Horsnell v Allworth Constructions - [2016] NSWSC 1700

Supreme Court

New South Wales

Medium Neutral Citation: Horsnell v Allworth Constructions [2016] NSWSC 1700
Hearing dates: 1 December 2016
Decision date: 01 December 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Grant leave to the plaintiff to amend interrogatories 15, 16, 17 and 18 in the Notice to Answer Interrogatories ordered on 22 June 2016 by substituting for the word “stumble” the words “lose his footing”.
(2) Direct the second defendant to make further answers to interrogatories 11 and 15, 16, 17 and 18 in the Notice to Answer Interrogatories ordered on 22 June 2016, as amended by (1) above, and to verify the further answers by affidavit, to be served on the plaintiff on or before 16 December 2016.
(3) Order that the costs of the plaintiff’s notice of motion filed on 12 August 2016 be costs in the cause.
(4) Grant liberty to the parties to restore the matter before me on three days’ notice to my Associate if any further question arises concerning the sufficiency of answers to the Notice to Answer Interrogatories ordered on 22 June 2016, as amended.

Catchwords: PRACTICE AND PROCEDURE – claim for damages arising out of bodily injury where plaintiff’s injuries deprive him of capacity to prove how the accident happened – notice of motion seeking order for examination of deponent on grounds that answers to interrogatories insufficient – insufficiency demonstrated by reference to other statements of deponent – obligation on deponent answering interrogatories on behalf of corporate party to make enquiries and to answer to best of information, knowledge and belief – interests of justice favour order that second defendant provide further answers to interrogatories where original answers insufficient rather than make order for examination – direction that second defendant provide further answers to interrogatories
Legislation Cited: Civil Liability Act 2002 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 22.1, 22.3, 22.4(1)(a), 22.4(1)(b), 22.6(1)
Cases Cited: Horsnell by his tutor Horsnell v Allworth Constructions Pty Ltd [2016] NSWSC 844
Lyell v Kennedy (No 3) (1884) 27 Ch. D 1
Texts Cited: Simpson, Bailey & Evans, Discovery and Interrogatories (1990, 2nd ed)
Category: Procedural and other rulings
Parties: Kenneth David Horsnell by his Tutor David James Horsnell (Plaintiff)
Allworth Constructions Pty Limited (1st Defendant)
Teswor Pty Ltd (2nd Defendant)
Representation:
Counsel:
C. Barry QC/J. Davidson (Plaintiff)
R. Perla (2nd Defendant)
Solicitors:
AC Lawyers (Plaintiff)
Moray & Agnew (2nd Defendant)

File Number(s): 2014/256188

Judgment

Introduction

By notice of motion filed on 12 August 2016, Kenneth Horsnell (the plaintiff) by his tutor David Horsnell seeks an order for examination pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 22.4(1)(b). The basis for the application is that the plaintiff contends that certain of the answers to interrogatories given on behalf of Teswor Pty Ltd (the second defendant) are insufficient.

The relevant facts

In the principal proceedings, the plaintiff claims damages arising from an accident which occurred on 2 September 2011 on the basis of the following allegations. The plaintiff, who was…

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.

Continue reading Horsnell v Allworth Constructions

Details

AGLC: Horsnell v Allworth Constructions [2016] NSWSC 1700
Case: [2016] NSWSC 1700
Decision Date: 01 December 2016

CaseChat Overview and Summary

The case of Horsnell v Allworth Constructions involved a claim for damages stemming from bodily injury. The plaintiff, Horsnell, had sustained injuries that impaired his ability to prove how the accident occurred. The defendant, Allworth Constructions, was required to provide answers to interrogatories concerning the incident. Allworth's initial responses were deemed insufficient. A notice of motion was subsequently filed, seeking an order for the examination of the deponent who had answered the interrogatories, based on the inadequacy of the responses provided.

The central legal issues the court had to resolve were whether the deponent had fulfilled the obligations imposed by the rules when answering the interrogatories and whether an order for examination was the appropriate remedy when the deponent's answers were found to be insufficient. Specifically, the court had to consider the extent to which the deponent was required to make enquiries and the standards to which they had to adhere when providing answers on behalf of the corporate party.

The court found that the deponent had not adequately fulfilled their obligations under the rules. The insufficiency of the answers was evident when compared with other statements made by the deponent. The court held that the deponent, acting on behalf of a corporate party, was obligated to make enquiries and provide answers to the best of their information, knowledge, and belief. Given the plaintiff's incapacity to prove the circumstances of the accident, the court considered the interests of justice and determined that it was more appropriate to direct the deponent to provide further answers to the interrogatories rather than to proceed with an order for examination. The court thus ordered that the deponent provide additional, satisfactory answers to the interrogatories.

Orders