Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 3)

[2017] NSWSC 1373

Supreme Court

New South Wales

Medium Neutral Citation:	Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 3) [2017] NSWSC 1373
Hearing dates:	29 September 2017
Date of orders:	29 September 2017
Decision date:	29 September 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [12]
Catchwords:	PRACTICE AND PROCEDURE – Application for leave to administer interrogatories – Whether to exercise discretion to dispense with operation of rule – Whether special reasons to justify order – Confusion as to identity of person in tendered documents – Application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 1) [2017] NSWSC 1371 Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 2) [2017] NSWSC 1372
Category:	Procedural and other rulings
Parties:	Gengiz Capar – Plaintiff SPG Investments Pty Limited t/a Lidcombe Power Centre – First defendant Business Protection Group Pty Limited – Second defendant / first cross-claimant The Workers Compensation Nominal Insurer – Third defendant R.W. O’Brien and Associates Pty Ltd – Third cross-defendant
Representation:	Counsel: D R Campbell SC and JJ Ryan – Plaintiff D D Feller SC – First defendant R Cheney SC – Second defendant S A Flett – Third defendant N Polin SC – Third cross-defendant   Solicitors: Premier Compensation Lawyers – Plaintiff Vardanega Roberts Solicitors – First defendant Clyde & Co Solicitors – Second defendant Sparke Helmore Lawyers – Third defendant Wotton and Kearney – Third cross-defendant
File Number(s):	2013/78535
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The second defendant in these proceedings has sought to tender a series of documents numbered 1 to 19 in its case. Included in those documents are various emails, one of which (document 11) is said to emanate from “Georgia Hall (Risk Management)” with an accompanying email address of [email protected].

2. Page 12 of the bundle reproduces what appears to be the bottom part of that email. It is signed, "Cheers, Georgia Hall, Risk Management." The logo of an organisation called "Spotlight" appears under that signature and the words "Spotlight Pty Limited", and an accompanying address, appear underneath that. The same “sign off” appears on document number 14 which is the conclusion of another email in a series.

3. Senior counsel for the first defendant has objected to the admission of this evidence and in doing so has made an application for leave to administer interrogatories pursuant to r. 22 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”). It is submitted that the necessity to administer interrogatories arises from confusion surrounding the position occupied by Georgia Hall and the consequent necessity to have it clarified.

4. In the course of argument, and in response to an issue raised by senior counsel for the second defendant, senior counsel for the first defendant took me to other email correspondence within the bundle, including that which appears at p. 16 and which emanates from a person by the name of Allison Hall who is described (at the conclusion of that email) as "Asset Manager, SPG Investments".

5. The application for leave to administer interrogatories is opposed by the second defendant, notwithstanding that the scope of the proposed interrogatories is limited to the issue which I have identified.

6. Rule 22.1 of the Rules governs interrogatories and is in the following terms:

22.1 Interrogatories

(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.

(2) An application for such an order must be accompanied by a copy of the proposed interrogatories.

(3) In the case of proceedings on:

(a) a claim for damages arising out of the death of, or bodily injury to, any person, or

(b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.

(5) An order to answer interrogatories:

(a) may require the answers to be given within a specified time, and

(b) may require the answers, or any of them, to be verified by affidavit, and

(c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.

7. It will be noted that r. 22.1(2) mandates that a copy of the proposed interrogatories accompany an application for such an order. That rule has not been complied with although as I understand it, senior counsel for the first defendant submits that in those circumstances I should exercise the discretion which is conferred on me pursuant to s. 14 of the Civil Procedure Act 2005 (NSW) and dispense with the operation of that part of the rule.

8. Senior counsel for the first defendant also accepts that the nature of these proceedings is such that r. 22.1(3) applies. He advances as the principal (but not sole) special reason, the confusion between the persons Georgia Hall and Allison Hall to which I referred a moment ago. He has also submitted that the necessity for the present application arose out of an indication given towards the end of this trial by those representing the second defendant that certain evidence was not to be relied upon. That was given to those acting for the first defendant before the first defendant's case closed. The present application has also come at a late stage, although r. 22.1 provides specifically that an order for interrogatories may be made at any stage of the proceedings.

9. As a fundamental proposition, given the terms of r. 22.1(3), the Court must be satisfied that special reasons exist to justify the making of the order. I am not satisfied in the circumstances that this is so. In particular, I am not satisfied that any confusion is apparent on the face of the documentation.

10. The position apparently held by Georgia Hall is clearly stated in more than one of the documents which are sought to be tendered. I am unable to accept the proposition that the existence of another person by the name of Allison Hall gives rise to any confusion as to the position held, or the position which may have been held, by Georgia Hall, who is obviously a different person.

11. It will be a matter for submission as to what inferences should be drawn from the documents as to the position occupied by Georgia Hall at any relevant time. The court may order that a party answer interrogatories at any stage of the proceedings. However, the fact that this application has come essentially at the conclusion of the proceedings, in circumstances where the fact that certain evidence was not to be relied upon was communicated to the first defendant before the first defendant's case closed, tendes against the exercise of discretion in favour of making the order which is sought.

12. Accordingly, the application will be refused.

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Decision last updated: 13 November 2017