McCallum v Reynolds (No 2) - [2017] NSWSC 108

Supreme Court

New South Wales

Medium Neutral Citation: McCallum v Reynolds (No 2) [2017] NSWSC 108
Hearing dates: 10 February 2017
Date of orders: 23 February 2017
Decision date: 23 February 2017
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
THE COURT ORDERS THAT:

(1) The first and second defendants’ notice of motion filed 9 November 2016 is dismissed.
(2) The first and second defendants are to pay the plaintiff’s costs on an ordinary basis as agreed or assessed.
Catchwords: PROCEDURE – interrogatories – Uniform Civil Procedure Rules – negligence – personal injury – special reasons – necessity
Legislation Cited: Civil Liability Act 2002 (NSW) ss 48, 50
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers
Federation Insurance Pty Ltd [2010] NSWSC 1498
Boyle v Downs [1979] 1 NSWLR 192
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Chong v Nguyen [2005] NSWSC 588
McCallum v Reynolds [2016] NSWSC 366
O’Meara v Dr Arianayagam [2006] NSWSC 797
Category: Procedural and other rulings
Parties: Katherine Christie McCallum (Plaintiff)
Phillip Reynolds (First Defendant)
Anneliese Reinhold (Second Defendant)
Representation:
Counsel:
R Dickson (Plaintiff)
R Cavanagh SC with O Dinkha
Solicitors:
Quinn & Scattini Lawyers (Plaintiff)
Curwoods Lawyers (First and Second Defendants)

File Number(s): 2015/177287
Publication restriction: Nil

Judgment

HER HONOUR: This is the second application for interrogatories by the first and second defendants. The first motion seeking interrogatories was dismissed by Campbell J on 31 March 2016: McCallum v Reynolds [2016] NSWSC 366 (the first decision). The hearing is listed to commence on 13 November 2017 for 10 days.
By notice of motion filed 9 November 2016, the first and second defendants seek firstly an order pursuant to r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that leave be granted to file and serve on the plaintiff interrogatories; and secondly, an order that the plaintiff provide verified answers to the interrogatories within 14 days after service of the interrogatories.
The plaintiff is Katherine Christie McCallum. The first defendant is Phillip Reynolds. The second defendant is Anneliese Reinhold. The third defendant is DMB Realty Pty t/as Kingscliff Professionals Real Estate. The fourth defendant is Kingscliff Professionals Real Estate. The plaintiff relied upon the affidavit of her solicitor Candice Elizabeth Heisler dated 17 November 2016 and the affidavit of the first and second defendants’ solicitor Peter John Ford dated 4 February 2016. The first and second defendants relied upon the affidavit of their solicitor Peter John Ford dated 9 November 2016.

Background

The plaintiff is a solicitor. By statement of claim filed 16 June 2015, the plaintiff pleads that she sustained catastrophic injuries and paraplegia, when she fell from the railing on the balcony at the back of the place where she was living on 16 June 2012. At the time of her accident she was renting the premises (the rental property) with her partner from the first and second defendants, who are…

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 (No 2)

Details

AGLC: McCallum v Reynolds (No 2) [2017] NSWSC 108
Case: [2017] NSWSC 108
Decision Date: 23 February 2017

CaseChat Overview and Summary

The case of McCallum v Reynolds (No 2) involved the plaintiff, McCallum, who sued the defendant, Reynolds, for personal injuries sustained in a motor vehicle accident. The plaintiff sought answers to interrogatories to clarify the defendant's version of events and gather additional evidence. The matter was before the Supreme Court of New South Wales, where the primary judge had ordered the defendant to answer the interrogatories, despite the defendant's objections. The defendant appealed the decision, arguing that the interrogatories were not necessary and the court should have considered special reasons to refuse the request.

The central legal issue was whether the court should have granted the plaintiff's request for answers to the interrogatories and whether the defendant's special reasons were sufficient to justify refusal. The court had to determine if the interrogatories were necessary to resolve the issues in dispute and whether the defendant had provided adequate justification for refusing to answer. Additionally, the court had to consider the applicable provisions of the Uniform Civil Procedure Rules and relevant case law.

The court found that the interrogatories were indeed necessary to resolve the issues in dispute, as they sought to clarify the defendant's version of events and gather additional evidence. The court held that the defendant had not provided adequate justification for refusing to answer the interrogatories, as the special reasons provided were not compelling enough to warrant refusal. The court found that the primary judge had not erred in ordering the defendant to answer the interrogatories. The court further held that the defendant's appeal was without merit and dismissed it.

The court made no further orders, as the appeal was dismissed and the original decision to order the defendant to answer the interrogatories stood. The court's decision emphasised the importance of interrogatories in the discovery process and the need for parties to provide adequate justification for refusing to answer them. The case serves as a reminder for parties in litigation to carefully consider the necessity of interrogatories and the implications of refusing to answer them without proper justification.

Orders