Dowell Australia Limited T/A Dowell Aluminium Windows (WA) a Division of Dowell Australia Limited v Quadros
[2000] WADC 260
•23 OCTOBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DOWELL AUSTRALIA LIMITED T/A DOWELL ALUMINIUM WINDOWS (WA) A DIVISION OF DOWELL AUSTRALIA LIMITED -v- QUADROS [2000] WADC 260
CORAM: YEATS DCJ
HEARD: 11 OCTOBER 2000
DELIVERED : 23 OCTOBER 2000
FILE NO/S: CIV 2534 of 1999
BETWEEN: DOWELL AUSTRALIA LIMITED T/A DOWELL ALUMINIUM WINDOWS (WA) A DIVISION OF DOWELL AUSTRALIA LIMITED (ACN 004 437 898)
Plaintiff
AND
JOSE DE QUADROS
Defendant
Catchwords:
Appeal from the decision of a Registrar - Practice and procedure - Application for leave to administer interrogatories - Appeal allowed in part
Legislation:
Workers' Compensation and Rehabilitation Act 1986
Result:
Leave allowed to administer interrogatories seven through 13.
Leave not granted in relation to interrogatories one through six and interrogatory 14.
Representation:
Counsel:
Plaintiff: Mr M P Davey
Defendant: Mr D R Love
Solicitors:
Plaintiff: Jackson McDonald
Defendant: Butcher Paull & Calder
Case(s) referred to in judgment(s):
Marriott v Chamberlain (1886) 17 QBD 154
McBride v Sandland [1917] SALR 249
Norton v Hoare (1913) 17 CLR 348
Plymouth Mutual Cooperative v Traders Publishing Association [1906] 1 KB 403
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101
Sharpe v Smail (1975) 49 ALJR 130
Case(s) also cited:
Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703
Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44
YEATS DCJ: The plaintiff appeals from a decision of Deputy Registrar Harman dated 3 April 2000 in which the Deputy Registrar dismissed the plaintiff's application by chambers summons dated 25 February 2000 for leave to administer interrogatories for answer by the defendant.
The jurisdiction exercised by the Registrar of the District Court in this matter is a delegated jurisdiction. A condition of the delegation of this jurisdiction is the provision for a complete review de novo before a judge of the District Court. On appeal the Court considers the matter itself and is not bound to find error on the part of the Deputy Registrar.
The pleadings
The plaintiff's claim is for damages for loss which it alleges it suffered as a result of acting upon false representations made by the defendant to the plaintiff which led the plaintiff to pay workers' compensation to the defendant. The statement of claim is in these terms:
"1.The Plaintiff is and at all material times was:
(a)A Company duly incorporated according to the laws of Western Australia and carrying on business in the registered name of Dowell Aluminium Windows (WA) a Division of Dowell Australia Limited Registration No 8322858Z;
(b)A manufacturer of aluminium windows and doors having its principal place of business at 60 Belmont Avenue, Belmont in the State of Western Australia.
2.The Defendant was employed by the Plaintiff at all material times as a process worker undertaking varied tasks on a metal work production line.
3.The Defendant alleged that on or about 27 March 1996 whilst he was undertaking employment activities for the Plaintiff in their premises he sustained an injury to his shoulder whilst he was definning aluminium bars using a lever.
4.Subsequent to the allegations of injury being made by the Defendant he completed a workers' compensation form.
5.The Defendant submitted the claim form to the Plaintiff on or about 29 March 1996.
6.In or about March 1996 at some time prior to submitting his workers' compensation claim form to the Plaintiff the Defendant sustained an injury to his shoulders whilst he was using exercise equipment being push‑up bars, constructed by himself.
7.On or about 29 March 1996 when the Defendant completed the workers' compensation claim form he submitted to the Plaintiff he falsely and fraudulently misrepresented to the Plaintiff that the injury he sustained to his right shoulder occurred in the work place at the Plaintiff's premises whilst he was definning aluminium bars using a lever.
8.In support of his workers' compensation claim the Defendant provided to the Plaintiff a first medical certificate dated 28 March 1996 from Dr Ralph Ten Seldam indicating he was suffering shoulder pain as a result of an injury at work.
9.The Defendant returned to work with the Plaintiff on 28 March 1999 (sic). Dr Seldam recommended that the Defendant try to avoid rotating movements with his right arm. The Defendant continued undertaking light duties with the Plaintiff until 6 May 1996 when he was certified unfit for normal duties for a period of four weeks by Dr J C Offer.
10.From on or about August 1996 the Plaintiff made payments of weekly compensation to the Defendant.
Particulars of reimbursement payments
(Specific payments are alleged totalling $14,276.39).
11.In addition to payments of weekly compensation, various other payments were made by or on behalf of the Plaintiff pursuant to the Workers' Compensation and Rehabilitation Act 1986. (Medical, rehabilitation services and legal interpreting and other management fees were claimed totalling in excess of $24,000).
12.The Defendant was not entitled to receipt of the workers' compensation weekly or other payments and, as a result of his fraudulent misrepresentations the Plaintiff has suffered loss.
13.Payments of weekly compensation to the Defendant were ceased on 9 September 1997 as a result of a finding of a review officer in the WorkCover Directorate that there was a genuine dispute on the issue of fraud. At that time the worker was still being certified totally unfit for work."
The plaintiff then claimed damages in the sum of $39,022.10, interest, any other relief and costs.
In its substituted defence filed and served on 2 September 2000, the defendant pleaded as follows:
"1.The Defendant does not know whether the allegations in paragraphs 1, 10 and 11 of the Statement of Claim are true and puts the Plaintiff to the proof thereof.
2.The Defendant denies the allegations in paragraphs 6, 7 and 12.
3.The Defendant admits the allegations in paragraphs 2, 4, 5 and 13.
4.The Defendant refers to paragraph 3 and admits the allegations therein, save to state that he was using a hand tool and not a lever.
5.The Defendant admits the allegations in paragraph 8 save to state that it was not he but the Plaintiff which provided a first medical certificate dated 28 March 1996 from a Dr Ralph Ten Seldam.
6.The Defendant refers to paragraph 9 and states that he returned to work with the Plaintiff on 28 March 1996. The Defendant denies that he was placed on light duties with the Plaintiff until 6 May 1996 but he admits that he was on that day certified unfit for normal duties for a period of four weeks by Dr J C Offer."
Interrogatories one, two and three
Interrogatories one, two and three can be considered as a group. Interrogatory one asks this question:
"Do you claim that you sustained the injury on 27 March 1996 when you were definning aluminium bars using the hand tool…on the Plaintiff's premises at 60 Belmont Avenue, Belmont…during the course of your employment with the Plaintiff…?"
Interrogatory two asks for further information if the answer to number one is "yes"; interrogatory three asks further questions if the answer to interrogatory one is "no".
The difficulty with interrogatory number one is that by par 4 of its substituted defence the defendant has admitted the allegations in par 3 of the statement of claim save to state that he was using a hand tool and not a lever. As a result of that admission interrogatory number one is not directed to obtaining an admission in relation to a matter of fact in issue between the parties. The matter has been admitted on the pleadings.
Order 3 of the District Court Rules makes it clear that interrogatories may only be administered with the leave of the Court. The right to interrogate is not confined to facts directly in issue, but extends to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue. (Marriott v Chamberlain (1886) 17 QBD 154 at 163: Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 112). Leave will only be granted when the interrogatory relates to a fact in issue. A matter is not in issue if it is admitted on the pleadings (McBride v Sandland [1917] SALR 249 at 256). For that reason I refuse leave to administer interrogatories one, two or three.
Interrogatories four, five and six
Interrogatory four is in these terms:
"Did you tell the orthopaedic surgeon, Mr Greg Janes, that you sustained injury to your right shoulder as a result of helping your supervisor tighten a belt on a winding machine during the course of your employment with the Plaintiff on the premises?"
The plaintiff relies on interrogatory four to seek admissions of fact in relation to the date the defendant alleges he suffered an injury to his shoulder and how he suffered that injury. The plaintiff submits that this interrogatory is relevant to the issue of whether the defendant's representations were false and whether he did not genuinely believe them to be true.
The defendant objects to interrogatory number four and submits it is directed to a matter of evidence, not of facts in issue.
"Interrogatories must be confined to seeking admissions of fact. They may not be directed to the evidence by which the material facts will be proved (Re Strachan [1895] 1 Ch 439 at 445)." (Civil Procedure in Western Australia: Seaman: at 27.1.4).
Interrogatories may not be asked which merely go to credit. (Sharpe v Smail (1975) 49 ALJR 130 at 133). Interrogatories can be administered as to intention if intention is in issue (Norton v Hoare (1913) 17 CLR 348 at 352) or as to any state of mind which is a material fact (Plymouth Mutual Cooperative v Traders Publishing Association [1906] 1 KB 403). The state of mind of the defendant in issue on the pleadings in this case is whether the defendant was truthful in the workers' compensation claim form. But interrogatory four is not directed to that issue. The defendant has denied the allegations in par 7 of the statement of claim. Interrogatory four is attempting to elicit evidence from the defendant. He has denied that he falsely and fraudulently misrepresented matters to the plaintiff.
Interrogatory five flows from interrogatory four and leave should not be granted. Interrogatory six is in these terms:
"If you claim you sustained injury to your right shoulder as a result of helping your supervisor tighten a belt on a winding machine during the course of your employment with the Plaintiff on the premises
(a)provide a full description of the winding machine you were working on at the time you sustained this injury;
(b)provide a full description of the movements you were making at the time you sustained this injury;
(c)when did you first notice the onset of symptoms as a result of this injury and what were those symptoms?
(d)were there any witnesses to your sustaining this injury?"
The difficulty with interrogatory six is that it flows from interrogatory four and is contrary to the pleadings of the defendant. The defendant has admitted the allegations in par 3 of the statement of claim save as to state that he was using a hand tool and not a lever. It would amount to cross‑examination and leave should not be given to interrogate on the basis of other alleged allegations. Those merely go to the credit of the defendant.
Interrogatories seven through 13
Interrogatories seven through 13 are all directed to the push‑up bars pleaded by the plaintiff in par 6 of the statement of claim. The defendant has denied the plaintiff's allegation that the defendant sustained an injury to his shoulders whilst he was using exercise equipment being push‑up bars constructed by himself. Interrogatory seven refers to a photo of push‑up bars and then interrogates in the following questions:
"7.Prior to your sustaining the injury on 27 March 1996 did you own or did you have access to the use of push‑up bars similar to the push‑up bars?
8.If your answer to the preceding interrogatory is 'yes' did you at any time prior to sustaining the injury on 27 March 1996 use the bars in the manner depicted in the photograph?
9.If your answer to the preceding interrogatory is 'yes' did you at any time prior to commencing work for the Plaintiff at the premises on 27 March 1996 experience pain or any other symptom in your right shoulder whilst using the bars in the manner depicted in the photograph?
10.If your answer to the preceding interrogatory is 'yes':
(a)on what date or dates did you experience pain or any other symptom in your right shoulder whilst using the bars in the manner depicted in the photograph?
(b)describe the symptoms experienced on each occasion;
(c)how long did these symptoms last?
(d)did you consult a medical practitioner, physiotherapist or a chiropractor as a result of the symptoms, and if so what treatment did you receive and from whom?
11.If your answer to interrogatory 8 is 'no', did you at any time prior to the material date use the bars in any way that involved use of your right shoulder?
12.If the answer to the previous interrogatory is 'yes' did you at any time prior to commencing work for the Plaintiff at the premises on 27 March 1996 experience pain or any other symptom in your right shoulder whilst using the bars?
13.If you answered 'yes' to the preceding interrogatory:
(a)on what date did you first experience pain or any other symptom in your right shoulder whilst using the bars and if on more than one occasion provide the dates for each occasion and say how often this occurred?
(d)describe the symptoms experienced on each occasion referred to in sub‑paragraph (a)?
(c)how long did these symptoms last?
(d)did you consult a medical practitioner, physiotherapist or chiropractor as a result of the symptoms, and if so what treatment did you receive and from whom?"
The defendant objects to these interrogatories on the basis that they are unnecessary and irrelevant and they are an attempt at fishing. I do not consider that the interrogatories are either unnecessary or irrelevant. So far as "fishing" is concerned it must be remembered that the plaintiff has filed a statement of the uncle of the defendant in which the uncle says described the injury to the defendant occurred when he was using the push-up bars. Since that time I am told that the defendant's uncle has by affidavit withdrawn that statement and indicated that it is not true. However the existence of that statement provides a basis for these interrogatories and in these circumstances I do not consider that the interrogatories amount to "fishing".
By its pleading the plaintiff has put the alleged use of the push bar by the defendant in issue. It seems to me that interrogatories seven through 13 are properly directed to the issue of the defendant's use of the push bar and the issue of whether he injured his right shoulder in the course of using the push bar. That is a matter in issue between the parties and it is a matter about which the defendant knows and the plaintiff cannot know. I consider that interrogatories seven through 13 are proper and leave is allowed for the plaintiff to administer those interrogatories to the defendant.
Interrogatory 14
Interrogatory 14 is in these terms:
"Did you receive payments of weekly compensation from the Plaintiff in respect of the injury and, if so what was the total sum you received in weekly payments to date?"
In its pleading in par 10 the plaintiff set out the particulars of reimbursement payments. The defendant by its substituted defence has said it does not know whether that is true and puts the plaintiff to the proof thereof. I do not consider that the defendant should be placed in the position of answering this interrogatory. These payments alleged by the plaintiff occurred from August of 1996 through September of 1997. The defendant has given his answer that he does not know and therefore puts the plaintiff to proof. This is a matter that is particularly within the knowledge of the plaintiff. I do not consider leave should be given to require the defendant to answer interrogatory 14.
Conclusion
For the reasons I have stated I allow the appeal insofar as it relates to interrogatories seven through 13 and would require that the defendant answer those interrogatories on oath. Leave to interrogate is not granted in relation to interrogatories one through six and interrogatory 14.
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