Jones v Pilbara Iron Company (Services) Pty Ltd

[2018] WADC 15

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   JONES -v- PILBARA IRON COMPANY (SERVICES) PTY LTD [2018] WADC 15

CORAM:   REGISTRAR KINGSLEY

HEARD:   10 NOVEMBER 2017

DELIVERED          :   16 FEBRUARY 2018

FILE NO/S:   CIV 231 of 2016

BETWEEN:   KAREN LEE JONES

Plaintiff

AND

PILBARA IRON COMPANY (SERVICES) PTY LTD
First Defendant

ROBE RIVER MINING CO PTY LTD
Second Defendant

RIO TINTO SERVICES LIMITED
Third Defendant

ISS INTEGRATED SERVICES PTY LTD
Fourth Defendant

Catchwords:

Practice and Procedure - Application for leave to administer interrogatories - Turns on own facts

Legislation:

Nil

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff:     Mr J Trigg

First Defendant              :     Ms M Joyce

Second Defendant         :     Ms M Joyce

Third Defendant            :     Ms M Joyce

Fourth Defendant           :     Not applicable

Solicitors:

Plaintiff:     Stephen Browne

First Defendant              :     Minter Ellison

Second Defendant         :     Minter Ellison

Third Defendant            :     Minter Ellison

Fourth Defendant           :     SRB Legal

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

Behan v Stonehouse [2017] WASC 275

Dalecoast Pty Ltd v Monisse & Ors [1999] WASCA 103

Irvine v The State of Western Australia [1999] WASC 224

Salzano v Rolan Semaarn Salon Pty Ltd [2009] VSCA 201

Verdell Pty Ltd v F & G Nominees Pty Ltd [2000] WASC 143

1. REGISTRAR KINGSLEY:  The plaintiff (Jones) pleads that she was employed by Remote Personnel Pty Ltd (the employer) as a cleaner.  Pursuant to an agreement made between the employer and either all of the defendants collectively or with one of the defendants, the employer agreed to provide labour to perform cleaning services.

2. On 23 January 2013 Jones pleads that she was at her place of employment in Pannawonica, and in the course of her employment.  Whilst on a lunch break Jones leant against a metal railing, which gave way and she fell backwards and landed on the ground.  As a result of that fall Jones suffered a neck injury and a back injury.

3. The first defendant (Pilbara), the second defendant (Robe) and the third defendant (Rio Tinto) in separate defences deny they entered into an agreement with the employer.  Each of Pilbara, Robe, and Rio Tinto plead that each entered into a written agreement with the fourth defendant (ISS) in what has been pleaded an accommodation and catering, cleaning and grounds and supplementary town services contract. 

4. In August 2016 Pilbara, Robe and Rio Tinto collectively issued a request for further and better particulars of claim which was responded to by Jones on 29 November 2016.  In July 2017 Pilbara, Robe and Rio Tinto (the interrogating party’s) collectively issued a request for Jones to answer interrogatories. 

5. On 12 September 2017 the interrogating party’s issued a chamber summons for leave to serve a notice requiring Jones to answer the request for answers to interrogatories filed 19 July 2017.  On 27 October 2017 the interrogating party’s filed an amended request for answers to interrogatories.  The application by the interrogating party’s is supported by the affidavit of Melissa Kim Joyce sworn 27 October 2017.  The application is opposed by Jones and supported by an affidavit of Joel Nathan Trigg, affirmed 6 November 2017. 

Relevant authorities

1. Order 27 r 1 Rules of the Supreme Court 1971 (RSC) require a party to seek leave of the court before interrogatories can be served on a party.

2. Rule 47 District Court Rules 2005 (DCR) modifies O 27 RSC in that it allows a party in a personal injury action to serve interrogatories without leave if the notice is served within 75 days after the party files a defence, and the interrogatories comply with the requirements of r 47(3) DCR.

3. The defences of the interrogating parties were filed on 3 August 2016 and the 75 days expired on 17 October 2016.  The interrogatories were served on 24 July 2017, some 280 days out of time. 

4. Where interrogatories are very late in their delivery and the explanations offered for the lateness do not justify the length of delay, then leave should be refused. The leave regime is administered with case management principles in mind and therefore the salient question is: is it really necessary to administer these interrogatories and are the interrogatories consistent with the principles in O 1 r 4B RSC (Irvine v The State of Western Australia [1999] WASC 224; Dalecoast Pty Ltd v Monisse & Ors [1999] WASCA 103).

5. Master Sanderson in Verdell Pty Ltd v F & G Nominees Pty Ltd [2000] WASC 143 stated that it was inappropriate to go into a detailed assessment of whether each interrogatory ought to be answered. This is because once the interrogatories are delivered, it is open to a party to either answer them or object to them. However, the question still remains: what purpose would be served by the interrogatories. That requires an assessment by the court of each interrogatory as to whether the interrogatory is reasonable, or is likely to result in objection. Justice Kenneth Martin in Behan v Stonehouse [2017] WASC 275 commented that if leave is to be obtained to administer interrogatories drafts of the proposed interrogatories are normally exchanged, there is conferral between the solicitors and the administration of the interrogatories is approved by the court before the interrogatories are administered.

6. Those authorities indicate that it is the court's task on an application for leave to administer interrogatories, where there is delay, to consider the explanation for the delay, consider the interrogatories sought to be delivered and consider the advantages in cost and time in administration of the interrogatories as against the burden in answering. 

The explanation for the delay

1. What emerges from the affidavit of Joyce is that the plaintiff and all defendants consented to having the entry for trial milestone being extended on various occasions, for a number of reasons both on the plaintiff's side and the defendants' side.  In her affidavit Joyce refers to the fourth defendant issuing 17 subpoenas to different witnesses, the subject matter including Jones' medical record, medical and PBS history, personal records and sick leave records.  Whilst not on oath, the written submissions of Joyce states the interrogating parties were given approval to copy the documents produced under subpoena on 15 June 2017.  Joyce submits that it was appropriate for those entities to defer filing their request for answers to interrogatories whilst the subpoenas were outstanding.  This was to ensure all relevant facts and issues were considered, consider less burdensome options, and to avoid issuing an incomplete request for answers.

2. In my opinion the delay in administering the interrogatories has been sufficiently explained.  A large number of subpoenas had been issued by another party, apparently directed to common issues in dispute.  In my opinion it was appropriate for the interrogating party’s to await the return of the subpoenas, obtain leave of the court to copy the subpoenas and then consider the contents.  The information contained in those subpoenas may well inform the framing of the interrogatories to achieve the objective for which they are designed without putting Jones to unnecessary trouble and expense. 

The interrogatories

1. Jones' pleaded case is that she leant against a railing outside the laundry in an elevated goods receivable area (it is worthwhile to mention that there is an apparent statement by Jones that she was sitting on the metal railing).  Under the heading 'Work on site' the date Jones commenced employment with Remote Personnel is unnecessary, as that information should already be in the hands of the interrogating parties by way of the subpoena directed to Remote Personnel. 

2. Interrogatories 2 and 3 are directed to any verbal and/or written report to Remote to the effect that one or more issues at work were causing Jones stress.  In my opinion the word 'issues' is very wide and ill‑defined and places an unnecessary burden on Jones to determine what the interrogating parties mean by issues. 

3. The interrogating parties have pleaded they were not directly involved in the engagement of Jones.  It is relevant for them to know what date Jones started work at the mine site.  Interrogatory 4 is appropriate.

4. Interrogatories 5 and 6 inquire of Jones whether she visited the laundry and whether she passed by or otherwise observed the elevated goods receivable area.  I do not understand the relevance of the interrogatories having regard to the fact that the plaintiff's plea is that she leant against a metal railing which gave way.  There is no plea that Jones failed to observe the state of the railing.

5. Under the heading 'Warnings' the interrogating parties inquire whether Jones received any verbal instructions and/or warnings in relation to the metal railing, any written instruction and whether she observed any written warning signs.  In my opinion this interrogatory is fishing in that there is no plea by the interrogating parties that Jones failed to comply with verbal instructions or warnings both verbal and written. 

6. Under the heading 'Pannawonica incident' interrogatories 11 and 12 inquire as to the specific location where Jones was standing, and which metal railing she was leaning against immediately prior to the accident.  In my opinion these interrogatories will enable the interrogating parties to better understand the case they have met and are appropriate. 

7. Interrogatory 13 inquires whether Jones was sitting on any part of the metal railing and if the answer to question 13 is yes, a sub-question (a) inquires which metal railing she was sitting on.  Both of those questions in my opinion are appropriate.  However, 14(b) is confusing as it inquires as to what Jones did between sitting on the metal railing and leaning on the metal railing which gave way and as inappropriate. 

8. Under the heading 'Prior accidents' interrogatories 15 to 20 inquire as to whether Jones was injured in a motor vehicle accident or in a work accident prior to 12 April 2009.  The April 2009 date refers to a pleaded allegation by the interrogating parties that Jones was involved in a motor vehicle accident and a work accident resulting in injuries and disabilities including chronic back pain and need for medical treatment.  In my opinion the questions are appropriate but ought to be limited to five years prior to 12 April 2009. 

9. Jones' counsel objects to interrogatory 16(d), 18(d), and 20(d).  Those sub-questions ask how often did Jones suffer from symptoms arising from the incidents interrogated.  In my opinion those sub-questions are appropriate in relation to the interrogating parties plea of pre-existing conditions. 

10. Under the heading 'Medical history during five years prior to the Pannawonica incident', plaintiff's counsel concedes in his written submissions the questions are largely not objectionable, except for certain questions which ask multiple questions in the form of one question.  I agree with plaintiff's counsel's objections to interrogatory 22(e)(iv), 24(e)(iv) and 26(e)(iv) on the basis that those questions are objectionable in the form in which they are asked. 

11. Under the heading 'Use of drugs of addiction and illicit drugs' the questions inquire as to Jones' illicit drug taking.  The issue of Jones abusing prescription medication, the subject of the next set of interrogatories, and illicit drugs have been in issue by the interrogating parties from their first defence.  The allegations of misconduct on the party of Jones have been pleaded with some precision, and these are matters that are peculiarly within the knowledge of Jones (Salzano v Rolan Semaarn Salon Pty Ltd [2009] VSCA 201).

12. Under the heading 'Prescription medication' the basis for the questions has been pleaded and interrogatory 31 has been limited in time.  It is n appropriate question.

13. Under the heading 'Assault' the interrogating parties inquire whether Jones was physically assaulted in or about December 2013.  That plea has been in issue from the outset and in my opinion is an appropriate question.  I agree with Jones' counsel submission that interrogatory 36g(iii) is inappropriate as it asks multiple questions within the one interrogatory, and is objectionable. 

14. For these reasons I am of the opinion the interrogating party should have leave to administer interrogatories 4, 11, 12, 13, 14(a); interrogatories 15 to 20 inclusive, other than 16(iv), 18(iv) and 20(iv); interrogatories 21 to 26 inclusive, other than 22(e)(iv), 24(e)(iv) and 26(e)(iv); interrogatories 27 to 34 inclusive, other than 28(h), 30(h), 32(h) and 34(h); and interrogatories 35 and 36, other than 36(g)(iii). 

15. I will hear counsel on the form of order, and costs.