Myers v Hammond - [2006] WADC 94

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MYERS -v- HAMMOND [2006] WADC 94

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 18 APRIL 2006

DELIVERED : 28 JUNE 2006

FILE NO/S: CIV 2951 of 2004

BETWEEN: PETER MYERS
Plaintiff
AND
MATTHEW HAMMOND
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court - Practice under the District Court Rules- Application for leave to interrogate - Second set

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Greenland Brooksby

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

American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWLR 193
Cahill v The Queensland Housing Commission (No 2) [1964] QWN 48

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff claims damages for loss as a result of personal injury. By the terms of the application before me the defendant seeks a response to interrogatories dated 15 February 2006.
On 9 February 2006 the defendant was granted leave to bring an application to administer interrogatories. It is common ground that the interrogatories dated 15 February 2006 had not then been either made available the plaintiff or put before the court. Whatever construction may be placed upon it, the order of 9 February 2006 was not for leave to interrogate in those terms.
Whether the defendant could issue interrogatories in the absence of leave would depend upon satisfaction of the terms of O 3, r 2 of the District Court Rules 1996. It permits interrogation without leave within the period of 110 days of the date of the defendant's appearance. The appearance having been filed on 7 January 2005, the defendant needed leave to administer the interrogatories. It appears that in the process of preparing his written submissions the defendant recognised that fact. It follows that on the terms by which it is expressed the application ought to be refused. At the hearing the parties addressed the issue of a grant of leave and I will deal with it as if the application had been so expressed.
The order of 9 February 2006 may be taken to speak for the Court having found that some form of interrogation by the defendant was justified; however there are neither reasons for that decision nor any material that I can identify as having founded the order. The fact that it was made could not be determinative of the issue now before me.
The plaintiff contended that there is a significant overlap between the questions for which leave is now sought and questions that had previously been put. Having considered each set myself, seven of the 14 questions the subject of the application are indeed either the same or substantially the same as those previously put. Questions 1, 2(i), (ii) and (iii), 5(ii), 6, 7, all but part (iv) of 13 and 14 are actually identical. The balance of questions 2 and 5 although differently expressed do not construct any different task for the respondent, each remaining in effect a request for particulars. The significance of the fact that those parts of the proposed set remain the same is that the order of 9 February 2006 that I have cited followed upon the dismissal of what amounted to a contest by the defendant as to the sufficiency of the objection taken to each of those questions. In my opinion, where the Court has upheld an objection to a discrete question there could be no scope for it to grant leave to administer the same question. In assessing whether to grant leave for a set of proposed questions, a useful standard suggested by the reasons of Myers J in American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWLR 193 is whether the preponderance of the questions that comprise the set are permissible. I accept that he was not any more definitive; however on a finding that some questions were permissible but that others were not, it is clear that once the arithmetic produced a particular proportion, he considered that it would be more appropriate to refuse the application. Because the only benefit that would emerge from the administration of the set would be for the applicant and for the Court to require the respondent to respond would distract it from the exercise of getting up its own case for trial and require it to expend effort, time and cost, in my opinion, to consider the standard to be met by an applicant to be in the order of 50 per cent would reveal failure to appreciate the significance of the exercise of discharging the onus. Unless the overwhelming proportion of the questions is justified it ought to be the applicant who would be putting further thought into prospect of engaging the respondent in such an exercise.
I would add that having previously administered interrogatories, any leave subsequently sought by the applicant would be characterised as being to issue a second set. It is my appreciation of authority such as Cahill v The Queensland Housing Commission (No 2) [1964] QWN 48 that to discharge the onus in such a case would be more challenging for an applicant than other contexts in which leave was required.
In considering whether to grant leave the Court has unfettered discretion. The onus is on the defendant to satisfy the court that it is appropriate that the plaintiff be engaged in the task of responding to the questions that he proposes. The only support for the defendant’s proposed engagement of the plaintiff is provided by the pleadings, the plaintiff’s answer to the defendant's request for particulars and the terms of the questions that he now seeks to put. The case for the defendant to get up for trial is established by his denial of the plaintiff’s pleaded injury or any accident related injury, disability or loss and by his allegation that the plaintiff's disability is related to injury sustained in 1990 which he identifies as a spinal fusion. That datum provides a context within which the relevance of what is sought could be assessed however it is unlikely that satisfaction of that test would have anything to say for an applicant’s motivation in seeking leave to interrogate. Because by their terms the preponderance of the questions does not put propositions, they too do not permit the identification of the discrete facts that would speak to the applicant’s motivation in seeking to interrogate. At that point in the analysis the lack of any evidence to support the application is revealed as being significant.
At the time that the defendant made the allegation it is appropriate to consider that at least he had the information to found its expression and an expectation he would be in a position to adduce evidence to support it. I note that the submissions filed in relation to interrogatories before the Court on 9 February 2006 referred to the spinal fusion but do not articulate any case that I can discern that the defendant had any difficulty in getting up that aspect of his case. There is nothing of any utility to that end in the latest submissions. There is no reason to consider that his resources are as scant as I have portrayed that they might be. As to the case to be got up in relation to the denials, the applicant's case in the application is less compelling. Although as to each aspect of the defence it is conceivable that the defendant would seek to establish a range of relevant facts that would support his pleaded position, in the absence of any evidence I could only speculate what they may be and why it might be appropriate for the Court to engage the plaintiff to assist the defendant. The questions do little more than manifest the defendant’s interest in now obtaining the plaintiff’s responses to questions that he will be able to obtain at trial.
The defendant made a submission that suggests an entitlement to interrogate in order to clarify issues and to obtain information. There is no provision in the rules that would establish such an entitlement. To focus upon the prospect of there being an entitlement would overlook the fact that the defendant presently seeks leave. The extent to which I can discern that the rules have established any entitlement in the defendant, is that he was entitled to a clear exposition of the plaintiff’s case by way of a pleading and a response to his request for particulars. Each was provided some time ago. It is appropriate to consider that the plaintiff has met his responsibility in both presenting a case and responding to the request. Regardless of those observations, the submission would countenance the prospect that the Court would grant leave to interrogate because other particulars had not been sought at an earlier time. I am familiar with submissions and authority that is to the effect that the processes of obtaining particulars and answers to interrogatories are interchangeable. I accept that such a proposition may have some superficial attraction. In my opinion to focus upon the prospect that each process may lead to an exchange of information rather than the process of exchange is to put the cart before the horse. I would suggest that the distinction between the processes is so well defined that to fail to recognise it would reveal a predisposition. The function of particulars is to confine the scope of an allegation of material fact. The function of interrogatories is to facilitate the proof of a relevant fact. Principle to one side, it is patently a more onerous task to have to redress any want of particulars by way of answers to interrogatories simply because to do so would expose the interrogated party to the prospect of cross‑examination on the answer. Reflection on that prospect would also reveal that particulars may be portrayed as being amenable to amendment with relative ease. In my opinion there is nothing of any substance in the defendant’s submission.
I perceived that the defendant proceeded on the basis that the Court would be disposed to grant leave simply because he had gone to the trouble and expense of drafting questions and maintaining the application over the plaintiff's opposition. To consider that the Court may be so disposed may accord with the encouragement given to litigants to recognise that they have a common interest in settling their differences and that settlement prospects are enhanced by communication. It is because such exhortations by the Court may suggest predisposition to facilitate communication by the process of interrogation that it should be circumspect in dealing with an application such as that before me in order to ensure that it is dealt with on its merits.
In determining an application for leave the Court would recognise that it is inevitable that the resources that the parties bring to litigation would differ both qualitatively or quantitatively and that neither party would necessarily be predisposed to sharing. Simply because it has the power to grant leave to interrogate does not establish a role for it to redress any perceived want of balance. It is appropriate to consider that any intervention by the Court in the progress of any action to trial would be determined by the objective that the action be accorded a fair trial. However, well it may be founded, of itself, the prospect that at trial a party may fail to discharge an evidentiary burden would not necessarily speak to whether it would be accorded a fair trial.
It is also inevitable that the context provided by litigation will provide scope for the generation of interests that extend beyond the facilitation of proof of a fact. It hardly needs to be recorded that from the viewpoint of a litigant, to have its opponent’s sworn evidence in answer to questions on matters to be determined at trial would resonate with a broader range of considerations within the scope of its interest. It is the promotion of such a broader scope of interests that stands behind submissions that tend to obscure the benefits that the process of interrogation provides. Self interest being what it is, parties promoting a broader scope for recourse to the process portray any benefit that may emerge from engaging its opponent as being amenable to a similar process of valuation.
If the Court was satisfied that a particular interest of the applicant would justify recourse being had to the process, in determining whether to grant leave it would consider the likely impact of the task proposed on the respondent. As I have already indicated, the task set by the Court by any grant of leave would be likely to both distract the respondent from the task of getting up its case for trial and require it to expend effort, time and cost. Where a court had facilitated such engagement I would suggest that it would have been satisfied that considerations in favour of the applicant should assume greater significance than that the application was opposed and the likely dimensions and cost of the task of responding.
If for no reason other than that by granting leave the Court would be setting a particular task for the respondent, it would not impose any greater task than it would consider would be warranted by the circumstances. In a case where an applicant sought to obviate the need to call a witness, the datum against which a proposed question would be judged would be whether it put a proposition as to the existence of a discrete fact. Otherwise, absent some special feature of a case there is no reason why the Court would countenance a more objectionable form of questioning as being appropriate. That said it is recognised that a question that calls for evidence would be appropriate where symbols or jargon used in a document would preclude an understanding of its meaning. The scope for recognition of another category of special case may emerge where a party had established that without a greater scope for recourse to its opponent's resources it would not be in a position to even frame a proposition. The latter case would present for consideration not only whether the applicant had made out a case sufficient to establish such disadvantage but also the extent to which the Court might actually promote the interests of one party over those of the other. Bearing in mind the purpose of the exercise presented in such a case, the interests to which I refer would extend beyond those agitated within the scope of the application to those that had been generated by the action. Unless in such a case the court were otherwise persuaded, it would be relatively easy to construct the proposition that such disadvantage would be no more significant than that it would be a measure of the applicant's disadvantage in the litigation.
The want of evidence in support of the application may reveal that the defendant considered that the form in which the preponderance of questions was expressed would be sufficient to draw the Court to the proposition that he had been unable to do any better. In light of my earlier observation as to the impact of the onus, perhaps it goes without saying that the fact that a question has been framed in such a manner that it calls for evidence of itself would not provide a sufficient basis for the recognition of disadvantage. Where a party who carries the onus of persuading the Court that its intervention would be justified brings neither substantive evidence nor evidence of any difficulty in so doing, the inferences first opened for consideration, to some degree, are all adverse to it.
The datum that I have expressed for an appropriate form of questioning would also resonate with the objective of interrogation; that is, to facilitate the proof of a fact. Where the terms of a question reveal that a party seeks to elicit more than a discrete fact the Court should be alive to the fact that it would be oppressive for its opponent to be troubled by the need to consider how to respond. For the defendant to effectively invite the plaintiff to provide what may be characterised as a summary by way of response may superficially seem as attractive as his submission that such would suffice. The issue of oppression to one side, the Court would reflect upon the prospect that such a process would be in hands other than those of the person who would be exposed to cross‑examination upon it at trial. For the Court to construct an obligation that would carry with it the prospect that it would manufacture unfairness at the very point in litigation at which credit would be assessed should be recognised as being antithetic to its role in the process of litigation. I would add that to consider that a summary would be a sufficient response to a question would derogate from the purpose of interrogation. The alternative to summarisation would require the plaintiff to consider the all of the implications that arise from such a question and also the sufficiency of any proposed responses absent the context provided by a course of evidence at trial. In my opinion it would not be inappropriate to consider that where a party is represented, both a comprehensive answer and a summary and also all of the permutations that lie between them would expose the practitioner to scope within which an allegation of breach of retainer could emerge. Against the datum that I have expressed, to require a party to respond to other forms of question would be to set a patently more onerous task such that it would be difficult to conceive of circumstances where the Court would order a response to a question that called for more than a discrete fact in response. I would make four further observations. The first is that from the perspective of the Court, had the applicant founded a basis for the exercise of discretion in his favour, it would have been incidental that by receipt of evidence prior to trial he would have derived a benefit beyond the prospect that he may utilise the answer to proof of a fact. The second is that I acknowledge authority to the effect that any question may be put by way of interrogation. I do not have any difficulty with such a proposition, however where any aspect of the process of interrogation is before the Court the issue to be determined is not whether a question may be put but rather, whether it ought to be answered. In the particular context of an application for leave, that analysis would only be modified to the extent that consideration is given to whether the respondent ought to be troubled at all. The third is that whilst O 3, r 2 circumscribes an arbitrary scope of relevance it has nothing to say about the form in which questions within that scope are properly expressed. Finally had the defendant had presented a case that had brought some useful focus to the exercise in all probability the benefit of him having recourse to the process would be patent. On what is presented any scope for recognition of benefit is elusive. In my opinion it would be a long bow indeed to suggest that time devoted to the task responding to questions that call for evidence would equate to any time saved at trial. I would add that in contrast with the fundamental consideration of ensuring fairness at trial, the prospect of any cost saving would be very much a second order consideration.
Although what I have canvassed to this point would be sufficient to determine the application against the defendant as it is the defendant’s second set of interrogatories it is not inappropriate that I provide some detail in response to particular features of the proposal.
The defendant's case for leave in relation to the first four questions was that he had insufficient detail of the plaintiff's case. By those questions he seeks the plaintiff's evidence relating to medical appointments, relevant periods of various types of leave from his employment and detail of the basis upon which he took any sick leave. The defendant submitted that it was of particular significance that although the material date for the purposes of the claim was in July 2001, the plaintiff may not have sought medical treatment until 18 February 2002. For what it is worth, it is my assessment that that prospect is open on the plaintiff's pleading and particulars. The defendant also referred to the terms of par 11 of the statement of claim which he contended was insufficiently particularised in the plaintiff's response to a request. He submitted that he should have the opportunity to interrogate.

There is no evidence that the defendant is under any disadvantage that would justify recourse to the plaintiff for either interrogation or particulars. Generally the questions do not go to discrete facts and there is nothing to indicate why the defendant would seek to prove any fact that may emerge from any useful response. There is nothing to justify putting the task of now presenting his evidence upon the plaintiff. The scope of the evidence sought is such that it is difficult to construct a datum against which the prospect of any efficiency could be measured. There was no suggestion along the lines that the plaintiff's response would obviate the need to call a witness. Although I can discern that the defendant would have an interest in any information provided in response, the fact that evidence is sought creates the more likely prospect of objection. As to the questioning relating to the medical consultations and the prospect of the plaintiff's entitlement to sick leave, the task set by the questions would raise the prospect of summarisation. As to the evidence sought of treatment provided, there is no reason to consider that anything that the plaintiff had to say on the subject would be of any utility to anyone.
Interrogatories 5, 6, 7, 10, 11 and 12 seek what amount to particulars of symptoms expressed in the statement of claim. The fact that the plaintiff pleads those symptoms demonstrates that at trial it will be the plaintiff who carries the onus to establish both the symptoms and the causal relationship between them and the accident. Accordingly, when it comes to a consideration of the process in which the defendant seeks to engage, it is difficult to appreciate why it is that in getting up the case for trial he would consider there was any need for him to establish for example, the whereabouts on the plaintiff's head of bruising and what medical attention he sought in relation to it, or when swelling to his cervical spine commenced, or for how long he was unconscious.
Question 8 refers to the content of medical reports by which the author expresses that the plaintiff suffered an aggravation of pre‑existing disability. It goes on to ask the plaintiff to identify the extent to which the original symptoms varied. In my opinion the question is patently oppressive.
Questions 9(ii) and 11(iii) and conceivably 10 go to the plaintiff’s pre‑accident condition. It seems to me that the case put by the applicant in relation those questions is no better than I might infer that he needs the evidence that the plaintiff may provide in order to establish facts that would support the allegation. Putting aside the obvious flaw in questions 9 and 10 in that they are each framed by reference to the content of a document which does not support them, they are open ended questions in that they patently seek more than a discrete fact. Each of questions 9(ii) and 11(iii) call for the plaintiff to articulate the extent to which symptoms that he attributes to the defendant's negligence varied from previously experienced symptoms. In my opinion those parts are patently oppressive.
Question 14 refers to the restrictions in particular activities pleaded by the plaintiff; fishing, guitar playing and writing, and seeks particular aspects of those activities which make it impossible for him to participate in them. In my opinion, the question calls for considerable evidence. To the extent that the question may be considered to go to the defendant obtaining an understanding of the plaintiff's case it is appropriate to record that if the defendant had any difficulties with an appreciation of the case, then it was appropriate to seek particulars of the restrictions. This action has proceeded well past the point that it would be appropriate to order particulars in anything but a special case. Any such failure by the defendant could not justify the imposition of a more onerous task by the Court on the plaintiff
It is a fair assessment of my view of the application that the defendant has failed to satisfy the court that there is any justification for permitting the administration of the proposed interrogatories.