Abreu v Thomas Peacock and Sons Pty Ltd [No 2] - [2012] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ABREU -v- THOMAS PEACOCK & SONS PTY LTD [No 2] [2012] WADC 10

CORAM: SCOTT DCJ

HEARD: 23 JANUARY 2012

DELIVERED : 25 JANUARY 2012

FILE NO/S: CIV 2455 of 2009

BETWEEN: OSWALD BRUCE ABREU
Plaintiff
AND
THOMAS PEACOCK & SONS PTY LTD
Defendant

Catchwords:

Appeal - Further and better discovery - Interrogatories - Sufficiency of answers

Legislation:

Limitation Act 2005 s 14(1), s 39(3)(b), s 79(3)
Rules of the Supreme Court 1971
District Court Rules 2005

Result:

Appeal allowed
Further answers to interrogatories ordered

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos SC
Defendant: Mr G Hancy

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: WHL Legal Pty Ltd

Case(s) referred to in judgment(s):

Adams v Dickeson [1974] VR 77
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Foakes v Webb (1884) 28 Ch D 287
Sharpe v Smail (1975) 5 ALR 377

SCOTT DCJ: The plaintiff's claim is for damages arising from injuries alleged by him to have been sustained on 29 May 2006 during the course of his employment with the defendant (accident).
The writ of summons was issued on 19 August 2009. In its defence the defendant pleads that the writ of summons was issued more than three years after the accident by reason of which pursuant to s 14(1) of the Limitation Act 2005 (WA) (Limitation Act) the plaintiff was not entitled to commence or maintain his action against the defendant.
There are a number of issues which are to be dealt with on a trial of preliminary issues which has been set down for hearing for three days commencing 30 January 2012. Those issues include the following:
(3)(e)(i) Is the reference in s 39 of the Limitation Act to becoming aware of an injury attributable to the conduct of a person, a reference to becoming aware of an injury in respect of which damages are then claimable/recoverable in accordance with s 93K(4) of the Compensation Act?
3(e)(ii) If so, and the limitation period had expired when the writ was issued, should the court now extend the time under s 39(3) on the basis that the plaintiff was then not aware that his injury 'was attributable' to the negligence of the defendant, and can and should that extension be backdated …
To that end s 39(3)(b) of the Limitation Act provides as follows:
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues ‑
…
(b)was aware of the physical cause of the … injury but was not aware that the … injury was attributable to the conduct of a person;
…
By s 79(3) of the Limitation Act the plaintiff bears the burden of proving that the court should extend the limitation period.
Therefore one of the core issues in the trial of preliminary issues will be the plaintiff's awareness that the injury alleged to have been sustained by him was attributable to the conduct of the defendant.
There are two matters which fall for determination by me. They are:
1.An appeal by the plaintiff against an order made by Registrar Kingsley on 12 January 2012 that the plaintiff give further discovery and provide the defendant with copies of all documents including any solicitor's notes of advice that record or evidence advice given to the plaintiff by his solicitors concerning the association between the plaintiff's alleged injury and the conduct of the defendant. The ground of appeal is that the registrar failed to make a determination that the documents about which further discovery was sought exist or that he erred in concluding that they did exist.
2.The defendant's application pursuant to O 27 r 7 of the Rules of the Supreme Court 1971 (RSC) for an order that the plaintiff answer on oath to the best of his knowledge, information and belief interrogatories which were on 6 September 2011 ordered to be answered by him on the grounds that the plaintiff's answers sworn 13 December 2011 were insufficient.

Appeal – further and better discovery

Pursuant to r 15 of the District Court Rules this appeal is by way of a hearing de novo. That is, to be determined by me afresh on the evidence before me.
The registrar considered the materials upon which the parties relied. He referred in his Reasons to the plaintiff's submission that all documents within the description sought had been discovered and to the submissions by the defendant that it was unlikely that there were no solicitor's notes of advice prepared. The registrar found that the plaintiff, by putting in issue the question as to the state of his awareness that his alleged injury was attributable to the conduct of the defendant, had waived his right to maintain privilege over the advice given to him by his solicitors concerning the nature and elements of any common law action against the defendant.
The registrar made an order for further and better discovery in the terms sought by the defendant. On the hearing of the appeal counsel for the plaintiff conceded that privilege had been waived. Counsel said that the issue on appeal was whether the registrar erred in failing to determine the central issue on the defendant's application for further and better discovery namely whether documents fitting the description being sought by the defendant, existed.
At the hearing of the appeal counsel for the plaintiff said that Mr Nigam, the principal of the firm of solicitors acting for the plaintiff, would swear an affidavit clearly confirming that there were no documents in his firm's possession, custody or control that record or evidence advice given to the plaintiff by his firm between 7 March 2008 and 29 May 2008 concerning the association between the plaintiff's alleged injury and the conduct of the defendant.
Counsel for the defendant said that if an affidavit in those terms was sworn then that would put an end to the defendant's requirement for further and better discovery.
I have now received an affidavit in those terms. For the purposes of the issue of costs I set out below some brief facts and observations.
On an application for further discovery what an applicant must do is to depose on affidavit his belief that the other party has or has had in his possession, custody or power the documents or classes of documents specified in the application and that they relate to one or more of the matters in question in the action. Otherwise the court's discretion to make an order for further discovery under O 26 r 6 of RSC is not enlivened: CVW Group Holdings Pty Ltd v Addison [2011] WASC 267.
In this case the defendant relied upon the affidavit of Callum Stephen Fraser sworn 18 August 2011 (Mr Fraser's affidavit). He was a solicitor employed by the defendant's solicitors. He deposed that he believed that the plaintiff has or has had in his possession custody or control documents recording or evidencing advice given to the plaintiff by his solicitors concerning the association between the plaintiff's alleged injury sustained on 29 May 2006 and the conduct of the defendant, including any solicitor's notes of advice.
In Mr Fraser's affidavit he related the basis upon which that belief was held.
Maureen Bijou O'Connell, a solicitor in the employ of SC Nigam & Co the solicitors for the plaintiff, swore an affidavit on 9 September 2011 (Ms O'Connell's affidavit) in opposition to the defendant's application. In addition Sharad Chandra Nigam swore an affidavit on 19 January 2012 (Mr Nigam's affidavit) in support of this appeal.
In his affidavit Mr Fraser referred to a number of matters distilled from documents filed in the action, which grounded his belief. Essentially they are as follows:
(a)In an affidavit sworn 10 June 2009 Mr Nigam deposed that:
(i)the plaintiff and his wife attended upon him on 7 March 2008 in relation to the plaintiff's workers' compensation claim arising out of the accident on 29 May 2006;
(ii)the plaintiff instructed Mr Nigam that his termination date was to expire on or about 5 September 2008;
(ii)prior to 29 May 2009 medical reviews were undertaken by or at the instigation of Mr Nigam for common law impairment assessments;
(iv)prior to 29 May 2009 applications were made to the Dispute Resolution Directorate to extend the termination date.
(b)In his witness statement filed with respect to the trial of preliminary issues the plaintiff did not expressly state when he first knew or became aware that his alleged injury was attributable to the defendant's conduct.
(c)The medical reviews for common law impairment assessments must have related to the investigation of a common law claim against the defendant otherwise they would have been unnecessary. As a consequence he expected that there would have been advice from Mr Nigam to the plaintiff as to the extent to which his alleged injury may be attributable to the defendant and that it would be a normal practice for a solicitor to take notes of advice so given.
(d)Notwithstanding that SC Nigam & Co were pressed by the solicitors for the defendant to discover any documentation including notes of advice relating to the extent to which the plaintiff's alleged injury was attributable to the defendant, SC Nigam & Co at no time clearly stated that no such documentation or notes existed.
For example:
(a)In a letter from SC Nigam & Co to the solicitors for the defendant dated 22 June 2011 there appeared the following:
In relation to your request for discovery of 'previous advice' referred to in our letter dated 28 July 2008 addressed to our client, we suggest that you read the letter carefully and you will see that the 'previous advice' has been repeated in the same sentence. No document on our file exists containing that advice and that the 'previous advice' was verbal.
But then there is the following paragraph:
'We further advise that if any notes of the meeting between Mr Sharad Nigam and our client [sic] we claim legal professional privilege and if you require discovery of those notes then you simply have to make an application in the court and establish relevance of same.'
(b)In a letter from SC Nigam & Co to the solicitors for the defendant dated 15 August 2011 the following appears:
We advise that in relation to the defendant's pending application for further and better discovery, there are notes of the initial consultation between the plaintiff and Mr Sharad Nigam, however those notes do not contain any entry relevant to the limitation issues and as such are covered by legal professional privilege.
(c)In his affidavit sworn 19 January 2012 Mr Nigam deposes at par 24:
On 15 August 2011 I wrote a letter to the defendant's solicitors advising that there are notes of the initial consultation between myself, the plaintiff and his wife on 7 March 2008 however the notes do not contain any entry relevant to the limitation issues and in any event are covered by legal professional privilege … .
In my view the responses in the correspondence from SC Nigam & Co and in par 24 of Mr Nigam's affidavit were in oblique terms and were coupled with reference to the issue of privilege. For example reference to any file notes was to any matter 'relevant to the limitation issue' which lacked specificity. It would have been a simple matter for there to have been clear confirmation, if it be so, that no note was or had been made as to any advice given by the plaintiff's solicitors to him about whether his alleged injury was attributable to the defendant.
In view of the fact that a further affidavit has been filed by Mr Nigam, and on the assumption that counsel for the defendant accepts that no order for further and better discovery is to be pressed, the appropriate order is that the appeal be allowed. I will hear counsel on costs.

Interrogatories

By a chamber summons (amended) the defendant sought leave to administer interrogatories to the plaintiff. A minute of the proposed interrogatories was annexed to the affidavit of Callum Stephen Fraser sworn 29 September 2011 (Mr Fraser's affidavit).
The application came on for hearing on 1 December 2011 at which time the minute of proposed interrogatories was amended. Registrar Kingsley made orders that the defendant have leave to interrogate the plaintiff and that the plaintiff do within 14 days provide answers or objections to the interrogatories as amended.
The plaintiff answered the interrogatories by affidavit sworn 13 December 2011. In those answers the plaintiff took no objection to any of the interrogatories.
In answer to interrogatories 1.1 – 1.4 the defendant said:
I saw my solicitor on a number of occasions before 29 May 2009 but I did not understand his advice.
The question asked in interrogatory number 2 is 'If an answer to the preceding question is "yes", in respect of each occasion when advice was given:
2.1When was the advice given.
2.2Who gave the advice.
2.3Apart from advice on prospects of success what was the substance of the advice.
2.4Was any and what advice given about an act or omission of the defendant or any employee of the defendant.
In answer 2.1 the plaintiff's answer was that the advice was given between 07.03.2008 and prior to 29.05.09 and in respect to making an application to extend the termination date, he specified dates upon which advice was given.
His answers to interrogatories 2.3 and 2.4 were the same namely 'I was unable to understand'.
The defendant's application is brought pursuant to O 27 r 7 RSC. Although the summons does not articulate the specific grounds for complaint I accept from the defendant's submissions those grounds to be that the answers are insufficient on the basis that the plaintiff has not stated that he has made proper enquiries and that he has answered the interrogatories to the best of his knowledge, information and belief.
Counsel for the defendant says that given the context of the interrogatories and the nature of the plaintiff's answers, it was incumbent upon him to make enquiries of his solicitors and then answer the interrogatories to the best of his knowledge, information and belief and that it is clear that he has not done so.
Counsel for the plaintiff submitted that the answers to the interrogatories are sufficient. He said that the issue to which the interrogatories are directed can only pertain to the awareness which the plaintiff had prior to the expiration of the limitation period as to the extent to which the injury alleged by him could be attributed to the defendant.
As such, counsel submits, it is the actual awareness of the plaintiff which is relevant irrespective of any advice which may have been given to him which he did not understand.
As a consequence, counsel for the plaintiff says, it is not incumbent upon the plaintiff to make enquiries and/or to answer the interrogatories to the best of his knowledge, information and belief.
In addition, counsel says that the interrogatories are essentially addressed to matters which go merely to credit that is whether the plaintiff was in fact not aware of any advice given to him and as a consequence ought not be allowed: see Sharpe v Smail (1975) 5 ALR 377, 381.
As to this issue as there has not been any objection to any interrogatory and on this application any objection cannot be entertained: see Adams v Dickeson [1974] VR 77, 82. In any event, I do not consider that these interrogatories go merely to credit. The plaintiff's awareness is a core issue.

My determination

The answers to interrogatories 1.1 – 1.4 are insufficient because they are evasive.
In Mr Nigam's affidavit sworn 19 January 2012 he says at par 31:
On the occasions that he attended upon me to give instructions he was accompanied with his wife who acted as an interpreter … .
The question asked in interrogatory 1 was whether the plaintiff received any advice from a lawyer or employee of a firm about four specific matters. As part of each answer the plaintiff said '… but I did not understand his advice' from which one might infer that advice was received. That is also indicated from the answers to interrogatory number 2 which is prefaced by there having been a positive response to the question as to whether advice was received. The plaintiff should have said in answer to interrogatories 1.1 – 1.4 whether he received advice or not.
Further, it is not clear why it is then said by him that he did not understand the advice. If that is relevant to the question then in my view he ought to have said why it was that he did not understand the advice.
There may be any number of reasons why he may have had a lack of understanding. It could be because he did not understand what was being said to him because of the language spoken by the solicitor or that what was being said to him was not interpreted in his own language so he could understand it or by reason of his intellectual background he understood what was being said but did not understand what it meant.
As a consequence each of the answers to interrogatory 1 are insufficient. The same applies to the answers to interrogatories 2.3 and 2.4.
I do not consider that the answers to interrogatory 2.1 are insufficient. As to the answers numbered 2.1.1 – 2.1.3 the question asked was 'when advice was given'. Specific dates were not sought and the answers given are sufficient as is the answer numbered 2.1.4.
It is incumbent on the plaintiff in answering the interrogatories to state that proper enquiries have been made by him and that his answers are given to the best of his knowledge, information and belief: Sharpe v Smail (379). In order to do so that would necessarily require him to make enquiry of his solicitor: see Foakes v Webb (1884) 28 Ch D 287, 289.
Whilst I accept that the ultimate question on the trial of issues might be whether the plaintiff had a relevant awareness which would require a determination to be made as to the state of his knowledge, in this case the defendant is entitled to know whether and what advice was given to him by his solicitors prior to the expiry of the limitation period.
There will be an order for further answers to interrogatories 1.1 ‑ 1.4, 2.3 and 2.4 in which the plaintiff is required to state that proper enquiries have been made by him and that the answers are provided to the best of his knowledge, information and belief.
Given the proximity of the trial of preliminary issues I will hear counsel as to the terms of orders which can then be accommodated and as to costs.