| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BAVIN-MIZZI -v- MURDOCH UNIVERSITY [2003] WADC 8 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 18 NOVEMBER 2002 DELIVERED : 20 JANUARY 2003 FILE NO/S : CIV 533 of 2002 BETWEEN : JILLIAN PETA BAVIN-MIZZI Plaintiff
AND
MURDOCH UNIVERSITY
Defendant
Catchwords: Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for further and better answers to interrogatories - Consideration of the exercise of discretion in O 27 r 7
Legislation: Rules of the Supreme Court of Western Australia
Result: Application dismissed
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Representation:
Counsel:
Plaintiff : Mr C Prast
Defendant : Mr D W St George
Solicitors:
Plaintiff : Slater & Gordon
Defendant : Crown Solicitor for the State of Western Australia
Case(s) referred to in judgment(s):
Aspar Autobarn Cooperative Society & Ors v Dovala Pty Ltd & Ors (1987) 74 ALR 550
Spedley Securities Ltd (in liq) v B R Yuill & Ors (No 4) (1991) 5 ACSR 758
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The action is for damages for loss as a consequence of breach of contract, negligence or breach of statutory duty.
2 By the application presently before the Court the defendant seeks "supplementary" answers to particular interrogatories. Objection has been taken to each relevant question. Having read and heard the applicant's submissions I understand that by use of the term 'supplementary answer' the defendant would allow for the prospect that in the event that an objection was not sustained the plaintiff may respond with a better founded objection. An analysis of the relevant rules will show that to the extent that the applicant is successful, objection would not be an option open to the respondent. 3 The applicant seeks to have the Court exercise jurisdiction under O 27 r 7. It is in the following terms: "If any person on whom interrogatories have been served fails, within the prescribed time or within such other time as the Court may allow, to answer the interrogatories or answers any of them insufficiently, the Court may make an order requiring him to answer or answer further as the case may be, by a statement verified by affidavit …" 4 In considering the exercise of that discretion, the Court ought to reflect upon r 5(2). It is in the following terms: "Where on an application under rule 7 the Court decides that an objection by the party interrogated to answering an interrogatory is not sufficient or the party interrogated does not object to answering an interrogatory, that party shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories." 5 It is because the discretion provided by r 7 is exercised in the context provided by r 5(2) that the submission which draws support from Spedley Securities Ltd (in liq) v B R Yuill & Ors (No 4) (1991) 5 ACSR 758 to the effect that any question going to a relevant matter may be put, is well wide of the mark. In any contest in relation to interrogatories, the primary issue to be determined is not which questions may be put, but rather, which questions ought to be answered. 6 It does not follow from a determination that an objection is insufficient that the question to which it relates ought to be answered. To
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follow that course would effectively allow for the prospect that questions which are patently objectionable be required to be answered without any serious consideration being given to the task which would thereby be imposed. Rather such a determination simply enlivens the discretion provided by r 7. 7 In relation to each interrogatory the onus is upon the applicant to satisfy the Court not only that the objection taken cannot be sustained but also that it is appropriate to require the respondent to answer. 8 By the application the applicant has presented 43 interrogatories and probably twice that number of part-questions for determination. In addressing the task of determining the application it is my broad assessment of the questions that they are framed in such terms that by the provision of answers the respondent may provide a significant part of what may usefully be described as her proof of evidence in evidentiary form. It is not properly part of the process of determining an application as to the sufficiency of answers to make any assessment based on the number of questions or their flavour. I choose to make those observations simply to provide a basis to follow a particular methodology in the process of determination. That is to provide some comment of general application prior to dealing with discrete questions. 9 It is implicit that in so interrogating the plaintiff the defendant considered the plaintiff to be an evidentiary resource available to it. As the defendant now seeks to have the Court compel the plaintiff to provide answers, a fundamental issue raised on the application is whether one party is properly considered to be such a resource. 10 Beyond the provision of pleadings and particulars there is no principle, rule or practice that would support any entitlement by one party to the provision of information by the other. In the absence of an order to that effect no party is entitled to the evidence of the other. 11 Litigation is a process by which parties seek to resolve intractable disputes. Inevitably that process is combative. The prospect of settlement to one side, the only common interest of the parties is that there be a fair trial. That reality is significant. It follows that neither party will necessarily have any interest in assisting its opponent in order to prepare its opponent's case for trial. On the hearing of a contested application for answers to interrogatories it is a fair assessment that the respondent will have reflected upon the motivation of the applicant including the prospect that it wishes to pitch its best offer of settlement, but that it is resolute.
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12 It follows that the Court ought to be circumspect in considering whether to exercise jurisdiction to compel such involuntary assistance; it should not exercise its power simply because it can do so. Indeed it is because the interests of the parties are adverse and the respondent not a volunteer that any consideration of the exercise of discretion engages consideration of the prospect of oppression. At one level, and considering the interests of the respondent, seeking to engage the respondent in the process at all is oppressive. None the less the Court recognises that there is some scope for proper recourse to the process. Such recognition is more likely to emerge where the applicant is able to demonstrate that proper recourse is sought to be had to the process. A judgment is more likely to favour the applicant where it can demonstrate the utility of the exercise, the simplicity of the task set and the limited extent of its proposed imposition on its opponent.
13 The only proper purpose served by interrogation is either to facilitate an understanding of the content of a document or to establish a relevant fact at trial. None of the questions in this case relate to the former prospect. As to the latter there is a clear distinction to be drawn between a question which unambiguously puts a proposition as to the existence of a fact and one that simply calls for evidence relating to a fact. The subject of the proposition would reveal the identity of the relevant fact and the interest of the applicant in seeking to so interrogate. A party straying much beyond that perimeter ought to recognise that in addition to clouding the identification of the relevant fact and thereby confounding the prospect of discerning the respondent's interest, it immediately raises for its opponent the exercise of determining how it might respond. In my opinion, prima facie to set such a task is oppressive. 14 Where a question expressly seeks evidence, the process of considering the exercise of discretion becomes complicated simply because ultimately the manner of any response would be in the hands of the respondent. In all probability, given the opportunity the respondent would seek to promote its own interest. Alternatively, looking to the prospect of enforcement, always a relevant consideration in making any order, ultimately the Court would hardly impose an obligation to provide an unequivocal response to a question that calls for evidence. 15 The significant practical consideration for the applicant is that such questions generate complexity in a context where it bears the onus. 16 The fact that in questioning its opponent an applicant does not isolate propositions of fact may immediately suggest either that it does not have
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the resources to enable it to do so or that it chooses to oppress its opponent. Even where the Court was satisfied that the resources available to an applicant are by any measure less than those available to a respondent, that fact alone ought not to motivate the Court to exercise jurisdiction to compel a party to assist its opponent. I would speculate that rarely do parties to litigation bring equal resources to the contest. The prospect of such inequality is of itself of no particular concern unless it is the case that the Court recognises that the party is thereby disadvantaged in seeking to understand a document or to establish a relevant fact. Significantly the fact that a party may otherwise be disadvantaged of itself does not translate into the result that it becomes appropriate to engage in oppression of ones opponent. It is more likely to lead to the result that it is unable to interrogate. 17 My knowledge of the case of each of the parties is each is pleaded. There is no evidence of any difficulty the defendant may have in either responding to the plaintiff's case or in advancing its own. For all I know the defendant may have a parade of proofed witnesses waiting to be called in relation to each fact that it seeks to establish. 18 It is appropriate to consider that the applicant has the capacity to evaluate what it needs to achieve in the process of getting up its case for trial. In bringing the application it has had the opportunity to file an affidavit in order to found any submission as to any want of information or resources. 19 In circumstances where it carries the onus the applicant has chosen to proceed in the absence of any evidence. Where the inferences open are many, to find for one that would support the applicant's case where the applicant had not bothered to do so would seem to me to be wrong. 20 I have commented that a question is probably properly considered to be inherently oppressive where it calls upon the respondent to determine the manner in which to respond. One facet of that oppression is a consideration of whether the response should be as fulsome as would be the case if the same evidence were to be given at trial. That consideration raises the prospect of oppression in the prospect of a lengthy comprehensive answer and also in the adequacy and the manner of expression of a summary. Ultimately and in my opinion, significantly, consideration would need to be given to whether the process of summarisation be conducted by the party or the solicitor.
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21 In my opinion the most significant abuse evident in the form of questioning arises from consideration being given to the prospect that for reasons of cost saving and other efficiencies the respondent will be attracted the proposition that the response is by way of summary and that the process of summarisation will be left to the practitioner. The Court ought to be alive to that prospect and that rather than using the answer to establish a relevant fact on the pleadings, the defendant utilise the response as a basis for cross-examining the deponent. It may be that at the very time when credibility is most in focus that the deponent might be placed in some real danger simply because a summary was provided by way of an answer to an interrogatory. If one was to be drawn to a relaxation of the considerations which proscribe a proper scope for the process, I would suggest that an attraction would evaporate on consideration being given to the prospect that I have outlined. The principle that founds all of the interlocutory processes is that recourse to them will not diminish the prospect of a fair trial. To countenance the prospect that resort to such a procedure would conceivably establish unfairness is antithetical to that principle.
22 Each of those considerations only needs to be expressed in order to appreciate their impact. At this stage in the action the parties could be expected to be devoting available resources to getting up their own cases for trial. Whist their opponents have the opportunity to engage in the process of interrogation on a broad assessment what this applicant proposes would constitute both a significant distraction from that task and I might add, even to the extent of answers in the form of objections comprehensively expressed. 23 In any particular case, those considerations will compound the oppression. Reflection upon them would engage the provision of services. Such provision could be expected to be in direct proportion to the degree of apprehended oppression. 24 The significant benefit in the process of interrogation lies in the prospect that recourse to the process will lead to a cost saving. It is of course easy for a party to submit that facilitation or enhancement of the prospect of early settlement will represent the greatest prospect of saving cost. Even if I was to focus upon that prospect ultimately it is no more than that: a prospect. There is nothing that would suggest that in the event that the plaintiff was called upon to provide evidence on any issue that there would be any cost saving in the sense of witnesses not being called or the plaintiff spending less time in the box. Indeed it is my opinion that in all probability any saving in the provision of evidence in answer will be
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offset by the prospect of prolonging the trial by providing fertile ground for cross examination. To close on the subject of costs I should make it plain that the prospect of a cost saving ought to be very much a second order consideration. The fundamental consideration is to preserve fairness at trial. 25 After recognising the proper impact of those considerations it is appropriate to consider that in the absence of any evidence as to the difficulties under which the applicant is labouring it is difficult to see that there is any reason why the plaintiff should provide evidence to the defendant. At the very least any submissions of the defendant as to lack of information or resources have little persuasive value. It would appear that the applicant seeks to have the Court exercise authority over the plaintiff simply because it can. 26 The Court has a proper interest in ensuring that the parties are exposed to the opportunity to settle. The prospect of the realisation of that opportunity will be the greatest where the maximum amount of the information available to one party is also available to the other. And so it was that the Court established the pre-trial conference mechanism and encourages all parties to make information available to each other. That the Court is so motivated is not a proper consideration in determining any interlocutory application. Indeed in my opinion such motivation ought properly be resisted as it clouds proper consideration of the discharge of the onus. Any principle that supports any such encouragement is elusive. If some principle could be distilled it could not disturb either the reality that in the context of the litigation the interests of the parties are opposed or the principle upon which the interlocutory processes are founded. That principle is to the effect that recourse to those processes may enhance but will not diminish the prospect of a fair trial. 27 Before I embark upon an analysis of the papers and submissions it is worth reiterating that the flavour of the task set for the respondent. The interrogatories number 43, there are probably twice that number of discrete questions. Whilst the plaintiff may have done herself a disservice by failing to found each objection it is not difficult to apprehend that the extent of the task set for her by the defendant was sufficiently oppressive that the applicant would have appreciated that a sketchy response was the best that it might expect. Perhaps I could put it this way: if the overwhelming majority of questions were unobjectionable it may be that the respondent would have given some greater consideration to the terms of objection to the balance.
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28 It is a fair assessment of the terms of the objections that they are unfounded by any evidence. Accordingly where she objects on the basis of oppression, the only submission available to the plaintiff is that the question is patently oppressive.
29 I will now consider the questions themselves. 30 Question 1 asks whether apart from injury sustained on the material date the plaintiff ever suffered injury to her right wrist, hand, forearm, or shoulder or her cervical spine. The objection that is that the interrogatory is irrelevant. 31 In considering the issue raised by the objection it is appropriate to reflect upon the fact that conceivably the plaintiff will at sometime have injured those parts of her body. Conceivably the result of any event of injury may at the material date and subsequently have had an impact on the plaintiff. Conceivably the question goes to a relevant issue. I am not in a position to make any better judgement. The defendant has failed to discharge the onus upon it to justify an exercise of jurisdiction in its favour. 32 Even if that had not been the course of my analysis it would have been appropriate to reflect upon the utility of either party establishing the fact at trial. In my opinion it is inconceivable that there could be any utility whatsoever. Even if my opinion was otherwise the question is patently oppressive in that the defendant leaves it for the plaintiff to determine within the context of the issues raised by the action or otherwise what would constitute an injury. With reference to the prospect of an event of simple bruising, the plaintiff may arguably properly consider that such an event was not the sort of event to which the defendant was referring and ignore it. However if she did so she would put herself into a precarious position taking into account the prospect of detailed cross-examination. The realisation of that prospect could establish fertile ground upon which to submit that the plaintiff is unreliable. In my opinion it would not be appropriate to require the plaintiff to answer. 33 I suspect that the defendant's only purpose in asking the question was to introduce the second, which for each such occasion of injury seeks a significant amount of evidence including the date, nature and location of the injury, the associated symptoms and their duration, how and in what circumstances the injury was sustained, whether the plaintiff was then at work and if so with whom, whether the injury was compensable and by
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whom she was treated. There being such a connection with the answer to question 1 it follows that the plaintiff is not required to answer. Be that as it may I will address the questions. 34 A question that calls for evidence as to the symptoms and their duration is patently oppressive. Without resort to a summary the respondent could be expected to devote considerable resources to a response. 35 As to the nature and location of the injury the applicant may contend that it would be satisfied with for example 'sprain' and 'neck' and that may be likely to be the extent of any response. In my opinion such a contention provides no proper datum in considering an exercise of discretion. In exercising discretion in favour of the applicant the Court could only consider the question in its terms to which the plaintiff would be expected to provide a response sufficiently precise as would facilitate proof of a relevant fact. 36 Ultimately in my opinion the question by its nature is oppressive. 37 If it had been confined by reference to a particular event of injury I may not have had much difficulty with the question that called for the date of injury. Despite the fact that such a question would call for evidence, the answer may only be of a discrete fact. That may be enough to justify an exercise of discretion in favour of the applicant, however the question put is not so confined. Similarly so the questions as to whether the injury was sustained at work and whether compensable. 38 The question that seeks the circumstances of the injury is patently oppressive. It goes considerably further than putting a proposition and calling for a response, further than seeking what objectively could only be a discrete fact. It is so far removed from an appropriate form of questioning that in the absence of any justification for an exercise of discretion it is surprising that it has been put forward by the application. 39 Question 3 seeks similar detail in relation to the injury the subject of the action. It is patently oppressive. It is worth recording that the fact that O 3 r 2(2) of the District Court Rules condones interrogation as to the circumstances of the accident does not assist the applicant. The rule does not purport to transform what would be a patently oppressive interrogatory into something else. The rule simply prescribes an arbitrary limit of relevance beyond which the defendant would be required to seek leave in order to interrogate.
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40 I have already referred to the prospect that the defendant does not have sufficient information to enable it to put precise questions however there is nothing to satisfy me that is the case. If it was the case then unless the defendant had satisfied me that there was a particular fact or facts that it hoped to distil from any answer which it would seek to establish at trial there would appear to be no justification for the defendant to so question the plaintiff, let alone the Court exercise discretion. That analysis simply draws upon the fact that there is a proper standard which applies to the framing of interrogatories and to the fact that the onus is on the defendant. If it wishes to engage the Court in the process of engaging the plaintiff in an onerous task the defendant must do better than simply to rely upon its disadvantage. There is no case put by the applicant to justify an exercise of discretion in its favour.
41 In any event save for the question as to the time it is not clear which fact or facts the defendant would seek to have the plaintiff address. Accordingly it is more than a little difficult to judge why it is that the defendant would have any interest in the proof of a particular fact which may emerge from any answer of the plaintiff. In the absence of the identification of such facts it is more than a little difficult to make any judgment as to the prospect of any saving of cost in requiring the plaintiff to engage in a response. 42 I suspect that it will be the case that regardless of whether the plaintiff answers the question, if the defendant is to be at any risk in the action she will have to get into the witness box and give evidence of the circumstances of the accident. Prima facie there would appear to be minimal scope for any cost saving in facilitating the plaintiff answering a question now in relation to which she will give evidence and upon which she will be cross-examined at trial. 43 If it is the case that the defendant now seeks that information in order that it may engage in some process of formulating its best offer of settlement and the plaintiff is not prepared to assist, in my opinion the Court ought properly respect the plaintiff's decision. That it might do so with no enthusiasm is neither here nor there. 44 As to the question requesting the time of injury, it seeks what in many cases could only be a discrete fact. Of course one may wonder why it is that the defendant at trial would want to seek to establish the time of injury. It is also proper to consider the likelihood either that at the time that the plaintiff noticed the time or that she now remembers that time.
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45 Judging by the terms of the pleading the plaintiff has chosen to be imprecise as to even a date, let alone a time of injury. In the broader context provided by the pleading it is likely that the injury is one of gradual onset.
46 Some authority would suggest that a proper purpose for interrogation is to limit or bind a party. I accept that may be a consequence of an answer being provided. The prospect that such a consequence may flow does not justify an exercise of discretion. It could not somehow transform an objectionable question. 47 In my opinion the defendant has failed to satisfy the onus in seeking an exercise of discretion. 48 Question 4 asks whether between the material time and the present the plaintiff has either been employed other than by the defendant or has conducted a business. But for the fact that the question falls into a pattern of questioning whereby the defendant puts a general proposition in the first and seeks evidence in the following question I may not have so much difficulty with that question. At least it puts propositions and calls for responses. Ultimately the difficulty that I have with the question is that the production of any substantive response at trial would serve no purpose at all. 49 The second of the questions, 5 seeks evidence as to the identity of any employer, the capacity in which the plaintiff was employed, the date of commencement and termination, reasons for any termination, the days and hours of employment and whether the plaintiff was required to use a keyboard. The questions are patently oppressive. 50 In the event of a particular response to part of question 5, question 6 seeks detail of the keyboard, the plaintiff's operation of the keyboard the number of hours of keyboard usage by the plaintiff, the frequency and duration of any periods of rest, the details of the workstation and chair and any onset of any relevant symptoms. Question 7 seeks the duration and treatment for those symptoms and whether any complaint was made about them. Question 8 goes to the complaints and 9 to treatment. Each question calls for evidence and is patently oppressive. 51 Question 10 seeks the detail of any self-employment including the nature of the business, the nature of the plaintiff's duties and gross and net earnings. I do not know whether the question is speculative or whether for example the plaintiff has discovered relevant documents which may include tax returns. In either event it is patently oppressive.
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52 Questions 11 and 12 are in the same broad terms as question 1 and are patently oppressive. Question 13 follows on from 12 it too is oppressive.
53 Question 14 asks whether the plaintiff has any children and if so their dates of birth. The plaintiff's contest is on the basis of relevance. In my opinion it is conceivable that the existence of such children and their age may be a relevant fact which prima facie the defendant may seek to establish. The question does not put propositions and call for a response, however I am satisfied that the if the plaintiff has children then providing their dates of birth could not be oppressive as to answer would simply call for discrete facts. 54 It is a matter of considering why it is that the defendant would seek to so question the plaintiff. It is unlikely that there would be any cost saving if the plaintiff was now required to answer. I make that observation on the basis of the pleading. For the plaintiff to succeed she will need to get into the witness box. It is inconceivable that the defendant would be precluded from putting the question at that time. Presumably it would then follow up with questions that went to matters more obviously relevant. On balance any time or cost saving is so marginal to be of no real significance. As the defendant was the plaintiff's former employer there is a real prospect that it would have sufficient personal information to enable it to prepare that aspect of its case in any event. In the absence of any evidence of any disadvantage which would justify an exercise of discretion it ought to be of no concern that the defendant may have to wait for trial in order to obtain the date of birth of any child. 55 In her answer to question 15 the plaintiff admits to having been required to use a keyboard in her employment with the defendant. Question 16 seeks detail of the keyboard and her usage of it, rest breaks during the course of usage, characteristics of the workstation and chair and the number of the plaintiff's keystrokes per hour. 56 Before I required the plaintiff to answer it would be appropriate that I was informed by the defendant as to the extent of its knowledge of that detail. As I have indicated already, I would have fewer difficulties with a question that calls for a response to a proposition as to the existence of a relevant fact than one that simply calls for evidence. At the very least it is easier to understand what fact the applicant seeks in putting the question. If it is the case that the keyboard or workstation made available to the plaintiff by the defendant was of a particular description known to the
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defendant then it should properly put the proposition that such was the description of the equipment. The same applies to the chair. 57 As to usage of the keyboard, rest breaks and keystrokes, in each case the applicant seeks averages by reference to a normal day. In considering any exercise of discretion I have a number of difficulties. First how it is that any such average would be of any utility in seeking to establish any relevant fact. Second, there is no evidence which would even hint at what the fact may be. Third, any expression of an average would require the plaintiff to set out the basis upon which the average was determined. That may be a significant task in itself. I recall that there is ample authority which would suggest that to expect the answering party to go to the scene of an accident in order to measure distances and the like is oppressive. I would suggest that the same consideration would translate to circumstances where the applicant sought to have the respondent undertake any mathematical task. 58 The defendant has progressed no distance at all down the path of satisfying me that it would be appropriate for the Court to order the plaintiff to undertake patently oppressive tasks. 59 Question 17 asks whether in the course of her employment with the defendant the plaintiff was required to use a pen over long periods of time. It is patently oppressive to put a question the answer to which calls for a judgement as to what would constitute a long period of time. Question 18 falls away. In any event it too is patently oppressive. 60 To question 19 the plaintiff responds that she did complain about what could be a work related matter. Question 20 seeks details of any such complaint. No party is required to reveal the identity of its evidentiary resources. In any event it is patently oppressive. 61 Question 21 deals with the plaintiff's performance in her employment. It seeks the approximate number of hours per day in which she was engaged in performing computer work, the number of those hours worked continuously, her other duties and the approximate number of hours devoted to each. 62 I have no way of knowing whether the defendant somehow monitored the plaintiff's performance of her work. Because the questions are put in a manner that calls for evidence, I suspect that it may not have done so but I do not know. In the absence of any knowledge of the extent of the defendant's evidentiary resources it would not be possible to make a judgement in the defendant's favour. I know nothing of the significance
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of the issues which may be addressed by the questions. I have no idea of which fact the defendant would thereby seek to establish at trial. The onus is on the applicant. It has chosen not to discharge that onus. 63 As to the questions themselves, 3 calls for the plaintiff to approximate the number of hours devoted to particular tasks. Prima facie those questions do not necessarily present a difficult task. In other contexts such questions may be met with an immediate response, sometimes definite sometimes qualified, but often revised. In my opinion the present context transforms that analysis. If the plaintiff was required to answer it is likely that some detailed consideration would be given to the formulation of that response. The defendant is properly to be taken to be aware of that consideration in choosing to so formulate the questions. Whilst focusing upon that aspect, the potential enormity of the task would reveal itself in the form of terms such as 'computer work'; what is computer work? And 'continuously'; what constitutes a continuous period? 64 At some point I may reflect upon the frequently cited authority Aspar Autobarn Cooperative Society & Ors v Dovala Pty Ltd & Ors (1987) 74 ALR 550 which is to the effect that the respondent should not take clever points. In my opinion even where the respondent has not taken the trouble to be clever, in considering the exercise of discretion at any point in the process of interrogation the primary issue is whether the question meets a minimum standard. 65 In my opinion it is inevitable that in order to do justice to her case and if she was to provide any useful assistance to the defendant, the plaintiff would be put to a considerable task in answering the questions. 66 A no less significant consideration is the value to the defendant of any useful answer. In my opinion the plaintiff would recognise that it would be at least unwise to put an unqualified answer. So unwise as to allow me to consider that any answer would be framed in such a way as to preclude the prospect that the defendant could rely upon it in order to prove any fact at trial, other than the plaintiff's deviousness when called upon to answer an objectionable question. In the perfect world where parties need no encouragement to hold hands I have no doubt that the plaintiff would be falling over herself to facilitate the defendant putting useful and accurate answers to its experts to allow an assessment to be made of the exposure of the parties. It is fanciful to consider that that world will ever encroach into litigation.
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67 Formal considerations aside I accept that depending upon how a proposition is formulated, responding to it may present a task as onerous as answering a question which call for evidence. However that analysis is not necessarily productive of any useful impact. The attraction of the former is that it enables the parties and the Court to focus upon the real issue, namely the fact sought to be proved by the answer. Significantly the respondent can simply respond in the negative if for whatever reason it chooses to adopt that course. To that extent the process is straightforward and resonates with fairness.
68 The defendant may contend that it is without the resources to frame such a proposition to which I would respond that simply because one party may be without resources does not mean that it is appropriate for it to seek to oppress its opponent. In the absence of a good reason to impose the task of answering the questions both the Court and the defendant may reflect upon the prospect that in the absence of such resources the applicant is simply unable to engage in the process of interrogation. In my opinion it may properly be considered to be of no moment that the plaintiff has those resources. 69 The questions are patently oppressive. 70 Question 22 is in similar terms but more specific as it relates to the period 'on or around the material date and subsequently'. All other issues to one side, the introduction of such uncertainty in the question is patently oppressive. 71 Question 23 calls for the plaintiff's usual duties other than those pleaded. As to the form of the question, in my opinion the defendant as the plaintiff's employer must be taken to be aware of the employment duties of its employees. In the absence of evidence to the contrary I could not reach any other conclusion. It follows that the defendant ought properly have put the proposition that particular activities were part of the plaintiff's duties and given her the opportunity to agree in the knowledge that her agreement could be utilised at trial to establish each fact. If she disagreed then she could deny, in which case the defendant would presumably establish each fact by other means. The question is oppressive. 72 Using a similar analysis, as the pleaded case establishes the relevant duties, in the absence of any identification of any particular duty from that range, at least to the extent of other duties the subject of the question would be irrelevant.
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73 Question 24 asks the plaintiff to describe in detail what was involved in carrying out the work referred to in the statement of claim. That part of the question by its form is patently oppressive. It speaks of requirements imposed on the plaintiff in relation to pleaded duties and a timeframe given to her in relation to performance of a particular duty. In the absence of any explanation from the applicant the requirements and timeframe could only have been imposed by the defendant. If I had reached the point where I was seriously considering an exercise of discretion in favour of the applicant it is unlikely that the defendant would obtain the benefit of the exercise of discretion when the Court considers that particulars appear to have been provided in relation to par 5 of the pleading which identify both a relevant requirement and a deadline. In my opinion if it wished to seek to prove those facts there is no reason why the defendant ought not be expected to put particular propositions in those terms and seek the plaintiff's response. The question is oppressive for the same reason as was question 23.
74 Question 27 puts the proposition: whilst employed by the defendant was your work supervised? The plaintiff has pleaded that the defendant ought to have supervised her and that it failed to do so. The first part is put as part of a rolled up pleading of a term of her contract with the defendant, the second as a particular of the allegation of breach of contract or duty of care. Ultimately the term is utilised by the plaintiff to express a pleading in terms absolute. There is nothing wrong with the defendant framing an interrogatory to test whether the plaintiff will depose to the existence of a material fact for which she contends, for example, that her date of birth was 1 July 1961. The difficulty lies in putting a proposition that may not be limited to what could only be a single fact. In this instance the difficulty lies in the fact that the term supervision may have different meanings to different people, especially at a level of supervision where particular features of the concept may be difficult to discern. In my opinion it is probably the case that it is inappropriate for a party to seek to interrogate in such ambiguous terms. If the defendant had any real difficulty in understanding the import of the pleading then it would have been appropriate to seek to strike out the relevant part of the pleading. A second option may have been to seek particulars. 75 In any event, although the plaintiff has used the word and in a context which may present the concept in absolute terms that does not mean that it is inappropriate to consider that one person's view of what constitutes supervision may not be held by another. In all cases other than of constant scrutiny the term is more a conclusion which could convey a range of impressions. The question thereby is inherently oppressive.
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76 The following question which draws upon the prospect of a positive response calls for such detail and thereby is inherently oppressive.
77 Questions 29 and 30 draw upon the same term and engage the same considerations with the same result. 78 If the plaintiff in her answer has correctly recorded it, question 31 makes no sense. The question to which it refers does not call for the sort of response, which it infers, may have been provided. Otherwise by asking why it was that the plaintiff did something it calls for evidence and is patently oppressive. 79 Question 32 asks whether prior to the material date the plaintiff had undertaken the relevant work. It precedes a question by which the defendant seeks the detail of a positive response. It is difficult to ignore the prospect that the only reason for putting the first is to introduce the second. The second is inherently oppressive as it calls for evidence. In the absence of any case as to the utility of any response to the first I am not persuaded that I ought exercise jurisdiction to require the plaintiff to answer. 80 Question 34 asks the plaintiff if on the material date, prior to commencing any activity she noticed any faults with the workstation or chair and if so whether she reported them and to whom. 81 One particular of breach upon which the plaintiff relies is expressed in terms that she was required to perform her duties at a workstation and to use a chair which was ergonomically unsafe. The defendant put a request for further particulars in a manner which would suggest that the plaintiff had alleged that the workstation as well as the chair was ergonomically unsafe. In response the plaintiff has referred to aspects such as narrow computer desk and the desk not being the appropriate height. That response may suggest that at least on the case raised on the further and better particulars the question insofar as it goes to the workstation is relevant. The plaintiff makes no plea as to the events of the day that would even suggest that she used the workstation or chair. If it is implicit that she did, there is nothing to suggest at all that on the material date either the workstation or the chair were in any different condition than on any other day or that the plaintiff reported to anyone at any time about any aspect of either the workstation or the chair. I could not imagine for what purpose the defendant would want to prove for or against the proposition as to whether the plaintiff noticed anything about
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either on the material date. What is truly baffling is that the question is limited to what the plaintiff noticed prior to utilising either or both. 82 The plaintiff is probably right when she objects on the basis of relevance. At the very least by contending in evidentiary form that a question at best arguably relevant is irrelevant she would appear to have extinguished that prospect. If she and I am wrong then in light of my last observation the applicant failed to persuade me that there was any proper basis to require the plaintiff to answer a question the answer to which could only be of little utility. By way of illustration it could not sensibly be the subject of any useful expert evidence. The chance of any defect having become apparent on the material date as opposed to any other date is remote and suggests to me that in framing the question the defendant failed to reflect upon the process. Of course there is a prospect that a defect did become apparent to the plaintiff on the material date and that regardless of any relevant particular or allegation she so intends to run her case. I am satisfied that if she is to make any progress in that case she will have to get into the witness box. She can then be cross-examined as to any defect noticed on the material date. To put that question now does not appear to reflect the prospect of any cost saving. 83 If the plaintiff accurately records it, question 35 asks whether "at any time prior to the material date did you believe, consider to think that the activity was unsafe". Unlike the prior doubtful question, on all the indications in questions 36 and 37, it was intended that the question read 'believe, consider or think'. This and the preceding two questions refer to the term 'activity' without defining that term. Implicitly it may be a reference to work raised at question 32. That question relates to the work described at par 5 of the statement of claim, the marking a large number of student essays. I accept that some may consider that the authority along the lines of Aspar Autobarn Cooperative Society v Dovalla Pty Ltd (supra) may be against me but I always understood that where an issue is raised in relation to an answer consideration is first given to the question. It is only after the applicant has put a clear and unambiguous question that any responsibility to provide an answer arises. 84 It is fair to say that I have some misgivings about the question. The relevant issue raised in the action is whether on an objective assessment the work provided to the plaintiff was unsafe. The term 'safety' is used at three points in the statement of claim. The first is at par 4 by which she expresses four contractual terms. The second at par 7 in 2 particulars of negligence and the third at 8 where she alleges breaches of those terms. The issue to be determined at each point is whether the work or any
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pleaded aspect of her performance of the work was unsafe. Whether the plaintiff considered the work to be unsafe is of no significance. In any event there is nothing to be gained by the defendant in any response from the plaintiff which would distinguish her appraisal as to her safety prior to her injury from any appraisal at the time of her injury or post injury. Finally the term 'safe' although it may be so is not necessarily utilised to convey anything absolute. The term is amenable to qualification and if required to be answered that answer is likely to be so qualified. It is predictable that any answer would be framed so as to render the answer of no utility at trial. In my opinion it was inherently oppressive to put such a question to the plaintiff. Insofar as the question draws upon the allegation that the number of essays was 'large' the same analysis is properly taken to that term. 85 Question 36 falls away. Even if that was not the case it is oppressive in that it seeks what would appear to me to be particulars of the allegation of want of safety. I appreciate that the defendant is entitled to particulars. I apprehend that at the time that a party interrogates it has sufficient particulars for its purposes. There is nothing to suggest that it does not. Of course I am familiar with the often-cited authority which is to the effect that the processes of obtaining particulars and of interrogation are interchangeable. I would respond obviously so if one made an order which had that effect or was in the process of justifying that result. I prefer the analysis that recognises that the purpose of particulars is to define a pleading and the purpose of interrogatories to facilitate the proof of a relevant fact at trial. It follows from that fundamental statement that the processes are utterly different. The manner of response is utterly different. The only proper 'objection' available by way of response to the former is that particulars are not required. Prima facie a party will be able to amend particulars. The answer to the latter is evidence per se. In effect it is impossible to amend such an answer. In any event to answer an interrogatory which is a request for particulars is a more onerous task than providing particulars and inevitably a more costly exercise. In my opinion it would be an error of judgement to allow for interrogatories where the purpose was to seek particulars. 86 Question 37 is argumentative, it asks why the plaintiff continued to perform the work if she believed, considered or thought it to be unsafe. Otherwise it is oppressive as it calls for what inevitably would be an extensive reply or a summary. 87 The plaintiff contends that question 38 is fishing. It asks on how many occasions the plaintiff had complained to the defendant that the
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activity was unsafe. Neither party in its pleading alleges that the plaintiff made any such complaint. It may be that the defendant would have an interest in asking whether it was the case that the plaintiff had never complained. The difficulty lies in the process of framing a question that is not oppressive. I choose at this point to simply focus upon the analysis to which I have earlier commented with reference to the word 'large', which by definition is explicitly is part of the question. I do not appreciate that there is any basis for the suggestion implicit in the question that the plaintiff had ever previously been exposed a task, which she describes as marking a large number of student essays. It is beside the point that the defendant seeks to use the plaintiff's terminology. The defendant must recognise that it is now seeking to put what may be a significant question. If it had reflected upon what it made implicit by use of the term 'activity' it would have recognised that to put such a question is inherently oppressive. 88 In asking for the substance of any such complaint at question 39 the defendant seeks what could only be particulars. And it is of some minor interest, that they are sought of an allegation that the plaintiff does not make. 89 The balance of the parts of that question seeks the plaintiff's evidence as to the dates of complaints and the person to whom they were referred. As to the latter it is settled that by the process of interrogation a Court ought not require a party to disclose the identity of its witnesses. 90 As to the dates of complaints, had the plaintiff pleaded complaints then the request would properly be one for particulars. In the absence of such a pleading or particulars it is difficult to understand why it is that the defendant should be able to ask for more than whether the plaintiff made any relevant complaint. If she had done so and so responded it would be a matter of discretion as to whether it was considered appropriate to require the plaintiff to provide any evidence at all about that complaint. The first consideration would go to why it was that the defendant would have any proper interest in securing an admission in relation to a complaint which at least as measured by the pleading founded no case for the plaintiff. If on the contrary the defendant was simply seeking to use the plaintiff as a resource from which it could seek assistance for the purpose of getting up its case for trial it has failed to provide any proper basis upon which to exercise discretion in its favour.
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91 Question 40 raises the prospect of the plaintiff complaining after the material date. For all of the reasons I have canvassed to this point the question is patently oppressive.
92 Question 42 asks whether during the course of her employment with the defendant it was common practice that an employee of the defendant would or could carry out work at home. It is difficult to comprehend what the utility to the defendant of the plaintiff's acceptance of that proposition might be. I suspect that it was only intended to introduce the following question which was the subject of objection to which objection the application was not pursued. The defendant has taken me no distance down the path whereby I would contemplate an exercise of discretion in its favour. 93 Question 45 seeks evidence of any positive response to the proposition that the plaintiff complained of her injury other than to a medical practitioner. As I noted in relation to a prior question the plaintiff makes no case in relation to the failure to respond to a complaint. The pleading does not countenance any such complaint. Although such a complaint may be relevant to a fact in issue it is difficult to comprehend why the defendant would seek to establish at trial that the plaintiff made any such complaint. There would be no reason why the defendant could not ask the question during the course of cross-examination if it wished to do so. If it was the case that there was a serious prospect of a real cost saving by the defendant not being put to the trouble or expense of calling a witness in my opinion it would be in order to ask if the plaintiff made a complaint in particular terms to a particular person at a particular time. The plaintiff could then be expected to respond. It is an entirely different matter to put what may only be a speculative question and then seek detail in the form of evidence of any positive response. If I was to choose to judge the question as a whole it is patently oppressive. Otherwise (c) calls for the identity of a witness, (d) and (g) for particulars and (e) is properly viewed as an impermissible attack on the plaintiff's discovery. Viewed as a whole it is difficult to conclude that the opening proposition was put other than to introduce the process by which the defendant seeks evidence and other impermissible results. 94 Question 46 seeks an admission as to whether since the date of injury the plaintiff has done anything to aggravate her symptoms. Judging from the pleading the plaintiff sustained injury to her spine, right arm wrist and hand. It is speculation on my behalf but as she injured her right limb as a consequence allegedly as a result of engaging in her employment marking essays it is not unreasonable to conclude that she is right handed. In the
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particulars of pain, discomfort, loss of enjoyment of life and inconvenience, she refers to difficulties in conducting every day domestic and household activities, is vulnerable to aggravations and exacerbations of her condition and has suffered a reduction in her ability to perform household chores. She goes on to detail a reduction in her ability to partake of a broad range of activities described in general terms. Despite the objection taken on the basis of relevance and oppression, I suspect that if required to answer the plaintiff would respond in the affirmative. 95 I suspect that the only reason for asking the question was to introduce the following question, which calls for evidence of each incident of aggravation. I will not bother reciting the question. In each of its parts it is patently oppressive. 96 It is for similar reasons that question 48 which calls for similar detail in relation to the plaintiff's ability to engage in broadly defined activities is patently oppressive. 97 Similarly so question 50. 98 Where I have made a determination in terms that a question is oppressive it is no more than a finding in relation to the question. In each case that finding is but one factor, yet a significant factor in considering whether to exercise discretion as sought. Even where there is a prospect of significant oppression the Court may be persuaded that it would none the less be appropriate to exercise jurisdiction to require the respondent to answer. However in such a case the onus may properly be considered to be more difficult for the applicant to discharge. In this case the applicant has travelled no distance down the path of satisfying the onus upon it. There is no evidence at all which would justify the Court requiring the plaintiff to answer questions that the defendant has put in an objectionable form. 99 The application is dismissed.
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