Kraschnefski v Kelly Services (Australia) Limited & Others

[2013] QDC 321

DISTRICT COURT OF QUEENSLAND

CITATION:

Kraschnefski v Kelly Services (Australia) Limited & Others [2013] (delivered ex tempore) QDC 321

PARTIES:

CLAYTON RONALD KRASCHNEFSKI
(plaintiff)

v

KELLY SERVICES (AUSTRALIA) LTD
(first defendant)

And

BANDAG MANUFACTURING PTY LIMITED

(second defendant)

And

DEMAG CRANES & COMPONENTS PTY LTD

(third defendant)

And

AUSTFURN ENTERPRISES PTY LTD

(fourth defendant)

FILE NO/S:

1080/2013

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

1 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2013

JUDGE:

Samios DCJ

ORDER:

 1. Application insofar as it relates to the first defendant and fourth defendant is dismissed.
2. Plaintiff to pay the first defendant’s and fourth defendant’s costs to be assessed on the standard basis.

CATCHWORDS:

PRACTICE - interrogatories- whether the plaintiff be granted leave to deliver interrogatories to each of the first, second, third and fourth defendants in terms of the draft interrogatories filed in support of the application.

Legislation

R 230 Uniform Civil Procedure Rules

COUNSEL:

Mr Stoble for the plaintiff

Mr Myers for the fist defendant

Mr Braithwaite (sol) for the third defendant

Mr Holyoak for the fourth defendant 

SOLICITORS:

McNamara and Associates for the plaintiff

BT Lawyers for the first defendant

Rogers Barnes & Green for the third defendant

Barry.Nilsson For the fourth defendant

1. This is an application by the plaintiff for an order that pursuant to rule 230 of the Uniform Civil Procedure Rules the plaintiff be granted leave to deliver interrogatories to each of the first, second, third and fourth defendants in terms of the draft interrogatories exhibited to the affidavit of Mr Wilkinson that was filed in support of the application. The application in relation to the second and third defendants has been resolved between the plaintiff and those defendants. Those defendants have agreed to answer the relevant interrogatories. I have made orders with respect to their answering those interrogatories, however the first defendant and the fourth defendant oppose the application.

1. The proceedings by the plaintiff are for damages for personal injuries he sustained on or about the 10^th of April 2008 in the course of his employment by the first defendant.  He also claims against the other defendants, alleging those defendants were guilty of negligence.  The plaintiff’s claim is based on an allegation that he was working with a hoist attached to the KBK crane system.  One of the vertical rods supporting the KBK crane system came loose, causing the hoist to fall and strike him, causing him injury.  The allegation is that the vertical rod was designed to retained and positioned by an R clip.  The plaintiff alleges no R clip was in position on the vertical rod at the time of the incident.

1. Further, that no R clip was in position on the vertical rod as at or about 22 December 2006, being the last date that the third defendant was scheduled to maintain and service the KBK crane system.  He alleges that had an R clip been in position at the time of the incident, the vertical rod would not have come loose.  He alleges the absence of the R clip was the result of either the failure to install the R clip or the installation of a faulty R clip or the removal of the R clip during maintenance and servicing.  He alleges that had the R clip been faulty, that fact would have been readily ascertainable to the person performing the installation and to the person inspecting the R clip in its installed position.

1. There are defences by each of the defendants. Relevant admissions have been made by each of the defendants. It is to be noted that in the current form that pleadings take under the Uniform Civil Procedure Rules, a defendant no longer can not admit an allegation and if denies an allegation gives a reason for the denial. While I cannot say that I have read line for line each of the allegations in the statement of claim as against each of the defendants’ defences, it appears to me that a substantial number of admissions have been made to support the plaintiff’s claim in the sense of the relevance of the defendants, and with the second and third defendants answering interrogatories the plaintiff will also have available to him admissions from that source.

1. Also, there is a incident report prepared by an employee of the fourth defendant who came on the scene and made relevant observations. That evidence is also available to the plaintiff. As the affidavits of the solicitor, Ms Lythall, for the first defendant and Ms Davis, solicitor for the fourth defendant, show, there is no useful information that the first defendant and fourth defendant can depose to. Rule 230 provides that, “Subject to an order of the court, the court may give leave to deliver interrogatories only if the court is satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory.”

1. In my view, the applicant’s application does not demonstrate that he does not have available to him another reasonably simple and inexpensive way of proving the matters sought to be elicited by the interrogatories.  The evidence also before me shows that the first defendant is not in a position to deal with what has been sought to be interrogated about.  The same can be said for the fourth defendant.  As I have said, the plaintiff would appear to be as informed as it is fair enough for him to be informed about the accident and the possible cause or causes of the accident.  I should also say that I accept the submissions made by Mr Holyoak on behalf of the fourth defendant that the interrogatories also suffer – that is, those proposed to be delivered suffer in many respects, which are outlined in his submissions, which I do not intend to paraphrase and place in these reasons.

1. At the end, having considered all the submissions and the evidence made by all the parties on this application, I am not prepared to exercise my discretion to order the first and fourth defendant to answer the proposed interrogatories, so the order I make is the application insofar as it relates to the first defendant and fourth defendant is dismissed.

1. I order the plaintiff to pay the first defendant’s and fourth defendant’s costs to be assessed on the standard basis.  I’ll add to my reasons on the record that I consider that costs should follow the event.  I consider that while the plaintiff may have been successful in relation to having two of the defendants answer interrogatories, it seems to me concessions were made as to costs orders in relation to those parties, and in relation to these parties, they rightly resisted the application.