| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DOWSETT -v- PERPETUAL TRUSTEE COMPANY LIMITED [2002] WADC 238 CORAM : COMMISSIONER GILES HEARD : 9 OCTOBER 2002 DELIVERED : 14 NOVEMBER 2002 FILE NO/S : CIV 3803 of 1999 BETWEEN : MARION CHRISTINE DOWSETT Plaintiff
AND
PERPETUAL TRUSTEE COMPANY LIMITED
First Defendant
JONES LANG LASALLE (WA) PTY LTD
Second Defendant
AIRLITE CLEANING PTY LTD
Third Defendant
Catchwords: Application for leave to interrogate out of time - Purpose of interrogatories - Principles determining leave application
Legislation: Rules of the Supreme Court, O 27 r 1
(Page 2)
Result:
Application granted in part Representation:
Counsel:
Plaintiff : Mr B L Nugawela
First Defendant : No appearance
Second Defendant : Mr C G Astill
Third Defendant : Mr C C Rimmer
Solicitors:
Plaintiff : Friedman Lurie Singh
First Defendant : Minter Ellison
Second Defendant : Phillips Fox
Third Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Copini & Anor v Dunlop Tyre Service (Adelaide) Pty Ltd [1968] SASR 417
Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170
Irvine v State of Western Australia [1999] WASC 224
Irvine v State of Western Australia [2000] WASCA 56
Jackamarra v Krakouer [1998] HCA 27
Case(s) also cited:
American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193
Aspar Autobarn Co-operative Society v Dovala Pty Ltd (1987) 16 FCR 284
Atkinson v Fitzwalter [1987] 1 All ER 483
Attorney General v Gaskill (1882) 20 Ch D 519
Austin v Austin [1905] VLR 377
Baume v Commonwealth (1906) 4 CLR 97
Coal Cliff Colleries Pty Ltd v C E Health Broking Insurance (Aust) Pty Ltd (1986) 5 NSWLR 703
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
(Page 3)
Hawke v Tamworth Newspaper Ltd Co [1983] 1 NSWLR 699
Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32
Mulley & Marney v Manifold (1959) 103 CLR 341
Norton v Hoare (No 2) (1913) 17 CLR 348
Parnell v Walter (1890) 24 QBD 441
Re Strachan [1895] 1 Ch 439
Sharpe v Smail (1975) 5 ALR 377
Simpson v Midalco Pty Ltd, unreported; SCt of WA; Library No 6637; 19 March 1987
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Western Australian Capital Investments Co Ltd v Commissioner of Taxation (1988) 89 ATC 4001
White & Co v Credit Reform Association and Credit Index Ltd [1905] 1 KB 653
(Page 4)
1 COMMISSIONER GILES: On 6 August 2002, Deputy Registrar Harman refused the plaintiff leave to administer interrogatories to the second and third defendant. The plaintiff appeals from this decision.
2 The plaintiff seeks damages from the first, second and third defendants arising from an accident she alleges she suffered on 3 March 1995. She claims that while walking from her work at an optometry store to the toilets in the shopping centre in which her employer's business was situated, she slipped on a chip which was left on the floor, suffering injury as a result. 3 The first defendant is the owner of the shopping centre, the second defendant is the building manager and the third defendant is a contract cleaning company. 4 The particulars of negligence allege that the defendants were negligent in failing to make adequate arrangements for the cleaning of the shopping centre, which failure is alleged to have caused the accident. The plaintiff also claims the defendants were negligent towards her as occupiers pursuant to s 5 of the Occupiers Liability Act1985. 5 These proceedings have had a long history. The plaintiff's statement of claim was issued four years after the alleged accident. Ten months later the second defendant was joined and another six months later the third defendant was joined. The second and the third defendant entered their respective appearances on 1 August 2000 and 20 December 2000. They were not interrogated by the plaintiff within 110 days of these dates as required by the rules. 6 At least three unsuccessful pre-trial conferences were held between August 2001 and May 2002. On 9 May 2002 the plaintiff filed an application seeking leave to interrogate the second and third defendants. A listing conference scheduled for 28 August 2002 was adjourned because of the outstanding application for leave to interrogate. It would therefore appear that the matter is ready for trial apart from the application to interrogate. 7 Order 27, r 1 of the Supreme Court Rules provides that: "Subject to this Rule any party may with the leave of the Court serve notice on any other party requiring him to answer specified interrogatories relating to any matter in question between the party interrogating and the party served."
(Page 5)
8 This position is modified somewhat by O 3 of the District Court Rules, which provides:
"1. Subject to r 2, interrogatories may only be administered with the leave of the Court.
2. Leave to administer interrogatories shall not be necessary when the party required to answer the same consents to do so, or when:
9 Hence, leave is generally required except for proceedings in the District Court that are described in O r 2 of that court's rules. These proceedings fit this description, except that the interrogatories are sought to be administered a lengthy time beyond the limit prescribed in O 3 r 2(b).
The plaintiff's application 10 The plaintiff seeks to ask 27 questions of the second defendant with a number of sub-questions. The third defendant is asked 30 questions with a number of sub-questions.
(Page 6)
11 The questions seek information about the selection of the cleaners, the system in place for cleaning, the monitoring of cleaning standards in the premises, and at the place where the accident is alleged to have happened, and the circumstances of other accidents in the premises.
12 The second and third defendants oppose the application for leave to interrogate on the grounds that: 13 All of this, they submit, amounts to the application being an abuse of process. They also say that the proposed interrogatories are objectionable on various grounds. They submit this is a reason in itself not to grant application. A detailed schedule of objections to each interrogatory was contained in submissions by counsel for the third defendant, which were adopted by the second defendant. 14 The proper time for the administration of interrogatories is after the close of pleadings and discovery (Irvine v State of Western Australia [1999] WASC 224), once the issues have been adequately defined, subject of course to the limitations imposed by the Rules of the District Court.
The history and purpose of interrogatories 15 Speaking of discovery and interrogatories in the Introductory Chapter of his work "Law of Discovery and Digest" 1985, first published in 1885, Edward Bray said: "The right of discovery is the right by which a party to some proceedings (actually commenced or contemplated) before a civil court is enabled, before the determination of any matter in question in those proceedings, to extort on oath from another party to those proceedings — (1) all his knowledge, information and belief (of facts … not of matters of law …) concerning the matter so in question; (2) the production of all documents in his possession or power relating to such a matter.
(Page 7)
However disagreeable, it may be to make the disclosure, however contrary to his personal interest, however fatal to the claim upon which he may have insisted, he is required and compelled, under the most solemn sanctions, to set forth all he knows, believes or thinks in relation to the matters in question." 16 Interrogatories can therefore be a powerful forensic tool. However, as has been frequently noted, there has been a tendency in modern litigation, fuelled as many bad practices are by the advent of word processors, to interrogate routinely about a wide range of matters which bear only a passing relevance to the central matters in issue. This results in unnecessary expense and delay. As a consequence, the rules of court have instituted mechanisms to limit the right to administer interrogatories in time, and as to subject. 17 These mechanisms include the need to obtain leave generally, as in the Supreme Court in Western Australia,or to interrogate for a second time, as in the South Australian position (discussed Copini & Anor v Dunlop Tyre Service (Adelaide) Pty Ltd [1968] SASR 417) or to interrogate after a certain time or on certain topics as in the position in this Court. 18 Bray was of the view that the purpose of leave was to prevent the power to interrogate being used where it was not really wanted. Litigants needed to be "protected from themselves" (and one might interpose – from their legal advisers), to prevent voluminous and unnecessary interrogatories enlisting "great and useless expenditure" (supra at 91 - 92).
The plaintiff's application for leave 19 There is nothing in either set of rules, or in the decided cases, setting down a clear set of principles governing the granting of leave to interrogate. I was referred to a large number of cases by counsel, but few if any set out any principles for the actual granting of leave, most of them relating to the adequacy or necessity of particular interrogatories. 20 One can still distil from these, and other cases, some principles that seem to have more or less unanimous support, which are as follows:
(Page 8)
a fair trial because of an inability to interrogate, this is a weighty factor in favour of granting leave (Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170 at 174). 3. The court should have regard to the principles of case management when determining leave and in particular consider the effect of the application being granted on the listing of the trial, and the effect on the listings generally. 4. If there are other means that the interrogator could use to locate the information it seeks, such as discovery, a notice to admit, or further particulars these should generally be utilised in preference to the administration of interrogatories. 5. The further out of time the application is brought the more likely the court is to refuse leave. 6. The more lengthy the proposed questions are, the less likely is leave to be granted, particularly if the questions bear the stamp of a precedent, rather than questions closely directed to the facts in issue. 7. A cogent reason for delay, and one which is not the responsibility of the party him or herself, tends towards a generous approach to the granting of leave (Irvine v State of Western Australia [2000] WASCA at 9). 8. Prejudice, particularly irremediable prejudice, to the party sought to be interrogated, is a weighty factor, against granting leave.
Attainment of justice 21 To consider this matter requires an examination of the pleadings and the other material available to the parties to determine whether justice would be done if the application for leave were not granted. As the High Court observed in Goding & Ors v Queensland Newspapers Pty Ltd (supra), "there could be no reason more cogent for allowing for the departure from the general rule than that, without the opportunity to interrogate further, a case might not be heard on its merits." (at 174) 22 To succeed at trial, the plaintiff must show on a balance of probabilities that there was an inadequate system of cleaning, which resulted in an accident which caused her loss. She makes these allegations in the particulars of negligence against all three defendants. It is recognised that obtaining interrogatories can be used by a plaintiff in order to prove matters which otherwise remain solely within the
(Page 9)
knowledge of the defendants, until their witnesses are cross-examined at trial. It is also acknowledged that the tender of interrogatories containing admissions concerning the system of cleaning can be used by a plaintiff to overcome a no-case submission. These are well-recognised and entirely legitimate uses of interrogatories, (Rules of the Supreme Court, par 27.0.2). 23 Had the plaintiff's solicitors attended to this matter in accordance with the rules, this would have been the right of the plaintiff. 24 Some documentary material from the defendants is already available to the plaintiff by way of discovery. Annexed to an affidavit of Jade Renaye Finnigan dated 31 July 2002 are copies of documents discovered by the various defendants. These include a written record of an oral report of the accident by the plaintiff, a timetable showing the hours worked by various cleaners on the day in question, and some undated documents entitled "Breakdown of Labour" which appear to constitute duty statements for various cleaners. There is nothing in these duty statements indicating whether these were in force at the date of the alleged accident. There is also a document entitled a "Cleaning Proposal" by the third defendant to the second defendant, which bears a date which is after the date of the alleged accident. 25 Apart from the accident report, and possibly the names of the cleaners recorded on the timetable, the material discovered discloses very little, if at all, on the system of cleaning. Interrogatories seem now to be the only means of obtaining the facts – if indeed they are able to be obtained after proper enquiries by the defendants – concerning the system in place at the date of the accident. 26 Some of this material could no doubt be obtained through a notice to admit or a request for particulars. However, it is my view that at this stage in the proceedings, sworn evidence is appropriate on these matters in order that all parties know where they stand. 27 It is my view that the plaintiff is entitled to certain of the information sought in the interrogatories or alternatively to the knowledge that the information is no longer able to be ascertained after proper enquiries by the second and third defendants. That right should not be taken away from her because of the dilatoriness of her solicitors, particularly in light of the absence of any evidence of significant prejudice to the defendants. Without the right to interrogate on this issue, the plaintiff loses a right usually available to parties to collect evidence before the trial and reach a
(Page 10)
well-informed decision about her chances at trial. Closing this option to her would not in my view be a just. 28 Justice involves of course a consideration of the position all parties' rights, not just those of the plaintiff. Had the plaintiff's solicitors acted expeditiously, the defendants would have been required to answer questions on the system of cleaning without the need for leave. They now enjoy the position of not providing information, which may be inimical to their interests, because of the tardiness and lack of attention of the plaintiff's solicitors. Seen in that light I do not consider that it is unjust to the defendants to be required to answer properly framed questions at this stage of the proceedings, particularly in the absence of any real prejudice to them, which is a matter dealt with below.
Delay 29 Counsel for the plaintiff advised the court that he had only been instructed on the matter at the time when the pre-trial conferences were held. During the process of the pre-trial conferences, several of which were adjourned, and which period spanned several months, an application to seek leave to interrogate could have been made, but could well have resulted in the throwing away of significant costs and time, because of the chance that the matter might settle. About two months after it had been realised by the plaintiff's advisors that the matter was not going to settle, the application for leave was bought. Essentially, as soon as it was realised that the matter must proceed to trial, leave to interrogate was sought, on the advice of counsel. 30 Inherent in this explanation is the inference that for some reason, the plaintiff's solicitors either failed to consider the administration of interrogatories early in the proceedings, or wrongly considered they were unnecessary. 31 I do not find this a very satisfactory explanation. The practice of issuing proceedings without a proper assessment of the plaintiff's chances at trial encourages unreasonable expectations in the community and increases costs of all parties. I would not want to be seen as endorsing this practice. An early and continuous analysis of the available evidence should be engaged in by the plaintiff's advisors, and interrogatories should be carefully considered, and if thought necessary, should be issued in time. Waiting to determine whether the matter will settle before considering these issues smacks of speculative litigation, the undesirability of which requires no explanation. There is really no cogent
(Page 11)
reason why interrogatories could not have been issued in this case. The indications were there from the beginning that they would be needed. But I do not think it fair to visit this failure on the plaintiff in this particular case (Irvine v State of Western Australia [2000] WASCA 56 at 9). The nature of this particular case, and the overriding issues of justice, have influenced me to give this factor less weight that I might otherwise.
Prejudice to the second and third defendants 32 The second and third defendants submit that they are prejudiced by the delay because of the effect of time on the memories of witnesses and the existence of documents. The relevant delay is of course the period between when the interrogatories should have been administered, and when they were sought. This period was between mid-October 2000, or the end of March 2001 (being 110 days from the entering of an appearance for the second and third defendants respectively) until 9 May 2002, when the application for leave was made. 33 While this delay is lengthy, I am not convinced that it would have significantly added to the difficulties of the second and third defendants in responding to the interrogatories. There had already been a significant delay in the plaintiff issuing proceedings, of over four years. I suspect that if delay has resulted in the dispersing of evidence, it is this period which will be significant, rather than anything which has occurred since the proceedings were instituted. 34 Undoubtedly the effluxion of time will make proper inquiries by the defendants more difficult. However they would be foolish not to have collected at least some of the material sought already, and my orders seek to arrive at a reduced number of questions in any event.
Delaying the trial 35 The administration of interrogatories would be likely to have the effect of delaying the trial. This can be remedied to some extent by orders I propose to make for the limited administration of certain interrogatories on a tight timetable.
The interrogatories 36 The interrogatories themselves are a relevant consideration in considering the granting of leave. They presently have many problems.
(Page 12)
Counsel for the plaintiff accepts some of the criticisms levelled at the proposed interrogatories by the second and third defendants, but he points to O 59, r 9 as being a process which could have enabled the parties to agree to appropriate questions. He told the court no such conferring had taken place, and he was not contradicted in this by counsel for the second or third defendants. 37 The second and third defendants on the other hand say that it is not up to them to tell the plaintiff how to run her case. They say that if properly drafted interrogatories had been requested a short time after the 110 days prescribed in O 3 of the District Court Rules, they would have been more likely not to have taken objection. However, they submit that the delay is not adequately explained, the prejudice to them is obvious and the proposed questions themselves are objectionable. 38 In the granting of leave, the Court is not required to consider the proposed questions closely, or analyse whether they are individually objectionable. The arguments as to individual interrogatories are yet to come. However, the Court is entitled to consider the questions as a whole, to consider whether their general thrust is appropriate to the litigation, and whether they are unduly long, vague or oppressive. 39 Some of the proposed interrogatories do go to matters highly relevant to the issues in dispute. The proposed minutes are not unduly lengthy. These are matters I have taken into account in deciding to grant leave. 40 There are however, a number of difficulties with some of the questions posed. These matters require rectification. Because of the lateness of the application, and in order to minimise delays and inconvenience to the second and third defendants, I will not allow questions to be asked that are already answered in the discovered documents or which corroborate evidence which should already be in the knowledge of the plaintiff. 41 As a condition of granting leave I require the interrogatories to be redrafted. To facilitate this process, I make the following comments. These comments should not be taken as the final word on the matter, or to preclude the second and third defendants from taking sworn objections to any of the questions asked, but to assist the plaintiff to reduce the number and type of questions, and focus on the issues that are crucial to the litigation. However, I expect the second and third defendants to take into account my remarks in this judgment, and to limit their objections to those
(Page 13)
to which it has a serious objection, rather than taking a blanket approach of objecting to everything.
Third defendant – proposed interrogatories 42 I refer to the minute of the plaintiff's request for answers to interrogatories to the third defendant for convenience. These are largely repeated in the proposed interrogatories for the second defendant and should be taken to refer to both sets of questions. Where I do not refer to specific questions, they are able to be posed. 43 Questions 1, 2 and 3 seek answers to questions of law, and question 3 seeks the identity of other individuals not parties to the litigation. I would not allow them in their current form. 44 Question 4.1 is too vague and general and should be deleted. The entire question should be redrafted to seek factual matters concerning the involvement of the third defendant in the cleaning of the area. 45 Question 5 appears to seek the names of other persons not involved in the action and is fishing. 46 The introductory words of question 6 requesting that certain steps be "described" is vague and general but if made more specific is would be permissible. 47 Question 8 is impossible to answer helpfully, and the information sought is probably answered in the report of the accident, in which the surface of the floor on which the plaintiff fell is described in that document as "tiled". Question 11 is also answered in the accident report, and should be deleted. 48 Question 12 seeks information about conduct of the defendants after the accident and the way it is currently posed renders its answer irrelevant. It is said to be relevant in seeking information concerning the cost of taking certain precautions, which would arguably be relevant to a number of issues. However, no information is sought as to cost. If the plaintiff wishes to persist with this line of questioning its relevance should be made clear in the question. 49 Questions 13 and 14 seem to be largely repeated in questions 15 and 16. The latter two questions are better drafted than the former two, and impose less of a burden on the party interrogated. I also think that asking questions which require investigations over a three-year period, is
(Page 14)
oppressive. The questions reframed over a period of one year would I think be more reasonable. I note that the second or third defendant had a form for reporting of accidents with boxes to tick for particularly kinds of falls (e.g. chips, ice-cream etc) tending to suggest that this information is likely to be reasonably readily available to the second and third defendants. These documents could presumably be sought by way of further and better discovery, but there may be accidents in the collective memories of the defendants' employees which are not so recorded, and the plaintiff is entitled to this information prior to the trial. 50 Question 17 would be better framed as two questions, and their relevance made clear (see comments above regarding question 12). 51 Question 19 seeks an opinion, which is irrelevant. The information sought should be asked by a direct question seeking the relevant facts. 52 Question 20 is rather broad, and could be more tightly drafted. It assumes there was a basis for deciding how many cleaners were required. It should be redrafted seeking factual information concerning the basis for the calculation of the number of cleaners, for the area in question. 53 Question 21 is answered by the accident report in that the plaintiff is reported to have informed the shopping centre management that she herself had removed the chip. The information really being sought is to determine the first time upon which the relevant area was cleaned after the accident. It should be sought in a direct way. 54 Question 23 should be answered by question 18. I see no utility in asking it again in this way. 55 Question 24 assumes there were "check points" at which cleaners were required to call. This has not been established. It therefore requires redrafting. 56 Question 26 is impossibly vague and should either be deleted or substantially revised. I cannot see the relevance of question 27. It should be deleted. Question 28 repeats itself in 29.2. Whichever question is asked, it should be limited to a reasonable period prior to the alleged accident, say one year, to prevent the need for a lengthy historical inquiry. Question 30 is permissible, except that it should specify a date or period of time.
(Page 15)
Second defendant – proposed interrogatories
57 There are several questions posed of the second defendant that are not asked of the third defendant. These are questions 24.1, 24.2, 24.3, 25 and 26 in the minute of proposed interrogatories directed to the second defendant. Questions 24.1 and 24.2 seem to be on a different topic than question 24, and should be part of a separate question (I assume this is a typing error). 58 Question 25 asks whether the second defendant "… had any role in the supervision of the cleaning by the third defendant?" This is somewhat vague. The question should be redrafted, asking for factual information concerning what the second defendant actually did. The question also should be limited to the time of the alleged accident or a reasonable period prior to this date. 59 Question 26 seeks relevant factual information and is permissible.
Conclusion 60 I have decided to grant leave to the plaintiff to interrogate on this matter, subject to certain conditions. The reason I have decided to exercise my discretion in this way is because I do not believe that justice would be done to the plaintiff to require her to proceed to trial without having the right to interrogate concerning the system of preventing accidents of the type alleged to have occurred. 61 Because of the lateness of this application, and the inadequacies of the proposed interrogatories, I propose to permit the plaintiff leave on the following conditions: 1. That within seven days, the plaintiff file and serve revised interrogatories on the second and third defendants. 2. That within a certain number of days (I will hear the parties as to the length of time) of service of the proposed interrogatories, the second and third defendants file and serve sworn answers, or objections in terms of O 27 r 5 to the proposed interrogatories; 3. That in the event of objections by the second and third defendants the matter be listed before me at short notice to hear and determine the objections. 4. That in the event of the plaintiff failing to meet the time limit in par 1 the grant of leave will be revoked. 62 I will hear the parties as to the appropriate form of orders, and costs.
|