Khanna v Woolworths Group Limited (ABN: 88 000 0146 75)

[2021] NSWDC 427

District Court

New South Wales

Medium Neutral Citation:

Khanna v Woolworths Group Limited (ABN: 88 000 0146 75) [2021] NSWDC 427

Hearing dates:

19 August 2021

Date of orders:

19 August 2021

Decision date:

19 August 2021

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) The Notice of Motion filed by the plaintiff on 7 July 2021 is dismissed;

(2) The plaintiff is to pay the defendant’s costs of the Notice of Motion filed on 7 July 2021 as agreed or assessed.

Catchwords:

PRACTICE AND PROCEDURE – interrogatories – personal injuries claim – need for special reasons – proposed interrogatories also seek documents – oral evidence in case concluded – issue of further delay

Legislation Cited:

CivilProcedureAct2005 (NSW)

Uniform Civil Procedure Rules 2005

Cases Cited:

El Hayek v Vasic [2010] NSWSC 1498

McCallum v Reynolds [2016] NSWSC 366

Category:

Procedural rulings

Parties:

Sanjeev Khanna (Plaintiff)
Woolworths Group Limited (ABN: 88 000 0146 75) (Defendant)

Representation:

Counsel:
R Gambi (Defendant)

Solicitors:
In Person (Plaintiff)
HBA Legal (Defendant)

File Number(s):

2019/00030652

Publication restriction:

No

EX TEMPORE Judgment

1. Before the court for determination, is a Notice of Motion filed 7 July 2021 by the plaintiff seeking, in substance, orders to allow the issue of interrogatories to various persons being:

1. The Director and Proper Officer of the defendant, Woolworths Group Limited;

2. Ms Emily Gibson, a solicitor working for the solicitors for the defendant, in relation to her affidavit affirmed on 5 March 2021;

3. Mr David Zammit, who was an Assistant Store Manager at the defendant’s Masters Home Improvement store on the day of the plaintiff’s accident on 18 April 2015;

4. Dr Frank Machart, a specialist orthopaedic surgeon, who has prepared a medico-legal report relied upon by the defendant; and

5. Dr Doran Samuell, a psychiatrist, who has prepared a medico-legal report also relied upon by the defendant.

2. In support of the Notice of Motion, the plaintiff has read an affidavit of his affirmed 7 July 2021. Mr Khanna appeared for himself at the hearing of the Notice of Motion. Mr Gambi of counsel appeared for the defendant.

3. In his later submissions, the plaintiff states that he no longer seeks leave to administer interrogatories to Mr David Zammit. He has also not produced any proposed interrogatories to Dr Samuell. In oral submissions, Mr Khanna confirmed that interrogatories were not sought in relation to Dr Samuell.

4. In relation to the proposed interrogatories attached to Mr Khanna’s 14 August 2021 submissions, these are directed to:

1. The Director or Proper Officers of “Public Liability and Administration”, it seems of the defendant;

2. Ms Emily Gibson, the employed solicitor at the solicitors for the defendant; and

3. Dr Frank Machart.

Factual background

5. The background to this application is, in summary, as follows. The plaintiff, Mr Khanna, has brought a claim in negligence against the defendant, Woolworths Group Limited, in relation to an accident in which he was involved and which allegedly caused him personal injuries at a Masters Home Improvement store at Rouse Hill in New South Wales on 18 April 2015. In the evidence before the court are expert reports from Dr Machart and Dr Samuell. The plaintiff asserts that he has serious and continuing injuries and restrictions arising from the defendant’s negligence in its placement of certain goods at the Rouse Hill store. It is alleged that the placement of the goods caused the plaintiff’s wife, Mrs Geeta Khanna, to trip on chair legs of a stack of chairs which resulted in her falling. Mr Khanna was allegedly injured in attempting to save Mrs Khanna from falling.

6. The final hearing has been completed in relation to the plaintiff’s claim, other than in relation to written and oral submissions and the determination of this application. The evidence has closed.

7. On 22 June 2021, orders were made for the filing and serving of written submissions. The matter was listed for oral submissions on 26 August 2021. On 7 July 2021 Mr Khanna filed the present Notice of Motion. As a result, on 29 July 2021 the court made orders vacating the orders made on 22 June 2021 as to the filing of written submissions.

8. The background to the present dispute between the parties relates to documents which Mr Khanna, the plaintiff, believes the defendant must have and which the defendant has not produced. This was the subject matter of discussion on the first day of the final hearing: see T3.26-4.45; T8.30-T11.46. Two Notices to Produce had been served by Mr Khanna on the defendant. As to the Notice to Produce dated 5 March 2021, the defendant stated through its counsel that it had nothing further to produce. In relation to the Notice to Produce dated 9 November 2020, this was discussed in detail on the second day of the hearing and the defendant similarly had nothing to produce: see T34.4-36.44; T37.46-45.30. By a Notice of Motion filed 5 March 2021, the defendant sought to have the two Notices to Produce set aside. As there was nothing further to produce by the defendant, the Notice of Motion was unnecessary and was dismissed on the second day of the trial, 11 March 2021.

9. On 22 June 2021, the last day of evidence at the final hearing, the plaintiff made a number of applications including:

1. Seeking leave to serve a subpoena on the Chief Executive Officer and Proper Officer of “Public Liability” for the defendant to attend for examination and to produce documents; and

2. Seeking an adjournment to serve that proposed subpoena.

10. Both applications were rejected by the court. In my ex tempore judgments, I gave detailed reasons for rejecting Mr Khanna’s applications. These judgments should be reviewed in detail. I relied on various matters including:

1. The stage of the proceedings at the time of the applications;

2. The fact that the possibility of subpoenaing a senior officer of the defendant was referred to by the court earlier in the hearing;

3. The consequences of an adjournment in delaying the hearing further; and

4. The matters in ss 56 and 58 of the Civil Procedure Act (NSW). I also noted that in the light of the documents before the court, there was a lack of any indication that there were potentially in existence documents actually held at that time which were relevant. I noted that the court would be surprised if the Chief Executive Officer of Woolworths Group Limited, being a major listed public company, would have any real knowledge in relation to the matters at a Masters Home Improvement store in 2015; and

5. In relation to the Notices to Produce previously served by the plaintiff on these similar matters, the formal response of the defendant was it had no further documents to produce.

The plaintiff’s affidavit evidence

11. In his affidavit affirmed 7 July 2021, Mr Khanna refers to:

1. His serious medical conditions which he asserts in paragraph 4 to have deteriorated;

2. The facts of the accident on 18 April 2015 as asserted by him;

3. Mr David Zammit, the Assistant Store Manager at the time, giving evidence on 21 June 2021. Mr Zammit asserted that he witnessed the accident. The plaintiff relies on Mr Zammit’s evidence where he stated that he was unable to assist on some factual issues;

4. The fact that no documents were produced by the defendant on a number of issues following the Notices to Produce served by the plaintiff: paragraph 7 of the affidavit;

5. An assertion that the plaintiff has “the right to demand the interrogatories to prove the matter in the favour of the plaintiff” and that this would be in accordance with s 56 of the Civil Procedure Act 2005 (NSW): paragraph 8;

6. A continued reference by Mr Khanna to the failure to produce documents by the defendant in the light of alleged legal obligations to keep documents. This was expressly considered in the court’s ex tempore judgment on 22 June 2021 of 8 pages;

7. An allegation that Ms Gibson misled the plaintiff: paragraph 10.2 of the affidavit;

8. An assertion that many questions were not answered by Mr Zammit or he gave contradictory evidence: paragraph 11 of the affidavit;

9. A desire to issue interrogatories to Dr Machart and Dr Samuell in relation to their reports: paragraph 12 of the affidavit.

Submissions of the parties

12. Under cover of emails dated 16 and 17 August 2021, the plaintiff served written submissions and proposed interrogatories signed by him. He submits that it is the interests of justice that he be given leave to serve the proposed interrogatories having regard to the failure of the defendant to produce documents, the importance of the matters raised in the interrogatories and the unsatisfactory evidence of Mr Zammit. Mr Khanna claims that such leave would be consistent with s 56 of the Civil Procedure Act and that it would not involve a waste of time.

13. In his oral submissions, Mr Khanna emphasised the importance of the matters dealt with in the interrogatories, the inadequacy of the defendant’s documentary production, the fact the safety incident report was prepared by persons other than Mr Zammit and refers to other persons, the slipperiness of the floor where the accident occurred, the difficulties facing a plaintiff and the difference between a “pulse report” and an incident report.

14. The interrogatories proposed are on occasions inappropriate in nature. Sometimes they are very general and, in substance, are in the nature of seeking general discovery. See the interrogatories to the director or proper officers of the defendant: paragraph 1. They often ask for the production of documents and do not ask questions of the defendant: see the interrogatories to the director or proper officers of the defendant: paragraphs 1, 2, 5.2 – 5.13, 6.3, 10.1.2-10.1.3, 15. Some questions relate to matters of law not fact: see paragraphs 5.8, 8.1 and 13.1.4. Some questions relate to the slipperiness of the floor which, despite Mr Khanna’s oral submissions as to its relevance, is not pleaded as an alleged breach of duty: paragraphs 10.13-10.14 and 12.1.6. Some paragraphs seek documents which are irrelevant to the issues: see the interrogatories to the director or proper officers of the defendant: paragraph 5.1 seeking the paid invoices for advertisements by the defendant; paragraph 5.13.1, being the defendant’s insurance policy.

15. The defendant relies on written submissions dated 17 August 2021. It submits, in summary, as follows:

1. There is no proper basis for the application and it should be dismissed with costs;

2. There is no power to order a non-party to answer interrogatories: paragraph 8. This includes Ms Gibson and Dr Machart;

3. The plaintiff has failed to specify the interrogatories he wants to ask – this was remedied by the plaintiff’s service of proposed interrogatories on 16-17 August 2021;

4. The affidavit in support is a repetition of the applications made on 22 June 2021 without any new evidence: paragraph 10;

5. The plaintiff has not provided any special reasons of the kind necessary for the order to be made. He has not shown why such an order is necessary, particularly at this late stage in the proceedings: paragraph 11;

6. The interrogatories proposed are not really interrogatories and often seek documents and ask for irrelevant information;

7. The orders sought will lead to further adjournments and delay which provides significant prejudice to the defendant: paragraph 12;

8. Any further delay is contrary to ss 56-59 of the Civil Procedure Act 2005;

9. The orders sought are similar to orders previously sought by the plaintiff and which have been rejected or are inappropriate. This is an abuse of process: paragraphs 16-20.

The court’s power as to interrogatories

16. Part 22 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides as follows:

“Part 22 Interrogatories

22.1   Interrogatories

(1)  At any stage of the proceedings, the court may order any party to answer specified interrogatories.

(2)  An application for such an order must be accompanied by a copy of the proposed interrogatories.

(3)  In the case of proceedings on—

(a)  a claim for damages arising out of the death of, or bodily injury to, any person, or

(b)  a claim for contribution in relation to damages so arising,

such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

(4)  In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.

(5)  An order to answer interrogatories—

(a)  may require the answers to be given within a specified time, and

(b)  may require the answers, or any of them, to be verified by affidavit, and

(c)  in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.

22.2   Objections to specific interrogatories

A party may not object to being ordered to answer an interrogatory except on the following grounds—

(a)  the interrogatory does not relate to any matter in issue between that party and the party seeking the order,

(b)  the interrogatory is vexatious or oppressive,

(c)  the answer to the interrogatory could disclose privileged information.

22.3   Answers to interrogatories

(1)  A party who has been ordered to answer interrogatories must do so within the time required by the order by serving a statement of answers on all other active parties.

(2)  Such a statement—

(a)  must deal with each interrogatory specifically, setting out each interrogatory followed by the answer to it, and

(b)  must answer the substance of each interrogatory without evasion, and

(c)  to the extent to which, and in the manner in which, the order so requires, must be verified by affidavit.

Note—

See rule 22.6 as to the admission in evidence of answers to interrogatories.

22.4   Insufficient answer

(1)  If a party who has been ordered to answer interrogatories under rule 22.1 fails to answer an interrogatory sufficiently within the time specified in the order or, if no such time is specified, within 28 days after being served with the order, the court—

(a)  may order the party to make a further answer, and to verify that further answer by affidavit, or

(b)  may order the party or, as the case requires, any person of the kind referred to in rule 35.3(1), to attend to be orally examined.

(2)  This rule does not limit the power of the court under rule 22.5.

22.5   Default

(1)  If a party who has been ordered to answer interrogatories under rule 22.1 or 22.4 fails to answer an interrogatory sufficiently, the court may give or make such judgment or such order as it thinks fit, including—

(a)  if the party in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the party in the proceedings, or

(b)  if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that the party’s defence be struck out.

(2)  If a party has a solicitor, an order under rule 22.1 or 22.4 need not, for the purposes of enforcement of the order by committal or sequestration, be served personally.

(3)  If an order under rule 22.1 or 22.4 is not served personally on a party having a solicitor, the order may not be enforced by committal of any person, or by sequestration of any person’s property, if that person shows that he or she did not have notice of the order within sufficient time to comply with the order.

22.6   Answers to interrogatories as evidence

(1)  A party—

(a)  may tender as evidence one or more answers to interrogatories without tendering the others, and

(b)  may tender as evidence part of an answer to an interrogatory without tendering the whole of the answer.

(2)  If the whole or part of an answer to an interrogatory is tendered as evidence, the court—

(a)  may look at the whole of the answer, and

(b)  if it appears to the court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, may reject the tender unless that other answer or part is also tendered.”

17. It is noted that Part 22.1(3) provides that in proceedings relating to a claim for damages for injuries to a person, such as in the present case, an order for interrogatories is not to be made unless the court is satisfied that special reasons exist that justify the making of the order. Part 22.1(4) provides that a court is not to order any party to answer specified interrogatories unless the court is satisfied that the order is “necessary at the time it is made”.

18. It is noted that Part 22.1(1) of the UCPR, while giving the court a power, provides that the power is restricted to ordering any “party” to answer specified interrogatories.

19. In El-Hayak v Vasic [2010] NSWSC 1498 at [49]-[51] the Supreme Court considered the requirement for “special reasons” in a personal injuries case. Garling J stated as follows:

“49.  The requirement for special reasons to be established is a restrictive one. It is intended to act as a limitation on the circumstances in which an order will be made.

50.  Whilst it is clear that “special reasons”, as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006, unreported) at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126] to [128] per Johnson J; Keating at [24]; Boscolo at [18] per French J (as his Honour then was).

51.  Typically, but not exclusively, what will take the matter “out of the ordinary” is:

(a)  an inability to obtain the requisite factual material without the exercise of the discretion;

(b)  that the applicant is in a position of some disability or disadvantage;

(c)  the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d)  that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.”

20. This statement was referred to with approval by Campbell J in McCallum v Reynolds [2016] NSWSC 366 at [18].

21. Thus in order for “special reasons” to be established, the applicant must show the matter is out of the ordinary. Factors include an inability to obtain the sought after information without the interrogatories, the complexity of the matter and whether the applicant has a position of some disability or disadvantage.

22. I have considered the plaintiff’s submissions and affidavit and the factors he relies upon in the context of the interrogatories sought to be administered and in the light of the authorities.

23. In my view, having taken these matters into account, the plaintiff’s application should be rejected for the following reasons:

1. Special reasons are needed for an order for interrogatories in a personal injuries case. I do not consider the present case is unusual or out of the ordinary. Whilst the plaintiff could be said to suffer from a disadvantage as a litigant in person with serious health problems, the case is not in my opinion unduly complex. I am not satisfied on the evidence that the interrogatories could lead to information which could materially advance the plaintiff’s case. Only Mr Zammit, the plaintiff and his wife were alleged witnesses to the accident;

2. The trial of the matter has completed subject to submissions. If leave were granted and the order made, there would be a considerable delay in the finalisation of the matter. Mr Khanna could have sought leave to issue interrogatories during the interlocutory stages of the matter. He did not do so. Accordingly, in my view, granting an order to issue the interrogatories would not be consistent with the over-riding purpose in s 56(1) of the Civil Procedure Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings;

1. The interrogatories to the director and proper officers of the defendant seek in many paragraphs documents and do not ask questions. Interrogatories are not a substitute for discovery;

2. In relation to the earlier non-production of documents by the defendant, this has previously been the subject of Notices to Produce served by the plaintiff. These were followed by an application to issue a subpoena which was dismissed on 22 June 2021. I refer to my reasons in relation to dismissing that Notice of Motion given ex tempore on that day;

3. In relation to Ms Gibson, I expressed the view in relation to the earlier application concerning Ms Gibson that the affidavit paragraphs referred to by the plaintiff were not misleading. Ms Gibson is also not a party: Part 22.1(1);

4. In relation to Dr Machart, he is also not a party to the proceedings: Part 22.1(1). Further, as the defendant submits, the plaintiff could have issued subpoenas to Dr Machart to be available for cross-examination during the hearing but he did not do so. In addition, he tendered the reports of Dr Machart and Dr Samuell as part of Exhibit A in his own case;

5. The interrogatories proposed are also of mixed quality. Often they do not ask specific and relevant questions in clear and direct terms. I take into account that Mr Khanna is self-represented;

6. I do not consider the interrogatories to be “necessary” at the time the order is made. The plaintiff had a full opportunity to pursue relevant documents before the final hearing commenced in the interlocutory stages;

7. There is no evidence that a director or the proper officers identified of the defendant may be able to assist in relation to the particular Rouse Hill store as at April 2015 and the factual matters relating to the plaintiff’s alleged accident even through making enquiries within the defendant. The interrogatories largely deal with matters which were earlier the focus of the two Notices to Produce referred to above.

24. Overall, in the exercise of my discretion, it appears to me that the application by the plaintiff is not established as being in the interests of justice at this stage of the trial. Further, if the application was granted it would cause extensive delays in the proceedings until the interrogatories were served and answered. The plaintiff could have applied to issue interrogatories during the earlier interlocutory stages of the proceedings. He had a full opportunity to ask questions of Mr Zammit during his cross-examination. Ms Gibson and the two doctors are not parties to the proceedings. I emphasise again that the plaintiff’s central case involves negligence in the placement of the subject chairs on which Mrs Khanna allegedly tripped and a failure to warn of the alleged hazard. That is the essence of the case and many of the interrogatories and documents sought relate to irrelevant factors.

25. The defendant seeks costs. The plaintiff submits that no costs should be ordered. As the application has been rejected, costs should usually follow the event. The purpose of costs is to compensate the successful party and not to punish the unsuccessful party. Impecuniosity, as mentioned by Mr Khanna, is not generally a relevant fact in the exercise of the costs discretion. I can see no reason why the plaintiff should not pay the defendant’s costs of the Notice of Motion as agreed or assessed.

26. Accordingly, I make the following orders:

1. The Notice of Motion filed by the plaintiff on 7 July 2021 is dismissed;

2. The plaintiff is to pay the defendant’s costs of the Notice of Motion filed on 7 July 2021 as agreed or assessed.

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Decision last updated: 23 August 2021