Faulks v Sustainable Building Concepts Pty Ltd (Ruling)

[2022] VCC 137

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-04452

RONALD FAULKS	Plaintiff
v
SUSTAINABLE BUILDING CONCEPTS PTY LTD	Defendant

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JUDGE:	JUDICIAL REGISTRAR J B GURRY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2021 and 3 February 2022
DATE OF RULING:	21 February 2022
CASE MAY BE CITED AS:	Faulks v Sustainable Building Concepts Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VCC 137

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Application by plaintiff by way of summons, seeking an order for an appropriate officer of the defendant company to swear answers to interrogatories and an affidavit of documents

Legislation Cited:      County Court Civil Procedure Rules 2018, s30; Civil Procedure Act 2010, s54, s55; Corporations Act 2001 (Cth), s500(2)

Cases Cited:Abourawi v Smerdon Training Pty Ltd (Ruling) [2021] VCC 1501; Liesfield v SPI Electricity Pty Ltd (Ruling No 3) [2014] VSC 346

Ruling:Order that the defendant is not required to provide a sworn affidavit of documents.  Order directing that listed director of the defendant company affirm or swear answers to the plaintiff’s interrogatories.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Saunders	Maurice Blackburn
For the Defendant	Ms S Bailey	Wisewould Mahony

HIS HONOUR:

Summary

1This is an application by the plaintiff seeking an order for an appropriate officer of the defendant company to swear answers to interrogatories and swear an affidavit of documents.

2The application brought by way of a summons application form was initially supported by an affidavit of Katherine Minogue, solicitor for the plaintiff, affirmed on 15 October 2021.

3However, the application form sought orders for the defendant to make proper discovery and provide sufficient answers to the plaintiff’s Interrogatories for the examination of the defendant.

4With the assistance of counsel for the plaintiff, I was able to determine what the correct request was by the plaintiff.  As it did not involve non-compliance with a court order, I decided that it was not necessary for a summons to be issued.

5The proceedings were commenced by way of Writ dated 6 October 2020 and a general endorsement of claim.  A Statement of Claim was filed on 15 October 2020.  The plaintiff pleads that as of 12 May 2016, he was employed by the defendant as a plasterer and was injured as a result of an incident when mobile scaffolding on which he was standing shifted suddenly.  The plaintiff makes no claim for loss of earnings, and the claim is confined to pain and suffering damages only.

6On 21 December 2020, I made timetabling orders which included for the matter to be listed for a post-mediation directions hearing on 20 October 2021.  No trial date was allocated at the time of these Orders due to COVID‑19 restrictions.

7After hearing submissions from counsel, it became clear to me that the evidence before the Court was insufficient.  I therefore made an Order for the defendant, by 9 November 2021, to provide an affidavit in response to the plaintiff’s application and address the issue of costs.  I made a further Order that, by 23 November 2021, the plaintiff was to provide any affidavit in response and address the issue of costs.

8I made an Order that the matter was to be listed for an administrative mention on 9 November 2021 before me, by which time the parties were to provide an update to the Court as to whether the matter was ready to be listed for trial.

9The central issue in dispute is who should swear the documents.  Harrison Riley, the technical manager of Gallagher Bassett Services Pty Ltd, the authorised agent of the Victorian WorkCover Authority, swore the Affidavit of Documents on 8 April 2021 and the defendant’s Answers to the plaintiff’s Interrogatories on 25 June 2021.

10While not deposed to in the plaintiff solicitor’s affidavit, counsel for the plaintiff advised me that at the time the Writ was issued, the defendant company was registered and operating.  However, on 17 December 2020, a liquidator was appointed, and the company remains in liquidation, but is not wound up.  Therefore, when the plaintiff’s solicitors served the Notice for Discovery and Interrogatories, the defendant company was in liquidation but the plaintiff’s solicitors were not aware of this.

11On the morning of the hearing, I was provided with a copy of an Order of Gardiner AsJ made on 27 August 2021 pursuant to s500(2) of the Corporations Act 2001 (Cth) granting leave to the plaintiff from 17 December 2020 to proceed with this proceeding.

12Pursuant to my Orders of 26 October 2021, the defendant solicitor filed and served an affidavit.  The affidavit of Rachel April Rooney was dated 9 November 2021.  It set out in detail the attempts which had been made by the defendant solicitor to have the listed directors of the defendant, Megan Herd and Brodie Herd, swear or affirm the Affidavit of Documents and Answer to Interrogatories.

13At paragraph 21 of the defendant solicitor’s affidavit, the solicitor deposed to speaking with Brodie Herd on 9 June 2021, wherein he advised he had not been involved in the company for four years and did not have any documentation.  He stated he could not answer any questions in relation to any induction, training or safe work methods, but said this was under Megan Herd’s purview.

14That affidavit sets out the attempts made by the defendant solicitor to communicate with Megan Herd.  At paragraph 27, the defendant solicitor deposed that Megan Herd, on 5 July 2021, had advised that all requested documents were with the liquidators, but she did provide instructions as to the allegations made in the proceedings.  After having provided Megan Herd with the Affidavit of Documents and Interrogatories to be sworn, the defendant solicitor, at paragraph 33, deposed that on 27 October 2021, Megan Herd had emailed, stating that Brodie Herd would be in a better position to sign the affidavit.

15Further attempts were then made to gain the assistance of Brodie Herd, but on 4 November 2021, he advised Hewitt Murray of the defendant solicitor’s office, that he was not willing to sign the affidavit or interrogatories. 

16Further, on 8 November 2021, Megan Herd emailed the defendant solicitor, advising that she was not the appropriate person to swear or affirm the documents.  That email is exhibit RAR32 to the affidavit.  That email is an important document.  To the request from Rachel Rooney asking whether Megan Herd was unwilling to swear/affirm the documents, noting she was the named director of the defendant, or asking who, other than Brodie Herd, could sign the documents, Megan Herd responded:

“To confirm, I do not feel I am the correct person to swear/affirm documents.  I was not the Director at the time, and Sustainable Building Concepts is now in liquidation so I am not the Director. 

Unfortunately, I can not (sic) think of anyone else who would be able too (sic).”

Legal Principles

17Rule 30.05(e) of the County Court Civil Procedure Rules 2018 (“the Rules”) sets out that:

“where the party has no personal knowledge of the fact or matter inquired after, the party shall, for the purposes of enabling the party to form a belief as to the fact or matter (so far as the party can), make all reasonable inquiries to determine—

(i) whether any person has knowledge of the fact or matter which was acquired by that person in the capacity of that party’s servant or agent; and

(ii)    if that is the case, what that knowledge is.”

18Rule 30.08 sets out who is to answer interrogatories and that the Court has power to order who is to answer interrogatories.

19Rule 30.08(1)(a)(iii) of the Rules states:

“a corporation, by an officer of the corporation or by any person duly authorised by it to answer; ... .”

20With respect to an affidavit of documents, Rule 29.04 refers to the provision of an affidavit, but is silent as to who is to swear the affidavit, and there is no equivalent provision as Rule 30.08(1)(b).

21Part 4.3 of the Civil Procedure Act 2010 (“the CPA”) headed “Disclosure and discovery”, confirms, in s54, that:

“Unless a court otherwise orders, discovery of documents ... is to be in accordance with the rules of court.”

22Section 55, headed “Court orders for discovery”, states, in ss(1):

“A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.”

23Section 55(2) states that:

“Without limiting subsection (1), a court may make any order or give any directions—

...

(j)   relieving a party of the obligation to provide an affidavit of documents.”

24With respect to interrogatories, Williams, Civil Procedure Victoria, at paragraph 30.05.60, states:

“Interrogatories addressed to a corporation seeking answers from employees or agents other than the proper officer are generally inappropriate as being in unusual form.  The court has a discretion to allow interrogatories directed to other persons under r 30.08.  The circumstances in which the court may allow interrogatories of a corporation directly addressed to particular servants and agents would be exceptional.  The court would need to be persuaded that the ordinary process of answer by the proper officer after making enquiries of servants and agents of the corporation would for an appropriate reason be ineffective, … .”

25In my Ruling in the matter of Abourawi v Smerdon Training Pty Ltd (Ruling),[1] I considered the issues of who should swear answers to interrogatories and an affidavit of documents.  I also considered what was said by Dixon J in Liesfield v SPI Electricity Pty Ltd (Ruling No 3),[2] where his Honour stated, at paragraph [30]:

“The circumstances in which the court ought to exercise its discretion to direct that interrogatories not be answered by a proper officer but by a present or former employee or contractor will, in my view be exceptional in the sense of being circumstances outside of those in which a proper officer should answer interrogatories.  … .”

[1][2021] VCC 1501 (“Abourawi”)

[2][2014] VSC 346

Submissions

Plaintiff’s submissions

26The plaintiff’s position is that the correct person to answer the Interrogatories dated 25 June 2021 is Megan Herd, as the Director and Secretary of Sustainable Building Concepts Pty Ltd, as Rule 30.08(1)(iii) states that answers should be deposed to by “an officer of the corporation or by any person duly authorised by it to answer”.

27The plaintiff’s secondary submission is that the defendant’s Answers to Interrogatories fail to comply with Rule 30.05(1)(e) with respect to the obligation on the party swearing to make reasonable enquiries.

28In contending that Megan Herd is the correct person to answer the Interrogatories, the plaintiff notes that the defendant, in communication, stated it anticipated:

(a)   that Megan Herd would be willing to give evidence at trial; and

(b)   that she was involved in the collation of the company’s documents to the liquidator.

29It was submitted that Megan Herd has not been uncooperative such that the quality of her evidence might be called into question.  Megan Herd’s reluctance to provide such answers, or to suggest that Brodie Herd is the correct person, is not a proper basis for not answering.  This is particularly so if she should be called to give evidence at trial.

30Both Megan and Brodie Herd were directors of the defendant at the time, and an order should be made requiring that one or other swear the documents.

Defendant’s submissions

31The defendant submits that Megan Herd provided all of the documents that she had in her possession to the liquidator, and those documents have been obtained by the defendant solicitor.  The Affidavit of Documents provides all the documents able to be identified and obtained by the defendant solicitor.

32For the Answers to Interrogatories, similarly, the defendant submits that the plaintiff is not prejudiced as the Answers, as they exist, are sufficient, having been answered by a deponent who had available sufficient material to respond to each question. 

Consideration

33In Abourawi,[3] I drew a distinction between the issues that arise when difficulties occur in obtaining a person to swear answers to interrogatories and an affidavit of documents. I noted that the defendant company defence of the proceedings was by the statutory WorkCover insurer which is the same as for this proceeding.  I noted that in practice for discovery, a solicitor will usually seek documents which should be discovered from the client.  That solicitor will provide guidance on what the issues between the parties are, and what material therefore would be discoverable.  It would be unusual for a person with no legal training to know what material should be discovered without guidance.

[3]Supra

34Further, discovery can be an ongoing process and imposes obligations on practitioners and parties.  It is part of a fact-finding process and governed by obligations under the Rules and the CPA. 

35In circumstances where a solicitor has deposed to having undertaken all necessary enquiries to obtain material, has an uncooperative indemnified client, and has obtained discoverable material from other sources, then the Court should be satisfied, absent any evidence to the contrary, that the obligations for discovery have been completed.

36However, the position with respect to interrogatories, is different.  In forming this view, I have considered Rule 30.11, headed “Answers as evidence”.  Sub‑rule (1) states:

“On an application in or at the trial of a proceeding a party may tender as evidence—

(a)one or more answers to interrogatories given by another party without tendering the others;

(b)part of an answer to an interrogatory without tendering the whole of the answer.”

37Sub-rule (3) states:

“Where the answer of a party interrogated is stated to be given on the basis of belief, and the answer is received into evidence, the Judge or the jury, as the case may be, shall give the answer such weight as the circumstances require.”

38The difficulty, therefore, in having a person swear answers to interrogatories who is not a party or the proper officer of a corporation arises should the answer or answers be sought to be tendered as evidence.

Reasons

39I provide my reasons for the Affidavit of Documents and Answers to Interrogatories separately. 

40With respect to the Affidavit of Documents, s55 of the CPA extends considerable powers to the Court regarding orders or directions for discovery, inclusive of the power to relieve a party of an obligation to provide an affidavit of documents. 

41For me to make an order to relieve the defendant of the obligation to provide an affidavit of documents I must be satisfied that all proper discovery has been made by the defendant, and I am satisfied.

42The evidence before the Court is that all proper enquiries have been made by the defendant solicitor as to the source of material that would be available to comply with the obligations of discovery.  Whilst the solicitor has not obtained material from either Megan or Brodie Herd, the solicitor has obtained material from Pitcher Partners, the liquidators of the defendant company.  Additionally, the defendant solicitors would have available to it, material from the insurance agent and the Victorian WorkCover Authority.

43The defendant solicitor is on oath that she was informed by Megan Herd that she had no documents in her possession and any documents would be with the liquidators.

44Therefore, I will make an order that the defendant is not required to provide a sworn affidavit of documents. 

45The position for Answers to Interrogatories is more complicated.  It cannot be said that if Megan or Brodie Herd were called to give evidence that Answers to Interrogatories provided by Harrison Riley will be the same evidence they would give. 

46Further, I do not believe that in the current format, the Answers to Interrogatories provided by Harrison Riley comply with the Rules.

47The reason for my concern is that there is before the Court considerable evidence of a reluctance on the part of Megan and Brodie Herd to cooperate, and evidence that there appears to be some breakdown in the relationship between the two. Further, there is no evidence that either Megan or Brodie Herd agree to the answers provided in the Answers to Interrogatories.

48The Rules provide that the Court can make an order as to who is to answer interrogatories.

49Whilst I am conscious of the lack of cooperation that has been shown to date by Megan and Brodie Herd, there has, however, not been an order of this Court directing their cooperation.

50I believe it is appropriate that I make an order directing that Megan Herd affirm or swear answers to the plaintiff’s Interrogatories.  I will make the Order that those answers be provided within thirty days of the date of this ruling.  A copy of the Order is to be served on Megan Herd.

51If Megan Herd refuses to cooperate, then the defendant solicitor should make application to this Court by way of a liberty to apply order I will make, informing the Court and the plaintiff solicitors of the lack of cooperation.  Consideration can then be given as to what action should be taken regarding answers to interrogatories, remembering, ultimately, that much will depend upon whether the answers are to be relied upon at trial and the directions of the trial judge.

52On the issue of costs, my Order of 26 October 2021 for the parties to provide further affidavits included that they address the issue of costs.  No submissions were received.  Given the Orders I will make, I consider the appropriate order be that the costs associated with this application be costs in the cause.

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