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Supreme Court 9 July 2007

Jajaw v State of NSW

[2007] NSWSC 725

Public order & justice offences
"SPECIAL REASONS" TEST APPLICATION OF "NECESSITY" TEST.

Citation: Jajaw v State of NSW [2007] NSWSC 725
Court: Supreme Court of New South Wales
Date: 9 July 2007
Judge(s): Hoeben J

Background

The proceedings arose from events on the evening of 8 October 1995, when police attended a birthday party at a residential address in Lethbridge Park following a noise complaint. What followed was heavily disputed. The police alleged that a guest, the plaintiff, assaulted officers, escaped custody, and caused an affray, leading to approximately 24 officers attending the premises and multiple arrests. The plaintiff and related parties denied any wrongdoing and alleged the police abused their powers, assaulted guests, and wrongfully arrested attendees.

Fifteen sets of proceedings were commenced, originally in the District Court and later transferred to the Supreme Court. The plaintiffs fell into three groups: the occupiers of the premises, persons who were arrested and later charged with criminal offences (including the plaintiff), and persons who were present but not arrested. The plaintiff was charged with riot or affray, assaulting police, and related offences. He faced two trials, the first ending in a hung jury after 26 days and the second resulting in acquittal after 12 days.

The plaintiff then brought proceedings for malicious prosecution, among other causes of action. By notice of motion, he sought orders requiring the defendant, the State of New South Wales, to provide verified answers to specified interrogatories.

  • Whether the plaintiff's claims were properly characterised as "claims for damages arising out of bodily injury" under UCPR rule 22.1(3), thereby triggering the "special reasons" test for interrogatories.
  • Whether, in any event, the proposed interrogatories satisfied the "necessity" test under UCPR rule 22.1(4), which applies to all interrogatory applications regardless of the claim type.
  • Whether the specific interrogatories sought were directed at matters genuinely necessary for the fair disposal of the proceedings.

Decision

The court addressed the threshold question of whether the "special reasons" test applied. The defendant accepted that the category 1 and category 2 claims (trespass to land and malicious prosecution, respectively) were not claims for damages arising out of bodily injury, and that the "special reasons" requirement therefore did not apply to those claims. However, the defendant argued that the category 3 assault claims did involve bodily injury and thus engaged the higher threshold. The court acknowledged this distinction but ultimately resolved the motion on the "necessity" test, which applies in all cases.

Under UCPR rule 22.1(4), the court must be satisfied that an order for interrogatories is "necessary at the time it is made." Hoeben J examined what the plaintiff already had available: the full police brief, transcripts from both criminal trials, and the exhibits tendered at those trials. The police officers who formed the core of the defendant's case had been comprehensively cross-examined across those proceedings. The court described this as the "very antithesis" of the situations considered in cases where interrogatories were found necessary, such as where a party lacked access to basic information about the other side's case.

Against that background, the court assessed the specific interrogatories proposed. They addressed matters including events at a locked side gate, what was said at a post-incident debrief, whether officers had discussed their witness statements, police training in preventing psychiatric injury to bystanders, and authorisation for police dogs entering the premises. The court found these matters were peripheral at best and that the absence of answers to them would not meaningfully affect the plaintiff's ability to pursue his claims. The necessity threshold was not met and the orders were refused.

Orders Made

  • Orders 3 and 4 of the Notice of Motion dated 2 August 2006 were refused.
  • The plaintiff was ordered to pay the defendant's costs of the motion.

Key Takeaways

  • The "necessity" test under UCPR rule 22.1(4) operates as an independent and universal requirement for any interrogatory order; even where the "special reasons" test does not apply, a party seeking interrogatories must still demonstrate that the order is necessary at the time it is sought.
  • Where a plaintiff already holds the police brief, full trial transcripts, and exhibits from related criminal proceedings, the bar for establishing necessity is very high. Hoeben J found the plaintiff's access to material was exceptional rather than deficient.
  • Interrogatories directed at peripheral or collateral matters, such as post-incident debriefs, internal discussions among officers, and training practices, will not satisfy the necessity test where those matters do not significantly bear on the central claims.
  • A claim's characterisation as one "arising out of bodily injury" under UCPR rule 22.1(3) determines whether the additional "special reasons" threshold applies, but this distinction becomes academic if necessity under rule 22.1(4) cannot be established in any event.
  • In proceedings involving multiple related plaintiffs and claims, the court may adjourn questions about joint hearing and evidence orders until case management clarifies the trial issues, rather than resolving them prematurely on motion.

Legislation and Cases Referenced

Legislation:
- Crown Proceedings Act 1988 (NSW)
- Police Act 1990 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), Part 22, rules 1 and 2
- Supreme Court Rules (NSW), Part 24, rules 1 to 6
- District Court Rules (NSW), Part 22A, rules 1 to 6

Cases:
- A v NSW [2007] 81 ALJR 763
- Binks v North Sydney Council [2001] NSWSC 27
- Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
- Boyle v Downs (1979) 1 NSWLR 192
- Cavric v Coopers & Lybrand (ACT) Limited & Anor [2002] NSWSC 538
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- Griebart v Morris [1920] 1 KB 659
- Haywood v Collaroy Services Beach Club [2005] NSWSC 1203
- Lang v Australian Coastal Shipping Commission (1974) 2 NSWLR 70
- Mitchell v John Heine & Son Limited (1938) 38 SR (NSW) 466
- Newcastle City Council v Kern Land Pty Ltd & Anor (No 1), unreported, 9 December 1996, McLelland CJ in Eq
- Priest v State of NSW [2006] NSWSC 12
- R v Gould (1993) 67 A Crim R 297
- Schutt v Queenan & Anor [2000] NSWCA 341
- Yamazaki v Mustaca [1999] NSWSC 1083