Giles v Commonwealth of Australia (No.2) [2014] NSWSC 1531

Giles v Commonwealth of Australia (No.2) [2014] NSWSC 1531

Special reasons existed for discovery because of the nature of the pleaded claims and the plaintiffs' childhood at the time of the alleged events, but the Court refused further discovery against the Commonwealth and the State of New South Wales because, although some categories were relevant, the cost, burden and delay of the searches would be oppressive and contrary to the overriding purpose, amounting to an abuse of process. The Fairbridge Foundation had not shown undue expense or delay, and relevant categories directly concerning Fairbridge Farm should be discovered, but by a modified verified list to avoid unnecessary burden.

Jurisdiction
Australia
Judgment Date
14 November 2014
Procedural Posture
Representative Proceeding; Personal Injury Claim / Interlocutory Application for Discovery
Outcome
Motion dismissed against the first and second defendants; discovery ordered against the third defendant in modified form; costs of the Motion are costs in the cause.
Legal Topics
['oppressive Discovery' 'categorised Discovery' 'special Reasons for Discovery in Personal Injury Proceedings' 'overriding Purpose' 'modified Verified List of Documents' 'costs in the Cause']
['civil Procedure' 'discovery' 'costs' 'personal Injury'] ['oppressive Discovery' 'categorised Discovery' 'special Reasons for Discovery in Personal Injury Proceedings' 'overriding Purpose' 'modified Verified List of Documents' 'costs in the Cause']

Case Brief

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Procedural Posture

Representative Proceeding; Personal Injury Claim / Interlocutory Application for Discovery

Legal Issues

  1. 1 ['Whether further discovery should be ordered against the Commonwealth of Australia and the State of New South Wales despite alleged oppression, cost and delay.' 'Whether the categories of documents sought were relevant to facts in issue rather than merely to a chain of inquiry or credit.' 'Whether special reasons existed under r 21.8 of the Uniform Civil Procedure Rules 2005 for discovery in a personal injury claim.' 'Whether further discovery against the Fairbridge Foundation should be ordered despite overlap with earlier discovery categories.' 'Whether discovery by the Fairbridge Foundation should be given by a modified verified list.']

Ratio Decidendi

Special reasons existed for discovery because of the nature of the pleaded claims and the plaintiffs' childhood at the time of the alleged events, but the Court refused further discovery against the Commonwealth and the State of New South Wales because, although some categories were relevant, the cost, burden and delay of the searches would be oppressive and contrary to the overriding purpose, amounting to an abuse of process. The Fairbridge Foundation had not shown undue expense or delay, and relevant categories directly concerning Fairbridge Farm should be discovered, but by a modified verified list to avoid unnecessary burden.

Court Disposition

Motion dismissed against the first and second defendants; discovery ordered against the third defendant in modified form; costs of the Motion are costs in the cause.

Orders

  • ['Notice of Motion filed 5 May 2014, seeking orders against the first and second defendants dismissed.' 'Order the third defendant to give discovery on or before 30 January 2015 by providing a list of documents which nominate the category of the documents by subject matter, file name or description, date range and...