Wickham v State of Victoria (Ruling)
[2017] VCC 707
•6 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-04942
| LOWANNA WICKHAM | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2017 | |
DATE OF RULING: | 6 June 2017 | |
CASE MAY BE CITED AS: | Wickham v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 707 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Discovery of documents – application by plaintiff seeking further and better discovery of documents from defendant
Legislation Cited: Charter of Human Rights and Responsibilities Act 2006; Crown Proceedings Act 1958, s22, s23; Victoria Police Act 2003, Part 4, Division 8; County Court Civil Procedure Rules 2008, r29.01.1, r29.01.03; Civil Procedure Act 2010, s7, s55; Supreme Court (General Civil Procedure) Rules 2005 (Vic), o29
Cases Cited:Volunteer Fire Brigades Victoria Inc v Country Fire Authority [2016] VSC 573; Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1) (2013) 43 VR 493; Holt v Winter (2000) 49 NSWLR 128, Thorpe v Chief Constable of Greater Manchester Police [1989] 2 All ER 827
Ruling: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Robinson Gill |
| For the Defendant | Ms E Brimer | Norton Rose Fulbright Australia |
HIS HONOUR:
1 An application has been brought by the plaintiff seeking further and better discovery of documents from the defendant. Specifically, the plaintiff seeks:
“All documents regarding the creation of statements in this matter, including
(a) internal Victoria Police emails;
(b) draft statements;
(c) notes regarding interviews with witnesses;
(d) any other documents regarding interviews with witnesses, such as audio-visual recordings.” [1]
[1]Letter dated 12 October 2016
2 As a result of discussions between the plaintiff and defendant, the request in paragraph (a) has now been narrowed to the following.
“Discovery of internal Victoria Police emails to emails between the following members.
(a) Andrew Rodwell
(b) Jody Stewart
(c) Shaun Gunn
(d) Jill Prior and
(e) Rick Ellin.”
3 The plaintiff, in her Statement of Claim dated 30 March 2016, seeks aggravated and exemplary damages and declarations that her human rights were breached under the Charter of Human Rights and Responsibilities Act 2006 arising from action taken by members of the Victorian Police Force.
4 The events giving rise to these proceedings occurred on the 29 October 2012, when the plaintiff, in Russell Street, Melbourne at approximately 1.52am, was stopped and subsequently detained by Constable Rodwell and Constable Stewart.[2]
[2]Statement of Claim, paragraphs [6], [10] and [12]
5 It is pleaded in paragraph 15 of the Statement of Claim that:
“On or about 17 December 2012, the defendant and/or Constable Rodwell as informant charged the plaintiff with the following charges:
(a) ‘The accused at Melbourne on 30/01/2012 did resist one Constable Andrew Rodwell a member of the Police Force in the execution of his duty’;
(b) ‘The accused at Melbourne on 30/01/2012 did resist one Constable Jody Stewart member of the Police Force in the execution of his duty’.
(the charges).”
6 It is further pleaded in paragraph 16 of the Statement of Claim that after the first Court hearing, the informant amended the charges as follows:
“(a) ‘The accused at Melbourne on 30/01/2012 did obstruct one Constable Andrew Rodwell a member of the Police Force in the execution of his duty’;
(b) ‘The accused at Melbourne on 30/01/2012 did obstruct one Constable Jody Stewart a member of the Police Force in the execution of his duty’ -
and, further, added the additional charge of:
(c) ‘The accused at Melbourne on 30/01/2012 did behave in an offensive manner in a public place namely Russel[l] Street, Melbourne’.
(the amended charges).”
7 In paragraph 17(d) of the Statement of Claim, it is pleaded that all charges were subsequently withdrawn and the plaintiff’s legal representatives were advised of this on or around 4 September 2013.
8 The defendant, in paragraph 15 of the Defence dated 10 June 2016, denies paragraph 15 of the Statement of Claim but admits that the charges arose out of an event on 30 October 2012 and not 30 January 2012, as pleaded.
9 In paragraph 16 of the Defence, the defendant denies paragraph 16 of the Statement of Claim, but admits that amendments were subsequently made to the initial charges, and additional charges were added.
10 At paragraph 17 of the Defence, paragraph 17(d) of the Statement of Claim is denied and the Defence refers to and repeats paragraphs 8 to 14 of the Defence. There is no admission in paragraphs 8 to 14 of the Defence to the withdrawal of the charges, but it was not contested in argument before me that the charges were withdrawn. It is how and why the charges were laid and withdrawn that is central to the plaintiff’s claim.
11 The defendant is named pursuant to s22 and s23 of the Crown Proceedings Act 1958 and Part 4, Division 8 of the Victoria Police Act 2003.[3]
[3]Statement of Claim, paragraph [1]
12 The plaintiff’s application is opposed by the defendant on the grounds that:
(a)The request is not a reasonable request and does not fall under Order 7(d) of the Orders of Judge Misso of 31 May 2016, which said:
“Any document or class of documents which any other party reasonably requests the party to discover.”
(b)The documents sought do not go to a real issue to be determined at the trial.
(c)The request is inconsistent with the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.
13 The defendant relies upon the affidavit of Belinda Louise Cowley, sworn on 19 May 2017 in support of the submission that the request places an unreasonable or onerous task on it with respect to searching and retrieving documents. The plaintiff objected to the affidavit of Belinda Louise Cowley and submitted that should I seek to rely upon it for the purpose my Ruling, then the plaintiff requested an opportunity to cross-examine Belinda Louise Cowley. However, it was agreed if I refused the request on the grounds of relevancy, reliance upon the affidavit of Belinda Louise Cowley is no longer an issue.
14 Counsel for the plaintiff referred me to Rule 29.01.1 of the County Court Civil Procedure Rules 2008, which states:
“Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).”
15 Sub Rule 29.01.3 states:
“Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—
(a) documents on which the party relies;
(b) documents that adversely affect the party’s own case;
(c) documents that adversely affect another party’s case;
(d) documents that support another party’s case.”
16 The plaintiff’s argument is that internal emails that may have passed between relevant parties and any draft statement obtained for the prosecution of the charges would form part of the proper preparation of the prosecution case. They are therefore relevant and should be discovered.
17 In correspondence from the plaintiff’s solicitor to the defendant’s solicitors of 19 April 2017 it was said:
“It is an established principle of law that documents regarding the creation of reports are discoverable and we consider that the same applies for statements.”
18 Counsel for the defendant referred me to the decision of J Forrest J in Volunteer Fire Brigades Victoria Inc v Country Fire Authority (Discovery Ruling)[4] but it is also noted counsel for the plaintiff relied upon parts of His Honour’s Ruling.
[4][2016] VSC 573
19 J Forrest J referred to the principles relevant to discovery and, in particular, s7 of the Civil Procedure Act 2010 (Vic) (“the CPA”) and s55 of the CPA.
20 Section 7 demands that a court facilitate “the just, efficient, timely and cost-effective resolution of the real issues in dispute”.
21 His Honour referred to s55(1) of the CPA as giving an over-riding discretion to “give any directions in relation to discovery that it considers necessary or appropriate”.[5]
[5](Supra) at paragraph [28]
22 His Honour referred to his decision in Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1),[6] wherein he discussed the scope of both s55(1) of the CPA and Order 29 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), and said:
“These provisions make clear that the court’s powers in relation to discovery are broad. In sum, both the Act and Rules mandate that any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.” [7]
[6](2013) 43 VR 493
[7](Supra) at 500
23 In Volunteer Fire Brigades Victoria Inc v Country Fire Authority,[8] J Forrest J said:
“The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial.[9] It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.”[10]
[8]Supra
[9]Holt v Winter (2000) 49 NSWLR 128 at 142
[10]at paragraph [34]
24 His Honour further said:
“However, even with the introduction of the CPA, this is not how discovery works. Discovery has never been limited in such a way; discovery is an integral component in trial preparation. Discovery is not concerned with admissibility: it is part of the fact finding exercise in getting a case to trial. Indeed, often discovery may lead to a train of inquiry not confined to the tender (or putative tender) of a particular document in the course of a trial. Further, it may be that the document, or its contents can be deployed by a party in cross examination rather than part of its case. Much depends upon what happens at trial. One thing is clear: it is not for this Court on an interlocutory application to determine whether a potentially discoverable document will or will not be admissible at trial: that is the function of the trial judge.”[11]
and:
“As long as the document in the possession of a party goes to a real (and not peripheral) issue to be determined at the trial then, absent any proportionality consideration, it is relevant and ought to be discovered.”[12]
[11]at paragraph [40]
[12]at paragraph [41]
25 My decision, therefore, requires me to consider whether the documents that are requested by way of further disclosure go to the real issue in the trial. In that regard, counsel for the defendant referred me to correspondence of 19 April 2007 from the plaintiff’s solicitors to the defendant’s solicitors. In that correspondence, reference is made to paragraphs 7 to 8 of the Statement of Claim, where it was pleaded by the plaintiff that the move on direction was unlawful. At paragraph 11 of the Statement of Claim, the plaintiff alleged that she was advised she was under arrest for assault, and at paragraph 12 of the Statement of Claim, the plaintiff alleges that excessive, unreasonable and disproportionate force was used when she was placed and detained in a police divisional van. Counsel for the defendant argued that emails regarding the creation of any witness statements could not go to the question of those issues identified, as the witness statements of the security guards were taken some nine months after the incident.
Counsel for the defendant also argued that no issue is raised on the pleadings regarding the circumstances of the making of the witness statement and, as such, they could be directed to the issue of credit only. I was referred to the decision of Thorpe v Chief Constable of Greater Manchester Police,[13] that documents relevant solely to cross-examination as to credit only are not discoverable.
[13][1989] 2 All ER 827
26 The request for documentation regarding the creation of statements in this matter is as described by J Forrest J in Volunteer Fire Brigades Victoria Inc v Country Fire Authority,[14] part of the fact finding exercise in getting a case to trial. As he said, much depends on what happens at trial and in particular, issues surrounding the admissibility or otherwise of that document are matters for the trial judge.
[14]Supra
27 I am satisfied that the documents that are sought by the request for further and better discovery, if in existence, would go to the real issues to be determined. The evidence upon which the informants determined to act as they did and bring the charges is central to the plaintiff’s case. I accept that it is not an unreasonable request to ask what evidence the defendant may have in that regard given it is particularised on what is sought. Further, emails that may have passed between the relevant members of the Victoria Police as to the charges laid and prosecution of those charges, would be relevant to the allegation of malicious prosecution of the plaintiff.
28 However, some limitation is required to be placed upon what is sought to be obtained in accordance with the principles which have been referred to in this Ruling. For that reason, I propose to limit the Order in regard to the further and better discovery of documents to the following:
“All documents regarding the creation of statements in this matter including:
(a)discovery of internal Victoria Police emails to emails between the following members:
(i)Andrew Rodwell
(ii)Jodi Stewart
(iii)Shaun Gum
(iv)Rick Ellin;
(b)Draft statements as to witnesses and or police members;
(c)Notes regarding interviews with witnesses;
(d)Any other documents regarding interviews with witnesses and or police members such as audio-visual recordings.”
29 I have not allowed discovery in regard to emails relating to Jill Prior as I understand she was not a member of the Victoria Police Force. The others I understand were. I also consider the requirement placed on the defendant to enquire and obtain any of this material does not place an unreasonable demand on the defendant.
30 The plaintiff’s application is granted.
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