Duggan v Centurion Industries Limited - [2000] WADC 253

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DUGGAN -v- CENTURION INDUSTRIES LIMITED [2000] WADC 253

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 14 SEPTEMBER 2000

DELIVERED : 13 OCTOBER 2000

FILE NO/S: CIV 3773 of 1999

BETWEEN: JAMES PATRICK DUGGAN
Plaintiff
AND
CENTURION INDUSTRIES LIMITED
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Practice under the Rules of the District Court of Western Australia - Application for leave to interrogate - Turns on its facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr T Chin
Defendant: Mr M Civitella

Solicitors:

Plaintiff: Taylor Smart
Defendant: Civitella Smith

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

Adams v Dickeson [1974] VR 77
American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 195
Dalrymple v Gray (1996) 17 SR (WA) 99
Simpson v Midalco Pty Ltd, unreported, SCt of WA, Library No 6637, 19 March 1987
Spedley Securities Ltd (in liq) v B R Yuill and Ors (No 4) (1991) 5 ACSR 758

Case(s) also cited:

Austin v Austin (1905) VLR 377
Hennessy v Wright (1890) 24 QBD 445
Knapp v Harvey (1911) 2 KB 732
Potters Sulphide Ore Treatment v Sulphide Corp Ltd (1911) 13 CLR 101
Sharpe v Smail (1975) 5 ALR 377
White & Co v Credit Reform Association & Credit Index Ltd (1905) 1 KB 653

DEPUTY REGISTRAR HARMAN: The claim the subject of this action is for damages for loss occasioned by personal injury.
By the application presently before the Court the defendant seeks leave under O 3 r 1 of the Rules of the District Court to interrogate the plaintiff. It was the defendant’s central submission that the only issue to be addressed on the application was the matter of delay. In support of that contention the defendant referred to unspecified determinations made in this Court in similar applications.
I gather that the submission and any such determination must draw upon O 3 r 2 of the Rules of the District Court. It is as follows:
"…
2Leave to administer interrogatories shall not be necessary when the party required to answer the same consents to do so, or when:
(a)the action involves a claim for personal injury, and;
(b)the interrogatories are administered within 110 days of an appearance being filed; and
(c) the interrogatories relate to:
(i) the occurrence of the action pleaded;
(ii)the defendant's system for preventing accidents of the type alleged to have occurred;
(iii)the plaintiff's medical history for five years prior to the accident;
(iv)the symptoms and treatment of the injury in question;
(v)the plaintiff's employment history prior to the accident."
Rule 2 simply provides that leave is not required in a case that is within its terms. It is not expressed so as to condition the exercise of discretion under r 1. Even the application recognises that the defendant requires more than an extension of time. The result sought by the application is not simply the ability to put the questions but what follows upon them being put. In my opinion, whether or not the defendant’s submission is supported by determinations made in this Court, properly considered it is unfounded.
The defendant also submitted that on other occasions the Court had considered that it would be inappropriate to consider the terms upon which an applicant sought to engage in the process of interrogation. That submission and any such determination would appear to follow a developing line of authority to the effect that any question can be put by way of interrogation. That line is least evident in the determination of the Federal Court in Spedley Securities Ltd (in liq) v B R Yuill and Ors (No 4) (1991) 5 ACSR 758 which was followed by the Chief Judge of this Court in Dalrymple v Gray (1996) 17 SR (WA) 99. In my opinion that authority would indicate that the Court was no more than a rubber stamp and that the applicant determined the result of the application when formulating the questions. In my opinion hardly a useful test, more an abdication of responsibility. As is the case with every aspect of the process of interrogation, the issue is not what questions may be put, but rather, which questions ought to be answered.
I understand that the submission may also be founded upon the proposition that if the considerations relating to a grant of leave were limited to the terms of r 2(b) then any "ancillary" features of the process could be addressed after the respondent has responded. That proposition covers some interesting ground. The application is before the Court as the respondent does not volunteer to answer. The onus is not upon the respondent to raise issues concerning the proposal but rather on the applicant to demonstrate that the proposal is appropriate. There is no basis upon which the Court could conclude that the respondent’s refusal to engage in the proposed process is determined simply by the nature of the action, the delay or indeed the artificial scope of relevance constructed by r 2(c).
I appreciate that what constitutes an appropriate analysis of the questions proposed does present some difficulty. That does not mean that it is appropriate to ignore the issue and simply burden the respondent. In my opinion it is appropriate to reflect on the fact that if required to engage in the process the respondent will have the opportunity to object and it is at that time that the terms of discrete objections are properly dealt with. In American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 195 (on the issue of leave) and in Simpson v Midalco Pty Ltd, unreported, SCt of WA, Library No 6637, 19 March 1987 (on a contest as to the set) it was considered appropriate for the Court to form an impression or an over view of the process in which the interrogating party seeks to engage. Whilst it is not appropriate to analyse each question, it may be appropriate to use some discrete questions as illustrations of particular features of the application.
Ultimately the appropriate analysis probably comes down to a consideration of oppression, in particular whether it would be oppressive to require the unwilling respondent to read through the questions and then consider whether and how to answer and whether to object. There could be no justification for an exercise of discretion in favour of an applicant if upon analysis it was appropriate to conclude that the questions would set an oppressive task for the respondent.
What is considered to be oppressive ought to be determined in context. Generally speaking the parties to litigation are required by the rules to do very little to assist their opponents. But for the provision of pleadings and discovery the parties are left to their own devices to get up their respective cases for trial. It is appropriate to consider that at this stage in the action the parties would be engaged in that process.
The nature of the process in which the defendant seeks to engage was described in Adams v Dickeson [1974] VR 77 at p 79 as follows:
"... The prime object of interrogation is enable the party to litigation to obtain discovery of material facts in order to either support or establish proof of his own case, or to find out what case (but not the evidence) he has to meet; or to destroy or damage the case bought by his opponent."
And further on the same page:
"The prime purpose is to obtain admissions from the respective parties so as to narrow the necessary proof of the issues raised in the pleadings."
The function of interrogatories is to facilitate proof of relevant facts as determined by the pleadings. Those facts may tend to support or detract from the case of either party. It is appropriate to reflect upon how a party may seek to put a request for an admission in relation to a relevant fact to its opponent. The defendant submitted that it is appropriate to simply seek the plaintiff’s evidence. I have some considerable difficulty with that proposition. It is relatively easy to conclude that the least oppressive way of seeking an admission is to put a proposition in relation to the existence of a relevant fact and seek an admission or denial of its existence. In my opinion, it is against that measure that oppression ought to be judged. Of course it may be that where the Court would reflect that where a question could only ever call for a discrete fact by way of a response, it may consider that the degree of oppression would be minimal. And so it is, that the Court may consider that it is appropriate for a party to seek its opponent’s date of birth rather than putting a discrete proposition as to a particular date being that party's date of birth.
It is my appreciation of the case that the defendant’s proposal seeks far more than simply discrete factual responses in answer to discrete questions. Indeed it takes little imagination to come to the conclusion that the defendant armed with responses to its interrogatories would be armed with the plaintiff's proof of evidence. I know of no rule or authority that entitles a party to its opponents proof of evidence. It is my view of the generality of the defendant’s proposal that consistent with its submission it considers that it is entitled to the plaintiff’s evidence and that despite the terms of the application the defendant has simply sought an extension of time.
It may be that the defendant has been influenced by the terms of O 3 itself. In my opinion the effect of r 2(c) is simply to provide an artificial limit to the scope of relevance. It does not establish any basis to distinguish between actions for personal injuries and any other cause of action. There is no principle that could found a perception that there is any special feature of the process of interrogation that arises in the context of personal injury actions. Rule 2 does not interfere with the principle that applies in any other case. It does not, for example, entitle a party to simply seek the plaintiff's employment history for five years prior to the accident.
There is nothing wrong with an interrogatory that puts to the plaintiff the proposition that he was employed by a particular person during a discrete period within the period commencing five years prior to the material date. In my opinion a question which simply seeks a plaintiff's employment history for five years prior to the accident requires some closer analysis. Clearly an answer would have some relevance to a matter to be determined. Equally clearly it does not seek an admission, but rather evidence. There is no evidentiary basis upon which I could conclude that the answer to such a question is likely to be limited to one or even two discrete facts. In my opinion the starting point is to consider where the onus lies. It is upon the applicant. It is for the defendant to satisfy the Court that it is appropriate for the Court to require the plaintiff to respond to the interrogatories that it has framed. Apart from the submissions that I canvassed at the commencement, the applicant did not develop whatever case it may have for an exercise of discretion.
It may be that the defendant would be disadvantaged in framing discrete propositions if it does not know the identity of the plaintiff's former employers. The fact that a party may be disadvantaged by a relative lack of information simply allows for the prospect that the Court will consider whether it ought to exercise discretion in favour of that party. Upon recognising that prospect it becomes a matter of reflecting upon the context in which the issue arises. In every action there is a disparity between the parties as measured by access to evidence and information, not to mention financial strength. Although there may be some superficial attraction to the prospect of redressing the balance it is more appropriate to reflect upon the fact that neither party to litigation necessarily has any interest in assisting its opponent and that the respondent is not a volunteer. The defendant will have the opportunity to cross-examine the plaintiff before it is at any risk on any issue. It appears to me that in all probability to require the plaintiff to give evidence both now and at trial is only likely to increase, not reduce costs. Ultimately there is no principle that would determine that the prospect of a party being disadvantaged by a lack of information justifies the real prospect of the oppression of its opponent.
It is useful to draw upon the authorities that relate to the scope and precision with which questions are framed in the context where a party seeks to administer a second set of interrogatories. In that context and in my opinion, in any other, it is appropriate to consider that a party seeking leave to interrogate could demonstrate that it could reasonably expect to engage the Court’s assistance. It could be expected to frame interrogatories in such a manner as to limit the prospect of its oppression of its opponent. It is inappropriate to exercise discretion simply because the discretion exists. There must be a proper basis for the Court to come to the applicant’s assistance and exercise discretion to require the unwilling plaintiff to respond to the proposed questions.
Although the plaintiff’s pleading was filed late, discovery was complete by mid May and it was not until mid August that the defendant sought leave to interrogate. In relation to the prospect of the defendant’s disadvantage, it is evident that in addition to the plaintiffs pleading and discovery the plaintiff has provided to the defendant in another action an affidavit in support of his application for leave to commence proceedings. As the defendants disadvantage was only canvassed in general terms I have no way of knowing what impact that document would have upon the defendant's understanding of the plaintiff's case. Nonetheless, to get back to the central point, the process of interrogation is not about redressing an imbalance in knowledge or understanding.
In this case and at this stage it is appropriate to conclude that the parties consider that each of them have provided sufficient pleadings and particulars. It is appropriate to consider that in the case of the applicant, it has evidence to support the positive allegations that it makes its pleading. There is nothing before me that would indicate otherwise to the contrary.
In my opinion despite the plaintiff's delay in pleading its case at the appropriate time and the defendants claimed disadvantage the defendant has not discharged the onus upon it. Accordingly I will refuse a grant of leave.