Graham Lawrence Davies v Maree Lewis
[2002] NTSC 24
•24 April 2002
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 The Northern Territory, an unreported decision dated 25 January 2001)
For a useful discussion of some of the considerations that may apply see Barber v Nominal Defendant (1990) 153 LSJS 8, referred to with approval in Pearce v Hall 52 SASR 568.
A party seeking to interrogate should be able to demonstrate that the answers will serve some necessary or useful purpose. It may be expected that such a party would be at some disadvantage without the answers, or that the answers would save significant trouble or expense.
Interrogatories 3,4,5,7 and 9 relate to the issue as to who was the driver of the vehicle at the time of the accident. It was submitted that the answers should resolve this issue and would save trouble and expense, but there is nothing that suggests that the plaintiff will have any difficulty proving this issue without answers to interrogatories. There is no reason why the plaintiff cannot give evidence as to this issue and the statement referred to in proposed interrogatory 12 contains admissions that the defendant was the driver. This issue may also be the subject of a notice to admit.
Interrogatories 12 and 18 relate to two written statements allegedly made by the defendant. The plaintiff is seeking an acknowledgment by the defendant that she made these statements. There has been no suggestion that any difficulty or undue expense may be involved in their use, and there appears to be no reason why they could not be the subject of a notice to admit.
Interrogatories 13 to 17 relate to the cause of the accident and, in particular, whether the defendant had any previous blackouts or loss of consciousness or any pre existing ailments. The plaintiff submits that this information is only within the knowledge of the defendant and may only be ascertained through answers to interrogatories. No information has been provided as to what evidence is available, however, the defendant’s statement contains questions and answers on this issue (see questions and answers 45 to 50 and 94). There does not appear to be any requirement for further admissions.
I conclude that the need for interrogatories has not been established and leave should be refused.
The defendant’s application.
10. This proceeding has been tentatively listed for hearing on 2 September 2002. There will be a listing hearing on 18 June 2002 to confirm whether or not the parties are ready to proceed. The defendant has applied for leave to issue subpoena’s for an early return date, the subpoena’s to be directed to the Commissioner of Police, the Northern Territory Coroner and several doctors and other medical service providers. This application is not opposed.
11. The evidence in support of this application is sparse. It comprises a letter from the plaintiffs solicitors to the defendants solicitors dated 14 March 2002 and various attachments that appear to be copies of documents obtained from the police and the Coroner. In this letter the plaintiffs solicitors advise that they are prepared to apply to the police and the Coroner for the release of further documents, presumably if requested to do so by the defendants solicitors. There is no information as to whether the doctors or medical service providers have any documents relevant to this proceeding or to what use any information contained in them may be put.
12. The reason advanced in relation to the subpoena directed to the Coroner is that he has documents, including photographs, that have not been provided to the defendants’ solicitors. The defendants’ solicitor has had access to the Coroners file but he has not requested that any documents be made available for copying or otherwise. There is no reason to believe that copies may not be available on request.
13. In relation to the documents held by the Commissioner for Police, no application has been made to inspect these documents. There is no suggestion there will be any difficulty in obtaining access and copies of documents, if required.
14. The reasons advanced for the need to inspect the medical records of the plaintiff is that the defendants need access to the notes taken during any examinations of the plaintiff so that the nature of the examinations may be fully understood. What information is now available, what issues are in dispute, and how this information would assist has not been made clear.
15. The circumstances suggest that the defendant is seeking to use the subpoena process indiscriminately, as a means of pre trial investigation, rather than for evidence at the trial. A subpoena may involve strangers to a proceeding in inconvenience and expense, and should only be used before trial where it is clearly necessary (see Greyhound v Deluxe Coachlines 67 ALR 93,98, FCT ex parte Swiss Aluminium 68 ALR 587,590 and Queensland Trustees v White and Gardiner 72 ALR 287,291). This has not been established.
16. Further, the defendants’ objective appears to be to obtain third party discovery and it was not argued otherwise (cf. Lucas Industries v Hewitt 18 ALR 555, 569 and Matuska v Ali 71 ACTR 23,27). A subpoena should not be used for third party discovery where there is a specific procedure provided by the rules (see O.32.07, Mamone v Gagliardi (2000) NTSC 95 and Leighton Contractors v Western Metal Resources (2001) 1 Qd. R 261,264-5).
17. The defendant’s application should be refused.
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