Edwards v Hornsby Shire Council - [2014] NSWSC 600

Supreme Court

New South Wales

Medium Neutral Citation: Edwards v Hornsby Shire Council [2014] NSWSC 600
Hearing dates: 15 May 2014
Decision date: 16 May 2014
Jurisdiction: Common Law
Before: Schmidt J
Decision:
The interrogatories should be amended to reflect the concessions and agreements made at the hearing, as well as the conclusion reached at [22]. If necessary, the parties should approach so that a formal order can be made in relation to that document, which should be provided in agreed terms.

Catchwords: PROCEDURE - discovery and interrogatories - interrogatories - special reasons - whether necessary to order interrogatories - established - other objections - interrogatories to be amended to reflect concessions and agreements made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Local Government Act 1993 (NSW)
Roads Act 1993 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Boyle v Downs [1979] 1 NSWLR 192
In the matter of Gerard Cassegrain & Co Pty Ltd - Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241
Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289
Category: Procedural and other rulings
Parties: Heidi Edwards (Plaintiff)
Hornsby Shire Council (First Defendant)
Roads and Maritime Services (Second Defendant)
Representation: Counsel:
Mr L King SC (Plaintiff)
Ms F McGinley (First Defendant)
Mr DF Villa (Second Defendant)
Solicitors:
Stiles Lawyers (Plaintiff)
Mills Oakley Lawyers (First Defendant)
Wotton Kearney (Second Defendant)

File Number(s): 2013/152733
Publication restriction: None

Judgment

The plaintiff, Ms Edwards, seeks an order under Rule 22.1 of the Uniform Civil Procedure Rules2005 granting her leave to administer interrogatories to the second defendant, Roads and Maritime Services. The order is opposed.

Ms Edwards claims damages for personal injuries and so must establish that "special reasons exist that justify the making of the order: (Rule 22.1(3). She relies on the affidavit sworn by Mr Stiles, her solicitor, to establish those reasons.

Ms Edwards' claim is that she was injured on 20 May 2010 when driving her children to school along Old Northern Road, Forest Glen, when a dead tree fell onto her car. The defendants, Hornsby Shire Council and Roads and Maritime Services are each sued as a relevant road authority under the Roads Act1993 (NSW) and/or the Local Government Act1993 (NSW) for Old Northern Road and on the basis that each had at common law, the care, control and management of the road.

Both defendants deny liability. There is an issue as to which of them had responsibility for the safety of the road and undertaking the work of inspecting, evaluating and giving attention to trees which could endanger traffic on the road. The question of their liability is listed for hearing in July.

Roads and Maritime Services have produced a number of documents on subpoena. The interrogatories seek various explanations and admissions as to matters not within Ms Edwards' knowledge as to matters dealt with in the documents or arising from them, as to Roads and Maritime Services management of trees and vegetation on the road both before…

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: [2014] NSWSC 600
Decision Date: 16 May 2014

CaseChat Overview and Summary

The matter of Edwards versus Hornsby Shire Council involved a dispute regarding the necessity and scope of interrogatories in the discovery process. The case was heard in the Supreme Court of New South Wales. The plaintiff sought discovery and interrogatories against the defendant, the Hornsby Shire Council, for information related to an alleged breach of duty by the council in relation to a public swimming pool. The legal issues before the court centred on whether interrogatories were necessary in the case and, if so, what their scope should be.

The court examined whether the interrogatories were necessary given the concessions and agreements already made by the parties. The plaintiff argued that interrogatories were necessary to clarify certain issues and to obtain further information from the defendant. However, the defendant raised objections to the interrogatories, claiming that they were redundant due to the concessions and agreements already made. The court needed to decide whether the interrogatories were indeed necessary and, if so, whether they should be amended to reflect the concessions and agreements made.

In its decision, the court found that while interrogatories were necessary to some extent, they should be amended to reflect the concessions and agreements made by the parties. The court acknowledged that the interrogatories were not entirely redundant but needed to be tailored to the current state of the case. The court ordered the interrogatories to be amended accordingly and directed the parties to cooperate in the discovery process. This decision was made to ensure that the discovery process was efficient and focused on the remaining issues in the case.

Orders