Public Trustee of South Australia as tutor for Cornelia Rau v Commonwealth of Australia

[2010] NSWSC 1224

CITATION:	Public Trustee of South Australia as tutor for Cornelia Rau v Commonwealth of Australia [2010] NSWSC 1224
HEARING DATE(S):	17, 23 September 2010
JUDGMENT DATE :	29 October 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Hislop J
DECISION:	1. The defendant to provide discovery to the cross defendants to the first cross claim in respect of categories 8, 10 and 11 in Schedule A to the amended notice of motion filed on 24 August 2010 and such other categories as agreed between the defendant and the cross defendants to the first cross claim by 26 November 2010. 2. The costs of the amended notice of motion be costs in the cause. 3. The cross defendants to the first cross claim to pay the defendant's costs of the notice of motion filed on 6 September 2010. 4. Proceedings will be listed for directions before Harrison J on 15 November 2010 or on such other date as is agreed by his Honour and the parties.
CATCHWORDS:	PRACTICE AND PROCEDURE - contribution proceedings - interlocutory applications re discovery, subpoena and joinder of parties.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Law Reform (Contributory Negligence Apportionment of Liability) Act 2001 (SA) Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	Commissioner for Railways v Small (1938) 38 SR 564
PARTIES:	Commonwealth of Australia (Defendant/1st Cross Claimant) G4S Australia Pty Ltd (formerly GSL (Australia) Pty Ltd) (1st Cross Defendant to 1st Cross Claim) Group 4 Falck Global Solutions Ltd (2nd Cross Defendant to 1st Cross Claim)
FILE NUMBER(S):	SC 2007/264924
COUNSEL:	R. Williams QC/P. Jones (Defendant/1st Cross Claimant) B. Walker SC/S.J. Walsh (1st & 2nd Cross Defendants to 1st Cross Claim)
SOLICITORS:	Australian Government Solicitor (Defendant/1st Cross Claimant) Gilchrist Connell (1st & 2nd Cross Defendants to 1st Cross Claim)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Friday 29 October 2010

2007/264924 PUBLIC TRUSTEE OF SOUTH AUSTRALIA AS TUTOR FOR CORNELIA RAU v COMMONWEALTH OF AUSTRALIA

JUDGMENT

Introduction

1 The plaintiff, by statement of claim filed on 7 April 2007, sought damages, including aggravated and exemplary damages, from the defendant for unlawful detention and personal injury occasioned to the plaintiff by the defendant, its agents, employees, independent contractors and their subcontractors during the period 31 March 2004 to 4 February 2005. It was alleged the defendant unlawfully detained the plaintiff and breached a non delegable duty of care owed by it to her.

2 On 8 February 2008 the plaintiff accepted an offer of compromise from the defendant to settle the proceedings. The settlement was approved by the court on 7 March 2008.

3 The detention of the plaintiff occurred at a number of locations. It included detention at the Baxter Detention Centre (“Baxter”) from 6 October 2004 to 4 February 2005.

4 The defendant, by amended first cross claim filed on 26 March 2010, has sought indemnity or contribution from the first cross defendant (“GSL”) and the second cross defendant (“G4”) (jointly “the cross defendants”) for so much of the damages and costs which it paid to the plaintiff as the court deems appropriate. In short, the claims are made as against GSL pursuant to a contract between it and the defendant for the provision of detention services at Baxter at relevant times and pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) or, alternatively, s 6(1) of the Law Reform (Contributory Negligence Apportionment of Liability) Act 2001 (SA). G4 is sued pursuant to a written agreement and deed of guarantee guaranteeing to the defendant the performance by GSL of its obligations to the defendant. The cross defendants were not party to the settlement.

5 The cross defendants, by amended notice of motion filed on 24 August 2010, have sought orders that:

(1) The defendant provide discovery of documents referred to in Sch A to the amended notice of motion;

(2) A subpoena to produce documents directed to GSL and filed by the defendant on 24 June 2010 be set aside.

6 By notice of motion filed on 6 September 2010 the cross defendants sought an order that leave be granted to the cross defendants to file and serve a third cross claim joining International Health and Medical Services Pty Limited (“IHMS”) and International SOS Pte Limited (“SOS”) as cross defendants to the third cross claim.

7 The defendant opposes each order sought. Each application is discussed hereunder.

Discovery

8 Schedule A to the amended notice of motion contained 13 categories of documents in respect of which discovery was sought. A number of the categories were resolved before the amended notice of motion came on for hearing. At the conclusion of the hearing, it was apparent there was a possibility of agreement in respect of additional categories. The matter accordingly was stood over for subsequent mention at which time the Court was informed that only three categories remained in dispute.

9 An issue was raised at the mention by the cross defendants as to the amendment of an earlier response to their request for particulars. However, it does not seem to me necessary to deal with this question as the defendant, in its letter dated 22 September 2010, clearly stated:

“It was and is not part of the Commonwealth’s pleading that the settlement sum arrived at with the plaintiff was “reasonable” and thereby is recoverable from GSL…at trial the Commonwealth will not seek to adduce evidence of the reasonableness of its settlement with the Plaintiff as part of its case against GSL.”

10 The three remaining categories are:

“8. All witness statements and records of interviews in respect of any witness involved in the proceedings drafted or obtained by the Commonwealth (or on its behalf) before 8 February 2008.

10. All investigation reports, assessor’s reports, briefing notes, chronologies, records of any investigations of a factual or evidentiary nature and all document summaries prepared on or before 8 February 2008 by or on behalf of the Commonwealth in respect of the plaintiff’s claim in these proceedings.

11. All documents in relation to any interrogatories administered against the Commonwealth in these proceedings including:
(a) any interrogatories administered on or before 8 February 2008;
(b) any draft responses to interrogatories prepared by the Commonwealth; and
(c) all investigations undertaken in order to prepare a response to any interrogatories administered.”

11 The defendant indicated in respect of category 11:

“There were interrogatories administered in these proceedings and the [defendant] is prepared to provide copies of these.”

12 As to the remaining documents in category 11 and documents in categories 8 and 10, the defendant submitted the documents clearly attracted legal professional privilege; it would be inconsistent with s 56(1) of the Civil Procedure Act 2005 to require the documents to be identified and quarantined in the privilege section of the list of documents; and, further, as to category 8, the cross defendants are seeking to obtain improperly from the defendant identification of witnesses or potential witnesses, which was impermissible.

13 The cross defendants submitted that the appropriate course was for an order for discovery to be made and the defendant to provide a list that identified the documents in respect of which privilege was claimed and specified the circumstances under which the privilege was claimed to arise, as required by UCPR 21.3(2)(d).

14 The three categories are relevant to the issues in this matter. In the ordinary course the cross defendants would be granted an order for the discovery of relevant documents. Although in some cases the privileged character of a particular document may appear from its description, the question ultimately remains a matter of substance. In my opinion, the cross defendants are entitled to an order for discovery in respect of those documents so as to be able to determine what documents the defendant has or had and whether it wishes to challenge any claim for privilege in relation thereto. Insofar as there is concern that the list of privileged documents may identify witnesses, the relevant requirement of UCPR 21.3(2)(d) is merely to identify the documents. This requirement can be complied with without disclosing the identity of witnesses.

Subpoena

15 The subpoena sought production of eight categories of documents.

16 GSL in its written submissions:

(a) submitted that discovery by reference to specified categories of documents was a more appropriate mechanism than the issuing of a subpoena. It formally sought an order that the subpoena be set aside;

(b) objected to the scope of the categories sought on the basis that some of the class of documents sought are irrelevant or ‘fishing’, some of the categories are vague or otherwise oppressive and production is sought of documents which are already in the Commonwealth’s possession.

17 The defendant in its written submissions stated that it could only look (and has only sought) to recover from the cross defendants that part of the judgment sum directed to damages caused by its failure to provide adequate health care at Baxter. That part of the judgment sum attributable to the cause of action in false imprisonment would not (and could not) be taken into account, insofar as the claims against the cross defendants are concerned.

18 The cross defendants, in their written submissions, accepted that discovery [or the subpoena] should extend to documents relevant to the issue of “failure to provide adequate health care at Baxter”. This thus would appear to be common ground so far as the claim based upon tort is concerned.

19 Four of the categories of documents, being categories (iii), (iv), (vii) and (viii), it seems, may be put aside, (iii) as the document is no longer in the possession of GSL, (iv) as the category is based on an incorrect reference, (vii) which would appear irrelevant as no claim is made against the cross defendants in respect of that part of the settlement attributable to false imprisonment, and (viii) as it is no longer pressed.

20 The dispute as to categories of documents (ii), (v) and (vi) does not appear to relate to the nature of the documents sought but to whether the period in respect of which documents are to be produced should be limited to the period the plaintiff was detained in Baxter or a wider period, as the defendant maintains. The dispute as to category (i) is whether the records should relate only to staff who provided treatment to the plaintiff at Baxter.

21 Senior counsel for the defendant submitted:

“…the real issue so defined, of the failure to provide adequate health care, has morphed into treatment provided to the plaintiff…The Commonwealth's claim might in part be directed to the treatment provided but it is expressed in much wider terms and it embraces the wider concept of adequate health care services and GSL cannot be permitted to read down the Commonwealth's claim to ‘treatment provided to the plaintiff’: [To do so] is simply impermissible.”

He also observed that whilst the tort claim was based upon failure to provide adequate health care, the contract claim was based upon scores of alleged breaches of the detention services.

22 In my opinion, there is considerable force in the defendant’s submissions. However, senior counsel for the cross defendants in his oral submissions said:

“…we are confident that we will be able to reach agreement without needing to bother the Court about the categories for discovery and we'll certainly invite that to be the course that your Honour encourages the parties to follow.”

23 It seems to me appropriate to allow the parties the opportunity to reach agreement on the categories. In the event that agreement cannot be reached, the matter can be relisted before myself or Justice Harrison, who is case managing the proceedings.

24 In my opinion, the categories of documents sought are stated with reasonable particularity and the cross defendants would have no difficulty in producing the documents subpoenaed. In these circumstances, the defendant may subpoena the documents rather than seek discovery - Commissioner for Railways v Small (1938) 38 SR 564 at 573-574. I decline to make an order setting aside the subpoena.

Leave to file and serve third cross claim

25 It is alleged GSL subcontracted the obligations owed by it to the defendant to IHMS whose relevant liabilities were guaranteed by SOS. The cross defendants sought leave to file and serve a third cross claim against IHMS and SOS.

26 The cross defendants submitted that the claims against them and the core of the proposed claims against IHMS and SOS were the same. In these circumstances it was critical that all parties should be bound by the same findings of fact and undesirable that there be separate proceedings. The limitation periods in respect of commencing action against IHMS and SOS would begin to expire on 5 October 2010.

27 The defendant opposed the application. It submitted that the proceedings had been scandalously delayed by the cross defendants. The application to file and serve the third cross claim was a long way out of time. There was no explanation in the affidavit in support of the notice of motion filed on 6 September 2010 to explain the delay in seeking to file and serve the third cross claim.

28 Notwithstanding the force of the defendant’s submissions, I considered it appropriate to make the orders sought essentially for the reasons referred to in para [26] above. In my opinion to refuse the application to file and serve the third cross claim would, in all likelihood, result in the cross defendants issuing a statement of claim against the proposed third cross defendants, thereby commencing a second set of proceedings and, presumably, involving, in due course, the expense of an application for it to be heard with the subject proceedings. In my opinion, this is the type of matter which may lend itself to resolution once all relevant parties are joined.

29 Accordingly I made the order sought on the last occasion. Insofar as there is a risk of delay in the future by reason of the joinder, I note the proceedings are subject to case management and any problem in that regard can be brought before the court on short notice.

30 I note there is a second cross claim between GSL and the State of Queensland in respect of this matter. The cross defendant to that cross claim informed the Court that it did not wish to be heard in respect of the question of the joinder of the third cross defendants. It was not a party to the amended notice of motion filed on 24 August 2010.

Costs

31 Each party has had some success in respect of the amended notice of motion. In my opinion, the appropriate costs order is that the costs of the amended notice of motion be costs in the cause. As to the notice of motion filed on 6 September 2010, the cross defendants were afforded an indulgence and should bear the defendant’s costs of that application.

Orders

32 I make the following orders:

1. The defendant to provide discovery to the cross defendants to the first cross claim in respect of categories 8, 10 and 11 in Schedule A to the amended notice of motion filed on 24 August 2010 and such other categories as agreed between the defendant and the cross defendants to the first cross claim by 26 November 2010.

2. The costs of the amended notice of motion be costs in the cause.

3. The cross defendants to the first cross claim to pay the defendant’s costs of the notice of motion filed on 6 September 2010.

4. Proceedings will be listed for directions before Harrison J on 15 November 2010 or on such other date as is agreed by his Honour and the parties.

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