| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DUNMALL -v- O'SULLIVAN [No 4] [2011] WADC 229 CORAM : DAVIS DCJ HEARD : 12 DECEMBER 2011 DELIVERED : 22 DECEMBER 2011 FILE NO/S : CIV 232 of 2006 BETWEEN : GEOFFREY DUNMALL Plaintiff
AND
MARY O'SULLIVAN
First Defendant
TERRENCE ALLDEN WALSH
Second Defendant
SHIRE OF MURRAY
Third Defendant
Catchwords: Appeal from registrar - District Court Rules 2005 r 15(1) - Application for leave to interrogate - Second set of interrogatories - Turns on own facts Legislation: Nil
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Result: Appeal allowed in part 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):
American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd [No 2] [1965] NSWR 193
Austin v Austin [1905] VLR 377
Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Dunbar v Perc [1956] VLR 583
Dunmall O'Sullivan [No 3] [2011] WADC 185
Fisher v Stapley [2005] WASCA 16
Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170
Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44
Jackamarra v Krakouer (Unreported, WASCA, Library No 9807035, delivered 21 December 1998)
Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd (1911) 13 CLR 101
Sharpe v Smail (1975) 5 ALR 377
Sloan v Hanson [1939] 1 All ER 333
Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758
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1 DAVIS DCJ: This appeal arises from the principal registrar's decision on 12 October 2011 to refuse leave to permit the plaintiff to administer certain interrogatories for the second defendant to answer on oath: Dunmall O'Sullivan[No 3] [2011] WADC 185.
2 Pursuant to r 15(6) of the District Court Rules 2005 this appeal is by way of a new hearing of the matter.
Background to this appeal 3 On 31 December 2004 the plaintiff was attending a New Year's Eve party at the home of the first defendant, at 12 Kiap Road, South Yunderup. The house was built in around 1983 and is located close to the ocean, on the South Yunderup canals on the Peel Inlet. The plaintiff was standing on a timber balcony of the house when without warning the balcony suddenly gave way and collapsed. The plaintiff suffered injuries as a result of falling up to 3 m onto a patio below. 4 There are three defendants in this action. The first defendant is the owner of the house. It is alleged that she owed a duty of care to the plaintiff to properly inspect, maintain and repair the balcony and failed to do so, leading to its collapse. The second defendant is a registered builder alleged to have been responsible for the management and supervision of the building of the house, which included the timber balcony. The third defendant is a local government which approved the plans and specifications for the house, including the balcony, and is also alleged to have inspected the balcony at around the time of its construction. The allegations of negligence against the second and third defendants relate to the building of the balcony otherwise than in accordance with the plans and specifications, with screws, bolts and other fastening devices which were not cadmium plated, galvanised or coated to resist corrosion over time, and without rot resistant timber. Both non-corrosive fittings and fastening devices and rot-resistant timber were required because of the location of the house close to the ocean and the Peel Inlet. 5 Although it is not pleaded, the second defendant was a director of a company, Terrence Construction Pty Ltd, which was the builder of the home. That company is deregistered. On 31 March 2010 the second defendant was added as a party to the action. Based on his position within the company, the fact that he was a registered builder and his alleged management and supervision of the building of the home, it is alleged that the second defendant owed a personal duty of care to the plaintiff. (Page 4)
6 Whether the second defendant in fact managed and supervised the construction of the house is a matter in issue on the pleadings. 7 As observed by the principal registrar, because the balcony was built so long ago the plaintiff faces a difficult task in order to undertake the factual enquiry necessary to bring before the court all relevant information to enable a finding to be made as to the cause of the balcony collapse and which of the defendants, if any, is liable to the plaintiff in negligence: Dunmall O'Sullivan[No 3] [3]. 8 The plaintiff obtained leave on 20 April 2011 to administer interrogatories for answer by the second defendant. The interrogatories were directed to ascertaining whether the second defendant was a director of Terrence Construction Pty Ltd, whether that company carried on business as a builder in 1983, whether the second defendant was a supervisor for that company in about 1983, whether the company constructed the house and, if so, whether the second defendant managed and supervised the construction of the house, including the balcony. The second defendant answered those interrogatories by affidavit sworn 19 May 2011. 9 In these answers the second defendant deposed to the fact that he was unable to specifically recall whether the company was carrying on business as a builder in or about 1983 but to the best of his recollection he thought it may have been. He said, in answer 3, that if the company was carrying on business as a builder at that time then the supervisors for the company were his father and himself 'although I am sure that I did not supervise the work at 12 Kiap Road'. The second defendant deposed in answers 4 and 5 to the fact he had no record of the company constructing the house nor could he recall constructing the house or personally supervising the work. He further stated, in answer 5, that if the company did build the house the work 'would have been supervised by my father, Michael John Walsh'. Finally in answer 6, to the question of whether an engineer supervised the construction of the balcony the second defendant said he could not answer that because 'I do not recall being involved in any way with that property…'. 10 Following these answers to interrogatories, the plaintiff sought leave to administer a second set of interrogatories and it was this application which came before the principal registrar. There were eight further interrogatories the plaintiff wished to administer to the second defendant. 11 Leave was granted by the principal registrar to administer interrogatories 1 and 2. These interrogated about a specific letter dated (Page 5)
4 June 1983 addressed to the manager, Terrence Constructions Pty Ltd, for the attention of the second defendant, dealing with the construction of the house, and whether that letter had been received or brought to the attention of the second defendant. 12 The principal registrar refused leave to administer the following further interrogatories: 3. Was Peter Walker an employee of Terrence Construction Pty Ltd during 1983? 4. If yes to interrogatory 3 above, in what capacity was he employed and who was his supervisor? 5. Look at pages 112, 113 and 114, dated 25 February 2010, annexed and marked 'B'. 6. Are these an extract from the transcript of evidence you gave on oath before the District Court on 25 February 2010? 7. Look at page 7, dated 18 March 2010, annexed and marked 'C'. 8. Is this an extract from the transcript of evidence you gave on oath before the District Court on 18 March 2010? 13 Proposed interrogatories 3 and 4 arise from the letter the subject of interrogatories 1 and 2. The contents of the letter refer to a conversation with Mr Peter Walker on 20 March 1983. The principal registrar's reasons for refusing leave to administer interrogatories 3 and 4 were that whether or not Mr Walker was an employee of Terrence Construction was not relevant to the facts in issue. 14 As to the proposed interrogatories 5 and 6, the pages of transcript referred to are from a hearing which took place before the principal registrar on 25 February 2010 in order to ascertain what insurance the company, Terrence Construction, held at the relevant time. In the course of the hearing on 25 February 2010 counsel for the plaintiff asked questions of the second defendant concerning the construction of the house. The second defendant gave evidence that he thought he built two homes in the South Yunderup area and the house 'may have been one of them, I really can't remember. It's a long time…'. He was asked whether he could recall that the name of the person for whom the home was built was a Mr McNaughton and the second defendant answered that the name 'rings a bell, yes'. He was asked whether that was the property that a letter (which in the transcript is not identified but which I was told was the letter the subject of interrogatories 1 and 2 in the plaintiff's (Page 6)
second set of interrogatories) was written by Mr McNaughton to the second defendant: And that's the property that letter shows correspondence to you from Mr McNaughton in relation to the particular property? – – – Yes, that may be the case. 15 It was later put to the second defendant during the course of this examination that Terrence Construction was the company which the second defendant used to build the property for Mr McNaughton at 12 Kiap Road, South Yunderup. The second defendant answered 'That may be the case'. When the second defendant was asked whether he was the supervisor for Terrence Construction in the building of that house his answer was 'Probably was, yes. Back at that stage, I had other workers working for me as well though'. As to the other supervisors working for him the second defendant said he could not honestly remember that far back and he had employed a considerable number of different supervisors. He agreed that the letter was addressed to him saying 'well, being the person that signed the contracts up and all that, everything was always addressed to me' and then he added 'and I probably did supervise the job, but I honestly really can't remember'. 16 Proposed interrogatories 7 and 8 relate to the transcript of evidence given on 18 March 2010 in the same examination which took place before the principal registrar, adjourned from 25 February 2010. In the course of the hearing on 18 March 2010 there were questions put and answered by the second defendant concerning the fact that in 1983 he was a registered builder. 17 The principal registrar found that the proposed interrogatories 5 to 8 were intended to put prior inconsistent statements made by the second defendant in order to force him to elaborate on the answers he had given in the first set of interrogatories. As these were in the nature of cross-examination it was an impermissible use of interrogatories: Dunmall O'Sullivan[No 3] [14] and [15].
Preliminary matters in this appeal 18 The second defendant opposes the plaintiff's appeal on a number of grounds, one of which is that this is a second set of interrogatories and so permitting these interrogatories should be the exception rather than the rule: Dalecoast Pty Ltd v Monisse [1999] WASCA 103 [6]. This submission was addressed by the principal registrar when he granted leave to administer the first two interrogatories. He found that in the (Page 7)
context of the delay between the construction of the house and the accident the subject of this claim and the difficulties that the plaintiff had as a result, in the interests of justice he would allow the plaintiff more latitude in administering interrogatories than might otherwise have been the case: Dunmall v O'Sullivan[No 3] [5]. Further he applied principles relating to case management and concluded that for the case to be conducted and concluded efficiently, economically and expeditiously, at least partial leave should be granted to administer the second set of interrogatories: Dunmall v O'Sullivan [No 3] [6] and [7]. There was no appeal by the second defendant from these findings by the principal registrar and interrogatories 1 and 2 were answered. 19 As this is a new hearing, I need to bear in mind that this is a second set of interrogatories and I must be satisfied that there are good reasons for the making of an order for leave to the plaintiff to administer the further interrogatories. 20 Another preliminary matter relates to what interrogatories were in issue on this appeal. During the appeal hearing counsel for the second defendant indicated that there had been a substituted defence prepared on 19 May 2011 and provided to all parties in the action. There was, however, no record of that substituted defence having been filed. In that substituted defence an admission was made that the second defendant is and was a registered builder and I was informed by counsel for the second defendant that it was not in issue in this action that at the relevant time, namely 1983, the second defendant was a registered builder. The second defendant has now filed a substituted defence containing that admission, with a minute of consent orders signed by the solicitors for both the plaintiff and the second defendant for leave to amend the defence accordingly. The parties agreed that this amendment means that the fact that the second defendant was at the material time a registered builder is no longer an issue. That disposes of the need for the plaintiff to interrogate about that issue, which was the subject of proposed interrogatories 7 and 8. 21 Finally, in written submissions in support of the appeal the plaintiff sought to amend the form of the question the subject of interrogatory number 6 as follows: 6. Did you give evidence on oath before the District Court on 25 February 2010 as set out in Annexure B? 22 Accordingly I need only deal with the application by the plaintiff to administer interrogatories 3, 4, 5 and 6, in its amended form. (Page 8)
Legal principles relevant to interrogatories 23 The fundamental purpose of interrogatories, which are a form of discovery, is to obtain admissions or particulars about material facts in the proceedings. These may be admissions as to facts which will support the case of the interrogating party, or admissions which will destroy or damage the case of the party interrogated. 24 The right to interrogate is not confined to facts directly in issue but extends to any facts, the existence or nonexistence of which is relevant to the existence or nonexistence of facts directly in issue: Sharpe v Smail(1975) 5 ALR 377, 381. Questions the answers to which might help, together with other facts, in establishing a body of facts from which an inference would be drawn confirmatory of an element of the cause of action is the 'very object of interrogatories', provided the connection between the issues in the proceeding and the subject matter of the interrogatory is not remote or speculative: Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd (1911) 13 CLR 101, 109 - 110. 25 Generally speaking, a party may interrogate his opponent as to every relevant matter on which he could examine him, if he thought fit to call him as a witness at the trial:Spedley Securities Ltd (in liq) v Yuill (No 4)(1991) 5 ACSR 758, 762; Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd(1986) 5 NSWLR 703, 709. 26 It has been said that interrogatories may not be asked which are mere cross-examination: Sharpe v Smail; Dunbar v Perc [1956] VLR 583, 591. That principle has been refined in more recent cases includingCoal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd, and Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44. An interrogatory can be in a leading form, provided it is material to an issue. If, however, the interrogatory goes only to credit or to test evidence, then it will not be allowed. As was stated by Hunt J in Hansen v Border Morning Mail Pty Ltd (57): The true distinction appears to me to lie in the subject matter of the interrogatories rather than in the technicalities of the rules of evidence when applied to the examination of witnesses. If an interrogatory is related to a question in issue between the parties requiring an answer, then it must be answered (other objections to one side) whether or not it is a question which could only have been asked in cross-examination of the party to whom the interrogatory is directed. If, however, the question could have been asked only upon an issue of credit or only in order to test the truth of a claim made by that party (and thus only in cross-examination) an order will not be made that the interrogatory be answered. That is because it is
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not one which requires an answer or because an order is not necessary at this time. 27 Under Order 27 of the Rules of the Supreme Court of Western Australia 1971, as modified by r 47 of the District Court Rules 2005, leave of the court is required before any interrogatories may be administered, unless the action is a personal injuries action and r 47 of the District Court Rules applies. Where leave is sought, considerable thought needs to be given to whether it really is necessary to administer interrogatories, consistent with case management principles. If they are considered necessary, great thought must go in to the framing of them so that they achieve the object for which they are designed without putting the other party to unnecessary trouble and expense. A second or subsequent set of interrogatories should be very much the exception rather than the rule. A party seeking leave to administer a second or subsequent set of interrogatories must advance cogent reasons why he or she should be permitted to so interrogate:Dalecoast Pty Ltd v Monisse [6]. It has been held as a cogent reason that without the opportunity to further interrogate, a case might not be heard upon its merits: Goding v Queensland Newspapers Pty Ltd(1965) 113 CLR 170, 174. 28 In determining whether leave to interrogate should be granted, another factor to be taken into account is whether providing an answer imposes an unreasonably onerous burden on the interrogated party, out of all proportion to the benefit to be gained by the applicant, rendering it oppressive to require an answer to be given: Austin v Austin [1905] VLR 377, 384; AmericanFlange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd [No 2] [1965] NSWR 193, 198. 29 The authorities are also clear that answers to interrogatories are simply evidence. They are neither formal admissions nor conclusive evidence and it is open to a party to lead evidence inconsistent with the answers to interrogatories. It is for the court to consider all of the evidence, including the answers and the evidence which is inconsistent with them: Jackamarrav Krakouer (Unreported, WASCA, Library No 9807035, delivered 21 December 1998); Fisher v Stapley [2005] WASCA 16 [19].
Proposed interrogatories 3 and 4 30 It is submitted by the plaintiff that proposed interrogatories 3 and 4 relate to the second defendant's management and supervision of the construction of the house and the plaintiff is entitled to information regarding the workmen engaged in the construction. (Page 10)
31 I am not persuaded that these proposed interrogatories are permissible. While the plaintiff has submitted that he is entitled to information regarding the workmen engaged in the construction of the house and that this is relevant to a matter in issue, it has not been explained to my satisfaction why it is so relevant. As the principal registrar summarised in his reasons, Dunmall v O'Sullivan[No 3] [11], the case being progressed by the plaintiff is against the second defendant personally and not the company. Whether or not Mr Walker was an employee of the company is not relevant to the facts in issue as they are pleaded. 32 There is a further reason I would not allow these proposed interrogatories and that relates to the fact that the second defendant is being asked to recall whether Mr Walker was an employee almost 30 years ago. In my view the effluxion of time and the fact that the company is now deregistered makes the answering of these interrogatories oppressive and out of all proportion to any benefit which may be gained by the plaintiff. I consider it would be unreasonable to require the second defendant to go searching for company records (if they still exist) or alternatively try and remember the details which are asked. Counsel for the plaintiff submitted to me that the company was a small family company and the second defendant would have knowledge of those employed by that company. There is, however, no evidence before me to that effect. 33 For these reasons I refuse leave to the plaintiff to administer proposed interrogatories 3 and 4 to the second defendant.
Proposed interrogatories 5 and 6 34 Proposed interrogatories 5 and 6 are submitted to be relevant to the issue of the management and supervision of the construction of the house. The plaintiff has argued that even though the questions are in the nature of cross examination, provided that they also relate to a matter in issue they should be permitted. 35 It is apparent from both the submissions of the plaintiff and also the nature of the interrogatories that proposed interrogatories 5 and 6 are asked because of the second defendant's equivocal answers to the first set of interrogatories. In fact that was specifically stated in the plaintiff's outline of submissions for the hearing before the principal registrar, par 7, and in the submissions prepared for this appeal, par 13, where counsel for the plaintiff stated as follows: (Page 11)
In view of the equivocal answers provided by the second defendant (see answers 2 to 5) there is a risk that the plaintiff's claim against the second defendant will not be dealt with on its merits. 36 Reliance was placed on Dunbar v Perc (590), a personal injury action where the plaintiff was allowed to interrogate as to whether the defendant had given evidence at an earlier inquest. It was submitted that both in this and another case of Sloan v Hanson [1939] 1 All ER 333 it was accepted that a plaintiff is entitled to establish a prima facie case in this way. 37 While the interrogatories follow the form permitted in Dunbar v Perc, here the situation concerns a second set of interrogatories, introducing for the first time evidence given in the examination before the principal registrar of 25 February 2010. That transcript was available at the time that the first set of interrogatories was administered. The reason why questions as to the evidence given on 25 February 2010 were not included in the first set of interrogatories was not explained in the materials before me. In oral submissions at the appeal hearing the explanation given to me as to why the proposed interrogatories 5 and 6 were not administered on the first occasion was to the effect that the plaintiff expected answers in line with those given by the second defendant during the examination on 25 February 2011. 38 It was submitted by counsel for the plaintiff that the answers given by the second defendant in the examination on 25 February 2010 advance the plaintiff's case and help to discover the truth. While the answers of 25 February 2010 were qualified, there has been a shift in the second defendant's position in his answers to the first set of interrogatories and it is necessary for evidence of the answers given on 25 February 2010 to be before the court. While the proposed interrogatories 5 and 6 do go to credit, they also relate to a matter in issue. These further interrogatories about the evidence from the hearing on 25 February 2010 should be permitted, as this evidence can be used in weighing up competing inferences on the issue of whether the second defendant managed and supervised the construction of the house. 39 On behalf of the second defendant it was submitted that the answers given by the second defendant in the hearing of 25 February 2010 would not assist the plaintiff to advance its case. The second defendant's answers were given in the context of an examination relating to the issue of insurance and were qualified. For example, the second defendant said that it 'may' be the case that Terrence Construction built the property at 12 Kiap Road; that he 'probably was' the supervisor for the company in (Page 12)
the building of that house, but that was qualified by saying that there were other workers working for him at that time as well and he had employed a considerable amount of different supervisors. Later when he said he 'probably' did supervise the job that was qualified by saying that he really could not remember. 40 It was also submitted on behalf of the second defendant that the purpose of the second set of interrogatories was to get the answers that the plaintiff wanted, while it was clear from both answers given on 25 February 2010 and the first set of interrogatories that the second defendant was unable to recall whether in fact he supervised the construction of the house. It was submitted that there was no inconsistency between these answers given on 25 February 2010 and the second defendant's answers to the first set of interrogatories, since both were equivocal. Finally, the submission was made that the answers given by the second defendant on 25 February 2010 cannot establish, as pleaded, that the second defendant was the supervisor for the construction of the house. 41 I have carefully considered the form and content of the proposed interrogatories 5 and 6 and I am satisfied that they are concerned with and relevant to the issue, which arises on the pleadings, of the second defendant's management and supervision of the construction of the house. While they may raise an issue as to the credibility of the second defendant, because the content of the extracts from the examination of 25 February 2010 might be considered to be in some respects inconsistent with the answers given by the second defendant in the first set of interrogatories, I accept that the interrogatories are not being put only because the answers may discredit him. I am satisfied that these proposed interrogatories relate to a question in issue between the parties and must be answered, even though the fact of the second defendant giving evidence on an earlier occasion could only have been asked in cross-examination of him. 42 It is true that proposed interrogatories 5 and 6 canvass similar issues as those raised in the first set of interrogatories. In the circumstances of this case, however, I consider that the interests of justice demand that the plaintiff be permitted to ask them. With the benefit of hindsight, it might be said that the plaintiff ought to have asked proposed interrogatories 5 and 6 in the first set of interrogatories. However, this appeal must be resolved based on matters as they now stand, rather than by reference to what may have been appropriate at an earlier point in time. It is arguable that the evidence given by the second defendant in the examination on (Page 13)
25 February 2010 may lend support to the allegations in the statement of claim concerning the second defendant's management and supervision of the construction of the house as alleged, or at least provide some evidence relevant to that fact. 43 Whether or not the evidence given at the examination of 25 February 2010 does lend support to the plaintiff's allegations or is in fact inconsistent with the second defendant's answers in the first set of interrogatories are not, in my view, matters which I need to determine in this appeal. These are issues to be determined at trial, consistent with the principles I have outlined at [29]. 44 There is nothing oppressive or otherwise objectionable in the interrogatories and they are capable of being answered without undue delay, cost or burden to the second defendant. 45 Finally, I concur with the principal registrar that in the unusual circumstances of this case, given the long period of time between the construction of the house and the balcony collapse, with the difficulties in proof which the plaintiff faces, there should be more latitude allowed to the plaintiff in administering interrogatories.I consider that interrogatories regarding the evidence from the hearing on 25 February 2010 should be permitted so that the plaintiff is in a position to provide all relevant information on the issue in dispute at trial. 46 In all the circumstances I am satisfied that the interests of justice, which among other things require a case being heard on its merits, justify leave being granted to the plaintiff to administer the proposed interrogatories 5 and 6 (as amended) for answer by the second defendants. The appeal by the plaintiff is therefore allowed to this extent. 47 I will hear from the parties as to the orders to be made and the issue of costs.
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