Graham Lawrence Davies v Maree Lewis - [2002] NTSC 24

Graham Lawrence Davies v Maree Lewis [2002] NTSC 24
PARTIESGRAHAM LAWRENCE DAVIES & MAREE LEWIS
TITLE OF COURT SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JURISDICTION  Interlocutory Application
FILE NUMBER  16/98 (9807240)
DELIVERED  24 April 2002

HEARING DATE 23 April 2002

REASONS OF The Master

CATCHWORDS

PRACTICE - Northern Territory - discovery - pre-trial production - means of investigation - third party discovery

CASES FOLLOWED

FCT ex parte Swiss Aluminium 68 ALR 587
Greyhound v Deluxe Coachlines 67 ALR 93
Leighton Contractors v Western Metal Resources (2001) 1 Qd. R 261

CASES REFERRED TO

Lucas Industries v Hewitt 18 ALR 555
Matuska v Ali 71 ACTR 23
PRACTICE - Northern Territory - interrogatories - leave to serve - matters for consideration

CASES REFERRED TO

Barber v Nominal Defendant (1990) 153 LSJS 8
Chatley v The Northern Territory Mildren J. dated 25 January 2001
Pearce v Hall 52 SASR 568

REPRESENTATION

Solicitors:
Plaintiff  Collier & Deane
Defendant  Povey Stirk
Judgment category classification
Judgment ID number   mas10
Number of pages  5

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF ALICE SPRINGS

No. 16/98 (9807240)

BETWEEN:
GRAHAM LAWRENCE DAVIES
Plaintiff

and
MAREE LEWIS
Defendant

MASTER COULEHAN: REASONS FOR DECISION

(Delivered 24 April 2002)

The plaintiff claims that he was injured in a motor vehicle accident while travelling as a passenger in a vehicle that overturned while being driven by the defendant. The defendant denies that she was the driver, and further pleads that, if she was the driver, the accident was inevitable, being caused by her “blacking out without warning”. The defendant also pleads that the plaintiff was negligent in failing to wear a seat belt and the extent of the plaintiff’s injuries is in issue.

The plaintiff’s application.

The plaintiff has applied for leave to serve interrogatories pursuant to O.30.02. The plaintiff relies on the affidavit of Ms. Collier sworn 9 April 2002 and the draft interrogatories annexed. At the hearing of the application the plaintiff withdrew draft interrogatories 1, 2, 6, 8, 10 and 11. The defendant opposes the application.

As to the requirement for leave, it has been suggested that:

“The purpose of requiring leave for the administration of interrogatories is that interrogatories are an expensive means of finding information. Whilst they may have saved expense at one time, today they do not tend to do that but, rather, to add to the expense of litigation. The experience of the courts is that they do not appear very much to be saving in costs, nor in the saving of court time.

Some special reason needs to be advanced. It may not need to be a special reason, perhaps I have used the wrong word. Some particular reason needs to be given to justify the court making an order for the delivery of interrogatories. The particular reason may be that the interrogatories are necessary because the defendant does not know what the matters in issue are because only the plaintiff knows.”

(per Mildren J in Chatley v…

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: [2002] NTSC 24
Decision Date: 24 April 2002

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the plaintiff, Graham Lawrence Davies, claimed that he was injured in a motor vehicle accident while travelling as a passenger in a vehicle driven by the defendant, Maree Lewis. The defendant denied she was the driver and, if she was, pleaded that the accident was inevitable due to her "blacking out without warning". The defendant also claimed that the plaintiff was negligent in not wearing a seat belt and disputed the extent of the plaintiff’s injuries. The plaintiff sought leave to serve interrogatories to gather information from the defendant, while the defendant applied for leave to issue subpoenas for documents held by third parties.

The court considered the plaintiff's application for leave to serve interrogatories. The plaintiff argued that the answers to the interrogatories would resolve issues and save trouble and expense. However, the court found that the plaintiff could easily prove the driver issue through evidence and admissions in the defendant's statement. The court concluded that the need for interrogatories had not been established and refused leave. The court then considered the defendant's application for leave to issue subpoenas for documents held by third parties. The court found that the defendant was seeking to use the subpoena process indiscriminately for pre-trial investigation rather than for evidence at the trial. The court also found that the defendant's objective was to obtain third party discovery, which should not be done through subpoenas where specific procedures are provided by the rules. The court refused the defendant's application.

Orders