Dunmall v O'Sullivan [No 3] - [2011] WADC 185

DUNMALL -v- O'SULLIVAN [No 3] [2011] WADC 185

Last Update: 03/11/2011

DUNMALL -v- O'SULLIVAN [No 3] [2011] WADC 185
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 185
Case No:	CIV:232/2006	Heard:	12 OCTOBER 2011
Coram:	PRINCIPAL REGISTRAR GETHING	Delivered:	12/10/2011
Location:	PERTH	Supplementary Decision:
No of Pages:	5	Judgment Part:	1 of 1
Result:	Partial leave granted to interrogate for a second time
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	GEOFFREY DUNMALL MARY O'SULLIVAN TERRENCE CONSTRUCTIONS PTY LTD SHIRE OF MURRAY
Catchwords:	Interrogatories Second request
Legislation:	Nil
Case References:	Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Dunbar v Perc [1956] VLR 583

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

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

(Page 2)

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

(Page 3)

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].

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.

Continue reading Dunmall v O'Sullivan [No 3]

Details

AGLC: DUNMALL v O'SULLIVAN [No 3] [2011] WADC 185
Case: [2011] WADC 185
Decision Date: 12 OCTOBER 2011

CaseChat Overview and Summary

The case of Dunmall v O'Sullivan [No 3] involves the applicant, Dunmall, and the defendant, O'Sullivan. The applicant sought to conduct further interrogatories in relation to the defendant's liability and damages in a personal injury matter. The case was heard in the Supreme Court of Victoria. The dispute centred on the propriety of allowing a second round of interrogatories, given that the first set had already been answered.

The primary legal issue before the court was whether the applicant was entitled to a second round of interrogatories, and if so, what scope they could have. The court needed to balance the principle of proportionality and fairness in the discovery process against the applicant's right to seek further clarification on specific issues. The court also had to consider the potential prejudice to the defendant if a second round of interrogatories were permitted.

The court found that the applicant's request for a second round of interrogatories was not entirely unjustified, as certain issues remained unclear despite the first set of responses. The court emphasised the importance of the proportionality and fairness in the discovery process. It held that while the applicant was entitled to interrogate for a second time, the scope of those interrogatories needed to be narrowly tailored to address the remaining issues that could not be clarified through other means. The court granted partial leave for the interrogatories, with specific instructions on the scope and content of the questions permissible.

Orders

Orders of the court

Partial leave granted to interrogate for a second time

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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