| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RAGNO & ANOR -v- COMMISSIONER OF POLICE & ORS [2002] WADC 150 CORAM : YEATS DCJ HEARD : 7 JUNE 2002 DELIVERED : Delivered Extemporaneously on 7 JUNE 2002 typed from tape and edited by Trial Judge FILE NO/S : CIVO 107 of 2002 BETWEEN : COSMO SHANE RAGNO MARION RAGNO
Plaintiffs
AND
COMMISSIONER OF POLICE
ASSISTANT COMMISSIONER STANDING
DETECTIVE SERGEANT CARVER
FAYE WILSON
Defendants
Catchwords: Civil procedure - Pre-trial discovery of documents - Order 26A r 4 Rules of the Supreme Court - Pre-trial discovery refused as highly speculative and potentially oppressive
Legislation: Rules of the Supreme Court, O 26 r 4
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Result:
Application for discovery refused Representation:
Counsel:
Plaintiffs : In person
First-named Defendant : Mr T C Russell
Second-named Defendant : Mr T C Russell
Third-named Defendant : Mr T C Russell
Fourth-named Defendant : No appearance
Solicitors:
Plaintiffs : In person
First-named Defendant : State Crown Solicitor
Second-named Defendant : State Crown Solicitor
Third-named Defendant : State Crown Solicitor
Fourth-named Defendant : No appearance
Case(s) referred to in judgment(s):
Hill v Chief Constable of West Yorkshire (1988) 2 WLR 1049
King v O'Rourke (1995) 25 SR (WA) 1
McCarthy & Ors v Dolpag Pty Ltd [2000] WASCA 106
Stewart v Miller (1979) 2 NSWLR 128
Tipperary Developments Pty Ltd v Western Australia (1999) 21 WAR 250
Case(s) also cited:
Nil
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1 YEATS DCJ: This is an application by the plaintiffs Mr and Mrs Ragno against the four defendants, but primarily the first three defendants, who are the Commissioner of Police and two police officers, for an order for pre-trial discovery of documents pursuant to O 26A r 4 of the Rules of the Supreme Court. That rule is in these terms:
"(1) This rule applies if a person may have a cause of action against a person whose description has been ascertained ('the potential party') wants — but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether as to whether to commence or take proceedings. (2) If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this Rule." 2 I have considered very carefully all the material put before me by the applicant in this case. Clearly Mr and Mrs Ragno are very distressed about the death of their son and they would like to have "justice", and they would like access to police documents. Mr Ragno quite frankly admits that he really does not want to sue the police; he just wants to have access to documents. 3 When considering the power of the Court to make an order for discovery, it is important to bear in mind the special rule under which this application is brought. In McCarthy & Ors v Dolpag Pty Ltd [2000] WASCA 106 at [13], Master Sanderson spoke of the law in relation to this section: "There is no doubt that caution must be exercised before making an order and that such orders should not be made as a matter of course. They should only be made when reasonably necessary to achieve the proper administration of justice:
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Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62; (1999) 21 WAR 250, per Parker J at 24; O'Sullivan v Herdmans Ltd [1987] 3 All ER 129 at 135 – 6. It must be remembered that discovery 'constitutes a very serious invasion of privacy and confidentiality [and] the process should not be allowed to place upon a litigant any harsher or more oppressive burden than is strictly required': Harman v Secretary of State for the Home Department[1983] 1 AC 280 at 308 per Lord Keith of Kinkel; and this is a fortiori the position where the discovery is sought before action and is for the purpose of determining whether or not there is an issue to litigate." 4 Order 26 r 4 was also discussed by Parker J in the Supreme Court in the case of Tipperary Developments Pty Ltd v Western Australia (1999) 21 WAR 250 at [24]: "It may be seen that the ultimate touchstone for the exercise of discretion is whether discovery will help achieve the proper administration of justice in the action or proceeding in which the request for discovery is made." 5 All of this - the rule, the authorities - require the Court to look very carefully at the proper administration of justice and that requires the Court to look at the possible causes of action that Mr Ragno suggests would justify the Court ordering discovery. In the originating summons the plaintiff mentions an action in defamation against the defendant." Mr Ragno also filed an affidavit in which he refers to a number of statements made by the police and the Premier in newspapers and in the media to the effect that Ms Faye Wilson's house was under surveillance for some period of time prior to the death of Mr Ragno's son. It is suggested that that is defamatory to his family. 6 It is not necessary for the Court to go through the law of defamation to know that there is nothing raised on these papers that gives rise to any facts that could point to a cause of action in defamation against the police in regard to any of those statements. I accept what was said by Sheppard J in Stewart v Miller (1979) 2 NSWLR 128, particularly at 140 where he spoke of the difference between requiring the proof of a prima facie case and the question of whether there are facts which point to a cause of action. Sheppard J said: "Preliminary discovery is a valuable aid to justice. But its objective would be perverted if it were to be permitted to be
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turned into an instrument of oppression. In my opinion it would be turned into an instrument of oppression if it became a procedure in aid of speculative claims." 7 He went on to say: "... This does not mean that an applicant for preliminary discovery will never be granted that relief unless he establishes that he has a prima facie case against the person whose name he wishes to ascertain. The evidence, although falling short of establishing all the ingredients of a prima facie case, may point sufficiently to the existence of a case for relief as to make it proper, in the interests of justice, that preliminary discovery be ordered so that proceedings for that relief can be brought. Each case must be considered on its own merits." 8 When I look at the plaintiff's case as he has put it in relation to a possible cause of action in defamation, I consider that it is baseless and so highly speculative that it would be oppressive and wrong to make an order for discovery based on the bringing of any action under that heading.
Negligence 9 I then turn to the other matter that is raised by the plaintiff and that is the question of negligence. In an affidavit sworn on 3 May 2002 and a further affidavit sworn on 26 May 2002, the plaintiffs allege that the Police Service or individual officers knew the fourth defendant was dealing in heroin and failed to prevent such activity, expressly permitted or allowed the fourth defendant to carry on dealing in heroin and had a duty of care in respect of the foreseeable consequences of allowing such heroin dealing to continue. 10 When people consider bringing actions in negligence against the police, it is wrong to say that police are entirely immune from actions in negligence but at common law there is a public policy immunity that was discussed most recently by Hammond CJDC in the case of King v O'Rourke (1995) 25 SR (WA) 1. That was a case where there was an attempt to sue police officers in negligence relating to their investigative functions. The allegation was that police had been negligent in investigating a fraud and that, as a result, the plaintiffs lost money. 11 Hammond CJDC reviewed the long line of authority which commences in 1988 in the House of Lords in Hill v Chief Constable of
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West Yorkshire (1988) 2 WLR 1049, particularly per Lord Keith of Kinkel at 1052. Hammond CJDC summarised the rule and I simply quote it: "… As a matter of public policy I find that the law applicable in this State is that police officers are immune from actions for negligence in respect of their activities in the investigation of crime which is to be clearly distinguished from those situations where they are in the course of operational activities or where they have assumed responsibility for the custody or safety of a citizen. In those circumstances they can be liable in negligence but this case is not one of those situations." ((1995) 25 SR (WA) at 4.) 12 That is the position in this case. Taking account of all the material put before the court, it is clear that the plaintiffs are alleging negligence, breach of a duty of care by the police in the carrying out of their investigations related to the activities of the fourth defendant, Ms Faye Wilson. That, as a matter of public policy, is not an action that could be maintained. 13 In summary I want to say this: Mr Ragno comes to the court wanting justice and, as a non-legally trained person, he could not be expected to understand that the rule under which he brought his matter to the court depends on whether these documents are needed in order to bring an action against a party. In other words, if a person may have a cause of action against another person, then they can seek preliminary discovery. Nothing in the papers the plaintiff has brought before me show that he has anything beyond a highly speculative claim in defamation. There is no possible claim, on the information before me, in negligence and it would be oppressive if I were to make such an order. 14 For these reasons the application is refused.
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