| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : McFARLANE & ORS -v- SHIRE OF AUGUSTA-MARGARET RIVER [2002] WADC 69 CORAM : DEANE DCJ HEARD : 5 OCTOBER 2001, 17 JANUARY 2002 DELIVERED : 9 APRIL 2002 FILE NO/S : CIV 3522 of 1997 BETWEEN : ANNE PATRICIA McFARLANE First Plaintiff (Appellant)
HELEN ELIZABETH THOMPSON
Second Plaintiff (Appellant)
GRANTLEY OTTO
Third Plaintiff (Appellant)
LESLEY JANE BREMNER
Fourth Plaintiff (Appellant)
ANTHONY JOHN MORGAN
Fifth Plaintiff (Appellant)
MARILYN JOY STANDEN
Sixth Plaintiff (Appellant)
CORRINA IDDON
Seventh Plaintiff (Appellant)
TERRY SOTIRIADIS
Eighth Plaintiff (Appellant)
AND
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SHIRE OF AUGUSTA-MARGARET RIVER
Second Defendant (Respondent)
Catchwords: Appeal from decision of Deputy Registrar - Refusal of respondent (second defendant) to answer interrogatories administered on behalf of appellants (plaintiffs) - Function and relevance of interrogatories - Whether interrogatories objectionable - Scope of interrogatories
Legislation: Nil
Result: Appeal dismissed
Respondent has provided sufficient answers to interrogatories 14, 16, 21 and 24
Respondent not required to provide answers to any of the remaining interrogatories in issue Representation:
Counsel:
First Plaintiff (Appellant) : Mr M E Herron
Second Plaintiff (Appellant) : Mr M E Herron
Third Plaintiff (Appellant) : Mr M E Herron
Fourth Plaintiff (Appellant) : Mr M E Herron
Fifth Plaintiff (Appellant) : Mr M E Herron
Sixth Plaintiff (Appellant) : Mr M E Herron
Seventh Plaintiff (Appellant) : Mr M E Herron
Eighth Plaintiff (Appellant) : Mr M E Herron
Second Defendant (Respondent) : Mr P Mendelow
Solicitors:
First Plaintiff (Appellant) : Hammond Worthington
Second Plaintiff (Appellant) : Hammond Worthington
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Third Plaintiff (Appellant) : Hammond Worthington
Fourth Plaintiff (Appellant) : Hammond Worthington
Fifth Plaintiff (Appellant) : Hammond Worthington
Sixth Plaintiff (Appellant) : Hammond Worthington
Seventh Plaintiff (Appellant) : Hammond Worthington
Eighth Plaintiff (Appellant) : Hammond Worthington
Second Defendant (Respondent) : Phillips Fox
Case(s) referred to in judgment(s):
Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481
Bonding v Spring and the South Australian Railways Commissioner [1959] SASR 33
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699
Kirkup v British Rail Engineering Ltd [1983] 3 All ER 147
Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32
Peek v Ray [1894] 3 Ch 282
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Sharpe v Smail (1975) 5 ALR 377
Simpson v Midalco, unreported; SCt of WA; Library No 6665; 19 March 1987
Spedley Securities Ltd (In liq) v Yuill (No 4) (1991) 5 ACSR 758
Tooth & Co Ltd v Lane Cove Municipal Council (No 4) [1968] 2 NSWR 17
Case(s) also cited:
American Flange v Rheem (Aust) Pty Ltd (No 2) [1965] NSWR 193
Aspar Autobarn Co-operative Society v Dovala Pty Ltd (1987) 74 ALR 550
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Austin v Austin [1905] VLR 377
Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703
Corsair & Consolidated Gold Mines Ltd v Gray (No 1) (1899) 5 ALR 115
Derham v AMEV Life Insurance Co Ltd (1978) 20 ACTR 23
Dunbar v Perc [1956] VLR 583
Hawkes v Schubach [1953] VLR 468
Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468
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Hughes v WA Cricket Association [1986] ATPR 47,931
Konings v Naylor [1964] Qd R 235
Looker v Murphy (1889) 15 VLR 348
Marriott v Chamberlain (1886) 17 QBD 154
McBride v Sandland (1917) SALR 249
Mulley & Marney v Manifold (1959) 103 CLR 341
Norton v Hoare (No 2) (1913) 17 CLR 348
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101
Rofe v Kevorkian [1936] 2 All ER 1334
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1 DEANE DCJ: Originally the plaintiffs (whom I shall refer to in these reasons as the appellants) administered approximately 42 interrogatories to the second defendant (whom I shall refer to in these reasons as the respondent) for answer. Twenty six of those interrogatories are the subject of challenge; they being interrogatories 4, 5, 7, 10, 11, 12, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 32, 33, 34, 35, 37, 39 and 41. By notice of appeal dated 4 July 2001 the appellants seek to appeal the orders made by a Deputy Registrar of this Court on 29 June 2001 whereby the appellants' application for answer to the interrogatories issued by them to the respondent was dismissed. As I understand it, the matter then came before a Commissioner of this Court who was of the view that the interrogatories in question were too widely drafted and should be refined. I am informed that the appellants were advised to bring the matter on again when this had been done. Subsequently apparently the respondent took the view that in order to save time the interrogatories could be administered to them but they reserved their right to object to answering the interrogatories; Peek v Ray [1894] 3 Ch 282.
2 The function or use of interrogatories is to enable one party to obtain from another party particular information concerning facts material to the questions in dispute between the parties for the purpose of obtaining admissions as to those facts. Further, a party may interrogate about matters which go to support that party's case or which destroy or impeach the other party's case. Questions may be asked which might be asked on examination-in-chief of a witness at trial. Relevant to this a party may interrogate on its own pleading as to facts which tend to support that party's case. Questions which relate to matters in issue extend beyond facts directly in issue to other facts, the existence or non-existence of which, are relevant to the existence of those facts which are directly in issue between the parties, although a distinction between these two categories is often subtle and difficult to determine. 3 It is the case, however, that an interrogatory must relate to some definite and existing circumstance and it cannot be posed with a view to discovering material or information of a nature which may assist the party interrogating to make out its case. An interrogatory must be relevant, this being a concept tested with respect to the interrogatory itself and not any answer which may be given to it. The above observations reflect the general and useful commentary found in Ch 5 of "Discovery and interrogatories" Simpson, Bailey and Evans, Butterworths (1984). 4 An interrogatory may be directed not only to matters directly in issue, but also facts relevant to some matter in issue; Sharpe v Smail
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(1975) 5 ALR 377 at 381, however, the interrogatory must still be sufficiently material at the stage at which it is administered: Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481; Bonding v Spring and the South Australian Railways Commissioner [1959] SASR 33. A party may interrogate his opponent as to every relevant matter in which it could examine him if he called him as a witness at trial: Spedley Securities Ltd (In liq) v Yuill (No 4) (1991) 5 ACSR 758. Further, where a party's state of mind or knowledge is in issue, another party may interrogate as to that state of mind or knowledge: Simpson v Midalco, unreported; SCt of WA; Library No 6665; 19 March 1987. This must be qualified, however, in the sense that interrogatories which are directed to the state of a corporate body's "mind" will not be permitted as such an entity does not have a mind: Tooth & Co Ltd v Lane Cove Municipal Council (No 4) [1968] 2 NSWR 17. In that situation interrogatories should be directed to enquiring as to whether any specified individuals or offices within the corporate body possessed a state of mind which is the subject of the interrogatory. 5 As was observed by Owen J in Dalecoast Pty Ltd v Monisse [1999] WASCA 103 "it is often the case that the benefit to be obtained from delivering interrogatories is far outweighed by the inconvenience and expense to the other party in having to answer him". Where interrogatories are administered they should be drafted with considerable rigour because if they are so widely drawn as to be vague they may be regarded as oppressive: Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699; Kirkup v British Rail Engineering Ltd [1983] 3 All ER 147. Similarly interrogatories which are imprecise may be regarded as oppressive: Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32 at 34. 6 The appellants argue that the interrogatories administered by them to the respondent are relevant to issues pleaded in the claim with respect to the respondent in paragraphs 14, 14A and 15. They claim that issues such as whether the respondent had or shared control of the land where the cliff was located and had responsibility for the works and activities carried out on that land, is an important area of investigation as is the relationship that existed between the respondent and members of the public arising out of the occupation, control or sharing the control of the land between the respondent and others who are also defendants in the action. Arising out of this it is submitted there is the question concerning the knowledge of the respondent, its representatives, servants or agents in respect of the geology of the coastal beaches and bays in the South West Littoral of the State, in particular the coastal areas backed by limestone cliffs.
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7 The appellants wish to question the respondent as to what it knew or ought to have known prior to the collapse of the cliff, concerning the dangers to the public of the risk of sudden collapse due to the instability of that cliff. Further, they wish to know what steps or measures were taken by the respondent in the light of this knowledge, with respect to inspecting and maintaining the cliff and warning the public of the danger. The appellants' view is that the respondent, being a local government municipality with responsibility for the area in which the cliff collapse occurred, should reasonably have kept records of, or at least have access to the records and notes of any meetings held and incidents reports as well as works and activities approved or undertaken on the land. In that way they say it would not be unduly difficult or possible for the respondent to supply answers to the interrogatories administered.
8 Relevant to the above argument it is helpful to know something of the general background to this matter. The accident the subject of the proceedings occurred in September 1996 when a limestone cliff face collapsed and fell on a number of people who were underneath or near the cliff base. The respondent is a local government authority and the appellants allege that the land in the area where the cliff was situated and the surrounding land were vested in the local government authority. The appellants therefore argue that the respondent in a general sense had responsibility for the land and control of that land in that it had management of the land, which carried with it certain statutory obligations and duties as well as common law obligations and duties. Without going into unnecessary details for the purpose of this decision the appellants argue that when the matter proceeds to trial in considering the nature and extent of the alleged duty of care it will be necessary to consider the relationship of the respondent to the land in question. It will be necessary to consider the extent to which the respondent managed and controlled that land or exercised control over it and the manner and extent to which it used the land and in particular the extent to which the respondent encouraged members of the public to use the land or permitted them to use the land. 9 Similarly the appellants argue that it is relevant to consider the purpose for which people entered on to the land and the knowledge of the respondent as to the purpose for which they were using the land, so it will be necessary for the Court to consider the issue of duty of care and the scope and extent of that duty. This is why the appellants claim that it will be necessary to examine in detail the relationship of the respondent to the land in question and what the respondent did over potentially a long period of time relevant to that land and its knowledge of persons using the
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land. In that sense it is submitted that there is a relationship of proximity between the respondent and the land in question and the respondent and the appellants for the deceased. In this context the appellants rely on Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. 10 In this case the appellants' counsel argued that concern is not so much with any positive actions taken by the respondent as a local government authority, but its alleged failure to take action. In the end, as I understand the position of counsel for the appellants, although it may be said that the majority or at least some of the interrogatories are fairly broadly drafted, that is because it will be necessary ultimately for the Court to consider the relationship of the respondent to all the land in the area and its control of a similar kind to the land the subject of the specific proceedings in order to assess the extent of the duty of care owed by the respondent and what it did in relation to the area of land in question and what it should reasonably have done in the circumstances. It is submitted that the Court will need to consider the relationship of the respondent to the area of land where the accident occurred as well as in a more general way the relationship between the respondent and the coast under its control (which had vested in it) and in particular areas of a similar hazardous nature to where the incident the subject of these proceedings is said to have occurred. 11 Again, as I understand it, counsel for the appellants concedes that this is a fairly wide ranging area of investigation but argues that it can be approached in a commonsense manner by the respondent in answering the interrogatories because, for example, phrases such as "South West Littoral" and "Environs" have been defined when referred to in the affidavit accompanying the interrogatories that were administered. Further counsel for the appellants submit that a map attached to the document sufficiently deals with any criticisms of vagueness levelled at the form of the interrogatories. It is argued that it will be important for the appellants at trial in establishing the duty of care and the extent of that duty to demonstrate or prove how the respondent related to the land in question over a period of time. As the alleged incident occurred in September 1996 and the interrogatories date back to a period of time in about 1983 one is looking at a period of some 13 years or so. For this reason the appellants argue that the interrogatories are not open-ended in the sense that they go back over an indefinite period of time, but rather they cover a specific period of time which it is conceded is comparatively lengthy. In referring to Simpson v Midalco (supra) the appellants argue
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that the burden placed on the respondent in answering interrogatories of this nature is not oppressive. 12 It is against this general background that I now turn to an examination of the interrogatories administered on behalf of the appellants and the respective arguments relevant to those interrogatories put on behalf of both parties.
Interrogatories 4 and 10 13 Interrogatory 4 seeks information about a specific event being the removal of a cliff overhang some distance from the cliff in question. The event is pleaded and the respondent admits that it occurred. 14 The respondent objects to answering the interrogatory on a number of grounds, namely that it is oppressive as it is vague and uncertain, it is fishing, it is irrelevant, it assumes facts in issue and calls for an opinion as well as the respondent's state of mind. 15 The interrogatory enquires whether in or about July 1984 the second defendant (being the respondent) became concerned about a particular limestone ledge some 300m to 500m away from the cliff in question and further whether the concerns led to any action on the part of the respondent. At the outset I accept the respondent's submission that not only does the interrogatory seek information relating to an event which occurred a considerable time ago, more particularly it is vague in its use of the language "became concerned" and relevant to that it also seeks to attribute a potential state of mind to a local authority. Counsel for the appellants did not take issue with the fact that a local authority as such does not have a state of mind and sought leave to delete the words "became concerned" and substitute the words "took any action". In my view in the circumstances it would not be fair or appropriate to allow such an amendment at this stage of the proceedings, given the history of this matter and for that reason interrogatory 4 is in my view impermissible and the respondent should not be required to answer it on the above basis alone. 16 Interrogatory 10 asks whether the second defendant (respondent) as a result of its knowledge of limestone cliffs or otherwise had "formed the view" between June 1983 and prior to the accident in September 1996 that the limestone cliffs were inherently otherwise dangerous and when that occurred. This interrogatory is objected to on the basis that it is oppressive for vagueness and uncertainty, it is fishing, assumes facts in
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issue and borders on cross-examination. Finally, it is argued that it is directed at the respondent's state of mind. In the light of this final objection once again I was not minded to permit counsel for the appellants to amend the interrogatory to remedy this defect by substituting the words "received advice or information" so that it did not attempt to probe the state of mind of the local authority as to it having "formed a view". For this reason, without referring to the other objections raised, I consider interrogatory 10 to be impermissible and on that basis alone the respondent should not be required to answer it.
Interrogatory 5 17 This interrogatory seeks information regarding whether as at November 1991 or any subsequent time prior to the accident, the respondents received any communications from a person or organisation concerning any blasting to any limestone cliffs in the environs of the South West or the South West Littoral and whether in effect if any action was taken in response. 18 It is correct that the event referred to in the interrogatory covers a much shorter timeframe than some of the other interrogatories administered and the respondent admits in par 5 of its defence that some blasting occurred at or about this time. Nonetheless the terminology employed in the interrogatory is in my view vague and uncertain by use of phrases such as "any communication", "any blasting", "any limestone cliff" and makes reference to what would appear to be a fairly large area being the environs of the South West Littoral. The method of communication for example (if there was any), is not specified and if indeed an incident of the nature contemplated did occur somewhere else or in another area, there is a general question of relevance which is raised and is a matter of concern. It is not clear or evident what the nexus of blasting, if it occurred elsewhere than the area in question or the subject of these proceedings, has with the cliff face in question. For this reason I consider interrogatory 5 to be impermissible and take the view that the respondent ought not be required to answer it.
Interrogatory 7 19 The appellants' arguments with respect to interrogatory 7 were similar to those raised in relation to interrogatory 5. This interrogatory enquires whether the respondent took or caused to be taken any steps during June 1983 and subsequently prior to the accident by way of
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inspection or otherwise, to determine whether all or any of the cliffs in the environs were a potential hazard to persons and requests a description of any steps so taken. The appellants plead against the respondent that it failed to take any or any adequate steps to inspect the general topography of Huzza's beach to determine the safety of the cliff. In order to answer this interrogatory the respondent would be required to make enquiries spanning a period of about 13 years relevant to some very general matters as reflected in the use of terminology such as "any steps" and "all or any of the cliffs in the environs". From a practical perspective it may well be that the respondent, in attempting to answer such an interrogatory would have to make enquiries of a considerable number of persons who may not easily be located or may not be able to be located at all. Further, use of the phrase "a potential hazard" does not make it clear as to what type of hazard the appellants have in mind. Although it is a small point, one interpretation of this interrogatory is that it appears to proceed on an assumption that all the cliffs or some of the cliffs in the environs presented a potential hazard. In my view the interrogatory is vague, oppressive in the circumstances and assumes facts in issue. For those reasons the respondent should not be required to answer interrogatory 7.
Interrogatory 11 20 In this interrogatory the appellants enquire as to whether between about July 1984 and subsequently prior to the alleged accident in September 1996, the respondent was aware or had been advised that there were any overhangs or limestone cliff in the environs or the South West Littoral of the State which were a potential hazard to human life or safety and if that was the case, to advise the location of such overhang or cliff and state what steps or action were taken relevant to it by the respondent. The appellants argue that the interrogatory is relevant to the knowledge of the respondent as to the inherent dangers of limestone cliffs. 21 This interrogatory is widely drawn as it refers to any overhang or limestone cliff in a comparatively large geographic area. In this respect I consider the interrogatory also to be somewhat oppressive. It covers both a large geographic area and makes an enquiry spanning approximately a 12 year timeframe, which in the context of the position of the respondent and the types of enquiries it would have to make and the sources it would have to go to to make those enquiries, renders the interrogatory oppressive. Finally, the phrase "potential hazard to human life or safety" is imprecise in that it does not in any way state or pinpoint any precision the nature of the hazard contemplated. For these reasons I do not consider
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that interrogatory 11 is permissible and therefore the respondent should not have to answer it.
Interrogatory 12 22 This interrogatory enquires whether the respondent between June 1983 and subsequently prior to the date of the accident had in place any programme, system or policy for the assessment of natural hazards, limestone or other cliffs in the environs and requests that if that was the case, the respondent provide a full description of those matters, the manner in which they were expressed and the extent to which they were implemented. An initial difficulty with this interrogatory is use of the terminology "natural hazards". That term does not seem to be defined and could cover a wide range of incidents such as fires and earthquakes which would not be confined to cliff areas. If any policy or system or programme was in place in written form relevant to this issue, one would assume that such documentation would have been discovered by the respondent and for that reason I consider there is merit in the respondent's criticism that the question appears to be in part a collateral attempt to test the adequacy of the respondent's discovery. For these reasons this interrogatory is impermissible and I do not consider the respondent should be required to answer it.
Interrogatories 14 and 16 23 Interrogatory 14 enquires whether the land on which the cliff was located at the time of the accident was at the time vested in the respondent and if so when it so vested. The respondent has in fact supplied an answer to the interrogatory, in the sense it has indicated that surveys undertaken by the first and third defendants to the action, through expert surveyors after the accident, measured and placed the geographic location at the cliff to be 5 to 10m within the surveyed boundary of Reserve No 27618, being a Reserve vested in the respondent under s 33 of the Land Act 1933-1963 since 1981 for the public purpose of recreation. 24 Counsel for the appellants concedes that this interrogatory has been answered in the sense that it has not been objected to but rather the criticism is that the answer is not direct. As I understand it, the respondent argues that the answer supplied to interrogatory 14 is adequate because it is directed to the issue raised and further where par 14 of the statement of claim alleges that there was a vesting, par 5.3 of the respondent's defence admits that this was so and occurred in 1981. For
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that reason the interrogatory appears to address a matter which is not in issue. Taking the above into consideration I am of the view that interrogatory 14 is sufficiently and adequately answered and nothing more is required by way of answer from the respondent to the questions posed. 25 Interrogatory 16 enquires whether immediately prior to the accident the respondent was aware that the cliff was vested as at 7 September 1996 for a purpose or purposes and, if so, specified the purpose or purposes. 26 I accept the respondent's contention that interrogatory 16 is adequately answered in that whilst the respondent accepted since 1981 a public vesting of Reserve No 27618, it had not conducted any specific survey so as to plot the precise location of the cliff within that Reserve. It was not until after the accident that expert surveys were undertaken, the results of which appraised the respondent for the first time that the cliff was in fact within the above Reserve. 27 Clearly since 1981 the respondent had accepted a public vesting of the Reserve in it, but had not conducted a specific survey to plot the precise location of the cliff. This only occurred after the accident in September 1996 and it was only then that the respondent became aware that this specific cliff was within the vested Reserve. In all of the circumstances I consider that the respondent has answered this interrogatory to the best of its ability and for the reasons which are evident in the answer I do not consider they could have gone beyond supplying the information that they did. For this reason in my view the interrogatory has been both adequately and appropriately answered by the respondent.
Interrogatory 17 28 This interrogatory is in a number of parts and covers the period between June 1983 and prior to September 1996. It enquires whether the respondent was aware that the removal of sand under the cave of a limestone cliff increased the risk of collapse. In a similar vein it enquires whether the lighting of a fire in a cave under the limestone cliff would have a similar effect, as would rainfall. Further, it asks whether the second respondent became aware that exposure on the seashore renders coastal limestones vulnerable to marine erosion, salt crystallisation, wind erosion and rain and wind impact and whether coastal limestone land forms, being subject to continuous change, can as a result be manifested as a cliff collapse.
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29 Counsel for the appellants argued that the removal of sand and erosion are pleaded as an alleged cause of the cliff collapse and referred to in answer 7 to the respondent's request for further and better particulars of claim. The reference to a fire increasing risk of collapse is said to be relevant to use by members of the public which is alleged in par 15 of the statement of claim. The remaining matters in that interrogatory are also said to be issues raised in par 15 of the statement of claim and the appellants' answer 6 to the respondent's request for further and better particulars. Generally I therefore accept that the matters raised are relevant to issues pleaded in the action, at least in part, but there are other difficulties with the interrogatory. Once again it covers a 13 year period of time prior to the accident making enquiries in order to answer these queries would, I consider, be oppressive to the respondent. Generally each part of this interrogatory relates to facts or contentions in issue and which are yet to be proved. Considered as a whole in a general way, the questions asked involve matters which arguably would form the basis of an expert assessment by a geologist or qualified person in that field and the subsequent provision of expert evidence. For these reasons I do not consider that the respondent is in a position to, or could properly, answer the questions raised in interrogatory 17 and is therefore not required to do so.
30 The issue of the lengthy timeframe to which many of the interrogatories are directed is raised in response at least in part as to why the respondent should not have to answer a number of these interrogatories. In that context as I have previously noted, the appellants' counsel has referred to the case of Simpson v Midalco (supra). It should be made clear that counsel for the respondent does not argue that merely because one has to go back over a period of very many years in order to obtain information to answer an interrogatory, that such an exercise automatically constitutes oppression. There is in my view merit in the argument posed by counsel for the respondent in that a company such as Midalco is a different situation than a Shire Council. From a purely practical perspective a Shire Council is differently constituted than a company. Councillors often stay for only one term and if not re-elected move on or even move away from the district. Councillors may receive all sorts of information from a number of different sources and that information may not either be reliable or capable of being tested in any meaningful way.
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Interrogatory 19
31 This interrogatory enquires whether between June 1983 and subsequently prior to the accident, the respondent became aware of a fire or fires that had been lit from time to time under the cliff and when they became so aware. It is argued this relates to use of the area by members of the public as alleged in par 15(a)(ii) of the statement of claim. In my view this interrogatory in its current form is inadmissible because it assumes fact in question and as I understand the respondent's position they do not concede that a fire or fires had been lit at any time under the cliff. Furthermore, the interrogatory is objectionable in that it seeks to elicit from a corporate body a state of mind and is not directed to a particular individual. It is not required to be answered by the respondent.
Interrogatory 20 32 This interrogatory enquires generally whether between April 1995 and the date of the accident the respondent received or had any knowledge of any communications from any person or organisation concerned about the erosion of tracks and pathways near the cliff and, if so, what action was taken by the respondent in response and when such action was taken. As drafted this interrogatory is oppressive because of the width of the terms of phrases such as "any communications from any person or organisation" and further it seems to me that again the question is not directed at any particular nominated individual but rather it is just generally directed to the entity concerned and its state of mind or knowledge which is not permissible.
Interrogatory 21 33 This interrogatory enquires whether in June 1983 and subsequently prior to the accident the respondent received or had any knowledge of any communications from any person or organisation concerned about the safety or stability of the cliff and, if so, what action was taken or caused to be taken by way of response. Whilst objecting to answering the interrogatory the respondent appears to have provided a qualified answer to the query, in that it advises that relevant to written communications received by it, a review of the records in the respondent's possession from 1983 onwards discloses no communications of the nature described were received by it. Despite this, I accept the argument that the interrogatory is to be criticised because it is drawn very widely and in somewhat vague terms. Further, it ranges over a 13 year period and in all of the
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circumstances of this case I consider it to be oppressive to require the respondent to make the sort of enquiries that would be necessary of what may well be a very large number of people in order to ascertain such information, even if the interrogatory was not widely and vaguely drawn. Finally, again despite the qualified answer I take the view that on one interpretation this interrogatory seeks to impugn the adequacy of the respondent's discovery. The fact that the interrogatory may be relevant to the issues of control and occupation alleged against the respondent in par 14 and par 14(a) of the statement of claim does not remedy the defective nature of the interrogatory as it is currently drafted.
Interrogatory 22 34 Interrogatory 22 enquires whether between June 1983 and subsequently prior to the accident the respondent received or had knowledge of any communications from any person or organisations concerned about the safety or the stability of any limestone cliffs in the Environs of the South West Littoral of the State other than the cliff and to detail what action, if any, was taken or caused to be taken by the respondent. Once again the interrogatory as drafted suffers from the difficulty that it is in wide and vague terms and covers a 13 year period. For the reasons previously stated I consider it would be oppressive to require the respondent to answer this interrogatory in its current form.
Interrogatory 23 35 This is similar in nature to the preceding interrogatory in that it covers the same timeframe and enquires whether the respondent received or had knowledge of any communications from any person or organisation concerned about the safety or stability of any limestone cliff and the nature of the action, if any, that was taken by the respondent to that. For precisely the same reasons as stated relevant to the preceding interrogatory I do not consider that the respondent should be required to answer interrogatory 23.
Interrogatory 24 36 The respondent is required to state whether prior to the accident it erected or was responsible for the erection of signage in the environs with particular wording effectively requiring persons in the area to keep to the walkway as it was a rehabilitation area and advising there was no access to Huzza's Beach from the pathway and to keep to the pathway to allow
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natural revegetation. There was also an international "No Pets" signal. If such signage was erected then there are queries as to its dimensions, location and when it was so erected. The appellant argues that the interrogatory is relevant to an allegation of control particularised in par 14 and par 14(a) of the statement of claim and also an allegation of failure to erect signs relevant to par 15(k)(v) of the statement of claim. For those reasons I do not accept the objection that the interrogatory enquires about matters that are entirely irrelevant to the pleaded issues in the case. I further reject the respondent's argument that the word "responsible" as used in the interrogatory raises an issue question of law. On one interpretation this might be so, but looking at the interrogatory as a whole the sense of the word "responsible" as it is used, clearly is directed towards whether the respondent caused an action to be undertaken or carried out the action itself. Nonetheless in par 24.3 of its answers and objections to the interrogatories the respondent, in my view, has provided a qualified answer to the interrogatory in that it advises that it carried out a review of all the records in its possession extending back to 1983 and the result indicated that the respondent had no record suggesting that it erected any such signage in the area prior to the accident. In all of the circumstances I consider that the respondent has provided an adequate answer to the interrogatory.
Interrogatory 25 37 Interrogatory 25 enquires whether between June 1983 and subsequently prior to the date of the accident the respondent erected or was responsible for the erection of any signs in the environs and to give details of the sign such as its wording, its size and when and where it was erected. There is in my view merit in the respondent's objection that the interrogatory is both vague and wide referring to "any sign" and "in the environs". On this basis its relevance is questionable and given the period it covers and the wide and general nature of the enquiry it is in my view oppressive. Considering the wide and general nature of the interrogatory it is difficult to see how it can be said that it goes to the allegation of control as particularised in par 14, par 14(a) and par 14(c) of the statement of claim. Even if in the end the enquiry was found to be relevant to the issues in dispute, that alone would not be a basis for permitting the interrogatory.
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Interrogatory 26
38 Interrogatory 26 enquires whether from June 1984 and subsequently prior to the accident the respondent was consulted to obtain its comments on, give its approval to, or authorise the erection of any signs in the environs and to state the signs in relation to which it was consulted and when that occurred as well as who consulted the respondent and where such signage was to be located. Once again the interrogatory is very widely drawn as it relates to "any signs" and "in the environs". It also covers a 13 year period and in the circumstances it would be oppressive to require the said respondent to answer covering a substantial period of time. In relation to the question of consultation the interrogatory suffers from vagueness and wideness in the sense that it is not limited in any way as to a nominated person or group of persons or organisation or any other generally identified entity.
Interrogatory 29 39 This is said to be relevant to the improvements pleaded in par 14(c) of the statement of claim because it enquires whether as from June 1983 and subsequently prior to the accident the respondent gave its approval to, was consulted or its advice sought, or made any comments in relation to the erection, care and maintenance of facilities and the natural environment in the environs including, without limitation, in relation to the carpark and toilets near the cliff, rubbish bins and steps, tracks and pathways giving access to the cliff and beach adjacent to the cliff. The appellants argue that this interrogatory (and indeed interrogatory 30) are more specifically worded in an attempt to identify in a precise or more precise manner the respondent's relationship to and involvement with the facilities nominated. 40 Despite the attempt at precision, there are still difficulties with the interrogatory by use of the terms "any comments", "of facilities and the natural environment in the environs" and "without limitation" and for that reason alone, in particular given the timeframe in question, the interrogatory is oppressive. I accept the argument that it is also vague in that it enquires if the respondent made "any comments" in relation to certain matters.
Interrogatory 30 41 Interrogatory 30 is very similar to interrogatory 29 in that it is said to be relevant to improvements made and control over those improvements
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as pleaded in par 14 of the statement of claim. Specifically interrogatory 30 requests that if the answer to interrogatory 29 is in the affirmative, then the respondent is asked to provide full details of the approval sought, consultations or advice given and to whom it was given, when it was given, details of any approvals, advice or comments given or made by the respondent and whether they were adopted or in any way acted upon. As I do not consider that the respondent is required to provide an answer to interrogatory 29 it follows that it is not required to provide an answer to interrogatory 30. For completeness the same sort of general criticisms directed at the nature and structure of interrogatory 29 can be directed towards interrogatory 30.
Interrogatory 32 42 Counsel for the appellants contend this interrogatory is directed to whether the respondent prepared or resolved to prepare guidelines in relation to the cliffs, roadways and pathways where the accident occurred and at Huzza's Beach. The interrogatory specifically enquires whether if it occurred this was in about September 1985. It is said that the interrogatory is relevant to the allegation of control and alleged failures set out in par 15 of the statement of claim as well as the instability pleaded in that same paragraph and the appellants' further and better particulars concerning par 15 of the statement of claim. It would appear that the respondent discovered a document (document discovery No 481) and I accept that one cannot interrogate on the contents of a document. That does not preclude one's attention being directed to the document and certain questions being asked but beyond that questioning as to its contents is not appropriate. The respondent should not be required to answer this interrogatory in its current form.
Interrogatory 33 43 Interrogatory 33 asks whether the respondent gave its approval to the use of Cowaramup Bay for vacational swimming classes between 7 January 1984 and 1 February 1984 or at any time subsequently prior to the accident and if that occurred to provide full details of such approvals including when they were given. This is said to be relevant to the issue of the respondent's control of the land and the allegation it facilitated access to the beach and cliff face as pleaded in par 15 of the statement of claim. It is also said that these two areas referred to in the interrogatory are within the proximate area and the enquiry is relevant to what duty of care existed in relation to the area where the accident occurred. It was not
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entirely clear where precisely Cowaramup Bay and Huzza's Beach sit in relation to one another and in relation to the area of the accident in issue. 44 It is not immediately apparent what the relationship might be between the swimming classes in 1984 and subsequently and the accident in September 1996 despite the argument made on behalf of the appellants. Whilst the areas might be very close or near to each other they are nonetheless, as I understand it, distinct and different locations which is again a difficulty with the interrogatory as framed and in providing an answer to it. I do not consider this interrogatory in its current form is permissible and therefore the respondent is not required to answer it.
Interrogatory 34 45 This interrogatory asks whether in the 12 months prior to the accident the respondent was aware that the public used Huzza's Beach for swimming and recreation, that members of the public sheltered under the overhang of the cliff and that members of the public sheltered under other cliffs in the environs. It is said that the interrogatory is directed towards the knowledge of the respondent as to the use of the beach and cliff area and the immediate vicinity of the cliff as well as its knowledge concerning the behaviour of members of the public relevant to these areas. Although not formally objected to on the basis that the corporate body was being asked about its knowledge, this nonetheless is a difficulty with the manner in which the interrogatory is drafted. I do not consider that the interrogatory is in a permissible form because it proceeds on the basis of assumed facts to be proved and terms such as "recreation", "overhang" and "other cliffs in the environs" are undefined and somewhat vague. The interrogatory is not capable of being precisely or clearly answered given the manner in which it is drafted in any event.
Interrogatory 35 46 This interrogatory is related to interrogatory 34 and follows from it in that it enquires if the answer to interrogatory 34 is in the affirmative, when did the respondent become aware in relation to each of the issues raised in interrogatory 34. Given that interrogatory 34 is not in a permissible form it follows that the respondent is not required to answer interrogatory 35.
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Interrogatory 37
47 This interrogatory enquires whether the respondent was a member of the South West Coastal Management Committee between November 1993 and the date of the accident and if so, the interrogatory then goes on to enquire as to the membership of the Committee, the number of meetings of the Committee between November 1993 and September 1996 including how many of those meetings were attended by the respondent and whether the Committee gave any consideration to the question of erosion of cliffs and beaches and if so it enquires as to the details of that consideration. The appellants' counsel accepted that the specific organisation referred to in the interrogatory and the caves referred to are not referred to in the pleadings but it appears likely the interrogatory was drafted pursuant to discovery of certain documents. Nonetheless it is argued that the justification for the interrogatory is that it is relevant to the respondent's state of knowledge. The interrogatory is not required to be answered in my view because the matter is not pleaded and further if any document does exist relevant to the questions asked it cannot be interrogated upon in this manner.
Interrogatory 39 48 This interrogatory asks whether on about 17 May 1996 the respondent resolved to investigate the Rifle Butts Cliff Area with a view to making it safer and, if so, what were the safety concerns pertaining to the Rifle Butts Cliff Area and what, if any, investigation or action was taken, or caused to be taken, by the respondent in relation to those concerns or otherwise, prior to the accident. It is said that this interrogatory is relevant to one of the allegations in par 15 of the statement of claim, namely that the respondent failed to respond to knowledge gained from the collapse of other similar coastal cliffs or typography in order to carry out an assessment of the risks to members of the public using Huzza's Beach, and to their knowledge of instability and of the dangers of limestone cliffs. 49 As I understand it, the area Rifle Butts Cliff is proximate to the area where the accident the subject of the action occurred. Although the Court was referred to a map, regrettably its quality was such that it is difficult to understand exactly the geographical relationship between Rifle Butts Cliff and the site of the accident as well as the Huzza's Beach area. The interrogatory also seems to be based on an understanding that the Rifle Butts Cliff Area was to be made safer, although it is not clear precisely what is meant by that phrase. This may have some impact upon the
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question of relevance and again it would also appear to be related in some way to a discovered document which is not referred to in the interrogatory. Whether this is so is not entirely clear, but in any event in the end there is a question as to the ultimate relevance of the interrogatory as presently framed. It may also be the case that it proceeds on the basis of an assumption or assumptions as to facts which are not established as yet.
Interrogatory 41 50 The final interrogatory the subject of this appeal asks whether between April 1989 and the date of the accident the respondent undertook or caused to be undertaken any study tours in relation to the holding of surfing competitions on beaches located in the Shire of the respondent and, if so, did those tours or any of them make any investigations or recommendations in relation to environmental or safety matters relating to the cliffs in the Shire or the environs and, if so, provide details of those investigations and recommendations, including whether they were carried out. Again the interrogatory suffers from the defect that it uses very wide and somewhat vague terminology, for example, "any study tours", "the holding of surfing competitions", "to environmental or safety matters relating to the cliffs". Furthermore, the interrogatory is directed at a timeframe of approximately seven years, which once again in all the circumstances of this particular case and against a background of a very widely drawn interrogatory, would in my view make it somewhat oppressive for a party to provide an answer to the interrogatory. Whilst it might be said to be relevant in a general manner to the question of the respondent's relationship to the land, in its current form the enquiry is simply too wide and far ranging to permit of a proper answer and is therefore impermissible. |