Darren O'Brien v Robert Francis Little and ors; Stephen James Walsh v Robert Francis Little and ors

[2007] NSWSC 282

CITATION:	Darren O'Brien v Robert Francis Little and ors; Stephen James Walsh v Robert Francis Little and ors [2007] NSWSC 282
HEARING DATE(S):	05/03/07
JUDGMENT DATE :	30 March 2007
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 19
LEGISLATION CITED:	Uniform Civil Procedure Rules
CASES CITED:	Tooth & Co Ltd v Lane Cove Municipal Council (NO 4) (1968) 2 NSWLR 17
PARTIES:	Darren Andrew O'Brien - Plaintiff Stephen James Walsh - Plaintiff Robert Francis Little and ors - Defendants
FILE NUMBER(S):	SC 20308 of 2001; 20302 of 2001
COUNSEL:	M Joseph SC with W Walsh - Plaintiffs S. Glascott - Defendants
SOLICITORS:	Carmody Cramptom - Plaintiffs Phillips Fox Lawyers - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten A J

30 March 2007

No: 20302 of 2001
No: 20308 of 2001

Stephen James Walsh v Robert Little and ors

Darren Andrew O’Brien v Robert Little and ors

JUDGMENT

1 In these matters, on 14 February 2007, I delivered a judgment in relation to the Plaintiffs’ application to interrogate one of the Defendants, namely, Bega Valley Shire Council (the Council).

2 The matter came again before me for mention on 5 March 2007 when there was some argument as to costs and the Plaintiffs, by their senior council, Mr M Joseph SC, made application to serve Further Amended Interrogatories. After hearing Mr Joseph and Mr Glascott, counsel for the Council, who opposed the application, I reserved my decision.

3 A copy of the Further Amended Interrogatories (the Amended Interrogatories) as handed up in court by Mr Joseph is annexed to these reasons. For the most part, if not exclusively, they seek to obtain much the same information as previously sought, but in a form consistent with the reasons I gave on 14 February.

4 The administration of interrogatories is largely governed by Part 22 of the Uniform Civil Procedure Rules. Rule 22.1 presents particular barriers to a party seeking to interrogate in a personal injuries damages case as these cases are. However, for reasons given in the earlier judgment, I think this is an appropriate case for the Plaintiffs to interrogate the Council and I will consider the application on its merits, reflecting, in an order for costs, the circumstance that the Amended Interrogatories could and, in my opinion, should have been raised in the earlier proceedings.

5 Proper objections to interrogatories are provided for by rule 22.2

“A party may not object to being ordered to answer an interrogatory except on the following grounds:
(a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order,
(b) the interrogatory is vexatious or oppressive,
(c) the answer to the interrogatory could disclose privileged information.”

6 The terms of that rule have been used to uphold objections based on a range of circumstances including that a corporate body was being interrogated as to its state of mind at a particular time; that the person being interrogated was being called upon to form an opinion or to comment on the document of someone else; and that the interrogatory was imprecise, made unwarranted assumptions, or raised a question of law. All these matters were mentioned in my previous judgment.

7 I now come to deal individually with the Amended Interrogatories. I will employ the numbering used by the Plaintiffs in the document handed to me in court. As each in some way corresponds with an interrogatory dealt with in the previous judgment I will put a reference to the previous Interrogatory in parenthesis and I will also put in parenthesis the appropriate paragraph references in my previous judgment.

Amended Interrogatory 1 (1) (18-23):

8 The Amended Interrogatory has overcome some of the problems adverted to in the previous judgment but, in my opinion, not all of them. It uses vague expressions such as “review” and “minimise”, it seems to assume a legal obligation to take some action and perhaps most importantly, in my view, the answer, either yes or no, would be irrelevant. I would disallow it.

Amended Interrogatory (2) (6) (28-29):

9 In my opinion this Amended Interrogatory should in its breadth and vagueness be regarded as oppressive. However, more significantly, I do not accept that the answer could be directly or indirectly relevant to any issue. The state of knowledge of the council at a particular time is to be proved by objective facts. In my view, proof of the awareness or otherwise of an officer of the council of a particular state of affairs would not constitute evidence of an objective fact relevant to proof of the council’s state of mind. I would disallow the interrogatory.

Amended Interrogatory 3 (9) (30)

10 In my opinion, this Amended Interrogatory should be allowed with one qualification. It seeks the admission of a fact which could be probative of the issue of foreseeability. The qualification I would impose derives from my view that the words “or any other council… and the headland”, render the interrogatory oppressive. The interrogatory should be read as if those words were omitted.

Amended Interrogatory 4 (13) (33)

11 This interrogatory is, in my opinion, objectionable for several reasons. The unreasonableness of paragraph (a) having regard to the passage of time and the imprecision of its wording is, in my view, oppressive as is the reference to “any other council staff members” in the preliminary wording. More significantly, consistently with what is said above in relation to Amended Interrogatory 2, the state of mind or knowledge of identified council officers is not, in my opinion, relevant to any issue.

Amended Interrogatory 2 (14) (34)

12 Although this Amended Interrogatory is not objectionable because of what was said in Tooth & Co Ltd v Lane Cove Municipal Council (No 4) 1968 2 NSWLR 17, the other reasons stated in my previous judgment are applicable. I would disallow it.

Amended Interrogatory 6 (44) (47)

13 Whether, and if so to what extent, the council had particular responsibilities is a question of law but, in any event, the opinions of the officers mentioned, in my opinion, are irrelevant. I would disallow the Amended Interrogatory.

Amended Interrogatory 7 (41, 42, 45) (45, 46 48)

14 In my opinion, this Amended Interrogatory is irrelevant. If there were a responsibility it was the responsibility of the Council not one of its servants. The Amended Interrogatory should be disallowed.

Amended Interrogatory 8 (59) (62)

15 This Amended Interrogatory requires the interpretation by the persons named of an imprecise expression employed in someone else’s document. It would, I think, be objectionable on that ground alone. The question for reasons previously stated is also, in my opinion, irrelevant.

Amended Interrogatory 9 (62) (63)

16 The Amended Interrogatory is objectionable for reasons given in the previous judgment, leaving aside the reference to Lane Cove Council.

Amended Interrogatory 10 (63) (64)

17 Much of this Amended Interrogatory is, in my opinion, oppressive and irrelevant. However, in part, I think it should be answered, namely the preliminary question if treated as omitting the words “or any other Council staff members …….. and the headland”. I also think that part (a) (ii) and (A) should be answered.

18 As to costs, in light of what was said in the previous judgment, I think the Plaintiff should pay 80% of the Council’s costs of those proceedings. In accordance with what is said in paragraph 4 above, the Plaintiff should pay all of the Council's costs of these proceedings.

19 I make these orders:

1. Bega Valley Shire Council within 21 days to provide verified answers to the Amended Interrogatories 3 and 10 to the extent indicated in paragraphs 10 and 17 respectively of this judgment.

2. Plaintiff to pay 80% of the Council’s costs of the proceedings which culminated in the judgment delivered on 14 February 2007.

3. Plaintiff to pay the Council’s costs of these proceedings.