Irvine v The State of Western Australia

[1999] WASC 224

IRVINE -v- THE STATE OF WESTERN AUSTRALIA [1999] WASC 224

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 224
Case No:	CIV:2448/1996	Heard:	1 NOVEMBER 1999
Coram:	MASTER BREDMEYER	Delivered:	12/11/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	JOHN HOWARD IRVINE THE STATE OF WESTERN AUSTRALIA
Catchwords:	Interrogatories Application for leave Application late
Legislation:	Nil
Case References:	Nil American Flange Manufacturing Co Inc v Rheem (Aust) Pty Ltd (No 2) [1965] NSWR 193 Bolckow, Vaughan & Co v Fisher [1882] 10 QBD 161 Boyle v Downs [1979] 1 NSWLR 192 Dunbar v Perc [1956] VLR 583 Esther Investments v Markalinga (1989) 2 WAR 196 Griffiths v Haines (1984) 3 NSWLR 653 Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-726 Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70 Makin v Troy, unreported; SCt of WA; Library No 940256; 18 May 1994 Ryan v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396 State of Queensland v J L Holdings Pty Ltd (1997) 141 ALR 353 Wisniewski v Tolley (1967) FLR 157

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : IRVINE -v- THE STATE OF WESTERN AUSTRALIA [1999] WASC 224 CORAM : MASTER BREDMEYER HEARD : 1 NOVEMBER 1999 DELIVERED : 12 NOVEMBER 1999 FILE NO/S : CIV 2448 of 1996 BETWEEN : JOHN HOWARD IRVINE

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Interrogatories - Application for leave - Application late

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Dr J L Cameron
Respondent : Mr B P King

Solicitors:

Plaintiff : Law Access
Respondent : State Crown Solicitor

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

Nil

Case(s) also cited:

American Flange Manufacturing Co Inc v Rheem (Aust) Pty Ltd (No 2) [1965] NSWR 193
Bolckow, Vaughan & Co v Fisher [1882] 10 QBD 161
Boyle v Downs [1979] 1 NSWLR 192
Dunbar v Perc [1956] VLR 583
Esther Investments v Markalinga (1989) 2 WAR 196
Griffiths v Haines (1984) 3 NSWLR 653
Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-726
Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70
Makin v Troy, unreported; SCt of WA; Library No 940256; 18 May 1994
Ryan v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396
State of Queensland v J L Holdings Pty Ltd (1997) 141 ALR 353
Wisniewski v Tolley (1967) FLR 157

(Page 3)

1 MASTER BREDMEYER: This is an application by the plaintiff for leave to administer interrogatories. No special time is fixed by O 27 of the Rules of the Supreme Court for the administration of interrogatories, nevertheless they should be administered reasonably promptly after the close of pleadings and after discovery. That is to comply with the court's goal of eliminating delays in the interlocutory processes of the court as set out in O 4A. This application is late. The pleadings closed in late September 1997 and discovery on both sides took place in mid-1997. The reasons for the delay are set out in the affidavits of Mr Mohen and Mr Eastman both of Law Access. The claim is a fatal accidents claim and the plaintiff is the father of Colin Irvine who was shot dead by the police on 9 January 1991. I understand that the plaintiff is impecunious. Dr John Cameron has been the counsel for the plaintiff since the commencement of the action. The action commenced on 20 December 1996 and proceeded through various interlocutory stages throughout 1997 and 1998. The first solicitors for the plaintiff were Joanne Matich & Associates. In early 1999 she indicated that as a sole practitioner she did not have the resources necessary to continue to support this case up until trial. Law Access is a community legal service and it took on the role of finding a new solicitor. Since March 1999 Mr Mohen of Law Access attempted to persuade various firms of solicitors to take on this action without success and so it decided to conduct the action itself. It filed a notice of change of solicitor in September 1999. This application was filed on 7 October 1999 although a draft of the interrogatories was prepared and supplied to the defendant in March 1999.

2 The affidavits explain the delay between March and October 1999 but they do not explain the delay between mid-1997 and March 1999. These interrogatories are very late. The bringing of the application at this stage does not contribute to the speedy determination of interlocutory procedures.

3 By an amendment to O 27 r 1 interrogatories can now only be brought by leave of the court. Seaman notes in 27.1.1A of his commentary that in exercising the discretion to grant leave to administer interrogatories the court will have regard to the system of positive case-flow management which is to be applied by virtue of O 1 r 4B. I consider that these interrogatories are very late and that the explanations offered for the lateness do not justify the length of the delay and that leave should be refused.

(Page 4)

4 In case I be wrong on that I want to say something on the merits of the interrogatories. The interrogatories cover just over nine typed pages and run to 167 questions. They ask questions about par 2 and par 7 of the amended defence. I consider the questions asked are oppressive. They are too many and they are too discursive. I consider they are largely or perhaps entirely unnecessary. I say that because there have been two inquests into the death of Colin Irvine and evidence has been heard on oath from numerous police witnesses and from all those non-police witnesses present at the time of the killing. Documents were also produced. I consider that the pleading of the defence is reasonably satisfactory. It tells the plaintiff of the defence being run by the State. I understand that an application by the plaintiff for further and better particulars of the defence failed before Acting Master Chapman and his decision was later affirmed on appeal. The plaintiff has copies of all the sworn depositions given in the inquest and of the documents produced there.

5 I therefore propose to dismiss this application.