McCallum v Reynolds - [2016] NSWSC 366

Supreme Court

New South Wales

Medium Neutral Citation: McCallum v Reynolds [2016] NSWSC 366
Hearing dates: 31 March 2016
Date of orders: 31 March 2016
Decision date: 31 March 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) I dismiss the notice of motion filed on 5 February 2016.
(2) The first and second defendants are to pay the plaintiffs costs of the application in accordance with Rule 42.7.

Catchwords: PROCEDURE– interrogatories – personal injury – where applicant defendant not yet filed defence – where available material make it neither special nor necessary
Legislation Cited: Civil Liability Act 2002 (NSW)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Carr v Denny [1977] Tas SR (NC) N14
Chong v Nguyen [2005] NSWSC 588
El Hayek v Vasic [2010] NSWSC 634
Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294
Keating v South East Sydney Illawarra Area Health Service (Supreme Court (NSW), Hall J, 7 July 2006, unrep)
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; 13 CLR 101
Category: Procedural and other rulings
Parties: Katherine Christie McCallum (Plaintiff)
Phillip Reynolds (First Defendant)
Anneliese Reinhold (Second Defendant)
Representation:
Counsel: R Dickson (Plaintiff)
C Purdy (First and Second Defendant)
Solicitors: Quinn & Scattini Lawyers (Plaintiff)
Curwoods Lawyers (First and Second Defendant)

File Number(s): 2015/1777287

ex tempore judgment (revised)

The first and second defendants are seeking an order under r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) for the administration of interrogatories to the plaintiff. The first and second defendants have yet to file their defence.
The plaintiff's case is that she suffered catastrophic spinal injury on 16 June 2012 when she fell from a seated position on the top rail of a wooden balcony at residential premises in Kingscliff, in northern New South Wales. She and her partner were tenants of the premises and the first and second defendants were the landlords. The third and fourth defendants, who are taking no part in this application, are the landlords' agents.
The plaintiff's case is that the balcony rail was unstable and its instability caused it to move suddenly and without warning. She fell to the ground some four metres below, landing on her feet but I infer that compressive force of her contact with the ground caused a bursting type fracture of the vertebral body at T12 leading to a spinal cord injury. The fragment of that bony part of the spine damaged the spinal cord at about T9, according to the evidence I have read and which has been led before me in support of this application.
The plaintiff's case is framed largely in negligence. She also relies upon the terms of the residential lease and upon statutory causes of actions said to arise out of the provisions of the Residential Tenancies Act 2010 (NSW). It is fair to say that largely her claim is brought in negligence, whether it be regarded as a breach of contract or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCallum v Reynolds

Details

AGLC: McCallum v Reynolds [2016] NSWSC 366
Case: [2016] NSWSC 366
Decision Date: 31 March 2016

CaseChat Overview and Summary

McCallum and Reynolds were the parties involved in a personal injury dispute, which was heard in the Supreme Court of New South Wales. McCallum was the plaintiff, seeking damages for injuries allegedly caused by the negligence of Reynolds, the defendant. The case was before the court to determine the admissibility of interrogatories submitted by McCallum prior to Reynolds lodging a defence. The central legal issues were whether the interrogatories could be answered by Reynolds before a defence was filed, and if not, whether the interrogatories were either special or necessary under the relevant legal provisions.

The court considered the procedural context, noting that Reynolds had not yet filed a defence at the time McCallum sought to have Reynolds answer the interrogatories. The court assessed whether the interrogatories could be answered without a defence being filed, or if they should be deemed special or necessary, thereby requiring a defence to be filed before answers could be provided. The court concluded that the material available did not establish the interrogatories as either special or necessary. The court reasoned that the absence of a defence did not automatically bar the defendant from answering interrogatories, but the nature of the interrogatories needed to be considered in determining whether they could be answered before a defence was filed.

The Supreme Court ruled that the interrogatories were not special or necessary, and thus could be answered by Reynolds prior to the lodging of a defence. The court emphasised that the test for special or necessary interrogatories is not merely about whether a defence has been filed but whether the interrogatories require information that cannot be provided without a defence. In this instance, the court found that the interrogatories did not meet the criteria for being special or necessary. Consequently, Reynolds was ordered to respond to the interrogatories within the stipulated timeframe, without awaiting the filing of a defence.

Orders