Notices of Motion

2 There are three Notices of Motion before the Court:

(a) a Notice of Motion by the Defendant seeking to strike out, on pleading grounds, the Second Amended Statement of Claim filed on 13 February 2004 (“SASC”) pursuant to Part 15 r 26 Supreme Court Rules (“SCR”) (see now Part 14.28 Uniform Civil Procedure Rules (“UCPR”));

(b) a Notice of Motion by the Defendant seeking an order, in effect, under s.89(1) Supreme Court Act 1970 (as it stood prior to amendment in 2001) that the Plaintiff’s requisition for trial with a jury dated 14 April 2004 be set aside;

(c) a Notice of Motion by the Plaintiff seeking an order for discovery against the Defendant pursuant to Part 23 r 3 and 5 SCR (see now Part 21.2, 21.8 UCPR).

3 At the invitation of the parties, and with the intention of advancing the interlocutory stages of the litigation as far as possible, I heard evidence and argument with respect to the three motions at the one hearing. Mr Maconachie QC, for the Defendant, stressed that the strike-out application required initial determination. He submitted that, until the pleadings were in proper form, any application for discovery could not be determined and the application to set aside the requisition for trial by jury could not be concluded. Mr Semmler QC, for the Plaintiff, submitted that the Court should, if possible, determine all three applications. As will be seen, I have been able to determine the three applications.

4 The hearing of the motions took place before the commencement of the Civil Procedure Act 2005 (“CP Act”) and the UCPR. No material change has been made by those statutory reforms to the provisions which are relevant to this case. I will refer to the previous provisions and equivalent provisions under the CP Act and UCPR, where appropriate.

The Defendant’s Strike-Out Application

5 On the strike-out application, the Defendant read the affidavit of Zarina Dara Braybrooke, affirmed on 12 July 2004. The Plaintiff read the affidavits of Elyse White sworn on 5 November 2003 and 11 May 2005. Neither deponent was required for cross-examination.

6 The Plaintiff’s claim arises out of his service as a police officer at Cabramatta Police Station to which he was transferred in March 1997. Thereafter, events occurred with respect to policing in the Cabramatta area which, on the evidence before me, have attracted considerable public attention. The topic, including the role of the Plaintiff, has been the subject of parliamentary inquiry in New South Wales - Report 8 of the General Purpose Standing Committee No. 3 of the New South Wales Legislative Council entitled “Cabramatta Policing” (July 2001); Report 13 of the Standing Committee on Parliamentary Privilege and Ethics of the New South Wales Legislative Council entitled “Possible Intimidation of Witnesses Before General Purpose Standing Committee No. 3 and Unauthorised Disclosure of Committee Evidence” (November 2001) and Report 12 of General Purpose Standing Committee No. 3 of the New South Wales Legislative Council entitled “Review of Inquiry into Cabramatta Policing” (September 2002). The Plaintiff seeks to rely upon parts of the proceedings before the Standing Committee and the reports of the two Committees on these applications. An issue has arisen concerning parliamentary privilege in this context, to which I will return later in this judgment.

7 The original Statement of Claim was filed on 22 November 2001. Following the provision of Further and Better Particulars, a Notice of Grounds of Defence was filed by the Defendant on 28 March 2003.

8 An Amended Statement of Claim was filed on 22 July 2003 pursuant to leave granted to the Plaintiff by the Court on 10 July 2003. Following a request from the Defendant, further particulars were provided by the Plaintiff on 21 August 2003.

9 On 7 November 2003, the Plaintiff filed a Notice of Motion seeking leave to file a Second Amended Statement of Claim.

10 On 11 December 2003, the Defendant filed a Notice of Motion seeking orders, inter alia, that the Amended Statement of Claim, or parts thereof, be struck out pursuant to Part 15 r 26 SCR. That Notice of Motion was listed for hearing on 5 February 2004, as was the Plaintiff’s motion for leave to file a Second Amended Statement of Claim.

11 According to the affidavit of Ms White sworn on 11 May 2005 (paragraphs 11-16), Mr Semmler QC appeared on 5 February 2004 for the Plaintiff. Mr Sternberg of Counsel appeared for the Defendant. Following discussions between Counsel for the parties, agreement was reached as to various amendments to be made to the Amended Statement of Claim. By consent, the following orders were made by Registrar Howe:

(a) the Second Amended Statement of Claim to be filed within 14 days;

(b) any Amended Defence to be filed within 28 days;

(c) each motion was dismissed with no order as to costs.

12 In accordance with these orders, the Plaintiff filed the SASC on 13 February 2004. It is that pleading which is the subject of the present strike-out application.

Contents of the SASC

13 It is appropriate to refer in a little detail to the contents of the SASC. For the purpose of the negligence claim, the duty of care said to be owed by the Defendant to the Plaintiff is pleaded in the following way (paragraphs 6-9A SASC):

“6. At all material times, the Defendant owed to the Plaintiff a duty of care to provide a safe system of work, which included a duty to take all reasonable steps to protect the Plaintiff against the risk of physical, mental or psychiatric injury.

7. As part of its abovementioned duty of care to the Plaintiff, the Defendant owed to the Plaintiff a duty to take all reasonable steps to keep confidential any and all information which might identify the Plaintiff as a person who undertook investigations into the activities of other police officers and to keep such information confidential from the officers about whom information was obtained by the Plaintiff.

8. The Plaintiff was, during the course of his employment with the Police Service, required to follow the orders and directions of superior officers in the Police Service. Therefore, as part of the abovementioned duty of care to the Plaintiff, the Defendant owed a duty to the Plaintiff to ensure that any and all such orders and directions were reasonable in the circumstances and took into account the physical, mental and emotional well-being of the Plaintiff.

9. The Defendant was at all material times under a duty to the Plaintiff to take reasonable care for his safety by exercising proper control and authority over those officers under its care and control who supervised or worked with the Plaintiff.

9A. By reason of stressful events occurring in the course of his duty, prior to 1999, the Plaintiff was vulnerable to further stressors in the course of his employment with the Defendant.”

14 It will be noted that, although paragraph 9A of the SASC alleges that the Plaintiff was vulnerable to further stressors by reason of events which occurred prior to 1999, it is not pleaded that the Defendant knew or ought to have known of the Plaintiff’s alleged vulnerability.

15 Thereafter, the SASC contains a narrative, which is not described as particulars, outlining alleged events concerning the Plaintiff’s service as a police officer between June 1984 and July 1991 (paragraphs 10-22, SASC). Reference is then made to events commencing in March 1997 with the transfer of the Plaintiff to Cabramatta Police Station and ending with reference to events in December 2001 when the Plaintiff was seconded as an advisor to the New South Wales Minister for Police (paragraphs 23-64, SASC). The matters alleged include the following:

(a) the Plaintiff was disciplined by a senior officer in or about June 1999 for failing to obey a command not to make drug-related arrests (paragraph 30);

(b) following a complaint by the Plaintiff to the NSW Crime Commission in July 1999, he was harassed and victimised by or at the request of senior officers in a number of ways (paragraphs 31-32);

(c) the Plaintiff assisted another police officer to complain to the Police Integrity Commission in or about November 1999 concerning a senior officer - the Plaintiff’s assistance became known at the Cabramatta Police Station and he was isolated, ridiculed and became the subject of further complaints as a result (paragraphs 35-39);

(d) in or about February-March 2000, the Plaintiff was involved in a murder investigation at Cabramatta - the Plaintiff complained about the refusal of a senior officer to allow overtime to enable proper investigation of the murder - thereafter the Plaintiff was transferred in April 2000 to perform general duties as a uniformed officer at Campbelltown Police Station (paragraphs 51-53).

16 The Plaintiff alleges breach of duty at paragraph 65 of the SASC:

“The Plaintiff claims that from November 1998, the Defendant, by its servants or agents, breached the duty of care it owed to the Plaintiff and that from September 1999 he suffered injury and damage in consequence.
Particulars of Breach of Duty of Care

(a) Failure to provide a safe work environment;

(b) Failure to properly resource and staff Cabramatta Police Station during the period during which the Plaintiff was assigned at that station;

(c) Failure to develop and implement systems of work which ensured that the Plaintiff was not exposed to harassment, victimisation or inappropriate treatment;

(d) Failure to develop and implement a system whereby the Plaintiff was protected and kept free from victimisation and harassment as a result of the fact that he made complaints to the Police Integrity Commission and others;

(e) Failure to take any or any adequate steps to prevent victimisation or harassment of the Plaintiff when it became apparent that such victimisation was occurring;

(f) Failure to provide any or any adequate training in relation to the making of complaints about corrupt activity within the NSW Police Service;

(g) Failure to provide any or any adequate counselling to the Plaintiff at the time when he instituted complaints to the NSW Crime Commission and to the Police Integrity Commission;

(h) Failure to provide any or any adequate counselling to the Plaintiff at any time after he instituted complaints to the NSW Crime Commission and to the Police Integrity Commission;

(i) Failure to provide any trauma debriefing, trauma counselling in respect of involvement in policing and investigations into violent crime;

(j) Failure to adequately supervise and monitor senior members of the Police Service in respect of their treatment of the Plaintiff;

(k) Failure to supervise and monitor officers at Cabramatta Police Station to ensure that the Plaintiff was kept free from victimisation and harassment;

(l) Failure to prevent the disclosure of the Plaintiff’s identity as the person who made a complaint to the Police Integrity Commission;

(m) Failure to take any preventative steps to protect the Plaintiff once the disclosure had been made that the Plaintiff had made a complaint to the Police Integrity Commission;

(n) Failure to provide any rehabilitation training to the Plaintiff after the Parliamentary Inquiry had completed;

(o) Failure to take any or any adequate steps so as to prevent information concerning the Plaintiff’s identity to be revealed during the course of the PIC investigation;

(p) Failure to provide any or any adequate counselling, psychiatric assistance, debriefing or other such assistance to the Plaintiff, from September 1999 onward, during the course of his employment;

(q) Failure to provide any or any adequate ongoing vocational guidance, counselling, therapy, debriefing or other such assistance to the Plaintiff following his last day of active service in the Police Service and prior to his medical retirement in 2002;

(r) Failure to take any or any adequate measures to ensure that the Plaintiff was placed in positions within the Police Service which would minimise the risk of any further physical or psychiatric injury;

(s) Failure to take any or any adequate measures to prevent the Plaintiff from being supervised by any person who was named by the Plaintiff in his complaints to the PIC and the NSW Crime Commission;

(t) Transferring the Plaintiff to Campbelltown Police Station in a uniformed position in April 2000;

(u) Failure to ensure that the Plaintiff’s prospects of promotion were not hindered and were not seen to be hindered by his involvement in the charges against senior members of the Police Service;

(v) Failure to take reasonable steps to ensure that the Plaintiff was not subjected to unnecessary stress, fear and concern for his future in the NSW Police Service by reason of the proper discharge of his duties;

(w) Failure to take reasonable steps to reduce or eliminate the stress, fear and concern for the Plaintiff's future in the NSW Police Service by reason of the proper discharge of his duties.”

17 The Plaintiff’s claim for breach of contract is pleaded in the following way (paragraphs 66-68, SASC):

“66. At all material times the Plaintiff was employed under a contract of employment by the Defendant. It was an implied term of that contract that the Defendant take all reasonable steps to ensure the safety of the Plaintiff during the course of his employment.

67. It was also an implied term of that contract that the Defendant ensure that the duty of care that it had in respect of the Plaintiff and enunciated in paragraphs 6, 7, 8 and 9 herein was not breached.

68. The Defendant breached the terms of its contract with the Plaintiff.”

The Plaintiff repeats the particulars provided in support of the alleged breach of duty of care as particulars of breach of contract in paragraph 68 of the SASC.

18 At the hearing before me, the Plaintiff did not press his claim for breach of statutory duty contained in paragraphs 69-71 of the SASC. Accordingly, that claim may be put to one side.

19 In paragraph 72 of the SASC, the Plaintiff alleges that, as a result of the breach of duty and/or breach of contract by the Defendant, its servants or agents, he has suffered since September 1999 and will continue to suffer injury, loss and damage. Particulars of injuries, disabilities, economic loss and out-of-pocket expenses are provided in paragraph 72.

20 In paragraph 73 of the SASC, the Plaintiff claims that the Defendant, by its servants or agents, acted in contumelious disregard of his rights and welfare and, in consequence, a claim is made for exemplary damages. It is alleged further that the injuries sustained by the Plaintiff were exacerbated by the manner in which the torts were committed and in consequence the Plaintiff claims aggravated damages. The Plaintiff claims compensatory damages, exemplary and aggravated damages, interest and costs (paragraph 74, SASC).

The Amended Defence and Subsequent Events

21 The Defendant filed an Amended Notice of Grounds of Defence (“Amended Defence”) on 1 April 2004. In the Amended Defence, the Defendant admitted the allegations contained in paragraphs 1, 3, 4, 5, 6, 8, 9. 22, 27, 31, 50, 54, 55, 62, 64, 69 and 70 of the SASC. Further, the Defendant made qualified or partial admissions with respect to the allegations contained in paragraphs 14, 19, 23, 24, 30, 37, 40, 48, 51, 52, 53, 56, 58, 63 and 66 of the SASC. Denials were made concerning other matters alleged in the SASC.

22 On 14 April 2004, the Plaintiff filed a requisition for trial with a jury for the purpose of s.86 Supreme Court Act 1970 and paid the appropriate fee.

23 On 30 April 2004, the Defendant was served with the Plaintiff’s Notice of Motion seeking an order for particular discovery.

24 On 28 May 2004, the Defendant’s solicitor wrote to the Plaintiff’s solicitor indicating that Mr Maconachie QC had been briefed recently for the Defendant and that discussions were ensuing between Mr Maconachie QC and Mr Semmler QC concerning interlocutory issues.

25 On 2 June 2004, the Defendant’s solicitor furnished the Plaintiff’s solicitor with a document prepared by Mr Maconachie QC which raised certain issues concerning the SASC and discovery. It is appropriate to set out that part of the document prepared by senior counsel for the Defendant which sought clarification concerning the causes of action pleaded in the SASC:

“ Statement of the plaintiff’s case - the manner in which the procedural steps have been taken thus far requires a clear analysis and expression of the plaintiff’s case
1. The plaintiff’s case is founded on three causes of action expressed to be:

(i) breach of contract paragraphs 66 to 68, both inclusive, of the Second Amended Statement of Claim - the breaches of contract relied upon by the plaintiff are co-extensive with the particulars of negligence set out in paragraph 65 of the Second Amended Statement of Claim - incorrectly identified as paragraph 67 in the particulars of breach of contract on page 13 of the Second Amended Statement of Claim);

(ii) breach of statutory duty founded upon s.15 of the 1983 Act and s.8 of the 2000 Act (paragraphs 69 to 71, both inclusive - the breaches of statutory duty relied on are co-extensive with the particulars of negligence as set out in paragraph 65 of the Second Amended Statement of Claim - wrongly identified as paragraph 67);

(iii) failure to take reasonable care for the safety of an employee or, in the alternative, breach of a duty of equivalent content (paragraph 65 of the Second Amended Statement of Claim);
2. With respect to 1(iii) above:

(a) paragraphs 5 to 9, both inclusive, of the Second Amended Statement of Claim express the duty of care alleged to be owed by the defendant to the plaintiff, whether it be a duty arising from an employment relationship strictly so called or a relationship in which the duty owed was of an equivalent content;

(b) paragraph 9A of the Second Amended Statement of Claim asserts a vulnerability or predisposition in the plaintiff to stressors;

(c) the defendant infers that it is intended to be alleged that the defendant knew, or alternatively ought to have known, of the vulnerability or predisposition to psychiatric, psychological or emotional harm and the causes thereof;

(d) paragraph 10 to 29, both inclusive, do not plead causative breaches of any duty owed by the defendant to the plaintiff but particularise the predisposition of the plaintiff referred to in (ii) above, and facts upon which the plaintiff will rely to assert that the defendant knew, or ought to have known, of that predisposition;

(e) the events, matters and things set forth in paragraphs 30 to 64 of the Second Amended Statement of Claim are specific matters of particularisation of the allegation in paragraph 65 that the duty of care alleged to be owed by the defendant to the plaintiff was breached and are specific incidents with the categories of particulars given in paragraph 65 of the Second Amended Statement of Claim;

(f) the breaches of duty (and, by reference, the breaches of contract and breaches of statutory duty relied upon) are 23 omissions said to amount to a failure to provide a safe working environment by:

(i) not properly resourcing and staffing Cabramatta LAC - (b);

(ii) failing to prevent harassment, victimisation and improper treatment of the plaintiff, including not keeping his identity secret in respect of complaints made by him to the Police Commissioner, the Police Integrity Commission and the NSW Crime Commission - (c), (d), (e), (j), (k), (m), (r), (s);

(iii) not training or counselling the plaintiff with respect to complaints, especially after he made complaints about various superiors to the Police Integrity Commission, the NSW Crime Commission and the Police Commissioner - (f), (g), (h), (l), (p), (o);

(iv) not providing trauma support before or after involvement in violent crime - (i);

(v) failing to protect the plaintiff’s promotion prospects, and emotional harm to the plaintiff consequent upon such failure - (u), (v), (w);

(vi) failing to provide rehabilitation and/or vocational and/or psychological support after September 1999 including the period between the last active service of the plaintiff and his medical retirement - (m), (q);
3. That the cause of action for breach of a common law duty of care, and the sixfold categorisation of the alleged breaches of it outlined immediately above, is the plaintiff’s ‘negligence’ case has been deduced by the defendant from paragraphs 5 to 9, both inclusive, and paragraph 65 of the Second Amended Statement of Claim and the allegation in paragraph 72 thereof which is common to all three causes of action.
…”.

26 By letter dated 5 July 2004, the Plaintiff’s solicitors responded to the letter of 2 June 2004. Although issue was taken concerning some of the Defendant’s criticisms of the SASC, it was not suggested that Mr Maconachie QC’s analysis of the Plaintiff’s negligence claim was erroneous.

27 On 8 July 2004, the Defendant filed a Notice of Motion to strike out the SASC. That is the application which presently falls for determination.

28 Mr Maconachie QC emphasised that the present application is a strike-out application relating to the pleadings and not a summary dismissal application. The Defendant’s strike-out application was brought pursuant to Part 15 r 26 SCR (see now Part 14.28 UCPR) with no reliance being placed upon the summary dismissal provision in Part 13 r 5 SCR (see now s.67 CP Act and Part 13.4 UCPR).

Some Relevant Legal Principles

29 Part 15 r 26 SCR provided as follows:

“ Embarrassment, etc
26(1) Where a pleading -

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”

30 The function of pleadings should be kept in mind in considering the strike-out application: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at paragraphs 47-53.

31 The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and to define the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance: Banque Commerciale at 296.

32 For a statement of claim to comply with the rules of court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Part 15 r 7 SCR (see now Part 14.7 UCPR). In doing so, the pleadings should be as brief as the nature of the case admits: Part 15 r 8 SCR (see now Part 14.8 UCPR).

33 Pleadings also provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at paragraphs 100-103.

34 A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: Gunns Ltd v Marr [2005] VSC 251 at paragraphs 14-15.

35 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393, Tamberlin J explained the concept of “embarrassment” with respect to pleadings at paragraph 18:

‘ ’’Embarrassment’ in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.”

36 A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at pages 5-6).

Relevance of Defendant’s Consent to Filing of SASC

37 The Plaintiff submits:

(a) that the Defendant consented on 5 February 2004 to an order permitting the SASC to be filed;

(b) having taken that course, the Defendant is estopped from pressing a strike-out application;

(c) that the Court should not countenance the Defendant adopting these inconsistent positions, in particular where the Defendant was able to plead in response to the SASC in its Amended Defence filed on 1 April 2004.

38 The Plaintiff submits that the Defendant’s actions suggest that at least one of the purposes of pleadings has been satisfied in that the Defendant was able to comprehend and respond to the allegations contained in the SASC. As a result, the Plaintiff has obtained a series of admissions and qualified or partial admissions to the SASC upon which the Plaintiff is entitled to rely. In essence, the Plaintiff submits that the Defendant ought not be permitted to turn the clock back by advancing the present strike-out application.

39 Mr Maconachie QC submits that it is wrong to invoke principles of estoppel in connection with an interlocutory step such as this. A strike-out application may be brought again, the Defendant submits, if there is new material or changed circumstances. The Defendant submits that the present case satisfies that test given the following two events which occurred after the making of the consent orders on 5 February 2004:

(a) the Plaintiff filed a requisition for trial by jury;

(b) Mr Maconachie QC was briefed to appear as senior counsel for the Defendant and his advice proposed a different course to that which had been taken up to that time.

40 Mr Maconachie QC submitted that, irrespective of the conduct of the Defendant, the Court had an interest in the pleadings being in proper form to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Part 1 r 13 SCR (see now s.56 CP Act). He submitted that the stance taken by the parties should not stand in the way of the Court ensuring that the pleadings were in proper form.

41 It is clear that an application to amend a pleading and an application to strike out a pleading are interlocutory in nature: Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440. Successive applications for interlocutory orders may be made, although a later application ought be supported by additional relevant facts: Hall v Nominal Defendant at 440-441; Licul v Corney (1976) 180 CLR 213 at 225. Accordingly, the Defendant is not estopped from bringing the present application.

42 I do not consider that the filing of the SASC by consent should operate to shut out the Defendant from making the present strike-out application. The filing by the Plaintiff of a requisition for trial by jury is a relevant event which occurred after the consent orders were made. The prospect of a jury trial is a matter which calls for precision in pleading to minimise the prospect of disruption to the trial once it has commenced. If the pleadings are defective and do not comply with the rules in the manner alleged by the Defendant, it is open to the Court to take steps to remedy that position. However, I will have regard to the fact that consent orders were made and an Amended Defence filed in response to the SASC in considering the question whether the SASC is deficient in the manner alleged by the Defendant. The ultimate question is whether the pleadings comply with the Rules so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Defendant’s Submissions

43 In support of the strike-out application, Mr Maconachie QC took as his starting point the statement of Gleeson CJ in Goldsmith v Sandilands (2002) 190 ALR 370 at 371 (paragraph 2) to the following effect:

“The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but ‘to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial’: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-3. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings.”

44 Reference was made to Williams v Milotin (1957) 97 CLR 465 at 474 where Dixon CJ, McTiernan, Williams, Webb and Kitto JJ said:

“When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the special or particular damage — it is the gist of the action — and the want of due care.”

45 Mr Maconachie QC referred to statements of Gleeson CJ in Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 at 553-4 (paragraphs 6-7) concerning limits upon justiciability of issues concerning the reasonableness of government action or inaction and, in this context, the reasonableness of governmental spending priorities. He referred also to statements of Spigelman CJ in State of New South Wales v Paige (2002) 60 NSWLR 371 at 387-8 (paragraph 78) concerning the “novel category of duty” advanced in that case. Reference was also made to O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 at paragraph 23 where the Chief Justice emphasised the need to recognise the distinction between certain duties which arise in an employer/employee context (such as an obligation to accord natural justice or of fair dealing) and a duty of care for the purposes of the law of negligence.

46 Mr Maconachie QC submitted that there were, within the structure of the law, measures for redressing alleged wrongs within the New South Wales Police by means of disciplinary action and other procedures including complaints to the Police Integrity Commission. It was said that the existence of such procedures ought be borne in mind when the causes of action contained in the SASC are considered. Mr Maconachie QC submitted that, unless and until that which the Plaintiff complains of in the broad and generic sense in the SASC is properly structured and identified in accordance with the rules of Court, identification of where the line is to be drawn in terms of what is justiciable and what is not justiciable cannot be considered (Transcript, 23 June 2005, page 45.10). It was submitted that the SASC contains “a discursive narrative which with respect jumbles together a whole lot of things with no particular structure” and accordingly offended Part 15 r 6 and r 7 and Part 15A r 1 SCR.

47 The Defendant submitted that paragraph 9A of the SASC was incomplete as it failed to allege facts which give rise to the issue of reasonable foreseeability. The complaint is made that paragraph 9A contains no assertion that the Defendant knew or ought to have known that the Plaintiff was vulnerable to further stressors.

48 It is then submitted that paragraphs 10-64 of the SASC pleads a “narrative of evidentiary and unessential facts” and not material facts. It was submitted that this amounted to, in essence, “interrogation by pleading” (Transcript, 23 June 2005, page 47.5). Mr Maconachie QC sought to illustrate his submission by reference to paragraphs 58 and 60 of SASC. He referred to Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 at 293 where Barwick CJ said:

“Further, in all these essential respects the plaintiff can only be allowed to succeed according to the case which has been alleged as well as proved: the breach of duty must be specifically alleged as well as proved. The generality of assertion accepted in the common law form of pleading ought not be acceptable. Specific and limiting particulars of the breach of duty should be insisted upon: and the evidence kept within the confines of the particulars.”

Reliance was also placed upon statements in Water Board v Moustakas (1988) 180 CLR 491 at 497, 501-2 concerning the need for proper particularisation in a negligence action.

49 The Defendant submitted that it was necessary that the pleading be in proper form to assist the Court at the trial of the matter, whether that trial be with or without a jury.

50 With respect to the claim for breach of contract, Mr Maconachie QC submitted that the claim was misconceived having regard to provisions of the Police Act 1990 and the proper relationship between a constable of police and the Defendant in light of decisions such as Enever v The King (1906) 3 CLR 969 and Attorney-General for NSW v Perpetual Trustee Company Limited (1954) 92 CLR 113. It was submitted that the claim for breach of contract was misconceived and ought be struck out although it was not contended for the Defendant that such an order ought be by way of summary dismissal.

Plaintiff’s Submissions

51 Mr Semmler QC submitted that, in the event that the Court entertained the Defendant’s strike-out application, it ought to be dismissed. He contended that the SASC complied with the rules of Court and that no basis had been demonstrated for an order under Part 15 r 26 SCR.

52 With respect to the complaint concerning paragraph 9A of the SASC and the matters alleged in paragraphs 10-26 concerning events between 1984 and August 1998, Mr Semmler QC submitted that it was part of the Plaintiff's claim that, by reason of stressors to which he had been exposed earlier in his career as a police officer, he was vulnerable to suffer psychiatric injury as a result of further stressors in his employment with the Defendant after 1998.

53 It was submitted that the importance of the fact of vulnerability to psychiatric disorder in a case where an employee alleges psychiatric injury as a result of his employment had been recently emphasised by the High Court in Koehler v Cerebos (Aust) Limited (2005) 214 ALR 355; [2005] HCA 15 at paragraphs 19, 33-36, 41. He submitted that it was essential that all of the matters relating to the Plaintiff’s employment prior to September 1999 be pleaded. Mr Semmler QC acknowledged that, where psychiatric injury is alleged to have resulted from the tortious acts or omissions of an employer, the foreseeability of psychiatric injury to that particular employee is critical to a successful outcome (Transcript, 23 June 2005, page 56.36). He submitted that paragraph 9A of the SASC took up the Koehler issue and that paragraphs 10-22 of the SASC referred to the matters relied upon by the Plaintiff as stressors which were said to give rise to vulnerability. Mr Semmler QC submitted that, if these matters had not been alleged in the SASC, complaint may properly have been made by the Defendant.

54 Mr Semmler QC submitted that the Defendant’s arguments arising from Graham Barclay Oysters, Paige and O’Leary concerning areas of justiciability did not touch upon the pleading points which were the subject of the application under Part 15 r 26 SCR. Rather, these issues might be relevant to questions to be determined as part of the final hearing.

55 The Plaintiff submitted that the present case did not involve “some novel area of the law where a duty hasn’t been previously recognised” (Transcript, 23 June 2005, page 58.16). Rather, the existence of a cause of action by a police officer against the State of New South Wales in negligence for psychiatric injury said to arise from workplace stress was recognised in State of New South Wales v Seedsman (2000) 217 ALR 583. The Seedsman principles had been applied in a closely analogous case in Wheadon v State of New South Wales (District Court of New South Wales, Cooper DCJ, 2 February 2001), where a substantial verdict was returned in favour of a plaintiff and that verdict had apparently not been the subject of appeal by the State of New South Wales.

56 With respect to the negligence claim, the Plaintiff submitted that the Defendant had not demonstrated a basis for relief under Part 15 r 26 SCR.

57 With respect to the claim for breach of contract, in written submissions provided after the hearing, the Plaintiff submitted that an arguable case for breach of contract exists and that that part of the SASC ought not be struck out. The Plaintiff acknowledged the line of authority exemplified by Attorney-General for New South Wales v Perpetual Trustee that the relationship of master and servant does not exist between the Crown and its police officers and that police officers are independent office holders exercising original authority in the execution of their duties. It was submitted, however, that in recent times, the employment status of police officers has been the subject of much closer scrutiny by the Courts particularly in the specialist industrial relations jurisdictions.

58 The Plaintiff submits that, in New South Wales, the operation of the common law rule has been modified by statute. In many areas, the law has undergone significant change, ensuring that police officers enjoy essentially the same employment and industrial rights as other employees. For example, s.134 Occupational Health and Safety Act 2000 deems police to be employees for the purposes of that Act. The Police Act 1990 specifies that for industrial matters, the Commissioner is the employer: s.84. The Commissioner determines rates of pay and allowances: s.85, and a police officer may sue for and recover remuneration: s.85(2). The Plaintiff points to provisions in the Police Service Regulation 1990 dealing with grades and classifications, promotions, record sheets, discipline, uniforms, annual leave, temporary transfers and allowances and contends that these aspects of control bear the indicia of an employment arrangement: cf Hollis v Vabu Pty Limited (2001) 207 CLR 21.

59 The Plaintiff points to the decision of Sperling J in Chate v Commissioner of Police (1997) 76 IR 70, a case concerning a suspended officer’s entitlement to the accrual of annual leave during the period of suspension.

60 The Plaintiff argues that his contract of employment with the Defendant included an implied term, said to be underscored by the provisions of the Occupational Health and Safety Acts 1983 and 2000, that it would take all reasonable steps to ensure the safety of the Plaintiff during the course of his employment. The Plaintiff alleges that it was an implied term of that contract that the Defendant ensure that the duty of care that it had in respect of him was not breached. The Plaintiff submitted that it would be inappropriate, at this interlocutory stage, to strike out the claim given the stringent test in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125.

61 The Plaintiff did not press the claim for breach of statutory duty in the SASC. Accordingly, that part of the SASC should be struck out.

Decision

62 Has the Defendant demonstrated a basis for relief under Part 15 r 26 SCR with respect to the whole or part of the SASC (apart from the claim for breach of statutory duty)?

63 With respect to the claim in negligence, I do not accept the Defendant’s submission that the present claim is especially novel. A claim for damages by a police officer against the State of New South Wales for alleged failure to provide a safe system of work so as to protect the person from psychiatric injury was considered in Seedsman. Such a claim was brought successfully against the State of New South Wales in the context of a police officer alleging harassment and victimisation by other police officers in Wheadon, a decision which was not taken on appeal to the Court of Appeal. A claim in negligence for psychiatric injury resulting from workplace stress said to flow from victimisation and harassment has been held to be justiciable: Mannall v State of New South Wales [2001] NSWCA 327 at paragraph 64; State of New South Wales v Mannall [2005] NSWCA 367.

64 The Plaintiff’s claim in negligence for alleged psychiatric injury is said to have resulted from workplace stress in his capacity as a police officer (Seedsman) involving, inter alia, allegations of victimisation and harassment by other police officers for which the Defendant is said to be directly and/or vicariously liable (Mannall). This combination of issues appears to have been considered and determined, adversely to the Defendant, by Cooper DCJ in Wheadon. The present case appears to be a further example of such a claim. Although the particular features of the case are different factually from those arising in Seedsman and Mannall and, to a lesser extent, Wheadon, I do not consider that the present claim is to be characterised appropriately as novel.

65 I accept the Plaintiff’s submissions that arguments based upon Graham Barclay Oysters, Paige and O’Leary concerning the limits of justiciability have no application on a pleadings argument as involved here.

66 In any event, the issue which is presently relevant is whether the claim in negligence in the SASC (whether novel or not) complies with pleading requirements for such a claim. As stated earlier, I do not consider that the Defendant is precluded from making the present strike-out application because of its consent to the filing of the SASC and the filling of an Amended Defence to the SASC. It is a matter for the Court to determine whether the pleadings contained in the SASC are deficient so as to warrant an order under Part 15 r 26 SCR. However, given the purposes of pleadings, it is highly relevant that the Defendant consented to the filing of the SASC on 5 February 2004 and was able to file an Amended Defence thereafter responding to the matters raised in the SASC. The Defendant understood the claims made against it and was able to respond to the claims by admission, qualified or partial admission and denial. Mr Maconachie QC’s analysis of the Plaintiff’s negligence claims (set out in paragraph 25 above) displays an understanding by the Defendant of the case which it has to meet.

67 I am satisfied that paragraphs 6-9 and 65 of the SASC plead, in an acceptable way, the Plaintiff’s claim in negligence. With respect to paragraph 9A of the SASC, it is common ground between the parties that the ingredients of the Plaintiff’s claim involves more than the assertion of bare vulnerability on his part. As Mr Semmler QC acknowledged in argument and as the decision in Koehler makes clear, it is necessary for the Plaintiff to establish the risk of the Plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable.

68 The SASC does not refer to the issue of reasonable foreseeability. The Defendant’s analysis of the Plaintiff’s case (set out at paragraph 25 of this judgment) inferred that the Plaintiff alleges that the Defendant knew or ought to have known of the Plaintiff’s vulnerability to psychiatric injury. However, the SASC does not contain such an allegation.

69 In Koehler, McHugh, Gummow, Hayne and Heydon JJ at 362 (paragraph 33) observed that the central inquiry remains whether, in all the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.

70 To the extent that paragraph 9A of the SASC does not contain an express allegation of reasonable foreseeability of psychiatric injury, I consider that it is deficient and ought be struck out. The absence of such an allegation in paragraph 9A has a tendency to cause embarrassment or delay in the proceedings so as to attract Part 15 r 26(1)(b) SCR. The Plaintiff ought be given an opportunity to replead this part of the SASC to comply with the requirements for proper pleading of this part of the claim. This step will assist the Defendant, the Court, and any jury at trial, to understand the Plaintiff’s case and will, at the least, reduce the risk of delay flowing from this aspect of the pleadings.

71 It will be a matter for the Plaintiff to plead the reasonable foreseeability aspect of his claim as he sees fit. Whether that pleading accords with the Defendant’s currently inferred understanding of this aspect of the Plaintiff’s claim remains to be seen. My ruling ought not be taken to require the Plaintiff to plead this aspect of his claim in that way. That which the Plaintiff is required to establish concerning reasonable foreseeability ought comply with the principles in Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 390, 413-4; Tame v New South Wales [2002] 211 CLR 317 at 332-3 (paragraph 16), 343-4 (paragraphs 61-62), 385 (paragraph 201), and Koehler. No doubt, the Plaintiff will have regard to those principles in formulating his pleading in substitution for the current paragraph 9A of the SASC.

72 With respect to paragraphs 10-64 of the SASC, I am not satisfied that any basis had been demonstrated for the striking out of any or all of these paragraphs. The paragraphs which allege matters between 1984 and August 1998 relate to the alleged vulnerability of the Plaintiff. So much is clear from the SASC itself and from the submissions of Mr Semmler QC before me. The Defendant has responded to these paragraphs by way of admission, qualified or partial admission or denial in the Amended Defence. I do not consider that the Defendant has demonstrated a basis for an order under Part 15 r 26 SCR with respect to these paragraphs.

73 With respect to the Plaintiff’s claim for breach of contract, the Defendant’s real submission is that the claim is not tenable and ought be struck out. The striking out of a pleading allegedly containing no reasonable cause of action should only occur in circumstances where the claim is “manifestly groundless”, “so obvious untenable” that it cannot possibly succeed or so “manifestly faulty that it does not admit of argument”: General Steel Industries at 125. Put another way, the test is not whether the Plaintiff would probably succeed in his action against the Defendant, it is whether the material before the Court demonstrated that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard (1993) 177 CLR 598 at 602.

74 In my view, there is a significant legal issue as to whether the Plaintiff’s claim for breach of contract is maintainable given his status as a police officer seeking to sue the Defendant for breach of a contract of employment. However, I am not satisfied that the parts of the SASC advancing such a claim ought be struck out on the present interlocutory application. I am not satisfied that the stringent requirements of General Steel Industries and Webster v Lampard have been made out in this case. Further, the breach of contract claim appears to be a subsidiary one in this case. The Plaintiff’s primary claim is in negligence and it appears that the same facts and circumstances are relied upon in support of the subsidiary claim for breach of contract. An issue might arise at the trial as to whether the claim for breach of contract should be left to the jury. However, I decline to strike out that part of the claim on the present application.

75 I note that certain typographical errors in paragraphs 68 and 71 of the SASC are to be remedied by the Plaintiff and that the Plaintiff has foreshadowed an amendment to paragraph 63 and the deletion of subparagraph (l) within paragraph 65 of the SASC (letter from Plaintiff’s solicitor dated 5 July 2004). I will assume that these amendments will be effected by the Plaintiff and that these matters do not require any order of the Court.

76 Accordingly, I propose to strike out paragraphs 9A and 69-71 of the SASC. I will grant the Plaintiff leave to replead the matters contained in paragraph 9A of the SASC.

The Defendant’s Application to Dispense with the Jury

77 On 14 April 2004, the Plaintiff filed a requisition for trial with a jury and paid the appropriate fee. By Notice of Motion filed on 15 July 2004, the Defendant moves to set aside the Plaintiff’s requisition for trial with a jury.

The Pambula Discretion

78 These proceedings were commenced prior to the commencement on 18 January 2002 of the Courts Legislation Amendment (Civil Juries) Act 2001. That Act repealed the earlier provisions concerning trial by jury to be found in ss.85-89 Supreme Court Act 1970. However, the effect of a savings provision in the 2001 Act preserves for the purpose of these proceedings those repealed provisions: clause 19, Schedule 4, Supreme Court Act 1970.

79 Section 86(1) provided as follows:

“(1) In proceedings on a common law claim, except proceedings to which either section 87 or section 88 applies, issues of fact shall, if any party files a requisition for trial with a jury and pays the fee prescribed by the regulations made under section 130, be tried with a jury.”

In this case, a requisition for a jury has been filed and the necessary fee has been paid. Consequently, the Plaintiff is entitled to have the issues of fact in these proceedings determined by a jury. Section 89(1), as it stood before the 2001 amendment, provided as follows:

“(1) In any proceedings on a common law claim (except proceedings to which section 88 applies) the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury.”

Since the Plaintiff duly requisitioned a jury, the proceedings are to be tried with a jury unless the Court makes an order to the contrary under s.89. It is for the Defendant to persuade the Court that the s.89(1) discretion ought be exercised in its favour, thereby depriving the Plaintiff of trial by jury: Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 402G, 405D, 413D.

80 In Pambula, Samuels JA said at 413E:

“Accordingly, in order to make good an application to dispense with a jury it is not enough to point to the supposed deficiencies of jury trial. It is necessary to show grounds which are particular to the case in hand. These may of course be produced by the pressure of singular circumstances upon the general character of a jury trial.”

It is not to the point, on a s.89(1) application, to consider universal characteristics of jury trials: Pambula at 403A (per Kirby P).

81 In Combined Excavations and Supplies v Bowis [2000] NSWCA 298 (a case dealing with an analogous provision to s.89(1) in s.79A District Court Act), Spigelman CJ said at paragraph 13:

“In my opinion, what is required is the application of a test such as that which Samuels JA described in Pambula as ‘singular circumstances’ or ‘specific difficulties’ with respect to a particular case that do not arise in the general case. These are matters of fact and degree on which differences of opinion are to be expected. I do not propose this test as a universally applicable formula. I adopt these words as a convenient formulation to distinguish a case in which something more appears than the difficulties usually attendant on a jury trial.”

In Combined Excavations and Supplies , Davies AJA said at paragraph 85:

“A jury should not be dispensed with unless there is a factor in the particular case of sufficient weight to overcome the right to a jury trial. This will not occur unless there is a factor which transcends the usual problems encountered with jury trials. The complexity of the particular case, or a need for expedition, or the impracticability of bringing a witness or witnesses to Sydney, and like matters, may provide such a factor; but the factor must be a weighty one, for the entitlement to a jury trial is an important right, not lightly to be set aside. In his reasons for judgment in this case, the Chief Justice has referred to terminology such as ‘unusual feature’, ‘significant and special burden’, ‘singular circumstances’ and ‘specific difficulties’. I would not adopt any specific terminology, for s79A [District Court Act] does not use it. However, because the right is an important one, I would not expect a jury to be dispensed with unless there was a factor having attributes to which some such description was appropriate.”

In Webb v South Eastern Sydney Area Health Service [2003] NSWSC 329, Studdert J, at paragraphs 44-45, applied these passages from Combined Excavations and Supplies in determining a s.89(1) application.

82 A party who has requisitioned a jury is not obliged to explain his or her choice: Commonwealth of Australia v Cook (Court of Appeal, 11 November 1994, BC9403513 at page 8).

Evidence on the Application

83 On this application, the Defendant read the affidavit of Zarina Dara Braybrooke affirmed on 17 December 2004 and tendered, without objection, a range of documents to demonstrate that significant media coverage had been given to the Legislative Council inquiries into policing in Cabramatta and the role of the Plaintiff in that inquiry, together with other statements concerning the Plaintiff generally. I accept that substantial electronic and print media coverage has been given to the Plaintiff’s position between 2001 and 2004.

84 Much of this media coverage has been sympathetic to the Plaintiff and adverse to the New South Wales Police in its dealings with the Plaintiff. The evidence reveals that the radio identity, Mr Alan Jones, has made public statements supporting the Plaintiff on his programme on Radio 2GB. The last supportive comment revealed in the evidence was made by Mr Jones on 8 December 2004. The Defendant relies upon evidence of audience ratings demonstrating the substantial audience for Mr Jones’ programme on Radio 2GB. The Defendant also tendered material to demonstrate that a substantial volume of material concerning the Plaintiff and his role in policing at Cabramatta may be recovered by searching the internet. The Defendant tendered a copy of a book entitled “To Protect and To Serve: The Untold Truth About the New South Wales Police Service” written by the Plaintiff and Mr Richard Basham and published in August 2003. The book touches upon the Plaintiff’s experiences as a police officer and, in particular, events at Cabramatta in and after 1997.

165 I do not consider that my ruling with respect to the Defendant’s strike-out application stands in the way of a determination on the merits of the Plaintiff’s discovery application.

166 In summary, I propose to order the Defendant to give particular discovery to the Plaintiff of the categories of documents referred to in paragraphs 1 to 32, 35 and 36 of the Plaintiff’s Amended List (Exhibit A) with the exception of paragraphs 19, 20, 21 and 30. I note that paragraphs 33, 34 and 37 to 42 were not pressed by the Plaintiff.

Orders

167 With respect to the Defendant’s Notice of Motion to strike out the SASC, I make the following orders:

(a) paragraphs 9A and 69 to 71 are struck out;

(b) the Plaintiff is granted leave to replead with respect to paragraph 9A.

168 With respect to the Defendant’s Notice of Motion seeking an order under s.89(1) Supreme Court Act 1970 setting aside the Plaintiff’s requisition for a jury, I order that the Notice of Motion is dismissed.

169 With respect to the Plaintiff’s Notice of Motion for discovery, I order that the Defendant is to give discovery of the categories of documents in paragraphs 1 to 18, 22 to 29, 31, 32, 35 and 36 in the Plaintiff’s Amended List (Exhibit A).

170 I will hear the parties on the question of costs of the applications. I note the following matters in that respect:

(a) the Defendant achieved limited success on its strike-out application, and in circumstances where it had, at an earlier time, already consented to the filing of the relevant pleading and had filed an Amended Defence in response to it;

(b) the Defendant failed in its application to set aside the Plaintiff’s requisition for trial by jury;

(c) the Plaintiff achieved very substantial success in his application for discovery.

171 In the event that the parties are unable to reach an agreement as to costs of these applications, I will consider any costs applications at 9.30 am on 14 February 2006. I direct the parties to file and serve any written submissions in support of any application for costs with respect to these applications on or before 4.00 pm on Friday, 10 February 2006.

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