Magen v Viney

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MAGEN -v- VINEY & ANOR [2006] WADC 99

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 5 MAY 2006

DELIVERED : 7 JULY 2006

FILE NO/S: CIV 114 of 2005

BETWEEN: GEOFFREY WILLIAM MAGEN
Plaintiff
AND
GEORGETTE PAMELA VINEY
First Defendant
INSUARNCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia O 27 r 5(2), 7 and 9 - Application for answers to interrogatories over objection taken - Consideration of objections to provision of evidence - Consideration of exercise of discretion

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr K Pratt
Second Defendant         :     Mr B Lawrence

Solicitors:

Plaintiff:     Kuscevich & Associates
First Defendant             :     Hoffmans
Second Defendant         :     Lawrence & Howell

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff claims damages for loss as a consequence of personal injury sustained in a motor vehicle accident. His claim, founded upon the negligence of the first defendant, expressed at par 2 of his statement of claim, is along the lines that at an intersection a motor vehicle driven by the defendant proceeded through a red traffic light and collided with his vehicle. He asserts the following particulars of defendant's negligence:
"(i) drove her motor vehicle through a red light;
(ii)failed to keep any or any proper lookout for the plaintiff's motor vehicle;
(iii)failed to brake timeously or at all so as to avoid collision with the plaintiff's motor vehicle;
(iv)failed to steer, manoeuvrer otherwise control her vehicle so as to avoid the collision;
(v)drove her motor vehicle into collision with the plaintiff's motor vehicle;
(vi)was driving her motor vehicle at the material time under the influence of alcohol and in excess of 0.08 per cent;
(vii) was driving too fast in the circumstances."
The first defendant's pleading portrays the vehicles as having entered the intersection on different streets and that the plaintiff's did so contrary to a red light. She contends for the plaintiff's negligence and provides particulars as follows:
"4.1 Drove his motor vehicle through a red traffic light.
4.2Failed to keep any or any proper lookout for the Defendant's motor vehicle.
4.3Failed to brake or avoid the collision with the Defendant's motor vehicle.
4.4Failed to steer, manoeuvre or otherwise control his vehicle so as to avoid the collision.
4.5Was driving too fast in the circumstances.
4.6Drove without due care and attention.
4.7Was confused by the intersection and the sets of lights which follow the intersection."
The first defendant has administered interrogatories to the plaintiff to which he has responded. She has brought the application now before me to contest objections taken to four questions each being that the question calls for evidence. She carries the onus of persuading the court firstly that the objection is insufficient and secondly that the court ought to exercise the discretion provided by O 27 r 7 of the Rules of the Supreme Court in her favour.
The relevant questions are as follows:
"1. Shortly prior to the happening of the accident was the Plaintiff's view of the Defendant's vehicle obscured or obstructed in any way and, if so, in what way?
2.Did the Plaintiff see the Defendant's vehicle prior to the accident? If so, when the Plaintiff saw the Defendant's vehicle:-
(a)how long was it before the accident ie. how many seconds?
(b)At what speed, in which direction and where on the roadway was:-
(i)the Defendant's vehicle;
(ii) the Plaintiff's vehicle;
from the point of the accident?
(c)which lane was the Plaintiff's vehicle travelling in?
(d)how far was the Plaintiff's vehicle from the site of the accident?
3. From the moment when the Plaintiff first saw the Defendant's vehicle prior to the accident until the moment of impact, was there any alternation or alterations in:-
(a)the speed and direction of the Defendant's vehicle;
(b) the speed and direction of the Plaintiff's vehicle?
4. If the Plaintiff answered yes to any part of the preceding interrogatory, state when and where each such alteration occurred, giving the approximate distance in each case from the point of impact."
Order 27 r 9 of the Rules of the Supreme Court provides that the purpose of interrogation is to facilitate the proof of a fact at trial. In considering whether to require a party to answer a question, the focus of the court is to ensure that there would be a fair trial. In other than a special case, that focus would establish that an appropriate form of questioning would put an unambiguous proposition in relation to a discrete fact and call for a response. Such a datum and perhaps even a form of questioning that sought a discrete fact would be contrasted with a question that sought evidence in relation to an issue. The distinction would resonate with other considerations that bear upon the exercise of the discretion expressed at r 7. The court would not impose a more onerous task than would be justified by its evaluation of the context revealed by an application. Whether it stands alone or is informed by r 5 (2) that consideration exposes the prospect that an applicant may justify having recourse to the process but not by the terms of the particular question put. A related consideration is that the benefit expressed in r 9 would be realised by the applicant upon the allocation and expenditure of resources to a response by its opponent, both involuntarily made and at its cost. I accept that against that datum and each of those considerations there is authority to the effect that any question may be put; however where a contest is raised in response to an objection, ultimately the issue to be determined is not whether a question may be put but rather whether that applicant had persuaded the court that it ought to be answered.
One category of special case would accommodate the interrogator seeking to understand the content of a document that contained symbols or jargon. Another may be recognised where an applicant confronting an evidentiary onus had satisfied the court that it did not have access to sufficient resources to enable it to even frame a relevant proposition. In such a case it would be for the applicant to persuade the court that it would be appropriate to confer what may be characterised as an advantage in the action. I would suggest that in undertaking its assessment the court would recognise that it is inevitable that parties would bring different resources to the litigation whether measured qualitatively or quantitatively and that they would not be predisposed to sharing; further that of itself, the fact that it had the power to redress any perceived imbalance in such resources would not justify the exercise of that power; and that ultimately any failure to discharge an onus would not necessarily speak to whether a case had been fairly tried.
Having made those observations, the interests both brought to and generated by litigation make it inevitable that there will be scope to recognise a range of benefits that in every case would emerge from parties obtaining access to their opponent's evidence prior to trial. Because the court promotes the settlement of litigation, as there would be scope to consider that such an exchange may lead to settlement it is appropriate for it to be circumspect and deal with an application on its merits. It is fundamental that there is no rule of general application that establishes that a party is entitled to its opponent's evidence. Any benefit that may accrue to an interrogator beyond facilitating proof of a fact would properly be considered to be no more than incidental.
The first part of question 1 puts a proposition couched in relative terms. It is appropriate to consider that the defendant has chosen not to put a proposition along the lines that any particular object or objects had constituted an impediment to the plaintiff's view of her vehicle. The period of time canvassed by the question is unspecified but it would embrace the same period to which the defendant's particulars of negligence relate. In the event that the plaintiff's view of the defendant's vehicle had been impeded, any relevant object may have been stationary, non-stationary or changing from one such state to another with the result that it along with other similar objects may have had an intermittent impact. The changing position of the parties to the point of convergence would allow for both an increasing and decreasing impact upon the plaintiff's view of the defendant's vehicle with each passing moment or measure of distance. In my opinion each of those observations would both tell against the applicant and complicate the task for the plaintiff in reflecting upon how to respond to the single proposition put. I conclude that in the event that the plaintiff would answer affirmatively he would wish to explain why his view had been impeded. The fact that second part of the question may anticipate that desire does not detract from my opinion that the first part is objectionable.
The second part reveals that the intention behind the first was to establish a basis to call for evidence in relation to an issue.
The sufficiency of the objection taken to one side, any exercise of the discretion expressed at r 7 would be considered in the context provided by r 5 (2). It is to the effect that if ordered to respond to the question the plaintiff would not be entitled to object. Whilst I might infer that because the applicant puts the question without any precision that she had been unable to do any better, to reach that conclusion would fail to recognise that she carries the onus. She was at the intersection at the relevant time and at least broadly speaking would have had the same opportunity as the plaintiff to assess whatever impediment there had been to his ability to see her vehicle. In the absence of any evidence to the contrary it is not unreasonable to consider that there may be other evidentiary resources available to the defendant in the form of independent witnesses. In my opinion where a party carries the onus and brings no substantive evidence or evidence of the inability to do so the inferences first opened for consideration are to some degree all adverse to it. There is nothing to detract from the prospect that the question is any more than speculative and accordingly would not provide a basis to consider the necessity for the provision of a response. I have no difficulty with the prospect that the defendant would benefit from any evidence that would be provided in response. Perhaps the only observation that I would make is that in order to discharge the onus the defendant needs to do more than reveal that she has taken the time and the trouble to put the question.
In considering the dimensions of the exercise of responding to the question I would return to my first observation. The proposition put is so imprecise that it would patently be oppressive to put the plaintiff to the task of determining how to respond in the event that he would answer affirmatively. To provide a comprehensive answer would be by reference to a discrete object or objects in or about the intersection at various points of his approach or entry into the intersection. It would amount to a significant task and patently be oppressive. To consider that the plaintiff would answer in summary form may have some superficial attraction. Such an answer perhaps ought not but inevitably would engage input from the plaintiff's solicitor yet it would be the plaintiff who would be exposed to cross examination upon it at trial. It would seem to me that it would be perverse for the court to allow for the prospect that an oppressive form of question would result in unfairness being manufactured.
In my opinion by its first part question 2 puts an unremarkable proposition. The second parts of the question are conditional upon an affirmative response to the first and put requests for evidence that are complicated by an assumption that the plaintiff saw the defendant's vehicle at only one discrete point prior to the accident. Even if such had been the case, it seeks evidence at the level of detail that to require the plaintiff to respond would be patently oppressive. On what is before me it is appropriate to consider the onus confronting the defendant at two points: presently and at trial. There is no evidence or other material upon which to found the prospect that at trial the defendant would be at any disadvantage. As to the proof of any fact in defence of the plaintiff's claim, she would not be at risk until he exposed himself to cross examination. What may be relevant to consideration of the defendant's ability to discharge the onus in the counterclaim would coincide with the task of discharging the onus in the application. Absent there being any foundation for the perception of a special case there is nothing to justify now giving the defendant recourse to the plaintiff's evidence.
Returning to the first part of the question, in my opinion a positive response without more would be of little utility to the defendant. In the context of the defendant's particulars a negative response may be revealing. It is only because the plaintiff's view of the defendant's vehicle may have been impeded as is suggested by question 1 and would complicate the presentation of a negative response that I not persuaded that I should order that he responds.
Question 3 assumes an affirmative answer to question 2. It calls for evidence at the level of detail sought at the second parts of the earlier questions. There is no reason to consider that the defendant would not be able to both frame propositions as to the speed and direction of her vehicle and to present evidence along such lines at trial. There is no basis to consider that it is necessary for her to seek to engage the plaintiff on the terms proposed. As for the plaintiff's vehicle, there is nothing to indicate that she did not see the plaintiff's vehicle and could not both give evidence at trial and now put particular propositions to the plaintiff.
At the very least question 4 would fall upon the fact that it would be inappropriate to require the plaintiff to answer question 3.
In conclusion I would record that each of the defendants made various submissions along the lines that she was seeking to obtain information relevant to facts in issue, that it was appropriate to obtain statements under oath, that she had sought to determine what had happened, that she needed an understanding of what the plaintiff would say at trial and to provide a basis for cross-examination. In my opinion not only are there no such entitlements but also no reason for the court to take those considerations into account in exercising discretion. I would go so far as to suggest that to adopt any of them would lead to error. The only explanation that I consider to be necessary is that in relation to the first, it is by a process of seeking particulars that appropriate information in obtained in relation to allegations of material fact. Although there is authority for the proposition that to seek particulars is indistinguishable from seeking answers to interrogatories, I would suggest that that would only be the case if one chose to ignore the distinctions between the processes and simply focused upon the potential results of successful engagement.

[2006] WADC 99

7 July 2006