Lipman v State of New South Wales

1. [1]

   This judgment concerns a Notice of Motion (NOM) filed by the defendant on 11 April 2025, seeking discovery and interrogatories.

2. [2]

   The plaintiff is Mr John Lipman. He is represented by B Dooley SC and P O’Rourke of counsel. The defendant is the State of New South Wales. It is represented by N Bentley of counsel. The parties relied on a joint court book which was marked as Exhibit A.

3. [3]

   The plaintiff relied on two affidavits of the plaintiff dated 14 April 2025 and 28 April 2022 and two affidavits of Joel Tucker (the plaintiff's solicitor), dated 28 April 2025 and 6 May 2025. The defendant relied upon the affidavit of Amelia Grace Hagley (the defendant’s solicitor) dated 10 April 2025.

Background

1. [4]

   At about 1:25pm on 19 October 2011, the plaintiff, while executing his duties as an Inspector in the New South Wales Police Force (NSWPF), was injured at his Huntingwood office. It is alleged that while he was placing items in a cupboard the lights went out and attempting to leave the room to activate the afterhours switch, tripped and fell over some objects. The proceedings arise out of this incident and its alleged consequences, which it is claimed were occasioned by the defendant's negligence.

2. [5]

   Prior to initiating these proceedings, the plaintiff’s injury was substantially dealt with under the Police Regulation (Superannuation) Act 1906 (NSW) (Police Superannuation Act). Under that Act, the plaintiff was financially supported after his injury. The defendant has many of the documents relating to this incident in its possession. Following the incident, the plaintiff remained in the employment of the defendant.

3. [6]

   In August 2017 the plaintiff approached the Police Association of New South Wales (Police Association) in order to make a claim for lump sum gratuity under the Police Superannuation Act. The Police Association granted the plaintiff legal assistance for his claim under this Act. These legal services were provided by Walter Madden Jenkins (WMJ), panel solicitors for the Association.

4. [7]

   In August or September 2018, on his own application, the plaintiff was medically discharged from the NSWPF and was placed on a 'superannuation allowance' under the Police Superannuation Act. Following an appeal, the superannuation allowance was raised from 72.75% to 79.12% of the salary attaching to the office held by the plaintiff at the time of discharge.

5. [8]

   In April 2020, the plaintiff first contacted Slater & Gordon Lawyers. He did so because, it is said in his statement filed on 14 April 2025, having discussed his state of affairs with his partner, he decided to make enquiries as to whether or not 'there was any other action available' to him to compensate him for what he considered was 'a substantially reduced lifestyle' (at [54]).

The Pleading Framework

1. [9]

   On 29 April 2022, the plaintiff filed the Statement of Claim (SOC). He alleges that the NSWPF was negligent as outlined earlier and seeks damages for personal injuries.

2. [10]

   On 3 May 2022, the plaintiff provided particulars relating to out-of-pocket expenses, a claim for domestic assistance, loss of earning capacity and past economic loss, future economic loss, and loss of past and future superannuation entitlements.

3. [11]

   On 5 December 2022, the defendant filed a defence denying liability, raised contributory negligence, and a limitation defence under ss 50C-50D of the Limitation Act 1969 (NSW) (Limitation Act).

4. [12]

   On 11 April 2025 the defendant filed the NOM seeking, discovery of documents and interrogatories relating to its defence under the Limitation Act. Some of the documents sought on discovery were complied with by the plaintiff’s evidentiary statements filed on 14 April 2025 and 28 April 2025.

5. [13]

   The substantive matter is listed for a five-day hearing on 4 August 2025 to 8 August 2025.

Orders Sought

1. [14]

   In the light of the additional statements provided by the plaintiff, at the hearing, counsel for the defendant produced an updated list of orders sought (Short Minutes of Order for 20 May 2025 Hearing). They are:

2. [15]

   The orders seek the production of evidence and documents that may support the limitation defence. The relevant law is found in the Limitation Act. Section 50C provides that a cause of action for personal injury expires 3 years after the cause of action becomes discoverable. The defendant relies on ss 50C and 50D of the Limitation Act. These sections relevantly read:

3. [16]

   The defendant is required to raise a limitation defence.

4. [17]

   The defendant submitted that orders seek evidence relevant to these three elements. The plaintiff submitted that the NOM should be dismissed.

5. [18]

   I will first deal with the issue of interrogatories followed by discovery.

Interrogatories

1. [19]

   The defendant seeks orders that the plaintiff provide answers by affidavit to certain interrogatories under r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The interrogatories sought were listed in 'Annexure A' to the Short Minutes of Order for 20 May 2025 Hearing. They are as follows:

2. [20]

   In a common law claim arising out of bodily injury, an order to answer interrogatories is not to be made unless the court is satisfied that special reasons exist that justify the making of the order (UCPR r 22.1(3)). This requirement is additional to the general requirement that, in any case, an order to answer interrogatories can only be made where the court is satisfied that such an order is necessary at the time of issue (UCPR r 22.1(4)).

3. [21]

   Rule 22.1 of the UCPR relevantly reads:

4. [22]

   Both parties relied on Schutt v Queenan [2000] NSWCA 341 (‘Schutt’) and on Mid North Coast Local Health District v Hickson [2019] NSWCA 165 (‘Hickson’).

5. [23]

   By its written submissions in support of the NOM, the defendant says that the factual matters necessary to establish a limitation defence are uniquely within the knowledge of the plaintiff, and that, it is one of the ‘classic instances’ where an order to answer interrogatories should be made.

6. [24]

   The defendant relied on Hickson and referred to [25], stating:

7. [25]

   The defendant submitted, as I understand it, that a limitation defence engaging ss 50C–50D itself amounts to a special reason because the evidence necessary to establish such a defence lays within the camp of the plaintiff (T4 [19]-[27]).

8. [26]

   The defendant submitted that they should be permitted to have the plaintiff answer the interrogatories directly, rather than having to gather the answers from the disclosed documents (T20 [36]–[49]). This would also afford the defendant procedural fairness, that is, the defendant would be given an opportunity to test the answers against the documentary evidence (T20 [42]–[44]).

9. [27]

   The plaintiff referred to the requirement for identification of special reasons by the court before an order for interrogatories could be made. It says there are no special reasons for the ordering of interrogatories. It referred to Hickson and highlighted that in that case, the Court of Appeal did not order interrogatories but ultimately left intact the Registrar’s order that the plaintiff provide witness statements relevant to the limitation defence.

10. [28]

    Here, after the NOM was filed, the plaintiff provided two evidentiary statements and two affidavits which bear on the limitation defence (Evidentiary Statement of John Lipman, 14 April 2025; Affidavit of Joel Tucker, 28 April 2025; Supplementary Evidentiary Statement of John Lipman, 28 April 2025; and Affidavit of Joel Tucker, 6 May 2025). He argues that in light of the evidentiary statements, there is no necessity for the ordering of interrogatories; therefore, Hickson is not applicable.

11. [29]

    At the hearing, the plaintiff referred to the evidentiary statement of the plaintiff dated 14 April 2025, where he deposed to the following:

12. [30]

    Annexed to his evidentiary statement are approximately 60 pages of documents that include: internal police documents recording and dealing with the injury; correspondence between WMJ and the plaintiff relating to the claim under the Police Superannuation Act; the costs agreement issued by WMJ; emails between Slater & Gordon and the plaintiff; and memoranda of advice relating to the negligence action. Other documents filed by the plaintiff contain the same or similar documents.

13. [31]

    The plaintiff submitted that Hickson concerned an inability, for lack of evidence, for the defendant to plead a limitation defence (T27 [4]–[12]; [25]–[29]). Counsel referred to [31] of the judgment of Basten JA (with whom Payne JA agreed):

14. [32]

    The plaintiff submitted that the present case is distinguishable from Hickson because it concerns not an inability to plead but a desire to pre-emptively cross-examine — all the questions for which answers are now sought can be put to the plaintiff during cross-examination (T28 [8]–[11]).

15. [33]

    The defendant repeats their submission that special reasons arose ‘by dint of the plaintiff being the sole person who can answer the specific matters set out in s 50D of the Limitation Act’. It rejects the plaintiff’s submission that the provision of further evidentiary statements following the filing of the NOM renders nugatory the need for interrogatories.

16. [34]

    Generally, interrogatories may only issue where the court is satisfied that the order is necessary at the time it is made (UCPR r 21.1(4)). In common law actions arising out of bodily injury, there is a further requirement that the court be satisfied that there be ‘special reasons’ justifying an order for interrogatories (UCPR r 21.1(3)). This is on the basis that ‘personal injury proceedings can usually be justly and fairly disposed of without the need for interlocutory steps’ (Hickson at [31]).

17. [35]

    In Schutt, Mason P (with whom Powell and Fitzgerald JJA agreed) stated at [12]:

18. [36]

    In Schutt, the plaintiff was a little girl who had been struck by a car. The only witness other than the plaintiff was the driver of the car. It was this evidentiary issue that moved the Court to allow an appeal against a refusal to grant interrogatories (at [17]). There was no requirement at the time that a special reason be identified before interrogatories issue, but only that they were necessary at the time the order was made. The Court dismissed an argument that the availability of a police statement of the defendant rendered the interrogatories unnecessary.

19. [37]

    Schutt was discussed with approval in Hickson (at [25]) by Basten JA (with whom Payne JA agreed). In Hickson, the plaintiff, having taken an overdose of diazepam, was admitted to the Coffs Harbour Hospital on 6 November 2010. She was released on 9 November 2010 and jumped from a balcony on 10 November 2010. On 28 November 2016 she commenced proceedings alleging a negligent failure to take reasonable steps for her care and supervision to protect her from self-harm.

20. [38]

    Hickson, like the present matter, specifically considered interrogatories directly relevant to a ss 50C–50D limitation defence. The requirement for ‘special reasons’ also applied. There, a limitation defence had not been pleaded because the defendant considered that it did not have enough material to support such a defence. Despite this deficiency in the defendant’s pleading (and therefore lack of strict joinder of issue), the Registrar nonetheless ordered the plaintiff to provide witness statements relevant to the limitation defence. The Court of Appeal approved of this course of action and affirmed (at [26]) that it may, in some instances, be appropriate to interrogate another party ‘not to obtain evidence to support [one’s] case, but to discover whether [they] have a case at all’ (quoting Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 575).

21. [39]

    The Court of Appeal in Hickson (at [34]) approved of the reasoning of the Registrar as to the existence of ‘special reasons’ at [7] and [8] of his decision which is as follows:

22. [40]

    The Court held that it was open to the Registrar to conclude that the circumstances, being an inability of the defendant to plead a limitation defence, were such as to support a finding of ‘special reasons’. The Court (at [40]) was also critical of the Judge who overturned the Registrar’s decision thereby ‘effectively [foreclosing] the limitation defence being raised’.

23. [41]

    The defendant relied on the decision in Schutt where the Court of Appeal ordered interrogatories despite a statement being provided. That statement was a police statement and ‘wholly exculpatory’ (at [11]). The statement here stands in a different position, it was provided in light of the interrogatories sought and meets their substance. This is not analogous to the police statement given in Schutt, although it could be described as ‘exculpatory’.

24. [42]

    Here, the plaintiff has provided a further evidentiary statement (Evidentiary Statement of John Lipman, 14 April 2025). In particular, at [46]–[50], [54]–[65] of that evidentiary statement, the plaintiff, in lay terms, meets the substance of the interrogatories sought. Fundamentally, the plaintiff’s submission is that he was dissatisfied with the benefit received under the Police Superannuation Act and approached Slater & Gordon to see if anything else could be done. He discovered that he had a cause of action when he was told so at a conference with counsel. In my view, there is not any necessity, nor any special reasons demonstrated by the defendant. On 5 December 2022 the defendant filed a defence.

25. [43]

    In my view, the interrogatories are not necessary nor have special reasons been established. These issues are more fairly dealt with at trial where the plaintiff can give evidence and be cross examined.

Discovery and Privilege

1. [44]

   Discovery is sought in relation to documents:

2. [45]

   In particular, the defendant seeks discovery of the documents which passed between the plaintiff and the firm of solicitors, WMJ, which was assisting him with his claim for lump sum gratuity under the Police Superannuation Act and of all documents concerning the plaintiff’s claim arising from a 1987 motorcycle accident from which he was injured while on duty as a police officer.

3. [46]

   The documents held by Slater & Gordon have been produced to the Court by subpoena filed 25 November 2022. The documents held by WMJ have been produced to the Court by subpoena filed 25 November 2022. On 14 May 2025 a subpoena was also issued to Taylor & Scott, the solicitors who assisted the plaintiff with his claim arising from the 1987 motorcycle injury. The date for compliance was 21 May 2025, but nothing has been produced to the Court.

4. [47]

   Rules 21.1­­­–21.8 of the UCPR govern discovery. They relevantly read as follows:

5. [48]

   Rule 21.8 provides that in a common law claim arising out of bodily injury, an order for discovery may not be made unless the court, for special reasons, orders otherwise.

6. [49]

   The defendant submitted that ‘special reasons’ arise from the same matters identified in relation to interrogatories. The documents over which discovery is sought directly inform the limitation defence and are uniquely within the knowledge of the plaintiff.

7. [50]

   The defendant anticipates the plaintiff’s claim of privilege of those documents and submitted that ‘the controverting of the limitation defence by the plaintiff means that the plaintiff cannot maintain any such privilege’. The defendant submitted that any privilege is destroyed by ‘issue waiver’:

8. [51]

   It relies on Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 (‘Archer’) and Pomare v Hogan (No 2) [2019] NSWSC 496 (‘Pomare’) to support these submissions. Specifically, the defendant draws attention to two memoranda of advice (dated 15 June 2020 and 11 May 2021) provided to the plaintiff by his counsel. The memorandum of 15 June 2020 stated:

9. [52]

   The memorandum of 11 May 2021 stated:

10. [53]

    The defendant submitted that there has been a ‘clear waiver’ (T12 [8]) in circumstances where the plaintiff has voluntarily waived privilege over advices which form the conclusion that there is no discoverability issue and where the defendant has been denied the opportunity to review the material on which that conclusion has been drawn (T13 [10]–[15]). Moreover, to deny the defendant such an opportunity amounts to a denial of natural justice (T9 [35]).

11. [54]

    The defendant further submitted that privilege has not been properly established over the documents and relies of the decision of Brereton J in Hancock v Rinehart [2016] NSWSC 12 (‘Hancock’). The party claiming privilege, under ss 118–119 of the Evidence Act 1995 (NSW) (Evidence Act) must establish that the evidence over which privilege is claimed is confidential (T9 [20]-[50]). In particular, it draws attention to [7] of Hickson:

12. [55]

    Counsel for the defendant also drew my attention to a decision of my own (Lila Foxall (by her tutor Robert Foxall) v Kirsty Carter (No. 2) [2023] NSWSC 872) where, in addition to Hancock, I considered New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWCA 257.

13. [56]

    The plaintiff submitted that there are no ‘special reasons’ to justify an order for discovery and so the Court’s power to order them does not arise. He submitted that the statements and documents provided by him following the filing of the NOM (including incident reports, communications between him and the NSWPF, and communications and the costs agreement between him and WMJ) provide all the documents relevant to a limitation defence and render any order for discovery unnecessary.

14. [57]

    The defendant impugns the plaintiff submissions, saying that the plaintiff does not show ‘why there is an absence of special reasoning justifying discovery in the present matter’ (emphasis in original). It also brings attention to the plaintiff’s failure to explain:

15. [58]

    Finally, it submits that:

16. [59]

    The onus is on the defendant to demonstrate ‘special reasons’. UCPR r 21.8 makes it clear, that in proceedings concerning a personal injury claim, an order for discovery is an extraordinary one. The general rule is that, in personal injury actions, proceedings can usually be justly and fairly disposed of without the need for interlocutory steps. This requirement is additional to the general position of the Court that some care must be exercised by the Court when dealing with discovery. In Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101], Allsop P (with whom Macfarlan JA agreed) said:

17. [60]

    I am not persuaded by the interpretation of Hickson advanced by the defendant that, of itself, a limitation defence under ss 50C–50D of the Limitation Act gives rise to ‘special reasons’ just because the matters going to the defence are completely within the camp of the plaintiff. This is not so. The defendant has already been provided with statements of the plaintiff and other documentary evidence.

18. [61]

    So far as the WMJ file is concerned, sometime soon after August 2017, the plaintiff engaged (on the initiative of the Police Association) WMJ in relation to his claim for a lump sum gratuity under the Police Superannuation Act. WMJ acted for the plaintiff for, it seems, just under 3 years. The plaintiff has produced the costs agreement and various communications between himself and WMJ. It is said that the provision of these documents renders an order for discovery unnecessary. If ‘special reasons’ were identified, it is a difficult proposition to accept that a party could dispel such special reasons by disclosing their own selection of documents over which discovery is sought. Although, I have no reason to doubt that senior counsel for the plaintiff ‘did not identify any advice [from WMJ] to the plaintiff in relation to bringing common law proceedings’, I accept that the defendant should itself be able to inspect the documentation.

19. [62]

    The special reason for ordering discovery is that the plaintiff, in relation to an injury which occurred in 2011, received legal advice in relation to the injury over a period of three years. The provision of that legal advice seems to have been only in relation to a claim under the Police Superannuation Act, however, it is curious, if the plaintiff’s submissions are correct, that the legal advice did not advert, even tangentially, to a potential action at common law. Any comments such as this go centrally to a ss 50C–50D limitation defence.

20. [63]

    It seems that the plaintiff also received analogous legal advice in relation to the injury sustained in the 1987 motorcycle accident.

21. [64]

    The overriding purpose of the power to order discovery is the just, quick, and cheap resolution of the real issues in the proceedings (Civil Procedure Act 2005 (NSW) (CPA) s 56(1)).

22. [65]

    Limitation periods are a fundamental element of private law (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551–552 (McHugh J)). Where there is a real possibility that a defendant may avail themselves of a limitation defence, it is in the interests of justice and advances the principal purpose of the powers vested in the Court for the adjudication of civil disputes that they be given the opportunity to do so.

23. [66]

    For these reasons, I order that the plaintiff give discovery of all documents produced to the Court by WMJ pursuant to the subpoena issued on 25 November 2022:

24. [67]

    The defendant has already subpoenaed Taylor & Scott documents relating to the 1987 motorcycle accident, but the documents have not been produced to the Court. Some of the documents are already available to the defendants namely the costs agreement. Taylor & Scott may not have retained those documents relating to the 1987 motorcycle accident as it occurred about 38 years ago. The defendants should chase up Taylor & Scott’s non-compliance with the subpoena.

25. [68]

    It becomes necessary then to consider which, if any documents, produced to the Court by WMJ are protected by client legal privilege.

26. [69]

    The parties relied on ss 117, 118, 122 of the Evidence Act. By operation of s 131A, those section apply to pre-trial discovery.

27. [70]

    Without deciding the anterior question of whether the WMJ or Taylor & Scott documents were privileged to begin with (although it seems that they were), I will deal with the question of waiver of that privilege.

28. [71]

    Under the statute (which does not exclude the common law otherwise expressly or by necessary intendment: s 9), loss of privilege by waiver is dealt with by s 122 of the Evidence Act:

29. [72]

    For the purposes of these proceedings, sub-s (2) is relevant.

30. [73]

    There has been no express waiver over the documents sought. What remains is the question of what has alternatively been called implied or imputed waiver. In Attorney-General (NT) v Maurice (1986) 161 CLR 475 (‘Maurice’), the High Court identified that the question of whether a waiver should be implied fundamentally turned on the question of fairness. At 481, Gibbs CJ said:

31. [74]

    His Honour quoted with approval a passage of Mustill J’s judgment in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] [1981] Com LR 138 at 139:

32. [75]

    In Mann v Carnell (1999) 201 CLR 1, while affirming Maurice, the High Court specified (at [28]) that it was ‘inconsistency between the conduct of the client and maintenance of confidentiality which effects a waiver of that privilege’.

33. [76]

    In Archer, the Court of Appeal further explained (at [48], [72]) that it was this inconsistency which gives rise to the unfairness identified in Maurice.

34. [77]

    However, the plaintiff has given statements describing the process by which, through the consultation of lawyers, he came to understand that he had a cause of action. The plaintiff has also disclosed various legal documents supporting the assertions made in the statement (for example, that he was not advised by WMJ as to the possible existence of a common law action). He has waived legal professional privilege over these documents.

35. [78]

    It is my view that any privilege over the WMJ documents has been waived. The plaintiff is to produce the following:

Costs

1. [79]

   Costs are discretionary. Counsel for the defendant sought indemnity costs (T28 [32]-[33]). The award of indemnity costs requires a 'sufficient or unusual feature' (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233-234 (Sheppard J)). The High Court has said that indemnity costs require 'some relevant delinquency' (Oshlack v Richmond River Council (1998) 193 CLR 72 [44] (Brennan CJ)). The defendant is not entitled to indemnity costs.

2. [80]

   Normally, costs follow the event. However, given the partial success and partial failure of this motion (both by way of consent and by way of this judgment), the appropriate order is that costs be costs in the cause.

   1. (1)

      the plaintiff, by 24 July 2025, is to give verified discovery of, and produce for inspection, all documents produced to the court by WMJ under subpoena issued 25 November 2022:

   2. (2)

      the plaintiff’s solicitors, by 2 July 2025, by way of affidavit, specify with respect to those documents captured by order (1):

   3. (3)

      leave is granted to the defendant’s legal representatives to inspect and copy any such documents captured by order (1); and

   4. (4)

      costs of the Notice of Motion filed by the defendant on 11 April 2025 are costs in the cause.