Whithear v Australian Capital Territory
[2019] ACTSC 195
•30 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Whithear v Australian Capital Territory |
Citation: | [2019] ACTSC 195 |
Hearing Date: | 16 July 2019 |
DecisionDate: | 30 July 2019 |
Before: | Crowe AJ |
Decision: | See [32] |
Catchwords: | PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for documents to be provided pursuant to s 68(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) – application for documents to be provided pursuant to r 651 of the Court Procedures Rules 2006 (ACT) – whether the documents sought are “about the accident” – whether the documents sought will assist in determining whether to commence proceedings |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 68, 168 Court Procedures Rules 2006 (ACT) r 651 Personal Injuries Proceedings Act 2002 (Qld) s 27 |
Cases Cited: | Ashton & Ors v The Australian Capital Territory [2019] ACTSC 93 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271 |
Parties: | Mark Whithear (Applicant) Australian Capital Territory (Respondent) |
Representation: | Counsel A Muller (Applicant) V Thomas (Respondent) |
| Solicitors Maliganis Edwards Johnson (Applicant) ACT Government Solicitors (Respondent) | |
File Number: | SC 259 of 2019 |
Crowe AJ
This is an application seeking orders pursuant to s 68(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) (the Act) that the respondent give the applicant copies of certain documents. Alternatively, the applicant seeks an order for preliminary discovery under r 651 of the Court Procedures Rules 2006 (ACT) (the Rules).
At approximately 6.10am on 27 February 2018, the applicant was riding his bicycle on the Criterium Circuit within Stromlo Forest Park (the Park) when a kangaroo jumped into his front wheel. He fell heavily and suffered significant personal injuries.
At the time of the accident the applicant was engaged in triathlon training as part of a squad being run by Mr Corey Bacon. In December 2017, Mr Bacon booked the circuit for his triathlon coaching business. The booking was for between 6 and 7am for each Thursday until 5 April 2018. The respondent occupied and managed the Park. It charged a small fee for activities such as those being conducted by Mr Bacon.
On 25 May 2018 the applicant, through his solicitors, served the respondent with a Personal Injury Claim Notification Form (PICNF) pursuant to the Act. On 18 June 2018 the respondent’s solicitors advised the applicant’s solicitors by letter that they considered the PICNF to be a complying notice and that copies of the respondent’s documents relating to how the accident occurred would be forwarded soon. The respondent also denied liability.
Thereafter, the respondent provided the applicant with copies of: plans (including a “work as executed” drawing) for the Criterium Circuit which appear to be dated 2006/7; copies of the documents relating to the booking made by Mr Bacon (including some terms and conditions relating to the booking); and, photographs of warning signs located in the Park. The respondent’s solicitor also confirmed by letter dated 20 March 2019 that there was a rural fence approximately one metre high around the Park, and a similar fence around part of the circuit intended to control pedestrian traffic (see p. 69, ‘JT12’ to Exhibit A1). The applicant’s solicitor requested copies of a wider range of documents under s 68 of the Act. This was resisted by the respondent which led to the filing of the Originating Application by the applicant on 21 May 2019.
By letter dated 17 July 2018, the applicant’s solicitor articulated his client’s claim in the following terms:
1. In the design and construction of Stromlo Forest Park, including Criterium Circuit, the respondent:
a. Designed and constructed Criterium Circuit as a cycling circuit which was capable of, and encouraged, high-speed cycling;
b. Designed and constructed Criterium Circuit in an area where the respondent knew or, ought to have known, there was a wildlife presence, including kangaroos;
c. Designed and constructed Stromlo Forest Park in a manner which encouraged the thoroughfare or wildlife, including kangaroos, through and across Criterium Circuit; and
d. Failed to design and construct Criterium Circuit so as to reduce the risk of wildlife, including kangaroos, entering the Circuit and posing a hazard to members of the public, including a hazard of the kind in which our client sustained injuries.
2. In the ongoing care, control and management of Stromlo Forest Park, including Criterium Circuit, the respondent:
a. Encouraged cyclists to utilise Criterium Circuit, including as a high-speed cycling circuit;
b. Knew or ought to have known, of the presence of wildlife at Stromlo Forest Park;
c. Knew, or ought to have known, of the hazard the wildlife presence, including kangaroos, presented at the Criterium Circuit. Being aware of the hazard, the respondent should have been aware of the risk of a cyclist injuring him or herself in the manner that our client did;
d. Failed to take reasonable precautions to reduce the risk of hazard to members of the public on Criterium Circuit posed by the wildlife presence, including:
i. Providing a complete fence around the perimeter of Criterium Circuit;
ii. Providing any or any adequate warning of the existence of wildlife on the Circuit;
e. Failed to take reasonable steps to reduce the thoroughfare of wildlife, including kangaroos, through and across Criterium Circuit; and
f. Exposed the claimant to a risk of injury which could have been avoided by reasonable care on its part.
Documents Sought by the Applicant
The categories of documents set out in the Originating Application were discussed in the course of the hearing on 16 July 2019. After those exchanges the applicant’s counsel sought leave to file and serve a document setting out with greater precision the categories of documents sought by way of preliminary discovery. That document was filed on 17 July 2019. The categories sought are:
a) Records and reports of incidents causing personal injury involving kangaroos at Stromlo Forest Park and Criterium Circuit;
b) Documents and information related to the funding allocated for the design, construction and landscaping of the Criterium Circuit, forming part of the Stromlo Forest Park;
c) Documents and information made available in the procurement process (whether by open tender or by way of multi-use list), in respect of the design, construction and landscaping of the Criterium Circuit, forming part of the Stromlo Forest Park;
d) Documents and information provided to the business(es) who were awarded the contract for the design, construction and landscaping of Stromlo Forest Park, including:
i. Contracts with the business(es); and
ii. Details of the funding;
e) Documents and information relating to the design, construction and landscaping of Stromlo Forest Park and Criterium Circuit, including:
i. Risk assessments; and
ii. Wildlife assessments;
f) No longer sought.
g) Documents and information on the type of existing fencing installed at or near Criterium Circuit, including planning materials and risk assessments for the installation of fencing; and
h) With respect to kangaroos:
i. Research and data produced with respect to kangaroo abundance, population dynamics and effects of grazing on grassland and woodland biodiversity for the area in Stromlo Forest Park, including data obtained via GPS tracking collars, for the period:
1. Prior to Stromlo Park’s development (if applicable); and
2. Any data collected since.
Section 68 of the Act
Section 68 relevantly provides:
68Respondent to give documents etc to claimant
(1)A respondent must give a claimant –
(a)copies of the following in the respondent’s possession that are directly to a matter in issue in the claim:
(i)reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates;
(ii)reports about the claimant’s medical condition or prospects of rehabilitation;
(iii)reports about the claimants cognitive, functional or vocational capacity; and
…
(2)The respondent must give the copies mentioned in subsection (1)(a) –
(a)within the period prescribed by the regulation (or, if no period is prescribed, within 1 month after the day the respondent receives a complying notice of claim); and
(b)to the extent that a report or other document mentioned in subsection (1)(a) comes into the respondent’s possession later, within 7 days after the day it comes into the respondent’s possession.
…
(5) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.
I have not been able to find any authority in this court discussing the extent of the obligation imposed by this section. Counsel for the respondent referred the court to the decision in Haug v Jupiters Ltd [2007] QCA 199; [2008]1 Qd R 276 (Haug). That matter involved an application for documents under s 27(1)(a)(i) of the Personal Injuries Proceedings Act 2002 (Qld). Although the wording is slightly different the substance of the section is indistinguishable from s 68(1)(a)(i). The claimant in that case alleged that he had been removed from a casino with excessive force. The claimant sought a range of documents under s 27 including personnel and training records, both in relation to the staff involved in the incident and generally, and also all documents relating to prior complaints about security staff.
The judge at first instance interpreted s 27 broadly and ordered the provision of the personnel and training records and some other background documents. He was not prepared to order the provision of the general training records or the complaints documents.
On appeal, the Court of Appeal found that the judge had erred in taking a broad view of s 27. Jerrard JA (with whom Williams JA and White J agreed) concluded at [23]:
The requirement that the directly relevant documents be “about the incident” should be understood as meaning reports and other documentary material about the incident as described in the notice of claim. That accords with the description of the application of the Act in s. 6, and the obligations in s. 9 to give a notice as described in the Regulation. It is a limiting requirement. Mr Myers referred the Court to the Oxford English Dictionary definition of “about”, and the explanation in that that “about” includes in its meaning “in connection with”, “on the subject” of, or “in relation to”. Mr R. Douglas S.C. was prepared to concede that, for example, reports written before an incident and predicting its occurrence could be said to be “about” the incident, and copies of those would have to be produced. Accepting that concession as sensible, it does not follow that the documents described in paras 1-8, other than para. 2, of the respondent’s solicitor’s letter of 17 January 2007 are in any sense documents “about the incident”. Most of them are demonstrably not.
The “para. 2” referred to above related to documents created specifically about the incident in which the claimant had allegedly been injured. The other paragraphs referred to background documents including those relating to training and complaints.
The key terms which led the Court in Haug to the conclusion that s 27(1)(a)(i) should be interpreted narrowly were “about the incident”. The use of the word “accident” in s 68 of the Act rather than “incident” as used in the Queensland equivalent makes no difference to this analysis in my view. The phrase is one of limitation. As in Haug, documents about the contracts for and funding of the circuit, prior risk assessments, prior incidents resulting in personal injury and the like fall well outside the scope of “about the accident”.
Applying the approach taken in Haug, I have concluded that the application for orders enforcing the obligations imposed on the respondent under s 68 of the Act must fail.
Preliminary Discovery
The applicant seeks relief under r 651 which relevantly provides:
651 Discovery to identify right to claim relief
(1) This rule applies if –
(a) a person (the applicant) has, or may have, a cause of action against someone (the potential defendant); and
(b) either –
(i) the applicant, after making reasonable inquiries, cannot obtain sufficient to decide whether to start a proceeding in the court against the potential defendant for the cause of action; or
(ii) … ; and
(c) the applicant has reasonable grounds for believing that the potential defendant has or has had possession of a document or thing that can assist in deciding whether to start the proceeding, or make the claim for relief, against the potential defendant; and
(d)inspection of the document or thing by the applicant would help in making that decision.
(2)If subrule (1)(b)(i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (inspection, detention, custody and preservation of property – orders etc)) against the potential defendant.
(3)…
(4)The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of documents or things in relation to which the application is made.
…
(5)The court may order the potential defendant to produce the document or thing to the applicant.
(6)… .
Associate Justice McWilliam summarised the applicable principles in Ashton & Ors v The Australian Capital Territory [2019] ACTSC 93 (Ashton) at [10] – [11] as follows:
[10] It may be seen that, under r 651(5) of the Rules, the Court has a general discretion whether to make the order sought. The discretion is only enlivened upon r 651 applying. Thus the plaintiffs must establish that:
(a)They may have a cause of action;
(b)They have made reasonable inquiries and have been unable to obtain sufficient information to decide whether to start a proceedings against the defendant;
(c)They have reasonable grounds for believing the potential defendant has or had possession of a document or thing that can assist in deciding whether to start the proceedings; and
(d)Inspection of the documents sought would help in making the decision.
[11] The plaintiffs bear the onus of satisfying the Court of these matters: Morton v Nylex Ltd [2007] NSWSC 562 at [33], cited in Hall v Commonwealth [2018] ACTSC 79 (Hall) at [22].
As I understand the submissions of the respondent, it does not contest that the applicant may have a cause of action against it as the occupier of the land where the accident occurred. Nor do I understand there to be an issue about the reasonableness of the inquiries made. The respondent’s submission was that the circumstances of the case did not demonstrate that there was any reasonable need for further documents to assist the applicant in deciding whether or not to start proceedings.
In relation to this issue I note that the preliminary discovery process is not the equivalent of the full discovery available after substantive proceedings have commenced (see SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271 at [19]). Also, given the burden preliminary discovery may place on a respondent prior to litigation, the Court must exercise caution in the making of such an order (see Hall v The Commonwealth of Australia [2018] ACTSC 79 at [7]).
Finally, the extent of the preliminary discovery that might be ordered is limited to no more than that which is necessary to enable the applicant to make a decision whether or not to commence proceedings (Kusa v Vong & Anor [2018] ACTSC 254 at [83]).
The applicant’s proposed claim in negligence is far from straightforward. He will be relying on s 168 of the Act. That section provides:
168Liability of occupiers
(1)An occupier of a premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of –
(a) the state of the premises; or
(b)things to be done or omitted to be done about the state of the premises;
(2)Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(a) the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(g)the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(3)Part 7.1 (Damages for personal injuries – exclusions and limitations) and part 7.3 (Contributory negligence), other than section 102(2), apply in relation to a claim brought by a person against an occupier of premises in relation to injury or damage.
(4)This section replaces the common law rules about the standard of care an occupier premises must show to people entering on the premises in relation to any dangers to them.
(5)This section does not affect –
(a) other common law rules about the liability of occupiers to people entering on their premises; or
(b)any other obligation an occupier of a premises has under another Act or any statutory instrument or contract.
(6)In this section:
“occupier”, of a premises, includes the lessor of premises let under tenancy who –
(a) is under an obligation to the tenant to maintain or repair the premises; or
(b)could exercise a right to enter the premises to carry out maintenance or repairs.
I assume that the applicant will also rely upon the general duty of care imposed on an occupier under the common law (see Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. That duty is probably broader than that under s 168 (Harris & Ors v Commissioner for Social Housing [2013] ACTSC 186 per Mossop J at [143]-[146]).
I note that in the correspondence between the parties the applicant admits that he was aware of the potential for kangaroos to be present in the area around the Criterium Circuit (see p. 71 of ‘JT13’ in Exhibit A1). The respondent, among the documents it provided under s 68, provided the applicant with copies of photographs of the signage around Stromlo Forest Park. I note in particular the following which appears on an entry to the Criterium Circuit, and also in the booking terms and conditions:
General Warning & Exclusion of Liability
Sporting activities at Stromlo Forest Park may be dangerous and may result in injury or death to the person &/or property loss or damage. Users participating and spectators viewing these activities do so at their own risk. To the extent permitted by law, the Australian Capital Territory excludes all liability, including but not limited to liability for personal injury, death, property damage, property loss, and consequential loss or damage of any kind arising from the use of &/or entry to Stromlo Forest Park, whether in contract, by negligent act or omission, or any other tortious action.
Conditions of Use
…
- People using this facility do so at their own risk.
…
Another sign contained the following words “Help us protect and conserve the natural environment, native animals & plants at this Park…” (see p. 49, ‘JT12’ in Exhibit A1). I infer from this that, to some degree at least, the Park was created with the intent that some or all of it should remain as a nature reserve.
Consideration
The crucial question raised by the applicant’s claim will be whether, in all of the circumstances, the steps taken by the respondent by way of warning and otherwise were reasonable in light of the known risk to those using the circuit of the presence of kangaroos in the Park.
Having regard to the period of time since the construction of the circuit there must be a reasonable prospect that the respondent will have records of risk assessments, reports of kangaroo incursions onto or near the track, records relating to decisions as to the nature and extent of fencing and perhaps documents relating to surveys of kangaroo numbers in the Park and what, if anything, should be done about them.
Documentation along the lines of that referred to at [25] above will, in my view, be crucial to the applicant’s decision as to whether he will commence proceedings. Thus, at one extreme, the records available to the respondent might indicate that there have been no complaints since the circuit was built in 2007 and that kangaroo sightings near the circuit have been trivial over the past several years. If indeed it was intended that the Park should operate as a nature reserve those circumstances might indicate that the suggestion of a kangaroo-proof fence around the circuit is quite unreasonable. In those circumstances those advising the appellant may well conclude that it would be very risky for him to embark on a damages claim against the respondent.
At the other extreme, a complete lack of any risk assessments and a history of complaints or reports of numerous kangaroo incursions onto the circuit while it was being used by cyclists might provide a real basis for the assertion that the respondent had failed to take reasonable care to ensure that users of the circuit were not exposed to the risk of injury due to the incursion of certain fauna onto the Park. Such circumstances might encourage the applicant to commence action.
In the context of the above comments, and applying the limitation referred to at [19] above, I consider that insofar as the applicant seeks the provision of documents, categories c), and g) of those set out at [7] above should be produced to the applicant. Categories b) and d) relating to funding and contractual documents seem remote at this stage. Although it is true that documents relevant to a defence which might be raised by a respondent might properly be the subject of an order for preliminary discovery (see Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; 77 NSWLR 506 per McColl JA at [51]) in my view the breadth of the documents requested under these categories would make the task of discovery disproportionately onerous given the potential benefit for the applicant.
Categories a), e) and h) are too wide in my view. In relation to each category I propose the production of a narrower range of documents to reflect that which I see as being reasonably necessary to enable the applicant to make the relevant decision of whether to commence proceedings.
Conclusion
It follows from the above that the applicant has demonstrated a proper basis for the Court to exercise its discretion in accordance with r 651(5) to order the respondent to produce copies of further documents to him. In my view it is appropriate and in the interests of justice to make such an order.
In relation to the question of costs, I note the approach taken by McWilliam AsJ in the matters of Ashton at [80]-[82] and Pesec v Consolidated Builders Ltd [2019] ACTSC 142. That approach seems to be sound having regard to the circumstances of the application here. Unless the parties wish to make submissions on the issue I propose to order that the applicant pay the respondent’s costs of the application and the costs of providing preliminary discovery. This order is made on the basis that that order will be subject to any further order of the Court (including an order that they be costs in the cause) should the applicant subsequently commence substantive proceedings against the respondent.
The orders of the Court are as follows:
(1) The respondent is to produce to the applicant the following documents:
(a)Documents evidencing reports of incidents causing personal injury involving kangaroos on or near the Criterium Circuit forming part of the Stromlo Forest Park within the past five years;
(b)Documents made available in the procurement process (whether by open tender or by way of a multi-use list), in respect of the design, construction and landscaping of the Criterium Circuit;
(c)Documents evidencing risk and wildlife assessments created for the design, construction and landscaping of Stromlo Forest Park (including the Criterium Circuit);
(d)Documents relating to the existing fencing installed at or near the Criterium Circuit, including planning documents and risk assessments; and,
(e)Documents containing research information in relation to kangaroo abundance and movements (including GPS tracking data) in Stromlo Forest Park during the past 5 years.
(2) Subject to order 3, the applicant is to pay the costs of this application and the respondent’s reasonable costs of complying with order 1.
(3) The costs referred to in order 2 are subject to any order which might be made in subsequent proceedings on a cause of action by the applicant against the defendant in respect of the injury suffered by him on 27 February 2018.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 30 July 2019 |
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