Crick v Coles Supermarkets Australia Pty Ltd

[1999] TASSC 146

[1999] TASSC 146

CITATION:              Crick v Coles Supermarkets Australia Pty Ltd [1999] TASSC 146

PARTIES:  CRICK, Marie Ann
  v
  COLES SUPERMARKETS AUSTRALIA PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  969/1998
DELIVERED ON:  15 December 1999
DELIVERED AT:  Hobart
HEARING DATES:  15 December 1999
JUDGMENT OF:  The Master

CATCHWORDS:

Procedure - Interrogatories - Particulars - Discretion.
Rules of the Supreme Court (Tas), O33, r9.
Clarke v Garwood A58/1995; Boxall v Mayne 56/1997; Conde v 2KY Broadcasting Pty Ltd [1982] 2 NSWLR 221, followed.
Aust Dig Procedure [67]

REPRESENTATION:

Counsel:
           Plaintiff:  L A Harper
           Defendant:  D P Lynch
Solicitors:
           Plaintiff:  Watling Roche
           Defendant:  Simmons Wolfhagen

Judgment Number:  [1999] TASSC 146
Number of Paragraphs:  11

Serial No 146/1999
File No 969/1999

MARIE ANN CRICK v COLES SUPERMARKETS AUSTRALIA PTY LTD

REASONS FOR JUDGMENT  THE MASTER

15 December 1999

1. This is an application by the defendant to proceedings where damages for personal injuries are claimed, to compel answers to certain interrogatories to which the plaintiff has objected.

1. The objection of the plaintiff, stated in her affidavit, is in the following terms:

"2   I object to answering Interrogatories numbered 21 to 43 contained in the above schedule on the grounds that they are seeking particulars on oath."

1. The defendant applied for an order compelling answers to most of the interrogatories, the subject of the objection, pursuant to the Rules of the Supreme Court, O33, r9.  The application was filed on 29 November 1999.  It may have been that the application was filed slightly outside the seven day period prescribed by the rule, but the plaintiff takes no point as to this matter. 

1. Following the filing of the application, the plaintiff delivered amended particulars dated 14 December 1999 to the defendant's solicitors under cover of a letter bearing the same date.  The letter said, in part:

"Enclosed* herewith are amended Particulars of Claim.  These amended Particulars contain the information you seek by way of the Interlocutory Application.  We have no problem in providing you with the information sought, but object to providing that information in the form of sworn Answers to Interrogatories."

1. The defendant's counsel did not submit that any of the information sought by way of answers to interrogatories could not be obtained by the provision of particulars.  He submitted, however:

(1)that obtaining further information by particulars in lieu of answers to interrogatories would increase expense and delay; and

(2)if the particulars are verified by affidavit, there is less prospect of them being altered or additions made to them later.

1. The plaintiff's counsel told the Court that he would not object to providing particulars of the claim for general damages, as well as other aspects of the claim to which the contested interrogatories relate.

1. Order 33, r9 confers upon the Court a wide discretion to disallow interrogatories.  In Clarke v Garwood 58/1995, Crawford J said at 3:

"The availability of the information by way of particulars has the effect of rendering interrogatories for the particulars unnecessary. O'Meara v Stone [1884] WN 72; Davey v Danby (1887) 9 ALT 100 at 101; Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221. Discouragement of the use of interrogatories as a request for particulars can also be found in Ryan v Federal Capital Press Australia Pty Ltd (1990) 101 FLR 396 …

Interrogatories must be relevant to an issue. Until the plaintiff has delivered particulars of injuries and damages it is impossible to ascertain the relevance of interrogatories which can relate only to injuries and damages."

1. In Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221 at 222, Hunt J said:

"Moreover, it came to be recognized that, except in special circumstances, it was unreasonable to oblige the party interrogated to verify particulars of his case when he did not have to verify his pleadings.  In my own experience, this has certainly been the approach of the Supreme Courts of Victoria and the Australian Capital Territory for many years.  Like Holroyd J in Davey v Danby (1887) 9 ALT 100, therefore, I do not propose to encourage the practice of seeking particulars by way of interrogatories …".

1. The approach taken in Clarke v Garwood (supra) was adopted in Boxall v Mayne 56/1997 by Zeeman J.  In that case, a large number of interrogatories were disallowed on the ground that their administration was "entirely premature".

1. I do not accept that the provision of information by particulars, as opposed to following the administration of interrogatories, will increase expense or cause delay and I do not consider that as a general rule it is appropriate to require particulars to be verified by affidavit.  I intend to follow the approach taken in the cases to which I have referred, namely, except in special circumstances, orders should not be made which encourage the practice of seeking particulars by interrogation.  Not only is it inappropriate in many cases to require particulars to be verified by oath, but also the way in which interrogatories are drafted often extends far beyond the scope of information which may be necessary or relevant.  To provide an example, I set out two of the contested interrogatories below:

"INTERROGATORY NO 28

During the period of five years prior to the accident, did you suffer any illness or injury which caused you any incapacity or disability and, if so, what was the nature of the illness or injury, what was the nature, duration and extent of any resulting incapacity or disability and to what extent, if any, did it restrict your ability to engage in:-

(a)any and, if so, what sporting activities in which you were accustomed to engage?

(b)any and, if so, what pastime in which you were accustomed to engage?

(c)any and, if so, what domestic activities in which you were accustomed to engage?

(d)any and, if so, what social activities in which you were accustomed to engage?

(e)any and, if so, what work activities in which you were accustomed to engage?

…

INTERROGATORY NO 31

During the period of between ten and five years preceding the accident at the supermarket on the said date, did you engage in any and, if so, what:-

(a)hobbies and how frequently did you engage in each of them?

(b)pastimes and how frequently did you engage in each of them?

(c)recreational activities and how frequently did you engage in each of them? and

(d)sports and how frequently did you engage in each of them?

(e)domestic activities and how frequently did you engage in them?

(f)work activities and how frequently did you engage in them?"

1. The application is dismissed.