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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WADC 253
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, the plaintiff James Patrick Duggan is pursuing damages for personal injury against the defendant Centurion Industries Limited. The defendant has applied for leave to interrogate the plaintiff under O 3 r 1 of the Rules of the District Court, aiming to obtain certain information through interrogatories. The legal issues before the court were whether the defendant had demonstrated a proper basis to exercise its discretion in requiring the plaintiff to respond to the interrogatories, and if the proposed interrogatories were oppressive to the plaintiff.

The court examined the defendant's application and found that the defendant's central submission that the only issue to be addressed was the matter of delay was unfounded. The court noted that Rule 2 of the Rules of the District Court, which provides that leave is not required in certain cases, did not condition the exercise of discretion under Rule 1. The court emphasised that the defendant had the onus to demonstrate that it was appropriate to require the plaintiff to respond to the proposed questions. The court was particularly concerned with the nature of the process in which the defendant sought to engage, which it found to be oppressive as it would require the plaintiff to essentially provide its proof of evidence. The court also considered the context of the litigation and found that there was no principle that justified the oppression of the plaintiff in order to redress a perceived imbalance of information.

Ultimately, the court concluded that the defendant had not discharged the onus upon it to demonstrate a proper basis to exercise its discretion in requiring the plaintiff to respond to the interrogatories. The court found that the proposed interrogatories were oppressive to the plaintiff and refused the defendant's application for leave to interrogate.

Orders