Rogers v Hougland - [1991] TASSC 72

Serial No 54/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Rogers v Hougland [1991] TASSC 72; A54/1991

PARTIES:  ROGERS, Margaret Sandra
  v
  HOUGLAND, Mike

FILE NO/S:  57/1988
DELIVERED ON:  12 July 1991
JUDGMENT OF:  Zeeman J

Judgment Number: A54/1991
Number of paragraphs: 22

Serial No 54/1991
List "A"
File No 57/1988

MARGARET SANDRA ROGERS v MIKE HOUGLAND

REASONS FOR JUDGMENT ZEEMAN J

12 July 1991

By an interlocutory application the defendant seeks orders to the following effect:

1That the plaintiff file an affidavit stating whether she has, or has at any time had in her possession, custody or power, certain specified documents, and if any such document has been, but is not presently, in her possession, custody or power, stating when she parted with the same and what has become of the same.
2That the plaintiff make serve and file a list of documents verified by affidavit.
3That the plaintiff produce for inspection by the defendant and his solicitors all the documents specified for the purposes of the first order sought.
4That in aid of such inspection the plaintiff make such requests and do such things as may be reasonably required to obtain relevant documents from the Department of Social Security by way of a request pursuant to the provisions of the Freedom of Information Act 1982 (Cth).
5That in further aid of such inspection, the plaintiff provide to the defendant's solicitors authority in writing to the Department of Social Security allowing those solicitors to inspect such of the documents as are held by that Department and to do all such other things as may reasonably be necessary to enable those solicitors to make a successful application for access to such documents under the Freedom of Information Act.

The plaintiff's action is one for damages suffered as a result of personal injuries. The application, which was filed on 16 May 1991, is made at a very late stage in the proceedings. The parties filed a certificate of readiness on 8 March 1990. Subsequent to the filing of that certificate, a number of pretrial conferences were conducted before a judge. At the time the certificate was filed, the plaintiff had delivered particulars of damages claimed, in what has become the usual form, whereby she provided full particulars of special damages claimed and of all heads of general damage. Those particulars did not suggest that the plaintiff was making any claim for loss of earning capacity whether past or future. As a result of discussions during the course of pretrial conferences, the plaintiff delivered amended particulars of the damages claimed by her on 13 November 1990. Those particulars, for the first time, suggested that the plaintiff was making a claim for damages suffered as a result of a loss of her earning capacity. The documents, the particular subject of the first of the orders sought, are of such a nature that if they are relevant to any issue which arises in this action, then they are relevant to the plaintiff's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] TASSC 72
Decision Date: 12 July 1991

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Margaret Sandra Rogers sued Mike Hougland for damages related to personal injuries. The defendant, Hougland, made an application seeking various orders related to the discovery and inspection of specific documents, including those held by the Department of Social Security and the Australian Taxation Office. The application was made at a late stage in the proceedings, after the plaintiff had filed amended particulars of the damages claimed, which included a claim for loss of earning capacity. The court had to decide whether the plaintiff was required to disclose and allow inspection of the specified documents and whether the provisions of the Freedom of Information Act 1982 (Cth) could be used to compel the plaintiff to allow inspection of documents in the possession of government agencies.

The court held that the plaintiff was required to make a list of documents in the prescribed form and verified by affidavit, including those documents that may have been lodged with the Department of Social Security or the Australian Taxation Office. However, the court did not find it appropriate to make an order for the inspection of the specified documents under the Rules of the Supreme Court, as those documents were not presently in the possession, custody, or power of the plaintiff. The court reasoned that the Freedom of Information Act did not automatically make documents within the "power" of a party for the purposes of the Rules of the Supreme Court, as the right of access under the Act was not presently enforceable until certain steps were taken successfully. Therefore, the court declined to make the orders sought by the defendant and ordered the plaintiff to make, file, and serve a list of documents in the required form and verified by affidavit. The application for specific discovery was adjourned sine die.

Orders