Rankilor v City of South Perth
[2014] WADC 110
•25 AUGUST 2014
RANKILOR -v- CITY OF SOUTH PERTH [2014] WADC 110
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 110 | |
| Case No: | CIV:13/2013 | 20 AUGUST 2014 | |
| Coram: | DAVIS DCJ | 25/08/14 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| PDF Version |
| Parties: | WENDY RANKILOR CITY OF SOUTH PERTH |
Catchwords: | Appeals from Registrar Discovery Challenge to claim for privilege in report obtained by defendant's insurer Subpoena issued by plaintiff against defendant seeking additional documents Turns on own facts |
Legislation: | District Court Rules 2005, r 15(6) Rules of the Supreme Court 1971, O 26 r 12(2) |
Case References: | Brambles Holding Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239 Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49 Goldberg v Ng (1995) 185 CLR 83 Grant v Downs (1976) 135 CLR 674 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Integrated Management Services Pty Ltd v Inches (2009) 61 SR (WA) 114; [2009] WADC 41 McIlwraith McEacharn Operations Ltd v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1995] 1 Qd R 363 Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) 13 ANZ Ins Cas 61-612 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Public Transport Authority of WA v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279; (2007) 242 ALR 181 The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITY OF SOUTH PERTH
Defendant
Catchwords:
Appeals from Registrar - Discovery - Challenge to claim for privilege in report obtained by defendant's insurer - Subpoena issued by plaintiff against defendant seeking additional documents - Turns on own facts
Legislation:
District Court Rules 2005, r 15(6)
Rules of the Supreme Court 1971, O 26 r 12(2)
Result:
Appeals dismissed
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr J Eller
Solicitors:
Plaintiff : Not applicable
Defendant : John Eller
Case(s) referred to in judgment(s):
Brambles Holding Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239
Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Goldberg v Ng (1995) 185 CLR 83
Grant v Downs (1976) 135 CLR 674
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Integrated Management Services Pty Ltd v Inches (2009) 61 SR (WA) 114; [2009] WADC 41
McIlwraith McEacharn Operations Ltd v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1995] 1 Qd R 363
Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) 13 ANZ Ins Cas 61-612
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Public Transport Authority of WA v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279; (2007) 242 ALR 181
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
1 DAVIS DCJ: The plaintiff, Ms Rankilor, is claiming damages from the City of South Perth (the City) as a result of injuries she suffered on 18 March 2012 when she allegedly tripped and fell on a footpath outside 1 Angelo Street, South Perth (the incident).
2 The writ in this action was filed on 4 January 2013. The action has been listed for a trial on liability to commence on 1 September 2014.
3 I have heard two appeals in this matter brought by Ms Rankilor, both of which relate to the discovery provided in this action by the City. The City has provided discovery both formally, by affidavit sworn 29 April 2013 and two supplementary affidavits sworn 11 September 2013 and 2 December 2013, and informally. However, Ms Rankilor is still not satisfied that the City has discovered what she considers to be all relevant documents.
4 Ms Rankilor's first appeal relates to a decision of Deputy Registrar Harman on 24 March 2014 when he dismissed an application she had brought by chamber summons dated 24 February 2014. The second appeal relates to a decision of Deputy Registrar Hewitt made on 3 July 2014 when he dismissed an application brought by chamber summons dated 10 June 2014.
5 Pursuant to District Court Rules 2005 r 15(6), an appeal from a registrar is a new hearing. The applications brought by Ms Rankilor are to be decided afresh or de novo, and it is not necessary for Ms Rankilor to demonstrate any error of law or principle in the decision of the deputy registrar in either case. Further, because this is a new hearing of each of Ms Rankilor's applications, the court may exercise its discretion to admit additional evidence: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 – 29.
6 There were further affidavits filed by Ms Rankilor in support of each appeal which I took into account, together with documents contained in a bundle prepared for the trial of this matter.
Background
7 In 2013 Ms Rankilor made a number of Freedom of Information Act (FOI) applications to the City and obtained a number of documents which had not, at that stage, been discovered in the action. She made an application on 15 April 2013 by chamber summons seeking that the City provide sworn discovery.
8 On 1 May 2013 Principal Registrar Gething made orders that by 3 May 2013 the defendant file and serve an affidavit verifying its list of documents, and that by 10 May the plaintiff file and serve an outline of submissions identifying any deficiencies in the discovery made by the defendant. The application was then adjourned to a special appointment hearing on 23 May 2013.
9 The City filed its first list of discoverable documents, verified by affidavit sworn 29 April 2013. Document numbered 12 is described as 'Assessors report' dated 12 April 2012 (the report). The City objected to producing the report on grounds that it is privileged and in contemplation of litigation. Ms Rankilor filed submissions on 8 May 2013 in which she sought inspection of the report and querying the reasons why privilege was claimed.
10 At the hearing before the principal registrar on 23 May 2013 the application by Mrs Rankilor dated 15 April 2013 was treated as an application for further and better discovery. A series of directions were made on this and in the action generally. The directions included that the City file and serve an affidavit and outline of submissions in support of its claim for privilege over the report. Ms Rankilor was given the opportunity to file an affidavit in reply. The application was adjourned for a further directions hearing on 23 July 2013.
11 An affidavit sworn 12 June 2013 by John Eller, the solicitor for the City, was filed in compliance with the directions of 23 May 2013. Ms Rankilor filed an affidavit in reply sworn 1 July 2013.
12 The directions hearing listed for 23 July 2013 was relisted for 7 August 2013. At that hearing the principal registrar made orders that the City provide further sworn discovery, which was to include the following classes of documents:
(a) documents recording or evidencing the incident involving the plaintiff on 18 March 2012; and
(b) documents recording or evidencing the remedial work carried out to the footpath where the incident involving the plaintiff on 18 March 2012 occurred.
13 The directions hearing was then adjourned to 2 October 2013. The City provided further sworn discovery by an affidavit sworn 11 September 2013.
14 Ms Rankilor then brought an application by chamber summons dated 16 September 2013 'for an order that a default judgement be made against the defendant for non compliance with court order made 7 August 2013'. She filed an affidavit in support sworn 16 September 2013. That application was listed for hearing on 2 October 2013.
15 On 2 October 2013 the principal registrar advised Ms Rankilor (ts 32) that despite her affidavit there was no evidence suggesting that there were other documents or classes of documents which had not been discovered. He adjourned the matter to 13 November 2013.
16 Ms Rankilor filed a further affidavit sworn 4 November 2013 in support of her 'application for default judgement'. On 13 November 2013 the principal registrar made an order that the defendant provide further discovery, including specified documents, by 4 December 2013, and the filing and service of a certificate by the defendant's solicitor in accordance with the Rules of the Supreme Court 1971 (WA) (RSC) O 26 r 16A. Otherwise the balance of Ms Rankilor's application dated 16 September 2013 was dismissed.
17 The specified documents which the principal registrar ordered the City's discovery was to include were:
(a) an email dated 19 March 2012 from Denika Nash to Christine Lovett detailing the incident the subject of the claim;
(b) an invoice dated 22 March 2012 for the grinding down of the path the subject of the claim;
(c) an email dated 8 January 2013 detailing when the tree outside 1 Angelo street was looked at; and.
(d) a purchase order dated 15 January 2013 for a concrete which was used to constructed a new slab, laid on 16 January 2013 (being the slab the subject of the claim.
18 The City filed a further affidavit of discovery sworn 2 December 2013. In that discovery, documents were disclosed and annexed, although there was no document entitled 'a purchase order'. There was, however, a document entitled 'Requisition for Goods/Services' dated 15 January 2013 which was used for the new slab laid on 16 January 2013.
19 On 16 December 2013 Ms Rankilor filed a chamber summons for 'orders that defendant obey court order dated 13 November 2013', supported by an affidavit she had sworn on 16 December 2013, and a further affidavit of 6 January 2014. On 9 January 2014 that application was adjourned to a special appointment on 28 January 2014. At that hearing the only order made was that the defendant within 10 days do comply with order 3 of the orders of 13 November 2013, which was the requirement to file and serve a solicitor's certificate in accordance with RSC O 26 r 16A. The solicitor's certificate was filed on 30 January 2014.
20 Ms Rankilor then brought these two applications which are the subject of this appeal.
21 The first was an application she brought by chamber summons dated 24 February 2014 entitled 'chamber summons for an order that a default judgement be made due to non compliance over disclosure of documents for above proceedings'. What was sought or set out in this application was as follows:
This matter will take at least half a day in order to determine that the defendant has defaulted on disclosing good and proper documentation as per solicitor's certificate lodged with the District Court which explained the need for full disclosure to be made.
The defendant forfeit the right to a trial due to deliberate non compliance of giving disclosure of relevant documents and for altering and deleting information from documents.
The court award me the full amount of Special Damages as set out in 'Particulars of Damages' plus determine amount of General Damages
22 In support of her application Ms Rankilor swore an affidavit on 24 February 2014 entitled 'Affidavit of Wendy Rankilor – Defendant Failure to Disclose Documents'. In this affidavit which she went through documents which she said the City should have discovered but had at that time not yet discovered.
23 This application was listed before Deputy Registrar Harman on 24 March 2012, when it was dismissed. Ms Rankilor's appeal from this decision was filed on 4 April 2014.
24 On 10 June 2014 Ms Rankilor filed a further application entitled 'ex parte chamber summons for orders that the defendants pay subpoena costs and court determine issue on privilege of investigators report'. The first order she sought was that:
The investigators report dated 12 April 2012 from Western Investigations (now G4S Compliance and Investigations Pty Ltd), currently being withheld, be disclosed to me by the defendants so I am not disadvantaged at trial.
25 Ms Rankilor also sought an order that 'documentation sought from City of South Perth in the subpoena be disclosed to me'. This related to a subpoena issued on 3 June 2014, addressed to Christine Lovett of the City, with a return date of 15 June 2014, seeking production of the following:
1. Document which gives accurate measurement of height difference of slabs rather than slab being raised by some 20 millimetres as stated in defence document.
2. Road condition report with footpath information filled out (on report).
3. Road Inventory Sheet with footpath information filled out (on report).
4. Purchase order dated 15.1.13.
5. Street tree information record for tree outside 1 Angelo street, South Perth 4.2.12.
26 Ms Rankilor's application was heard by Deputy Registrar Hewitt on 3 July 2014. He dismissed her application with an order that she pay the defendant's costs. Ms Rankilor appeals from this decision by notice of appeal dated 7 July 2014.
Appeal from decision of 3 July 2014
27 It is convenient to deal with the second appeal first.
28 Ms Rankilor's notice of appeal reads, relevantly:
1. Ex parte Summons lodged 10 June 2014 for determination of privilege of Investigator's Report and for defendant to pay own subpoena costs due to non disclosure of all documents (issued 13 May 2014) heard by Deputy Registrar Hewitt 26 June 2014 before being adjourned to 3 July 2014.
2. Adjourned hearing heard 2rd July 2014 with defendant's solicitor present dismissed with costs in any event payable by plaintiff (myself).
3. Investigator's Report (privileged or otherwise) be listed in amended 'List of Documents – Part 1A. It is not listed at all, either as an Investigator's Report nor as as [sic] Assessor's Report.
4. Assessor's Report in 1b (which refers to evidence list 1A) of 'Amended List of Evidence' be changed to Investigator's Report (privileged document dated 12.4.12) to reflect true nature of documentation (listed in No. 4).
29 In the affidavit of Mr Eller, the solicitor for the City, sworn 12 June 2013, the claim for privilege over the report was explained. On 23 March 2012 the City received a letter from Ms Rankilor relating to the incident, giving notice of her intention to claim. The City immediately advised its public liability insurer, LGIS Liability, of the claim. As a result the insurer's claims manager commissioned Western Investigations to undertake appropriate steps to assess the plaintiff's allegations. Western Investigations then forwarded its report to the claims manager. On behalf of the City it was contended that the report is privileged as it was commissioned to investigate the plaintiff's allegations and submit it to its legal advisers for appropriate opinion in contemplation of litigation.
30 Ms Rankilor in her affidavit sworn 1 July 2013 referred to the fact that the solicitor acting for the City, Mr Eller, was also the solicitor acting for the insurer, LGIS liability.
31 Another matter which Ms Rankilor has raised in her affidavit of 1 July 2013, her appeal grounds and the other affidavits she has filed is that the report has been differently described in documents filed on behalf of the City - sometimes as an investigators report and sometimes as an assessor's report. In my view, it makes no difference whether it is described as an assessor's or investigator's report. The issue is whether the report is privileged.
32 A party to an action is entitled to claim legal privilege for a confidential communication, like a report, if it came into existence for the dominant purpose of:
1. The party obtaining or being provided with legal advice (advice privilege); or
2. Being used in pending or contemplated litigation (litigation privilege). This privilege covers confidential communications passing between a party (or the party's lawyer) and a third party.
See Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; Public Transport Authority of WA v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279; (2007) 242 ALR 181 [13] - [20] (McLure JA; Steytler P and Miller JA agreeing); Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191 [50] - [51].
33 Legal privilege extends to a situation where an insurer for a party obtains a report on behalf of that party, its insured. This is because an insurer and its insured have a joint or common interest in the subject matter of a claim made against the insured: see Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) 13 ANZ Ins Cas 61-612 [41] - [44].
34 A party wishing to challenge a claim of privilege must adduce evidence that is capable of supporting the conclusion that the claim for privilege is mistaken or unfounded: Brambles Holding Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239, 247. When a claim for privilege is so challenged, the onus lies on the party asserting the privilege to demonstrate that privilege exists: Grant v Downs (1976) 135 CLR 674, 689; McIlwraith McEacharn Operations Ltd v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1995] 1 Qd R 363, 371.
35 The court must look at all the circumstances objectively to determine whether privilege exists: Grant v Downs (682 – 683).
36 In her affidavit of 10 June 2014 (par 4) Ms Rankilor argued that the report should not be privileged due to the nature of the contents 'which would be extremely damaging to me', and (par 5) that 'When I gave an account of what took place on 18 March 2012 it did not occur to me that I was dealing with an investigator rather than an assessor from an insurance company'. She also stated during the appeal hearing her belief that the investigation by Western Investigations was not for legal purposes and had she known that it was, she would not have been there. Another complaint she raised during the appeal hearing was that the investigation took place after the City had fixed the footpath and that a proper assessment should have taken place before it was fixed.
37 Ms Rankilor's affidavit evidence of 10 June 2014 and her stated belief that the investigation was not for legal purposes is contradicted by the written statement she signed on 5 April 2012 (which has been disclosed) in which she acknowledged as follows:
1. I have been approached by Michael Reilly representing Western Investigations and acting on behalf of the Local Government Insurance Service (LGIS) in relation to an incident that occurred on Sunday 18 March 2012 while walking along the footpath on Angelo Street South Perth. I am willing to provide this statement.
2. I am aware that by making this statement, it may be provided to LGIS, their legal adviser or other involved parties in the event the matter, which is the subject of the statement, is the subject of litigation or a formal dispute.
38 I am satisfied that the investigations were carried out and the report dated 12 April 2012 came into existence after Ms Rankilor gave notice of her claim to the City and the City notified its insurer. There is no doubt that when the report was requested by the City's insurer there was contemplated litigation, and a reasonable anticipation that Ms Rankilor would commence proceedings against the City. I am satisfied, therefore, that the report came into existence for the dominant purpose of use in the litigation and I find that the City is entitled to maintain its claim of litigation privilege over the report.
39 In his affidavit of 12 June 2013 Mr Eller has provided for the court's inspection a copy of the report, in a sealed envelope. I have a discretion to inspect this and if I exercise that discretion it does not waive the privilege: RSC O 26 r 12(2); see also Grant v Downs (689). In light of Ms Rankilor's complaints both in her affidavit of 10 June 2014 and in the course of the appeal hearing, I have inspected the report. Having done so I find that there is no unfairness in the City maintaining the claim for privilege over the report: Goldberg v Ng (1995) 185 CLR 83, 96.
40 Ms Rankilor's appeal on this ground must be dismissed.
41 Insofar as Ms Rankilor's appeal relates to the subpoena issued against the City, her affidavit sworn 7 July 2014 sets out the reasons why she sought the documents she did in the subpoena. Ms Rankilor specifically confirmed at the appeal hearing that those documents are the same documents which she is seeking by way of discovery, the subject of her first appeal.
42 It was not appropriate for Ms Rankilor to issue a subpoena to the City, a party to the action, as a way of obtaining further documents. A subpoena should not be used as a substitute for discovery from a party to the proceedings: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 [19]; The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574 - 575. It was therefore appropriate that this part of Ms Rankilor's application of 10 June 2014 be dismissed, and Ms Rankilor's appeal on this ground must also be dismissed.
43 In all the circumstances I consider that there is no merit to Ms Rankilor's appeal dated 7 July 2014 and it must be dismissed.
Appeal from decision of 24 March 2014
44 Ms Rankilor's first appeal bought by a notice of appeal dated 4 April 2014 relates to the decision of Deputy Registrar Harman to dismiss her application dated 24 February 2014 entitled 'chamber summons for an order that a default judgement be made due to non compliance over disclosure of documents for above proceedings'.
45 What was sought or set out in this application was as follows:
This matter will take at least half a day in order to determine that the defendant has defaulted on disclosing good and proper documentation as per solicitor's certificate lodged with the District Court which explained the need for full disclosure to be made.
The defendant forfeit the right to a trial due to deliberate non compliance of giving disclosure of relevant documents and for altering and deleting information from documents.
The court award me the full amount of Special Damages as set out in 'Particulars of Damages' plus determine amount of General Damages
46 During the course of the appeal hearing we went through Ms Rankilor's supporting affidavit of 24 February 2014 to ascertain which of the documents were, at the date of this appeal hearing, still in issue. Only one is in issue, which relates to the Street Tree information, the fifth category of document the subject of the subpoena I have addressed in relation to the second appeal.
47 However, in support of her appeal, on 26 June 2010 Ms Rankilor swore another affidavit entitled 'Further Affidavit for Default Decision – Chamber Summons Application'. Soon after this she also swore her affidavit of 7 July 2014 which set out the documents she sought pursuant to the subpoena, which are the same documents which she now seeks to be discovered by the City.
48 As Ms Rankilor is self-represented and this matter is proceeding to trial very soon, I will address her arguments that there are these specific other documents in the City's possession which have not been and should be discovered. In doing so I will bear in mind the principles which govern further and better discovery which I summarised in Integrated Management Services Pty Ltd v Inches (2009) 61 SR (WA) 114; [2009] WADC 41 [6] and [7], following Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] - [6]. In particular, it is necessary for Ms Rankilor to demonstrate reasonable grounds for the Court to be fairly certain that there are the following documents in existence which are relevant and ought to have been discovered:
1. Document which gives accurate measurement of height difference of slabs rather than slab being raised by some 20 millimetres as stated in defence document.
2. Road condition report with footpath information filled out.
3. Road Inventory Sheet with footpath information filled out.
4. Purchase order dated 15.1.13.
5. Street tree information record for tree outside 1 Angelo street, South Perth 4.2.12.
49 In relation to her claim that the City must have in its possession a document 'which gives accurate measurement of height difference of slabs rather than slab being raised by some 20 millimetres as stated in defence document', as Ms Rankilor deposed in her affidavit of 26 June 2014 'a mobile phone was used by City of South Perth representative to measure the height differential between the two slabs'. Annexed to this affidavit, Annexure 2, is a copy of a photograph showing how that mobile phone was used to measure the height differential. Yet Ms Rankilor goes on to state in her affidavit that 'I have not received any written documentation as to how City of South Perth has determined the difference to be 20 millimetres'. Later in her affidavit of 7 July 2014 (par 13) Ms Rankilor states 'Defendant used a mobile phone to make determination but no paperwork or photograph showing this height difference has been disclosed'.
50 It is readily apparent from Ms Rankilor's own affidavit evidence how the City determined the height difference and that the relevant photographs have been discovered. There are no reasonable grounds upon which I could be fairly certain that there is, as Ms Rankilor has argued, some other document in existence relevant to this matter.
51 Counsel for the City also advised during the appeal hearing that the person who carried out the measurement will be called as a witness at trial. That witness may be cross-examined by Ms Rankilor and submissions made at the trial concerning the accuracy and reliability of the measurement of the height difference using a mobile phone.
52 In relation to the next two items, the Road Condition report and Road Inventory Sheet, in Ms Rankilor's affidavit of 7 July 2014 (par 14) she refers to the City's standard report sheets (copies of which are Annexure 7 to her affidavit of 10 June 2014) and states 'a report would have been completed at time of incident'. She has further stated that there 'should be' one report following her incident and another report relating to when the footpath was subsequently repaired in January 2013.
53 The documents which form Annexure 7 to Ms Rankilor's affidavit of 10 June 2014 are blank documents entitled 'Road Condition Rating Sheet' (not report) and 'Road Inventory Sheet'. From the headings and sections set out in those documents, as well as the other discovered documents which are annexed to Ms Rankilor's affidavits and contained in the trial bundle, I am not satisfied that either a 'Road Condition Rating Sheet' or a 'Road Inventory Sheet was completed following the incident in 2012 or before the subsequent repair in 2013. It is only speculation that a document of this nature was required to be completed following the incident. While Ms Rankilor may believe, and has argued, that the City 'should have' completed such a document, on the information before me I could not be fairly certain that a completed 'Road Condition Rating Sheet' or 'Road Inventory Sheet' is in existence and ought to have been discovered.
54 In relation to the 'purchase order dated 15 January 2013', in the appeal hearing Ms Rankilor conceded that the document described as 'Requisition for Goods/Services' dated 15 January 2013, discovered by the City on 2 December 2013, satisfies her request for a purchase order.
55 In relation to the 'Street tree information record for tree outside 1 Angelo Street, South Perth 4.2.12', the City has discovered its Tree Manager Network data with a screen capture which records that the City did some work in the location of the incident in February 2012, the month before the incident. In par 22 of her affidavit of 7 July 2014 Ms Rankilor states as follows:
The information tree record should also have been disclosed to me. City of South Perth commenced a tree management plan in 2006 and, as a result, look after all the trees in the City of South Perth. City of South Perth were at incident site in February 2012, just one month before I tripped over raised paving slab (slab in complete shade on the day of incident). City of South Perth would have seen raised paving at the time due to working on the tree (annexure 6). City of South Perth, through their regular maintenance of the tree, would have visited site on numerous occasions before I tripped. Despite being at the site so soon before I tripped nothing was done by the City of South Perth to address the raised paving slab and were negligent as a result.
56 Annexure 6 is the screen capture from the Tree Manager Network database. Ms Rankilor's submission was that since there was a space for comment in the Tree Manager Network database, there should be comments in the database about what was seen on the footpath when the City was there in the month before the incident. That submission is based on a number of assumptions on Ms Rankilor's part, including that there was something which should have been recorded or reported, and that there is some document in existence about this. In fact, the absence of an entry in the comment section of the Manager Network database demonstrates that there is no such document in existence.
57 The affidavit information does not set out any reasonable grounds upon which I could to be fairly certain that the document which Ms Rankilor describes as the 'street tree information record' is in the City's possession, custody or power, and ought to have been discovered.
58 In addition to the five categories of documents, there are some further documents I should address which were referred to during the appeal hearing, although these were not the subject of either of Ms Rankilor's applications of 24 February 2014 or 10 June 2014.
59 In her affidavit of 7 July 2014 (par 16) Ms Rankilor referred to an email of 8 January 2013 which has been discovered in relation to the subsequent repair of the footpath in January 2013. This email refers to an 'attached photo of 1 Angelo Street'. Ms Rankilor has deposed that 'the photo in that email has not been disclosed to me'. However in the trial bundle (document number 17) there is a copy of that email with an attached photograph.
60 She also referred (par 21) to information she obtained from the City, through an FOI application, that it conducts audits on its footpaths every one to two years. She has sought the 'audit report' of the footpath in the specific location of the incident, both before and after the incident. There is an assumption by Ms Rankilor that when an audit is undertaken there is a report generated, and a further assumption that something was seen during the audit of the footpath in the location of the incident which required a report. The affidavit information does not set out any reasonable grounds upon which I could be fairly certain that the document which Ms Rankilor describes as an 'audit report' of the footpath in the location of the incident is in existence and ought to have been discovered.
61 Finally, Ms Rankilor referred to her earlier affidavit sworn 4 November 2013, in which she had annexed photographs showing an orange barricade erected around the location of the incident. She argued that she had not obtained any documentation from the City as to when that orange barricade was put up and when it was taken down. The essence of her argument was that the barricade could not be removed without authorisation from the City and that there would or should be a work order signed off to remove that barricade. This is just conjecture. This was also a matter raised in the two earlier hearings on 13 November 2013 and 28 January 2014 and in neither case was any order made that the City had to produce such a document.
62 For the reasons I have given there is no merit to Ms Rankilor's claim of non-compliance or non-disclosure by the City. Based on the information before me there are no reasonable grounds for the Court to be fairly certain that the documents which Ms Rankilor seeks are in existence, relevant and ought to have been discovered.
63 There is therefore no merit to Ms Rankilor's appeal dated 4 April 2014 and it must also be dismissed.
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