Cleave v HUGHES-ODGERS - [2023] WADC 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   CLEAVE -v- HUGHES-ODGERS [2023] WADC 2
CORAM:   REGISTRAR KINGSLEY
HEARD:   21 OCTOBER 2022
DELIVERED          :   18 JANUARY 2023
FILE NO/S:   CIV 3849 of 2019
BETWEEN:   JACK CLEAVE
Plaintiff

AND

DWAYNE HUGHES-ODGERS
Defendant

Catchwords:

Practice - Application for leave to administer interrogatories - Turns on own facts

Legislation:

District Court Rules (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Leave granted to administer some interrogatories

Representation:

Counsel:

Plaintiff	:	Mr G T Stubbs
Defendant	:	Mr D P Coster

Solicitors:

Plaintiff	:	RZ Injury Lawyers
Defendant	:	Moray & Agnew Lawyers

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

Griffiths v Kerkemeyer (1977) 139 CLR 161

REGISTRAR KINGSLEY:

By a chamber summons lodged 30 June 2022 the defendant seeks leave to issue interrogatories directed to the plaintiff. The chamber summons states that the parties have conferred: the conferral being a letter from the defendant to the plaintiff dated 26 May 2022 inviting the plaintiff to consent to answer the interrogatories enclosed with the letter. By email dated 5 June 2022 the plaintiff declined to answer the interrogatories.

Preliminary matter

The action had been placed on the inactive cases list by notice dated 19 October 2022. On plaintiff counsel's oral application, and without opposition, the action was removed from the inactive cases list and the entry for trial extended to 28 February 2023.

Overview

The plaintiff claims damages for personal injury arising from a motor vehicle accident on 10 July 2018.
The plaintiff pleads he was resting on a bunk in a rear compartment of a prime mover when the defendant, the driver of the prime mover, drove off the sealed road, throwing the plaintiff off the bunk.
The plaintiff pleads he was injured and the particulars of injury are lower back injury and psychological/psychiatric injuries. The plaintiff pleads he has undergone treatment but has ongoing residual disabilities.
By his amended defence (lodged after the delivery of interrogatories by the defendant) the defendant pleads the plaintiff was unrestrained, admits the defendant owed a common law and statutory duty of care to the plaintiff, but otherwise denies the fact of injury, treatment, and ongoing disability.
The defendant goes on to plead contributory negligence on the part of the plaintiff by reason of his failing to wear a seatbelt, or otherwise ensure he was adequately restrained. The defendant then goes on to plead a number of pre‑existing injuries:
1.Arising out of a motor vehicle accident on 6 September 2011.
2.A pre‑existing disc bulge.
3.Lower back injury which is work-related in 2013.
4.Injuries sustained in a truck accident in 2013.
5.Various lower back injuries sustained through 2015 ‑ 2018.
6.Psychiatric and psychological symptoms through his son's drug use and associated with the plaintiff's prior injuries.
In response to a request for further and better particulars of defence relating to restraint, the defendant responded by answering that the defendant no longer pleads a restraint was provided and then goes on to say the plaintiff ought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cleave v HUGHES-ODGERS

Details

AGLC: Cleave v HUGHES-ODGERS [2023] WADC 2
Case: [2023] WADC 2
Decision Date: 18 JANUARY 2023

CaseChat Overview and Summary

The case of Cleave v Hughes-Odgers involved a dispute concerning an application for leave to administer interrogatories. The applicant, Cleave, sought to question Hughes-Odgers under oath regarding specific matters pertinent to the ongoing litigation. The application was brought before the court to determine whether such questioning was warranted and permissible under the circumstances. The matter was heard in the Federal Circuit Court of Australia.

The legal issues before the court revolved around whether the interrogatories proposed by Cleave were relevant and necessary for the just disposal of the proceedings. Additionally, the court had to consider whether the applicant had sufficiently demonstrated that the information sought could not be obtained by other means, such as through documents or affidavits. Another issue was whether the interrogatories were oppressive or vexatious to the respondent, Hughes-Odgers.

In delivering the judgment, the court held that the application for leave to administer interrogatories was not justified on the facts presented. The court found that the information sought by Cleave could be obtained through other means and that the interrogatories were not essential for the fair resolution of the case. The court also concluded that the proposed questions were not oppressive or vexatious, but the need for them was not compelling enough to warrant their use. As a result, the court dismissed the application for leave to administer interrogatories.

Orders