Booth v Ritchie

[1991] TASSC 149

Serial No B35/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION: Booth v Ritchie [1991] TASSC 149; B35/1991

PARTIES:  BOOTH
  v
  RITCHIE

FILE NO/S:  261/1989
DELIVERED ON:  27 June 1991
JUDGMENT OF:  Crawford J

Judgment Number:  B35/1991
Number of paragraphs:  11

Serial No B35/1991
List "B"
File No 261/1989

BOOTH v RITCHIE

REASONS FOR JUDGMENT  CRAWFORD J

27 June 1991

1. The plaintiff sues the defendant for damages to his motor vehicle which are particularised in the sum of $6609.25. The causes of action are pleaded as negligence and nuisance. The facts which are admitted on the pleadings are: the defendant is the occupier and was at all material times the owner of land adjoining the Western Creek Road between Western Creek and Mole Creek, the land being contained in General Law Conveyance No 60/6360; upon that land the defendant grazed cattle; on or about 21 May 1989 the plaintiff was driving his vehicle along the road towards Mole Creek; and at or near the defendant's property the plaintiff collided with a beast belonging to the defendant.

1. By the amended defence the defendant does not admit that the accident occurred when a beast, which was from his land, but at the time was on the road, rushed across the road in front of the plaintiff. The defendant denies negligence and nuisance. Notwithstanding his admission that the accident involved his beast, he denies that at the time of the accident a beast belonging to him was at large on the road and that as a consequence of it being upon the road, it caused the accident.

1. In the amended statement of claim the particulars of negligence are that the defendant failed to take adequate precautions to prevent the escape of cattle from his property onto the road, failed to take adequate steps to fence his property so as to ensure that cattle did not stray onto the road, failed to take adequate steps to repair his fences for that purpose and failed to take adequate steps to prevent users of the road being injured by his cattle straying upon the road.

1. The issues involved in this case are relatively simple. To succeed the plaintiff will need to establish that the beast, which the defendant admits was his, should have been kept under control or off the road by the defendant, or the defendant should have prevented it from escaping from his property onto the road. No doubt the plaintiff will wish to establish that the animal in fact came from the defendant's property and accordingly the precise location of the property will be relevant as will the state of the fences.

1. Since the action was instituted the plaintiff has delivered three sets of interrogatories. The defendant has objected to answering all of the interrogatories in the third set primarily, but not exclusively, on the grounds of oppressiveness and unreasonableness. The plaintiff seeks orders that they be answered or that the defendant be examined viva voce in respect of them. The principal argument for the defendant is that it is oppressive to require him to answer a third set of interrogatories.

1. In Foley v Peck 43/1970, Burbury CJ held that there was nothing in the rules which implied that the power to deliver interrogatories is to be restricted to a single exercise, and a bare objection on the ground that a previous set was delivered is not of itself a valid objection. As to the question of oppression generally where more than one set of interrogatories is delivered, Burbury CJ said at 3:

"The plain answer to this contention is that a party may always object to answering interrogatories on the ground that they are oppressive. If the interrogating party persists and applies to the Court or a judge for an order to answer them notwithstanding an objection on the ground of oppression it will be for the Court or a judge to determine whether they are oppressive. The principle that oppressive interrogatories will not be allowed is one large general principle underlying the whole law relating to interrogatories, namely that interrogatories will not be allowed if they exceed the legitimate requirements of the particular occasion."

Earlier Burbury CJ gave examples where the interests of justice would justify further interrogatories:

"One can readily imagine that as a case is in the course of preparation (particularly a complex case) fresh information may come to the hands of the party which may readily lead him to seek to interrogate his opponent further. Again, amendments to pleadings may be made raising new issues which may necessitate further interrogatories. The interests of justice would require that in such cases (particularly the latter) a party shall be at liberty to deliver a further set of interrogatories."

This is not a complex case. It was not put to me that the need for the third set of interrogatories has come about because of fresh information nor because of amendments to pleadings.

1. In my view, in the context of this case, the delivery of the third set of interrogatories is oppressive, subject to the exceptions which I will mention in due course. The issues are relatively simple. It is unreasonable that the defendant should be put to the trouble of responding to three sets in a case where one set, properly drafted, was all that the plaintiff should have needed to obtain admissions necessary for the establishment of his case.

1. However I except from my comments interrogatories 5(a) and (b), 6(a) and (b), 7(a) and (b), 8(a) and (b), 9(a) and (b) and 11. Interrogatory 11 is the same as interrogatory 4 in the second set which was delivered in June 1990, except that in interrogatory 4 in the earlier set annexed were photocopies of two photographs of an animal whereas now the photographs themselves have been annexed. Interrogatories 5(a) and (b), 6(a) and (b), 7(a) and (b), 8(a) and (b) and 9(a) and (b) ask substantially similar questions, with some variations, as were asked in interrogatories 1 and 2 in the set of June 1990 except that photocopies of photographs have been replaced with the photographs themselves. Those interrogatories in the set of June 1990 were held by Underwood J., on appeal from the Master, to be "oppressive in the extreme" because they required the defendant to answer "by reference to completely unclear photostated documents which one can hardly make out at all". The plaintiff's solicitor conceded the point at the hearing of the appeal.

1. I am not persuaded that it is oppressive or unreasonable to permit the plaintiff to correct his error and to ask the same or very similar questions this time with clear photographs being annexed.

1. I do not accept the defendant's argument that the interrogatories annexing photographs should be rejected upon the ground that they relate to the contents of a document. It is not a case of the annexed photographs speaking for themselves in the way that the contents of a document may speak for themselves to the extent that an interrogatory about them would only result in an answer which at best would be secondary evidence of the contents. As to this see M. & S. Constructions Pty Ltd v Skewes (1981) 34 SASR 406. The plaintiff is entitled to require the defendant to identify what is shown in the photographs if, of course, he is able to do so.

1. Accordingly, there will be an order that the defendant answer interrogatories 5(a) and (b), 6(a) and (b), 7(a) and (b), 8(a) and (b), 9(a) and (b) and 11. In so far as the plaintiff seeks answers to other interrogatories the application will fail.