Mitchell v Australian Capital Territory
[2023] ACTSC 249
•8 September 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mitchell v Australian Capital Territory |
Citation: | [2023] ACTSC 249 |
Hearing Date: | 8 September 2023 |
Decision Date: | 8 September 2023 |
Before: | McCallum CJ |
Decision: | (1) Direct the plaintiff to provide to my associate within 7 days interrogatories in accordance with these reasons. (2) Direct the plaintiff to pay the defendant’s costs of the application in proceeding dated 18 August 2023. (3) By consent, grant leave to the defendant to amend its defence dated 24 February 2023 in the form exhibited as “R” to the affidavit of Melanie Blair affirmed 6 September 2023. (4) Direct the defendant to file and serve that defence within 7 days. (5) Direct the defendant to pay any costs thrown away by reasons of the amendment of the defence. |
Catchwords: | CIVIL PROCEDURE — Interrogatories — Application for order requiring the defendant to answer further interrogatories – absence of satisfactory explanation for seeking second opportunity to interrogate – where information sought is exclusively possessed by the defendant – likelihood that further interrogation will facilitate the quick, inexpensive and efficient resolution of the proceedings |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 630, 632, 7012 Uniform Civil Procedure Rules 1999 (QLD) r 230 Uniform Civil Procedure Rules 2005 (NSW) r 22.1 |
Cases Cited: | Complete Crane Hire (NT) Pty Ltd v Marchetti Autogru Spa (Italy) [2015] NTSC 32 Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Goding v Queensland Newspapers Pty Ltd [1965] HCA 33; 113 CLR 170 Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; 13 CLR 101 Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; 123 CLR 514 |
Parties: | Rebecca Jodie Mitchell ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel D Richards ( Plaintiff) B Jullienne ( Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 430 of 2022 |
McCALLUM CJ:
1․Rebecca Mitchell seeks damages for personal injury allegedly incurred as a result of the negligent administration of a CT pulmonary angiogram.
2․An angiogram is a diagnostic procedure involving the injection of contrast material into a patient’s blood stream which enables the state of the blood vessels to be examined. The contrast material is injected into the appropriate blood vessel via a cannula.
3․Ms Mitchell alleges that, while the contrast material was being injected during her angiogram, the cannula in the right arm “tissued”. As I understand the pleading, the complaint is that, instead of being inserted directly into the blood vessel in question and fixed in that position, the cannula either was inserted only into the surrounding tissue or else became dislodged from the blood vessel after insertion, in either case resulting in the contrast material being injected into the surrounding tissue rather than into the blood vessel.
4․By application in proceeding filed 8 August 2023, Ms Mitchell seeks an order for interrogatories pursuant to r 630 of the Court Procedures Rules2006 (ACT).
Applicable law
5․Until 30 June 2023, litigants in the Territory had the right to serve interrogatories. An amendment to r 630 which came into effect on 1 July 2023 removed that right and instead introduced a requirement to apply for an order of the Court that another party give written answers to interrogatories. Even under the old rule, the plaintiff would have had to obtain leave to serve the interrogatories now sought to be administered in the present case as she has previously served interrogatories on the defendant and those interrogatories have been answered. In any event, it is common ground that, as the interrogatories were served after the commencement of the new rule, an order of the Court is required: see the transitional provision in r 7012.
6․The new rule provides:
630Order for party to answer interrogatories
(1)The court may, on application by a party to a proceeding, make an order that another party to the proceeding give written answers to interrogatories.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(2)An application under subrule (1) must be accompanied by a supporting affidavit that annexes or exhibits the proposed interrogatories.
(3)If the proposed interrogatories are to be answered by 2 or more people, the proposed interrogatories must contain a note stating which of the proposed interrogatories each person is required to answer.
(4)Before making an order under subrule (1), the court must have regard to the matters mentioned in rule 632(3).
(5)Subrule (4) does not limit the matters to which the court may have regard.
(6)If a party to a proceeding is ordered to answer interrogatories under subrule (1), the party must serve a stamped copy of any affidavit prepared in accordance with rule 635 on the party who made the application under subrule (1).
7․As indicated by the terms of r 630(4)-(5), r 632(3) specifies a mandatory but not exhaustive list of matters relevant to the determination of the application. Those matters are:
(a)the principle that interrogatories in a proceeding should be limited to interrogatories that are reasonable and necessary for fairly disposing of the proceeding, or part of the proceeding, or for saving costs;
(b)the likely relevance and significance, in relation to the proceeding, of interrogatories, or particular interrogatories, and the answers;
(c)the likely time, cost and inconvenience of answering interrogatories or particular interrogatories.
8․The determination of the application must of course also be informed by s 5A of the Court Procedures Act 2004 (ACT), which requires the Court interpret the rules in the way that best promotes the purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
9․As this was understood to be the first ruling by this Court on an application under the new rule, Mr Jullienne, who appears for the Territory, provided comprehensive written submissions which included a survey of the equivalent rules in other jurisdictions, together with references to authorities concerning those rules. Those submissions were extremely helpful to the Court.
10․Mr Jullienne noted that it is unhelpful to consider authorities in New South Wales, where the equivalent rule (r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW)) in personal injury proceedings requires the person seeking an order for interrogatories to establish “special reasons”. Similarly, the Victorian rule is unhelpful as leave is not required unless what is sought is the issue of further interrogatories (the position that obtained in the Territory until the recent amendment).
11․In Queensland, leave is required under r 230 of the Uniform Civil Procedure Rules 1999 (QLD) but the hurdle for the grant of leave is that the Court must be “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”: r 230(1)(b).
12․Mr Jullienne accordingly submitted that the most relevant comparators are the rules in the Northern Territory and Western Australia. Even so, neither of those rules has an equivalent of r 632(3).
13․Mr Jullienne referred to a decision of Master Luppino concerning the rule in the Northern Territory in Complete Crane Hire (NT) Pty Ltd v Marchetti Autogru Spa (Italy) [2015] NTSC 32. At [29] of that decision, the Master set out a list of factors or guidelines of various relevance to the position in the Territory. Some include wording which is not the same as the new rule in the Territory. Others reflect common case management principles or other common sense considerations which might appropriately be brought to bear.
14․The position in Western Australia was considered in the decision of the Court of Appeal of the Supreme Court of West Australia in Dalecoast Pty Ltd v Monisse [1999] WASCA 103, an appeal from a decision of the Master.
15․In that case, Owen J (who agreed with Templeman J in dismissing the appeal) noted unexceptionably that the leave regime must be administered with case management principles in mind. His Honour further stated that, even where interrogatories are considered necessary, “great thought must go into the framing of them so that they achieve the object for which they are designed without putting the other party to unnecessary trouble and expense”: at [6]. In the same paragraph, his Honour stated that a “second or subsequent set of interrogatories should be very much the exception rather than the rule” and that “cogent reasons must be advanced in support of an application for leave”. Owen J further noted at [4] that alternative means to administering interrogatories should always be considered and that, “[t]hose means start with a properly drawn notice to admit facts”.
16․Finally, Mr Jullienne referred to the decision of the High Court in Goding v Queensland Newspapers Pty Ltd [1965] HCA 33; 113 CLR 170. In that case, it had been submitted by the party objecting to an order for interrogatories that the applicant for leave to deliver a further set of interrogatories must show “cogent reasons” why the Court would depart from the general rule that one round of interrogatories is enough. The Court held (at [2]):
It appears to us that there could be no reason more cogent for allowing a departure from the general rule than that, without the opportunity to interrogate further, a case might not be heard upon its merits.
17․I should also note an authority referred to by Mr Richards, who appears for the plaintiff, in his outline of written submissions being the decision of the High Court in Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; 13 CLR 101, cited in Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; 123 CLR 514. In Potter’s Sulphide, Griffith CJ said at 109:
The object of interrogatories, I suppose, is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it.
18․It is helpful to consider the operation of the new rule in the context of those authorities, if only for the reassurance that the high priority given to case management principles in imposing a requirement for leave or some higher threshold is consistent across the nation. That said, the new rule in the Territory speaks clearly enough without the need to resort to decisions in other jurisdictions. The mandatory considerations in r 632(3) should ordinarily provide the necessary guidance in determining an application for an order for interrogatories.
The present application
19․The first basis relied upon by the defendant for opposing the application in the present case was that there was no explanation for issuing a second round of interrogatories. So much may be accepted. Mr Richards frankly accepted that, while the reason nominated was “counsel’s advice”, it was not a situation where new counsel had come into the matter with fresh eyes. Rather, it was a question of his having identified the desirability of further interrogatories after various exchanges of correspondence between the parties. Indeed, with no disrespect to Mr Richards, it might be said that in part the desirability of a second round of interrogatories arises indirectly from the fact that there is a measure of confusion in the original pleading which has enabled the defendant to decline to answer certain questions or plead to certain matters.
20․The relevance of the time, cost and inconvenience of answering interrogatories is a mandatory consideration in r 632(3)(c). The time, cost and inconvenience of answering a second round of interrogatories is self-evidently greater than for answering only a single round. Multiple applications are to be discouraged. That said, it may be accepted that the approach of a relevant event such as a mediation or a hearing date is apt to sharpen the focus of the minds of legal representatives involved in litigation. There will be cases in which it would be inimical to case management principles to refuse to order a carefully-honed, significant interrogatory simply on the basis that counsel should or could have asked that question earlier. I am not persuaded that the application should be dismissed out of hand solely on the basis that it is a second request.
21․The second basis for opposing the application was that there were other means by which the information sought in the interrogatories could have been obtained. That objection reflects a central consideration which is the mandatory consideration in r 632(3)(a), whether the interrogatories are reasonable and necessary. The word “necessary” here does not mean that the litigation cannot proceed unless that question is answered. The test is lower than that. As stated in the rule, what must be established is that the interrogatory is necessary for fairly disposing of the proceedings or for saving costs. An example of where that might be the case is where the knowledge sought by the question is exclusively possessed by the opposing party, as identified in the decision of the High Court in Potter’s Sulphide to which I have referred.
22․That consideration is particularly relevant in medical negligence proceedings where the defendant medical practitioner will often have exclusive knowledge of matters a plaintiff cannot know. It is also relevant to have consideration to the fact that the defendant here is the Territory, not an individual. Mr Jullienne pointed in that context to the additional difficulty of obtaining instructions and making inquiries of a broader range of people in order to provide verified answers to interrogatories.
23․Finally, I note that the new rule imposes a requirement that the party seeking an order for interrogatories must formulate the interrogatories. The mandatory considerations in r 632(3) could not otherwise be assessed in any meaningful way.
24․With those points and principles in mind, I turn to the interrogatories sought by the plaintiff in the present application.
Interrogatory 1
25․The first interrogatory is directed in a roundabout way to identifying the person who inserted the cannula alleged to have resulted in the injection of contrast material into the tissue of the plaintiff’s right arm. The question includes a question directed to the qualifications and experience of that person.
26․It may be accepted that, as submitted by Mr Jullienne, the plaintiff could simply have written a letter seeking the identification of that person. It may also be accepted that the question could readily have been asked in the first round of interrogatories. However, the information sought falls in the category of something of which the defendant has exclusive knowledge and which could otherwise not be learnt by the plaintiff.
27․The only significant relevant information in my view is the identity of the person. The identity of the person who inserted the cannula is something the plaintiff is entitled to know, in my view. However, I do not see why a question should be answered about that person’s qualifications.
28․The fact that the interrogatories are not as finely honed as they might be raises a difficult question for the Court as to the approach that should be taken in an application of the present kind. On the one hand, the terms of rule 630 would suggest that the application should be rejected if the question formulated is not reasonable and necessary in the sense I have explained. On the other hand, case management principles and the dictates of s 5A of the Court Procedures Act would suggest that the Court can and should in an appropriate case refuse leave to administer an interrogatory as framed but suggest an alternative framing. I do not mean to suggest that it is for the Court to draft interrogatories on behalf of a party, only that I see no reason why the Court should not in an appropriate case cut through the technicalities of objections and further steps that might have to be taken and instead indicate the form of interrogatory that could be administered.
29․I would, on that basis, be prepared to order the defendant to answer a single question asking the name of the person who inserted the cannula into the right arm of the plaintiff on 29 November 2019.
Interrogatory 2
30․The second interrogatory was not pressed.
Interrogatories 3, 4 and 5
31․The third, fourth and fifth interrogatories relate to the Territory's defence at paragraph 3.1. It emerged in argument that the difference between the parties and the issue the plaintiff seeks to resolve by those questions arises from what I would respectfully suggest is an infelicity in the drafting of the statement of claim.
32․Paragraph 3.1 of the statement of claim says:
The injury, loss and damage suffered by the Plaintiff was caused by the Defendant failing to take reasonable precautions under Part 4.2 of the Civil Law (Wrongs) Act 2002 (ACT) against a risk of harm being caused to the Plaintiff.
33․Paragraph 3.2 of the pleading similarly asserts that the “injury, loss and damage suffered by the Plaintiff was caused by the Defendant breaching its duty of care to the Plaintiff”.
34․In each case, contrary to good practice, the pleading rolls up an allegation of causation and an allegation of breach of duty of care. It was because of the ambiguity created by that rolled-up form of pleading that the defendant in its defence simply denied each and every allegation in paragraph 3.1.
35․That left the plaintiff uncertain as to whether the defendant was denying the particulars of negligence or something else. That is not due to any fault on the part of the defendant. However, as I have indicated, that leaves the Court in the difficult position of on the one hand not wanting to condone the practice of seeking the administration of interrogatories to resolve matters that could more properly have been resolved in another way, and on the other hand not wanting to visit further cost on a plaintiff who might as a result of poor pleading practice be left at a disadvantage against a defendant in a case of this kind.
36․In my view, the interrogatories as framed should not be permitted for the reason I have identified; that is, that they arise from an ambiguity in the plaintiff’s own pleading. That ambiguity gives rise to the form of the interrogatories also being problematic.
37․For example, interrogatory 3(a) asks “[o]n 29 November 2019, at what time did the Defendant take the precaution of checking or testing the cannula to ensure it would not tissue?”. A close reading of the pleading indicates that the defendant may not be asserting that that precaution was taken. It may be that the reason for the denial is something else.
38․In any event, the interests of distilling the real issues in the proceedings and saving costs would in my assessment commend permitting the plaintiff to ask in each case (that is, for interrogatories 3, 4 and 5) a single question whether a particular event occurred, rather than demanding further information about a matter that may or may not have been intended to be pleaded by the defence in answer to the ambiguous statement of claim.
39․On that basis, I would be prepared to order the defendant to answer a single question in place of interrogatory 3, “Did the defendant check or test the cannula to ensure it would not tissue?”.
40․Interrogatory 4 is effectively the same and should be rejected.
41․Interrogatory 5 would be a single question, “[d]id a staff member remain with the plaintiff throughout the duration of the administration of the contrast?”.
Interrogatory 6
42․The final interrogatory is question 6, which is directed to the question of the volume of contrast administered to the plaintiff intravenously on 29 November 2019. The question distinguishes between the volume administered intravenously and the volume “tissued”.
43․It is clear enough that the plaintiff has some further information on that issue than has been pleaded. Mr Jullienne drew my attention to a letter dated 6 February 2023 from the defendant to the plaintiff, noting the plaintiff’s letter of instruction to her expert witness, Professor Krishnan, as follows:
During the scan, Ms Mitchell was advised that she would be administered with 50ml of contrast into her right arm. On first attempt at intravenous administration of the contrast, the technician advised her that there had been an error and only 3ml of the contrast had been injected. On this basis the technician administered a further 47ml of contrast into her right arm. After this second injection, Ms Mitchell began screaming in pain due to the shooting pain in her arm and swelling from her wrist to shoulder. The contrast technician realised that the initial administration of contrast had not failed, and rather, Ms Mitchell had been administered approximately 97ml of contrast.
44․However, there is nowhere in the statement of claim pleaded an allegation that the plaintiff was administered with a total of 97ml of contrast rather than the 50ml she was told would be administered. Had those matters been properly pleaded in the statement of claim they may have been admitted. At present, all that is pleaded is in paragraph 3.1.11 and 3.2.6, a generalised allegation that the plaintiff was not administered with “appropriate levels of contrast”. As a general rule, a plaintiff should not be permitted to cure deficiencies in the pleading by administering an interrogatory that does not relate in terms to any present issue. The pleadings do however make a general allegation of failure to administer the appropriate volume of contrast and that is potentially an important issue in the proceedings.
45․It may be that this can be dealt with by the plaintiff simply asking a question in correspondence. However, given that the defendant is going to be answering other interrogatories in any event, I am inclined to permit the three questions asked in interrogatory 6, principally on the basis that it seems to be a significant issue in the proceedings and it will save costs for the defendant to answer those questions.
Orders
46․I acknowledge that in giving these rulings and indications, I have to some extent allowed an indulgence to the plaintiff in circumstances where part of the contest between the parties arises from an inadequate pleading. As I have explained, I consider that to be an appropriate indulgence, having regard to my own obligation under s 5A to advance case management principles in a manner that observes the objects of that section. However, the fact that an indulgence has been granted is relevant to the question of costs.
47․Accordingly, I make the following orders:
(1)Direct the plaintiff to provide to my associate, within 7 days, interrogatories in accordance with these reasons.
(2)Direct the plaintiff to pay the defendant’s costs of the application in proceeding dated 18 August 2023.
(3)By consent, grant leave to the defendant to amend its defence dated 24 February 2023 in the form exhibited as “R” to the affidavit of Melanie Blair affirmed 6 September 2023.
(4)Direct the defendant to file and serve that defence within 7 days.
(5)Direct the defendant to pay any costs thrown away by reason of the amendment of the defence.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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