Edmunds v Worsley Alumina - [2004] WADC 37

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: EDMUNDS -v- WORSLEY ALUMINA [2004] WADC 37

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 2 JANUARY 2004

DELIVERED : 8 MARCH 2004

FILE NO/S: CIV 513 of 2003

BETWEEN: GRAHAM EDMUNDS
Plaintiff
AND
WORSLEY ALUMINA
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of theSupreme Court of Western Australia and the Rules of the District Court of Western Australia - Interrogatories - Application to enforce terms of notice - Application to strike out the Interrogatories - Jurisdiction to make such an order

Legislation:

Rules of the District Court of Western Australia

Rules of the Supreme Court of Western Australia

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr P J Griffin
Defendant: Mr J R Ludlow

Solicitors:

Plaintiff: Peter J Griffin & Co
Defendant: McAuliffe Williams & Partners

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

American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd (No 2) [1965] NSWR 193.
Simpson v Midalco Pty Ltd, unreported; SCt of WA; Library No 6637; 19 March 1987.

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: On 27 October 2003 the plaintiff filed an application seeking an order for answers to interrogatories. By the time that application was heard the defendant had made an application seeking an order that the plaintiff's request for answers to the of interrogatories be:
"struck out in relation to the whole set of interrogatories on the grounds that many, if not most, of the interrogatories are unreasonable and oppressive."
Both of the applications came before me for determination at a special appointment.
As to the plaintiff's application, I am satisfied that under O 27 of the Rules of the Supreme Court of Western Australia, subject to the limits imposed by O 3 of the Rules of the District Court, he is entitled to interrogate as of right. To the extent that the exercise in which the plaintiff would have the defendant engage is beyond the scope of O 3 the plaintiff would require a grant of leave to interrogate. To that extent, even if the plaintiff is successful in each of the applications, the defendant would be free to respond or conceivably, not to respond as it sees fit.
The only reason that I have canvassed the issue of leave is that the defendant mentioned the prospect that the plaintiff would require leave for at least for some questions during the course of submissions. It was not my appreciation that either alone or in combination with other considerations that factor would have a significant bearing upon the success of the defendant's application.
The terms of the defendant's application suggest that at a time prior to it being obliged to respond to the request, the Court has jurisdiction to determine that the request be set aside; that the exercise of such jurisdiction would be prompted by an analysis of the set of questions that constitute the request; and that the considerations that would justify such a result are that the request is unreasonable and oppressive.
I do not have any difficulty with the prospect that a Court may be motivated to reflect on whether a request of any nature should properly be enforced. The fundamental consideration is that the only relevant relationship between the parties is the litigation and that in that context their respective interests are utterly adverse. By its attitude to each of the applications the defendant has revealed that it will not voluntarily assist the plaintiff in getting up his case for trial. That the request is in the form of interrogatories only brings into consideration the fact that the interrogating party seeks to engage its opponent in assisting it to the end of proof of facts at trial. The Court has no interest in whether either party establishes any fact either at trial; it has no interest in how either party may fare at trial on the cases they have chosen to present.
It is because of that broader context, that Courts are circumspect in considering whether to enforce a request that may result in oppression. Hence in some jurisdictions such as in this Court the scope for recourse to questioning prior to trial is limited.
I also do not have any difficulty with the proposition that in any context where the Court is considering interrogatories prior to a response, that it is appropriate to consider the set as a whole. And, further that on any such occasion the request as a whole could fail as on balance it was considered to be oppressive or otherwise unreasonable.
However, that such is the view of the Court expressed in the context of dealing with the issue of leave to interrogate does not mean that the same consideration is sufficient to establish the jurisdiction for which the defendant contends.
I do not have any difficulty with the proposition that not being motivated to assist the plaintiff and not wanting to allocate any more resources to the task set by the plaintiff than it has already expended, the defendant may understandably seek to avoid the task of formulating even an objection of broad application sufficiently supported by evidence to justify that response to each part of each question.
It is fundamental to the defendant's case that by any measure the 33 pages of questions which are expressed from 1-74 and which with sub‑questions probably amount to something in the order of 300 constitutes an oppressive task. I have no difficulty with that proposition.
It is not apparent from the pleadings or on any other indication that this is a case where the Court would have any concern that either party may not be able to prove any relevant fact. I might add that it is conceivable that in putting the request to the defendant and in making the application the plaintiff may not have even considered whether it was appropriate to seek to engage the defendant in the task to the extent to which he proposes.
Turning to the relevant rules, O 3 has nothing to say that would support the proposition that there is jurisdiction to strike out the plaintiff's request. Order 27 has nothing to say in support of the proposition that a party may contest the right of the interrogating party. That is not surprising as it is accepted that prior to the introduction of O 3, any party could interrogate once without leave.
Dealing with the authorities cited by the defendant in written form, the most useful passage to which I was referred by the defendant is that set out in American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd (No 2) [1965] NSWR 193:
"It was established under the earlier English rules that interrogatories which were prolix and oppressive or unnecessary could be disallowed as a whole, even though some of them were proper, and that the Court was not required to go through interrogatories of that kind and ascertain which were admissible and which were not. It was also established that the Court was entitled to come to the conclusion that interrogatories were of the kind specified on a general view of the interrogatories and indeed that the mere obligation of the opposite party and the Court to go through the interrogatories and pick out from a large number that were improper the comparative few that were allowable, was itself unreasonable and itself could constitute oppressiveness. It has been contended that the principle does not any longer apply because the English rules have been altered. But the Annual Practice for 1965 and Halsburys Laws of England at the page to which I have earlier referred treat the practice as still being observed in England notwithstanding the alteration of the rules. It is, too, within my personal knowledge that the practice established under the earlier cases has always been followed in this Court. Indeed, it was followed as recently as 1962 by Jacobs J, in Lamerand v Lamerand (No 3), [1962] NSWR 1223."
I suspect that authority is more properly considered in the context in which the determination was made, that is, one where the applicant required a grant of leave in order to interrogate. Thereby the Court was seised of jurisdiction to consider the process in which the applicant had sought to engage.
The fact that in Western Australia there may also have been a rule, now deleted, would say something as to whether there is ground to consider that the jurisdiction previously available, would survive that process. The fact that Myers J considered that the practice would survive any such deletion is a matter of perspective. In my opinion the Court would not remove the rule because it was considered that the jurisdiction would be sufficiently supported by practice.
The fact that in this State there may have been no such rule, would not necessarily suggest either oversight or the sufficiency of practice.
When I enquired of the defendant's counsel as to whether he was familiar with any authority other than that cited in support of the application, he referred to a decision of O'Sullivan DCJ in a case heard in Kalgoorlie where a set of interrogatories had been "struck out" but did not recall that the Judge had provided any written reasons. I suppose that the fact that he had exercised the jurisdiction for which the defendant contends ought to be considered to be persuasive but in the absence of any understanding of the context of that determination or the reasons, what I was told is of no particular significance.
As to whether the Court would seek to evaluate the questions on the basis of potential oppression, in Simpson v Midalco Pty Ltd, unreported; SCt of WA; Library No 6637; 19 March 1987 Master Seaman undertook such an exercise in circumstances where the respondent was confronted by an application
"… to compel the defendant to answer 145 interrogatories.
By virtue of a series of definitions at the commencement of the interrogatories, and a large number of sub-paragraphs within the interrogatories themselves, the number of answers involved is far greater than 145. The defendant has made an oral application to strike out the whole set.
In the particular circumstances of this case I have permitted that belated application but the proper course is the a defendant when served with interrogatories should apply promptly to strike tem out and for leave to extend the time for answer provided for by O 27 r 2 until that application is disposed of."
Before I go any further it is evident that he and I hold different views as to whether there was any jurisdiction to grant the defendant’s application. That difference to one side, passages from p 9 provide some useful context for analysis.
"Having regard to the width of the issues I do not regard the bulk of the interrogatories alone as oppressive, and formed the view that, although the form of some might be open to criticism, this was a case in which they might have considerable importance, that the relationship between the totality of the interrogatories and the issues in this case was far from tenuous and that, in justice to the plaintiff, they required individual consideration. Accordingly, I dismissed the defendant's oral application to strike them out.
Although as the argument then proceeded the defendant objected to almost every question contained in the 145 interrogatories, it failed to comply with O 27 r 4 in that it did not object on oath, dealing with each interrogatory specifically, specifying the grounds of each objection and stating briefly the facts on which each objection is taken.
The Court is disadvantaged and delay as occasioned by failure to comply with Rule, but leading counsel for the plaintiff did not seek to bar the defendant from arguing the merits of the interrogatories because of its non-compliance.
In the circumstances I allowed the argument to proceed upon the basis of an agreement between counsel that the matter should proceed on the basis of a detailed schedule of objections furnished by the defendant, and that where it is clear from the issues and the papers before that interrogatories is oppressive, I will rule accordingly, but that otherwise a properly drawn statement by way of objection with material facts sworn to should be taken into relation to every interrogatory which is opposed on the ground of oppression. When, in the course of these reasons I order that an interrogatory be answered, the right to make an objection on that ground in that way is reserved to the defendant. As the application unfolded, the importance of strict compliance with O 27 r 4 became apparent and in my opinion the Court would normally refuse to proceed until it is complied with."
In my opinion Master Seaman made it plain that in the ordinary course it was undesirable to deal with interrogatories in the manner in which the parties and evidently he had entertained. It is apparent at p 21 of the report that some eight days of argument had been devoted to the task of an assessment of the interrogatories and that he may have recognised that in relation to any questions to which objection would later be taken there would be scope for further argument in relation to the particular questions on the basis of those objections.
I suspect that had the case not been in an expedited list or sought to be otherwise expedited that he would not have considered it appropriate to devote resources to the task for one day let alone eight. I suspect that the case illustrates the proposition that special cases make bad law.
In my opinion the action before me is not one to which I could justify devoting resources on the basis of what I might imagine would be the defendant's grounds of objection.
The terms of the application recognise that prior to any order being made as the plaintiff proposes, the questions simply constitute a request. Unless the plaintiff is unsuccessful in his application there is no reason to strike out the notice or deal with it in any manner at all. Alternatively upon an order being made as the plaintiff proposes it is too late to attack the foundation of the order.
There is no feature of this case that would suggest that it is so different to any other such that there is reason to consider recourse to any broader jurisdiction that may be available.
Returning to the Rules of the Supreme Court, it is only at r 7 that the Court is provided with power to make a determination as to whether a party is required to answer. On that occasion the discretion is limited to particular questions. It is as follows:
"If any person on whom interrogatories have been served fails, within the prescribed time or within such other time as the Court may allow, to answer the interrogatories or answers any of them insufficiently, the Court may make an order requiring him to answer or answer further as the case may be, by a statement verified by affidavit or may order him or any of the persons mentioned in r 6(1)(b) or (c) as the case may require to attend for oral examination."
The reason for considering the limitation that I have expressed is that under r 5, in the event that jurisdiction is exercised under r 7 the following applies:
"(2)where on an application under Rule 7 the Court decides that an objection by the party interrogated to answering an interrogatory is not sufficient or the party interrogated does not object to answering the interrogatory, that party shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories."
It appears to me that if recourse was had to the discretion provided by r 7 that would bring with it the prospect that having exercised jurisdiction the defendant would be precluded from objecting to individual questions in the process of undertaking the task of responding.
In my opinion bearing in mind the process the significance of oppression and my view of the questions it is not an prospect that I would be prepared to jeopardise.
Accordingly, it is my opinion that O 27 does not provide for the sort of jurisdiction for which the defendant would contend. It is appropriate for the respondent to first take and articulate a ground of objection and that objection be dealt with on its merits.
As I indicated at the commencement the plaintiff is entitled to interrogate as of right. Despite my considerable reservations as to the task set by the plaintiff for the defendant I am satisfied that I have no alternative than to dismiss the defendants application.