| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DUNMALL -v- O'SULLIVAN [No 3] [2011] WADC 185 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 12 OCTOBER 2011 DELIVERED : 12 OCTOBER 2011 FILE NO/S : CIV 232 of 2006 BETWEEN : GEOFFREY DUNMALL Plaintiff
AND
MARY O'SULLIVAN
First Defendant
TERRENCE CONSTRUCTIONS PTY LTD
Second Defendant
SHIRE OF MURRAY
Third Defendant
Catchwords: Interrogatories - Second request Legislation: Nil
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Result: Partial leave granted to interrogate for a second time Representation: Counsel:
Plaintiff : Mr B P Wheatley
First Defendant : Not applicable
Second Defendant : Mr B D Campbell
Third Defendant : Not applicable
Solicitors:
Plaintiff : Mossensons
First Defendant : Not applicable
Second Defendant : Mony De Kerloy
Third Defendant : Not applicable
Case(s) referred to in judgment(s):
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Dunbar v Perc [1956] VLR 583
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1 PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 12 October 2011 and edited from transcript].
2 The application before me arises out of the ongoing directions hearings in relation to this matter. It is an application by the plaintiff for leave to serve a second set of interrogatories for the second defendant to answer on oath. The form of the interrogatories are attached to a minute of proposed orders dated 20 September 2011 (folio 183). 3 The application arises in the context of the plaintiff's claim for alleged injuries arising out of a balcony collapse which occurred in December 2004. The house in question appears to have been built around 1982/1983. The plaintiff thus faces a difficult task in order to undertake the factual inquiry necessary to bring before the court all relevant information to enable a finding to be made in relation to the cause of the balcony collapse, and the party, if any, who should be attributed fault in relation to the collapse under the law of negligence. It is in that context that the issue of interrogatories needs to be determined. 4 This is a second or subsequent set of interrogatories. That being so, it should be very much the exception, rather than the rule, that leave be granted to issue these interrogatories, and cogent reasons must be advanced in support of an application for leave: Dalecoast Pty Ltd v Monisse [1999] WASCA 103 [6]. 5 It seems to me that leave ought to be granted, at least in partial terms, for two reasons. The first reason goes to the interests of justice. As I have indicated, the case that the plaintiff finds himself having to run is a very difficult one, based on the time delay between the accident in question and the construction of the house. That is not the plaintiff's fault; that is simply the reality that the plaintiff faces in having to run this action. Given that context, I am minded to allow the plaintiff somewhat more latitude in administering interrogatories than might otherwise have been the case. 6 The second factor in exercise of the discretion is the overall case management. The essence of the case management regime in the District Court is set out in District Court Rules 2005 r 24(1). That rule provides: A case management direction is any procedural direction that in the court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously. (Page 4)
7 It seems to me that the statement of principle inherent in r 24 is as good as any guiding statement as to the approach that I should take in managing this case. It seems to me that, in order for the case to be conducted and concluded efficiently, economically and expeditiously, at least partial leave should be granted. 8 In relation to the minute of proposed interrogatories, interrogatory 1 requires the second defendant to look at an annexed letter and to answer the question as to whether or not the defendant received this letter on about 5 June 1983. Question 2 asks: if the answer to interrogatory 1 is 'no', then was the letter otherwise brought to the attention of the second defendant? It seems to me that this is a very precise question; the letter is clearly relevant to the facts in issue. It will not be oppressive for the second defendant to answer the question as he would do it from his memory. If his answer is to the effect that he can not recall, then that is his answer. 9 Interrogatories 3 and 4 are as follows: 10 There is a reference to a Peter Walker in a letter annexed to the interrogatories and marked 'A', which is a letter from someone whose identity is unknown to ‘The Manager, Terrence Constructions Pty Ltd’. It refers to a conversation between the writer of the letter and a Mr Peter Walker on 30 March 1983. 11 The case being progressed by the plaintiff is against Terrence Allden Walsh; it is not against Terrence Constructions. It seems to me that the inquiry in relation to whether or not Mr Walker was an employee of Terrence Construction is not relevant to the facts in issue. Accordingly, I do not propose to allow interrogatories 3 and 4. 12 Interrogatories 5 to 8 require the second defendant to look at certain pages which are annexed. The question is then asked whether these pages are extracts from transcripts of evidence given on oath by the second defendant to the District Court on 25 February 2010 and 18 March 2010. 13 The plaintiff asserts that interrogatories in this form are permissible, based on the authority of Dunbar v Perc [1956] VLR 583. In that case, the court ordered the defendant to answer an interrogatory that asked (Page 5)
whether he had given certain evidence at inquest. A copy of the deposition was attached to the interrogatory, and the defendant was asked to confirm that he gave the evidence. The plaintiff has sought to draft the questions asked in the same format. 14 In response, the second defendant asserts that, in effect, the questions asked are in the nature of cross-examination. The second defendant has previously answered interrogatories which asked whether or not Terrence Constructions carried on business as a builder in about 1983 and whether or not the second defendant was a supervisor for Terrence Constructions at or about that time. It seems to me that the intent of the interrogatories is, effectively, to put prior inconsistent statements to Mr Walsh in order to force him to elaborate the answers given in the first set of interrogatories. 15 To my mind, this is an impermissible use of interrogatories. To the extent that the plaintiff wishes to cross-examine Mr Walsh in relation to evidence he gave on oath in prior District Court hearings, the appropriate mode to do that is cross-examination at trial. The plaintiff has had an opportunity to ask the second defendant interrogatories as to whether or not Terrence Constructions constructed the property in question and whether or not he was the relevant supervisor. Answers have been given to those interrogatories, and it is not appropriate that a second set of interrogatories issue, effectively, to go behind those answers. 16 I propose to grant to second defendant leave to interrogate in terms of interrogatories 1 and 2 of the minute dated 20 September 2011.
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