GADSTON v Quality Bakers Australia Limited - [2000] WADC 252

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GADSTON -v- QUALITY BAKERS AUSTRALIA LIMITED [2000] WADC 252

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 24 AUGUST 2000

DELIVERED : 13 OCTOBER 2000

FILE NO/S: CIV 4123 of 1999

BETWEEN: GEOFFREY GADSTON
Plaintiff
AND
QUALITY BAKERS AUSTRALIA LIMITED
Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia and under the Rules of the District Court of Western Australia - Application for leave to interrogate - The "open approach to litigation" - Turns on its facts

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff: Ms Jeyamohan
Defendant: Mr G Smith

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Civitella Smith

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

Adams v Dickeson [1974] VR 77
Spedley Securities Ltd (in liq) v B R Yuill and Ors (No 4) (1991) 5 ACSR 758

Case(s) also cited:

Green v Green (1913) 13 SR (NSW) 126
Hinnen v Mitchell Erectors Pty Ltd [1999] WADC 54
Sparks v Van Den Ham & Ors [2000] WADC 64

DEPUTY REGISTRAR HARMAN: The action is for damages for personal injuries.
By the application before the Court the plaintiff seeks leave under O 3 r 1 of the Rules of the District Court to interrogate the defendant. The rule is expressed as follows:
"1Subject to Rule 2, interrogatories may only be issued with the leave of the Court.
2Leave to administer interrogatories shall not be necessary when the party required to answer the same consents to do so, or when:
(a)the action involves a claim for personal injury; and
(b)the interrogatories are administered within 110 days of an appearance being filed; and
(c) the interrogatories relate to:
(i) the occurrence of the accident pleaded;
(ii)the defendant’s system for preventing accident of the type alleged to have occurred;
(iii)the plaintiff’s medical history for five years prior to the accident;
(iv)the symptoms and treatment of the injury in question;
(v)the plaintiff’s employment history for five years prior to the accident."
The discretion provided in r 1 is not expressed to be limited by any of the considerations expressed in r 2. Although it is utterly arbitrary in its terms it may be appropriate to consider the terms of r 2 in determining an application under r 1. Otherwise r 2 is expressed to have effect in accordance with its terms. Obviously it has no such effect in this case.
Although the primary issue addressed by the applicant was delay as measured by r 2(b), the application is not for an extension of time. Although the applicant seeks leave to interrogate, ultimately the issue to be determined is whether the defendant ought to be required to respond to the set of interrogatories the subject of the application. The onus is wholly upon the applicant.
In exercising discretion the Court should take into account the fact that if leave is granted the defendant would have the opportunity to object to each of the interrogatories. That being the case it is appropriate to do no more than evaluate whether the set of questions rather than each individual question is either objectionable or unobjectionable. That evaluation is motivated by three considerations.
The first is to consider that the applicant seeks to have the Court impose a task on the respondent. Ultimately it is a matter of reflecting upon that task. Where the number of evidently objectionable questions or indeed the number of questions is significant, consideration is properly given to the prospect of the respondent being oppressed. The second is that the respondent being an unwilling participant in the process and having the opportunity to object may readily defeat whatever purpose is sought to be served by resort to the process. The third is that to allow for inappropriate resort to the process may simply lead the real prospect of the generation of unnecessary cost and delay.
A party ought not to be permitted to oppress its opponent. The prospect of oppression may be found in simply requiring the respondent to read a set of questions and consider whether and how to object. It may also be found in the respondent having to interpret poorly framed questions. It may even be found in the fact that at the very time that the respondent is engaged in the process of getting up its case for trial it is troubled by its opponent’s interrogatories at all. It is significant that the litigation process readily allows for the perception that neither party necessarily has any interest in assisting its opponent. In my opinion and generally speaking the procedural framework within which litigation is conducted does not require a party to assist its opponent.
There are obvious benefits to be gained by both parties where both parties display an open and helpful attitude to their opponents. The benefits of such an approach may be many and varied. Some benefit may accrue simply because one party follows that course. The Court does what it can to encourage such an approach as it not only leads to the prospect of greater clarity being given to a case and the issues raised upon it but also, the prospect of settlement. However whilst it is appropriate for the Court to foster such an approach it does so only by practice. That practice does not engage any principle that would disturb the fundamental considerations that relate to the process of interrogation. In my opinion for the Court to ignore those considerations would allow for the perception that determinations in relation to the process were arbitrary.
A further consideration is the purpose served by the process. By interrogation a party is able to question its opponent prior to trial in relation to relevant facts. That does not mean that any form of questioning is permissible. A useful and in my opinion an uncontentious analysis of the process is provided in Adams v Dickeson [1974] VR 77 at p 79:
"… The prime object of interrogation is to enable the party to litigation to obtain discovery of material facts in order either to support or establish proof of his own case, or to find out what case (but not the evidence) he has to meet; or to destroy or damage the case brought by his opponent.
…
The prime purpose is to obtain admissions from the respective parties so as to narrow the necessary proof of the issues raised in the pleadings."
It is worthy of comment that the reference to "discovery of material facts" is to the scope of discovery (by interrogation) and that the scope of discovery extends to relevant facts as determined by reference to the pleadings. Similarly that the reference to the narrowing of issues is expressed in the context of the proof of those issues.
The most direct method of seeking an admission in relation to a relevant fact is to put a simple unambiguous proposition as to the existence of that fact. To illustrate, a party may be asked if a particular date is his date of birth. Not only is a question that asks a party for his date of birth fundamentally different in character, it also requires the answering party to provide evidence of a fact. I accept that some may consider that there is little practical difference between the two forms of question. In my opinion the distinguishing feature to which I have referred is significant. Ultimately one form imposes upon the answering party the task of getting up the questioner’s case, the other an admission of a fact.
I accept that in the given instance, as the question can only go to a discrete fact capable of short expression in all probability and on balance the Court would not consider it to be sufficiently oppressive so as to rule against it. That does not mean that a number of questions so framed may not give rise to a consideration that the set thereby may be objectionable as it would require a preponderance of evidence rather than admissions by way of response.
Obviously one party cannot expect to engage the Court’s assistance simply because it finds it more convenient or cost effective for its opponent to do the work of getting up its case for trial. And so it is that a party ought not expect the Court to sanction a process where the preponderance of questions go beyond calling for admissions in relation to relevant facts.
It is also appropriate to reflect upon the principle that founds all interlocutory processes. That principle allows for processes which establish or preserve the prospect of a fair trial and which reduce the costs of litigation. The concept of a fair trial is ascertained by reference to the context in which litigation is commenced, by the rules that regulate litigation and the principles upon which those rules are founded. The qualification "fair" is not a reference to the fanciful notion colloquially described as the level playing field. Rather, the Court recognises that it is inevitable that parties will come to litigation with unequal resources and that throughout the proceedings will primarily be motivated by self-interest. There is no principle, rule or authority of general application which would suggest that it is appropriate for the Court to engage in a process of seeking to redress any perceived imbalance simply because it possesses the power so to do. In any particular case, at most the recognition of some inequality may lead to a consideration as to whether it is appropriate to exercise discretion.
As to the process itself, where the applicant presents the Court with a set of questions that have been drawn with an eye to the prospect of scrutiny, the proposal is unlikely to encounter too much difficulty. However the evident lack of appreciation by practitioners of the limitations of the process, the fact that until recent times parties were entitled to interrogate and the robust self interest which parties and their solicitors bring to litigation combine to guarantee that parties will seek to go beyond whatever limits apply.
Where leave is sought to put a set of interrogatories rather than a single interrogatory at some point it becomes necessary to consider whether the set is either objectionable or unobjectionable. There comes a point when the Court would consider that to require a party to confront a set of questions that call for evidence becomes oppressive. That may be simply because of the overwhelming number of questions which call for evidence. It may be that the questions develop beyond the point where they seek what objectively could only be evidence of a discrete fact. There comes a time when it is appropriate to consider that if leave was granted the task set for the interrogated party would become oppressive. That oppression may be perceived either in the sheer volume of reading to be done or in the prospect that at the very least it would be an onerous task for the respondent to answer by way of objection that the applicant was seeking evidence.
I accept that there is authority in the form of the reported decision in Spedley Securities Ltd (in liq) v B R Yuill and Ors (No 4) (1991) 5 ACSR 758 which was recently followed in a reported determination of this Court and which is to the effect that any question may be asked. The overwhelming weight of authority would determine that proposition to be wrong on any analysis. It engages no principle and provides no useful test or basis for analysis. Significantly it tends to reverse the onus leaving it to the respondent to establish a basis for a contest. If I could put the matter in this way: ultimately any contest in relation to the process ought not engage a consideration of what questions may be asked but rather, what questions ought be answered.
The task of the Court is not to weed out the good from the bad, but simply give or refuse leave for the proposed set. It is my opinion that if there is any doubt as to whether a set of questions is appropriate because of its length, the type of question or other feature which may give cause for concern, the appropriate response is not to give leave but rather to leave it to the applicant to focus on the fundamental considerations. If that means dismissal and the generation of a better proposal, that result would hopefully satisfy all of the considerations that I have canvassed to this point.
The plaintiff has filed submissions in support of the application but no affidavit. As I indicated during the course of submissions, whilst I recognised that the submissions given in relation to the plaintiff’s delay were without evidentiary support the critical issue to be determined in the application was the terms upon which the plaintiff sought to engage in the process of interrogation.
The plaintiff relied on O 3 r 2 of the Rules of the District Court. I have no difficulty with the prospect that some of the interrogatories may fall within the scope of r 2(c) however in my opinion the only purpose served by that rule is to provide an arbitrary limit on the scope of relevance. It says nothing whatsoever about the appropriate form of questions. The significance of the plaintiff’s submission appeared to be that the rule was somehow remedial: that an inappropriate interrogatory may be transformed by the rule into an appropriate interrogatory. I find that proposition difficult to follow. The rule does not interfere with any consideration that would otherwise relate to the process. It does not countenance the prospect that a party ought to be able to interrogate in whatever terms it wishes within the scope provided by the rule. In my opinion it would be illogical for the mere effluction of time to transform an appropriate form of question into an inappropriate form.
During the course of submissions it became apparent that the adoption of particular terminology by the interrogating party and the looseness of some of the drafting would present some difficulties for the defendant at least in relation to discrete questions such as 9, 11, 12, 15, 16, 24 and 25.
The plaintiff contended that it was necessary to engage in the process of interrogation to determine the nature of the duties required to be performed by him. That was considered to be appropriate as at the material time, he may have been required to perform a task beyond his designation as to which task a duty statement may have been complied by the defendant as to which there may have been instructions, cautions and the like from the defendant in relation to employees who normally carried out those tasks. Judging that issue by the terms of the relevant pleading the plaintiff is clearly fishing.
It is my opinion that a significant number of the questions go beyond that prospect. By illustration, the first eight questions appear to relate to the plaintiff's wages. Although the defendant indicated a preparedness to deal with those questions, in my opinion, they illustrate the sought of questioning which is beyond the appropriate scope of the process of interrogation. The particular questions call for the defendant's evidence as to the plaintiff's gross and net weekly wage, the gross wages paid to the plaintiff in the 13 weeks immediately prior to the material date, his hours of work during that period, his net wages, overtime bonuses and incentives between the material date and the present, whether there have been any wage increases and if so, the details thereof and the extent of Workers' Compensation payments made to the plaintiff. I accept that the defendant may be in a relatively better position to access certain of the information than is the plaintiff. That appreciation may simply activate a consideration of the exercise of discretion to require the defendant to assist the plaintiff. It may simply illustrate that the plaintiff via the process of interrogation is seeking to have the defendant get up his case in relation to those issues. I know of no rule principle or authority which would suggest that in order to redress an imbalance of information between the parties it is appropriate to allow for one party to oppress another by seeking to obtain its evidence. I do know that the plaintiff is entitled to inspect discovered documents that may contain the information sought by the plaintiff. In the ordinary course parties engage in the process of interrogation after discovery. I accept that there may be a proper basis upon which to allow for interrogation that is patently oppressive. However before allowing for that prospect it is appropriate for the applicant to discharge the onus.
I accept that the defendant indicated that it had no difficulty with those questions. Of course whether that comment would count against the prospect of objection is another matter. My point is simply that I use the questions as a clear illustration of an improper resort to the process. If the defendant wishes to answer it is free to do so.
The same observations can be made in relation to the interrogatories that relate to the prospect of there having been any request for assistance from the plaintiff or other employees and the prospect of warnings being given to the plaintiff or other employees.
In my opinion it would be inappropriate to require the defendant to deal with the questions contained in the proposed set of interrogatories. That being the case, the application is dismissed.