Jones v Moore - [2006] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: JONES -v- MOORE & ANOR [2006] WADC 44

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 9 MARCH 2006

DELIVERED : 27 MARCH 2006

FILE NO/S: CIV 2215 of 2003

BETWEEN: MARGARET JONES
Plaintiff
AND
ALAN JOHN MOORE
Defendant
ERTECH PTY LTD
Third Party

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court and the District Court Rules 2005- Application for leave to interrogate - O 27 r 1 Rules of the Supreme Court, r 47 of the District Court Rules 2005- Purpose of interrogation - Application for deposition to discovery - O 26 r 7(3)(e) of the Rules of the Supreme Court

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff:     Mr G Droppett
Defendant:     Mr M McAuliffe
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Kott Gunning
Defendant:     Dibbs Barker Gosling
Third Party                   :     Tolson & Co

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

American Flange v Rheem Australia Pty Ltd (No 2) [1965] NSWR 195
Deputy Commissioner of Taxation for the Commonwealth of Australia v Ravenswood Pty Ltd [2003] WASC 76

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The defendant has sought leave to interrogate the plaintiff and an order requiring the plaintiff to depose to her list of documents.
Dealing firstly with the application for leave to interrogate, it falls within the scope of O 27 r 1 of the Rules of the Supreme Court as modified by r 47 of the District Court Rules 2005. The plaintiff's claim is brought under the Fatal Accidents Act and thereby is a personal injuries action for the purposes of r 47. Under sub-rule 2 of that rule, leave is required to serve notice of interrogatories as the plaintiff did not consent to it being served without leave.
The action was entered for trial on 30 August 2005 and the pre‑trial conference stands adjourned. A listing conference will be held on 3 May 2006. Since that conference was allocated the defendant has sought and obtained leave to issue third party proceedings and leave to issue writs of subpoena deuces tecum requiring the production of documents before trial against the Commissioner of Police, the Department of Consumer and Employment Protection and the Coroner's Court. According to the praecipe the subpoenas were returnable prior to the hearing of the application before me.
The plaintiff's claim is unremarkable. The deceased was walking away from a loader which reversed, struck the deceased, knocked him to the ground and ran over him. The defendant admits the circumstances of the accident but denies negligence and those parts of the pleading that relate to quantum. Further, he alleges the negligence of the deceased.
In the application the onus is upon the defendant to satisfy the court that it is appropriate to grant leave to interrogate the plaintiff in the terms proposed. In reflecting upon the sufficiency of the applicant's case it is appropriate to consider that by refusing to consent to service of the interrogatories the plaintiff had legitimately avoided engaging in a process by which she would be required to consider how to respond to 50 or so questions, to draft and depose to the terms of any answer, to state and found any objection, to file and serve the response and conceivably to be held accountable both for any contended insufficiency or disputed objection. The application was supported by the affidavit of Carla Kovacevic sworn 24 January 2006 in which she deposes that the Coroner, the Department and the Commissioner investigated the circumstances of the death of the deceased and that each of the deceased and the defendant were engaged by Ertech, the third party. At par 14 of her affidavit and following she further deposes:
"In respect to the question of liability of the deceased, the Defendant and Ertech, the Defendant submits that a central issue is whether or not the deceased was wearing his hearing aid at the time of the accident. Central to the issue of Ertech's liability is whether they were negligent in failing to provide a safe system of work, which includes whether they were aware of the deceased's hearing problems.
15. The practical effect of the deceased's hearing loss is important to assess whether the deceased was in part responsible for his death, (sic) and whether there was a lack of supervision or breach of duty by Ertech by letting him work in the vicinity of heavy machinery, if he could not hear the machinery.
16. A document entitled 'Hedland Hearing Service' concerns a test administered on 7 September 1998, approximately four years prior to the accident. The results of this test showed that the deceased had moderately severe to profound hearing loss in his right ear on testing, and at some frequencies additionally, he had mild to profound loss of hearing in his left ear. …
17. In a sworn statement made by the plaintiff on 13 June 2003, she alleges the deceased was wearing his hearing aid at the time of the accident. In paragraph 11 of her statement she stated that 'on 9 October 2002, Greg definitely wore his aid to work, as it was not at home in its normal container.' At paragraph 12 she stated that 'I do not know that Greg could hear without the use of is (sic) hearing aid.' …
18. However, in a mortuary admission form dated 9 October 2002 and obtained under the Freedom of Information Act from the Police Service, it was noted that 'Deceased has poor hearing requiring the use of a hearing aide in his right ear and should but does not wear one in is (sic) left ear (deceased and scene searched for hearing aide. Nil found and unknown if deceased was wearing a hearing aide or not)'. …
19. Furthermore, it was noted in the police report of Constable Perkins dated 8 November 2003 obtained from the Police Service under the Freedom of Information Act on p 7, that 'Initial enquiries with the deceased's defacto of 27 years, Margaret Jones at the hospital, revealed that the deceased has poor hearing requiring the use of a hearing aid in his right ear and should but does not wear one in his left ear. A subsequent statement obtained from Jones retracts this comment and confirms the requirement for an aid in the deceased's right ear only … It is unknown if the deceased was wearing a hearing aid or not.' …"
I indicated to the parties at the conclusion of the hearing that in determining applications that relate to the process of interrogation the difficulty lies in the disparate results that emerge in other reported determinations. I reserved my determination in order to consider a decision of Wheeler J in Deputy Commissioner of Taxation for the Commonwealth of Australia v Ravenswood Pty Ltd [2003] WASC 76 upon which the defendant had drawn in support of the proposition that an assessment of questions may properly be had on the basis of "genuine utility". I was not familiar with the case and wanted the opportunity to consider the context in which such an appraisal had been promoted.
I note that the comment was drawn from the following context:
"I also accept the submission made by Mr Davies, counsel for the defendants, to the effect that in modern procedure, where there is a broad disclosure pre‑trial of a witness's evidence, interrogatories do not perhaps have the function they once did. Nevertheless, as Mr Davies submits, they are of use if they save time at trial and should be permitted wherever they appear to be of 'genuine utility' ".
The case before her Honour was one of a series of related cases in which consideration had actually been given to pre-trial exchange of witness statements. Each of the parties had sought to interrogate the other of them. Her Honour dealt with the with the defendant's proposal in some detail but it is only possible to discern one of the questions sought to have been put by the plaintiff. By question 13 the defendant had sought what were characterised as admissions as to ownership of certain farming properties. I infer that the applicant had identified the owner of particular property or properties and had either sought an admission or series of admissions in response. The plaintiff had sought to put what Her Honour described as the identical question. Conceivably in the process of getting up their cases for trial each party had considered that the admission of ownership by their opponent would obviate the need to obtain certified copies of titles and eliminate the associated cost. Leave was granted to the plaintiff to so interrogate but the refusal of the defendant's question was justified as follows:
"These are matters within the knowledge of the defendants rather than the plaintiff, and I see no utility in an interrogatory directed to the plaintiff in respect of those issues."
The only other questions that were determined by reference to the concept of utility were interrogatories 18-23 proposed by the defendant. They were said to "seek admissions in relation to property development or earthmoving businesses said to be owed (sic) by two of the defendants". As Her Honour refers to the seeking of admissions, presumably in the case of each business the defendant had proposed the name of the owner. Conceivably the defendant had been motivated to seek the admissions in order to limit the scope of the trial. The justification for refusing leave was as follows:
"The relevance is said to be that the identity of the proprietor of the business in each case is "relevant to the identity of the putative employer". The precise relevance does not appear from either the statement of claim or, importantly, from any averments made in the amended defence of the defendants. In any event, these would appear to me to be matters peculiarly within the defendants' knowledge. I do not see any utility in requiring the plaintiff to answer these questions."
I have no difficulty with the proposition that utility is fundamental to the analysis of relevance. In each of the instances that I have cited of the defendant seeking admissions, consideration of utility follows upon an assessment that the fact for which it was proposed that admission be sought was within the knowledge of the party seeking to interrogate. The purpose of interrogatories being to facilitate proof of a relevant fact at trial by production of the admission, it is not my understanding that such a prospect would necessarily tell against a question. It seems to me that the issue rather is why an applicant considered that it was appropriate to have recourse to a presently unavailable resource in order to potentially achieve that result.
It appears to me that there is insufficient in Her Honour's reasons to allow for much further analysis of the concept of utility other than that it appears not to speak to any enhanced scope of permissible interrogation but rather, to limitation. It is difficult to gain any appreciation of what may have been the significance of the reference to modern procedure and the extent to which it may be considered to have displaced pre-existing procedure. Having made that observation it is instructive that in considering other proposed questions Her Honour canvassed more familiar concepts such as the significance of pleadings and particulars, the cost of bringing evidence and the length of trial.
Questions 1 to 5 inclusive of the minute of proposed interrogatories before me canvass the deceased's hearing capacity and 6 to 18 inclusive features of the plaintiff's case as to quantum. As to the first group, my view of the evidence of the parties was that prior to the time of making the application the defendant had not appreciated the significance of deceased's impairment. In relation to the second, his case was no more than that he considered that it was appropriate to address all questions to the plaintiff at one time. In putting that case it is implicit that his engagement in the process now proposed had been deferred. That case depends upon an inference being drawn in circumstances where it would be counter-intuitive to do so. Perhaps more fundamentally there is no evidence to suggest that at any time the defendant had considered that there was a need to interrogate.
Indeed the only case for interrogation revealed on the evidence is at par 21 of the Kovacevic affidavit as follows:
"The interrogatories seek admissions of fact, the answers to which may reduce the amount of oral and documentary evidence requires at trial and may narrow the issues between the parties at trial."
Patently the questions do not seek admissions of fact, but rather, the plaintiff's evidence. There is no entitlement under the rules to ones opponent's evidence. There is no basis to consider that this case provides justification for that result as a special case. There is no reason to consider that the defendant would seek to prove any fact that may emerge from any answer provided by the plaintiff. Otherwise, taking into account the stage to which the action has progressed and from what amounts to silence in circumstances where the applicant carries the onus, the compelling inference is that the applicant has had no difficulty getting up either his opposition to the plaintiff's case or his case that the deceased was negligent.
My assessment of the proposed questions that relate to dependency is that if the applicant succeeded in the application and the plaintiff took no objection in response the applicant would obtain a significant proportion of the plaintiff's proof under oath. I accept that there are circumstances which are probably confined by the designation "special case" in which such a result may be considered to be appropriate. An illustration may be what may be characterised as a speculative claim brought in the absence of there being any witness by a person who suffers from trauma related amnesia in circumstances where the defendant had made some informal admissions. At trial this applicant carries no onus in relation to the issue of dependency. The prospect that in this case the applicant may have little or no information relating to that issue is of no particular consequence. It has always been the case that parties have brought both different resources and varying levels of the same resources to litigation. Unless there is some justification in doing so the court would not seek to intervene in order to constitute one party as a resource for the other. That is so as it would recognise that the interests that parties bring to the process of litigation are adverse. In this case it is appropriate to consider that the plaintiff did not consent to interrogatories being served without leave and has opposed the application.
Although the applicant did not make a submission along the lines that the prospect of settlement would improve if the plaintiff responded to the questions, such a submission is often a feature of the process of obtaining information by recourse to the process of interrogation. The only reason that I mention the point is that it may be suggested that I have ignored the prospect. Whilst it may be the case that all nature of benefits would flow from engagement in the process of interrogation, the hallmark of any interlocutory application that relates to interrogation is that it involves recourse to discretion. The fundamental consideration at each such point is the preservation of fairness at trial. Against that fundamental consideration the prospect that settlement prospects may be enhanced is revealed as no more than an incidental benefit. The fact that in a broader context the court promotes the prospect of settlement provides good reason for it to be circumspect in determining applications the result of which may impinge upon the prospect of a fair trial. It is at least at the point of so reflecting that the distinction between a question that calls for an admission and one that seeks evidence becomes stark.
According to American Flange v Rheem Australia Pty Ltd (No 2) [1965] NSWR 195 the issue of leave to interrogate is properly determined on the basis of whether the preponderance of questions proposed to be put would survive a cursory examination as to whether they were considered to be permissible. Drawing upon the logic revealed by the determination of Myers J in that case, the overwhelming number of questions sought to be put by the defendant are revealed as sought to be put either for no reason at all or other than for the purpose of seeking admissions. In my opinion, to require the plaintiff to devote any resources to the end of assisting the applicant could not be justified.
If despite the want of evidence and absent consideration of the methodology suggested by Meyers J, I had been persuaded to consider a separate case in relation to the first group of questions; the first consideration that would come to mind in light of my observations in relation to the balance, is whether they seek admissions or evidence.
The relevant questions are as follows:
"1.Did the deceased suffer from hearing problems at the time of the accident?
2.If your answer to the preceding question is yes, did the deceased require a hearing aid for use in his:
(a)   left ear;
(b)   right ear?
3.If your answer to any of the preceding sub‑paragraphs is yes:
(a)   for how long had the deceased been medically required to wear a hearing aid(s)?
(b)   did his employer at the time of the accident, Ertech Pty Ltd, know of his requirement to wear a hearing aid(s)? If your answer is yes, did Ertech instruct or require the deceased to wear his hearing aid(s) at all times whilst he was working for them, either:
(i)verbally, or
(ii)in writing?
(c)   did the deceased's treating ear specialist require him to wear a hearing aid(s) at all times?
(d)   was the deceased wearing his hearing aid(s) at the time of the accident?
(e)   did the deceased always wear his hearing aid(s)? If your answer is no:
(i)when did he not wear his hearing aid(s) and why?
(ii)did he keep his hearing aid(s) in any particular place(s) either at work or at home when he was not wearing it?
4At any stage following the date of the accident, did the police question you in relation to the accident? If so:
(a)   were you required to make a formal statement; or
(b)   simply have informal discussions?
5If your answer to any of the preceding sub‑paragraphs is yes, did the police ever question you about the deceased's hearing problems? If so, during the course of your discussions, did you ever say the deceased required a hearing aid in respect of his:
(a)   left ear;
(b)   right ear?"
In my opinion however the questions may be characterised, they do not suggest a process of seeking admissions in response to proposed facts. There can be no doubt that they were drafted prior to any benefit being derived as a result of the return of the subpoenas. I know nothing as to the prospect that questions seeking admissions as to relevant facts could not now be put.
I observe that the applicant has at least proposed a case against the third party that is founded upon the deceased's hearing impediment upon which he would carry the onus at trial. I am not provided with any evidentiary basis upon which to consider whether in the absence of obtaining a response from the plaintiff to the questions sought to be put that he would have any difficulty in establishing that case. I would also add that in the case between the applicant and the third party I have no clear appreciation of the benefit that the he would obtain from either admission by the plaintiff or evidence of the plaintiff concerning either the deceased's hearing capacity or whether on the day he was wearing a hearing aid.
By question 1 the defendant seeks from the plaintiff an assessment of the deceased's ability to hear. It is conceivable that on all of the material before me, that if ultimately required to answer that question, the plaintiff would respond "yes". It is doubtful that the question was put for any reason other than to introduce the need to answer question 2. No indication is given by the defendant as to why it is that a question was framed in terms of the deceased's requirement. Question 2 is patently objectionable and oppressive.

Even in isolation, question 3 is unnecessary and oppressive. As to part (a) it introduces the need to consider the expression "medically required to wear a hearing aid". To answer part (b) would involve the plaintiff in the process of undertaking investigations of another party. It is remotely conceivable that in a special case the court would require a party to conduct enquiries of another party in order to assist the applicant to obtain information from it. The applicant has gone no distance down the path of seeking to so justify the question. The same observation can be made in relation to parts (c) and (d). There is no evidence before me that would indicate that the plaintiff would have been aware that the deceased was wearing his hearing aid at the time of the accident. Part (e) is patently oppressive.
As to question 4, along with the plaintiff I have some doubt as to whether the defendant is motivated by something other than obtaining an admission in relation to a relevant fact.
As to question 5, if the defendant seeks to question the plaintiff relating to her prior statements, at the very least an appropriate question should be put.
Accordingly, none of the questions would justify a grant of leave had they issued independently.
In closing I will address some outstanding submissions that had some bearing upon particular questions relating to the plaintiff's loss. As I understood the proposition advanced by the defendant, it was open to him to probe the prospect that incomplete discovery had been provided. I do not have any difficulty with the proposition that a carefully crafted question may be directed to that end; however, it is my appreciation that an applicant would be ill advised to make such a concession. The second is that the defendant may be utilising the process in order to overcome a perceived lack of particularity. There is authority to the effect that the process of interrogation and the provision of particulars are interchangeable. Although I accept that the results may serve the same purpose, the critical consideration on an application for leave to interrogate is the processes are utterly different. The function of particulars is to alert the party receiving the pleading to the scope of the pleading party's claim.
In my opinion, the applicant's case comprehensively fails.
As to the case for the plaintiff to depose to her list of discovery, O27 r 7(3) (e) of the Rules of the Supreme Court provides that:
"On an application … the Court having regard for Order 1 rule 4B may ... order any or all parties to make, file and serve an affidavit verifying the party's list of documents discovered."
Ms Kovacevic deposes at par 26:
"In support of it's (sic) application for the plaintiff to provide discovery on oath, the Defendant submits that given the issue of liability remains in dispute and the vast amount of documents that have been discovered by the parties, it would be appropriate for the plaintiff to verify her list of documents by Affidavit."
As the applicant states in his written submissions, such an application is not required to be supported by an affidavit. He goes on to justify the application on the basis that to require the plaintiff to so depose would ensure that all relevant documents have been discovered.
That submission countenances that what is no more than an issue of form would be translated into a matter of substance and that it would be appropriate to consider that that discovery be given on oath in circumstances where an applicant suggests that the respondent may have failed to honour the obligation to discover. The applicant for an order founded upon failure to honour the obligation to discover would carry a heavy burden. As much as the suggestion of such a failure would not be sufficient to discharge the onus in circumstances where the applicant seeks an order for further and better discovery it is equally insufficient in a case where there is no more than the suggestion of such a prospect.
Returning to the submission in the form of the applicant's evidence, it seems to me that at no point would the number of documents disclosed by the process of discovery resonate with the form in which that disclosure is undertaken. Nothing emerges from the fact that liability is in issue. Although nothing of O1 r4B was canvassed, it seems to me that to require the plaintiff to revisit a process undertaken in April 2005 simply to address a matter of form would be contrary to that provision.
The applicant's case at that point also fails.