Nolan v Freehill Hollingdale & Page

[2009] VCC 596

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-04-02604

CHRISTOPHER NOLAN	Plaintiff
(BY HIS LITIGATION GUARDIAN MARY NOLAN)
v
FREEHILL HOLLINGDALE & PAGE (A FIRM)	First Defendant
and
FREEHILL HOLLINGDALE & PAGE, NATIONAL (A FIRM)	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2009
DATE OF JUDGMENT:	11 June 2009
CASE MAY BE CITED AS:	Nolan v Freehill Hollingdale & Page and Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 0596

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – employee solicitor suffering catastrophic brain injury whilst at overseas posting – course of employment – causation – defences relating to whether business carried on in Victoria and whether plaintiff ceased to reside in this State – plaintiff’s interrogatories - County Court Civil Procedure Rules – Orders 30.02(6) and 30.07 – plaintiff incapable of giving instructions – whether case exists – whether interrogatories oppressive.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.L. Smith	John X. Smith
For the First Defendant	No appearance
For the Second Defendant	Mr M. Fleming	Minter Ellison
HIS HONOUR:

Background

1 This matter comes before me by way of a dispute concerning interrogatories. Pursuant to Order 30.02(6) of the County Court Civil Procedure Rules 2008, the plaintiff is seeking leave to serve on the second defendant a set of some 33 interrogatories, many of which are divided into further questions and to which are attached various annexures which form the basis of some questions. The second defendant is arguing that leave should be refused, essentially on the ground that the proposed interrogatories are oppressive. It submits that, inter alia, they are oppressive because they are prolix; they relate to circumstances which occurred many years ago and answering them would involve expense, inconvenience and trouble; and some of them enquire of irrelevant matters.

2          Mr J.L. Smith of counsel appeared on behalf of the plaintiff. Mr M. Fleming of counsel appeared on behalf of the second defendant. Each made detailed and helpful submissions. The first defendant, not being a party to the present application, did not appear and no issue arose as to its non-appearance. No oral evidence was adduced, although the plaintiff’s solicitor, Mr John Xavier Smith, has sworn an affidavit of 18 May 2009 to which are exhibited various documents. This affidavit and its exhibits, along with the plaintiff’s interrogatories of the first defendant (apparently at a time when it was the only defendant) and the answers thereto, were placed before the Court.

3          The plaintiff, by his litigation guardian, has issued proceedings out of this court in which he seeks weekly payments of compensation from 26 May 1996 to date and continuing, interest on outstanding payments, and the payment of reasonable and medical and like expenses, all of these being pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”). His claim is against both defendants, and, because the proceeding is one pursuant to the Act, leave of the Court to interrogate is required as referred to above. The plaintiff has also instituted proceedings out of the Supreme Court of Victoria against the same defendants.

Factual background

4          The following discussion of facts is not meant to be in any way determinative of issues relating to the merits of this claim. Whilst the factual background was outlined to me by counsel and can be discerned from parts of the documents, no oral evidence was adduced and no cross-examination took place. Thus, the following outline, based upon what I have been told from the Bar table and what is apparent from the documentation placed before me, is set out for the purpose of placing this dispute in context.

5          I would also say at the outset that, whilst each counsel accused the other party of “smearing” his client, such allegations are not really to the point. Whether some might consider that the defendants have not behaved in the manner which might be expected of an eminent legal firm is not an issue which I have to determine or which can influence this ruling. Similarly, the second defendant is entitled to take defences legally open to it, however technical they may appear to the plaintiff and however tragic the plaintiff’s situation may be. Further, given that it is the plaintiff’s interrogatories of the second defendant that are under consideration and not vice versa, suggestions from the Bar table of possible misbehaviour on the part of the plaintiff do not assist in the resolution of this dispute. Some of the interrogatories under consideration do enquire as to issues of the plaintiff’s activities and sobriety (as shall be discussed, he is incapable of giving instructions) particularly in the period immediately prior to his suffering injury. However, generally suggestions or inferences of other misbehaviour do not take this dispute any further.

6          Having made those preliminary remarks, I now turn to a brief summation of the facts. At the relevant time the plaintiff, who was born on 21 May 1968, was an employee solicitor. He was employed by either the first or second defendant. To add an element of confusion, both defendants in fact have an identical name – Freehill Hollingdale & Page. The first defendant is a partnership based in Victoria. The second defendant is a “partnership of partnerships”, apparently constituted by Freehill firms or partnerships based in various States or Territories. The word “national” has been somewhat artificially added to the title of the second defendant so as to distinguish it from the first defendant for the purposes of these proceedings. I might add that, at times, I shall refer to the defendants collectively as “Freehills” when that is appropriate and for ease of reference.

7 The second defendant claims that it is not based in Victoria and does not carry on business in this State. The first defendant (the Victorian firm) alleges that, at the relevant time, it was not the employer of the plaintiff. The second defendant asserts that it was. This is a point of more than academic interest. Given the wording of s.84(1) of the Act at the relevant time, if the employer did not reside in or have a place of business in Victoria at the time of injury, this would arguably be fatal to the plaintiff’s claim.

8          I shall now return to the sequence of events. The second defendant asserts that the plaintiff had been employed by the first defendant until mid-1995, when he resigned his employment with that firm and took up employment with the second defendant, it being the entity which conducts what could be described as Freehills’ overseas or international operations. The purpose of this transferring of employment was to effect the placement of the plaintiff in Hanoi, Vietnam, where Freehills conducts an office. Thus, the plaintiff went to Hanoi and worked there for one or both of the defendants as an employee solicitor, remembering that it is the second defendant which alleges that it was the employer.

9          On Sunday 19 May 1996, it is asserted that the plaintiff attended a function at which clients of his employer were entertained. His activities following that function are not known, although the second defendant claims that medical and other evidence suggests that he had been consuming alcohol and “seemingly, narcotic drugs” to quote from Mr Fleming’s written submissions. This assertion, and particularly the latter part of it, was vigorously contested by Mr Smith and formed part of the “smearing” debate.

10        In any event, on the morning of 20 May 1996 the plaintiff could not be awoken by his flatmate (not an employee of either defendant). This situation persisted. Ultimately, the employer’s office was contacted, a doctor was summoned, and the plaintiff, still unconscious, was conveyed to a local hospital from whence he was subsequently airlifted to Singapore.

11        The plaintiff has never regained the use of his faculties and is still, for all intents and purposes, unconscious. He is immobile. He cannot communicate. It is not even certain that he can see. I gather that he can make some noises, that his facial expression sometimes alters in a minor fashion and that his eyes blink. There was no challenge to the proposition that he is totally incapable of recounting what happened to him or otherwise giving instructions. In short, it is asserted on behalf of the plaintiff that he has suffered severe brain damage resulting in total incapacitation requiring intensive 24 hour care, including feeding by a tube directly into the stomach. He is unable to talk, act or communicate.

12        It is alleged on behalf of the plaintiff that he suffered injury arising out of or in the course of his employment. The second defendant denies this. As might be expected, I gather that causation is a central issue in addition to certain other defences which shall be discussed shortly. Ultimately, arguments advanced on behalf of the plaintiff may embrace legal concepts of the course of employment, but I gather that medical questions based on stress and the workload are also under consideration. One potential stressor over and above questions of workload concerns whether the plaintiff was illegally employed in Vietnam, he apparently being there on a student visa, and this being both to his knowledge and to that of the second defendant. Arrangements made between the second defendant and the Australian Trade Commission (“Austrade”) also seem to be relevant in this regard, relating as they do to language training. A discovered document concerning which the plaintiff seeks to interrogate would indicate that he was aware of increased interest on the part of the Vietnam authorities in his work activities and those of his employer. Deportation was a possible outcome. The impression gained is that the authorities may have had some concern as to whether the plaintiff was in Vietnam pursuant to a visa consistent with him being an employee solicitor, and hence subject to tax, or as a student.

13 In addition to denying that the plaintiff suffered injury arising out of or in the course of his employment and that such employment was a significant contributing factor to the plaintiff’s injuries or that such injuries were aggravated by delay, the second defendant has taken a number of particular defences which could be described as “special defences”. These include that the injuries suffered by the plaintiff were attributable to his serious and wilful misconduct constituted by consumption of alcohol and/or drugs; that he did not make his claim whilst employed by the second defendant and has not satisfied the Authority that he could not reasonably have made the claim whilst employed, and therefore it is deemed not to have been made (given that the Victorian WorkCover Authority does not seem to be involved in the claim against the second defendant, the wording of this defence may require some attention); and that pursuant to s.103(7)(a) of the Act, the claim was not served or lodged as soon as practicable after the incapacity arising from the injuries became known.

14 Further, the second defendant claims that the plaintiff is excluded from the operation of the Act and not entitled to compensation because it did not reside in or have a place of business in Victoria at any material time. In addition, it claims that at the time that the injuries occurred, the plaintiff had ceased to reside in Victoria.

15        Thus, it can be seen that a large number of issues – legal, medical and technical in the sense of places of residence or domicile, the meaning of such terms, the carrying on of a business and the like – have arisen in this most unfortunate case in which the plaintiff is completely incapable of giving instructions.

The interrogatories and the objections to them

16        As stated, there are some 33 principal interrogatories with many divided into further parts. A number of documents are annexed and are addressed directly in some of those interrogatories. The interrogatories themselves could be divided into a number of categories. One of these relates to the defence that the second defendant did not reside in or have a place of business in Victoria. Interrelated with that are interrogatories concerning details of the plaintiff’s employment contract with the second defendant. Interrogatories which fall into this category are concentrated upon the questions of location of partners of the second defendant and their place of business; details surrounding the engagement of the plaintiff to take up the position in Hanoi, including such matters as the status of the second defendant’s signatory to the contract, arrangements for payment of salary and the like; and the status of various persons in relation to their role within, and the operations of, the second defendant. The role played by various persons involved in the engagement of the plaintiff so that he might work in Hanoi, his supervision and responsibilities there, the location of such persons who might have been responsible for him and similar considerations fall into this category.

17        The next category of interrogatories (and these are being loosely grouped) concerns the allegation that the plaintiff had ceased to reside in Victoria at the relevant time. Some of these overlap with the first category. Others concern such matters as relocation expenses, the intentions of the second named defendant in relation to the plaintiff’s future employment and similar enquiries.

18        A further category is concerned with the agreement pursuant to which the plaintiff went to Hanoi, the role of Austrade in this, and any illegality that may have been associated with the plaintiff’s ongoing presence in Hanoi as an employee solicitor. Associated with this are interrogatories focussing upon the plaintiff’s apparent state of health, particularly in the period immediately prior to his suffering the injury, and directed towards his activities and work responsibilities during that time, the workload which he carried, his attendance at language classes (which may or may not be related to the status of his visa) and similar matters.

19        Another category of interrogatories deals with the plaintiff’s activities on 19 May 1996 and the work function which he allegedly attended on that day. Such interrogatories concern the nature of the function, the persons present, the condition of the plaintiff and related matters. Further interrogatories inquire as to the status of persons as at Monday 20 May 1996.

20        The above categorisation of the interrogatories is not meant to be exhaustive. Several of the interrogatories could fall into more than one category and others may be considered to fall outside all of them. However, the above is intended to give some idea of the types of interrogatories asked and their relationship to the issues raised by the pleadings and to the case generally.

21        The objections taken by the second defendant could be described as being in the broad rather than in the narrow sense. With an exception to which I shall now turn, the second defendant’s objections do not target individual interrogatories or groups thereof. Rather, it was submitted that the interrogatories viewed in toto are oppressive. Reference was made to observations contained in American Flange & Manufacturing Co Inc. v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193.

22        The exception to which I have referred is that group of interrogatories dealing with the place of residence of partners at the relevant time. It was argued that it would not be denied but that there were partners of Freehills resident in Victoria at the time, although this concession seems to have been confined to partners of the Victorian firm – that is, the first defendant. Endeavouring to establish their residential addresses would impose a substantial expense and inconvenience unjustified by any significant forensic purposes. In oral submissions reference was made to the difficulties that might be encountered in establishing such precise residential addresses. I say immediately that I am not impressed by such objection. At the commencement of the interrogatories, and as pointed out by Mr Smith, it is stated in paragraph B that where it is required of the second defendant to state the address of any person, it would be sufficient if only the State of residence of that person is provided. The response by Mr Smith seems to me to be an accurate one. The issue of whether or not the second defendant resided in or carried on business in Victoria at the relevant time is obviously a central one. One can readily imagine the laws relating to partnership and its responsibilities being argued. It does not seem to me to be oppressive to interrogate as to the State or Territory in which partners of the second defendant resided at the relevant time. It seems to me to be relevant. Such interrogatories seem to me to be readily answerable. I can also understand why the plaintiff might not be satisfied with a general concession that some partners (presumably partners of the first defendant who might or might not be partners of the second defendant) resided in Victoria, but might wish to know, for example, how many of such partners so resided, which partners, of which firm, where they stood in relation to the plaintiff and the like. In short, I consider that objection of the second defendant to be without merit.

23        The balance of the second defendant’s opposition is more general. As set out by Mr Fleming in his written submissions, it is contended that the interrogatories are, as a whole, oppressive, and therefore leave should not be given to serve them in their present form. Mr Fleming, very properly, did not argue that interrogatories on behalf of a plaintiff such as this should not be served at all, but rather challenged the content and volume of these particular interrogatories. Essentially, he argued that the proposed interrogatories are, by reason of their sheer number, prolix. He referred me to the case of American Flange, and to other authorities such as Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (1986) 5 NSWLR 703. He also argued that the interrogatories enquired of circumstances which arose in excess of 13 years ago, and that the problems which are associated with the answering of them would be significantly expensive and burdensome. He has alleged that some partners and employees of the second defendant have long since departed from it.

24 In addition, it was argued that the first defendant has already been interrogated and has answered such interrogatories. Because of the significant overlap in the interrogatories and answers, the same persons are now being asked to answer the same kind of questions in even more oppressive detail. The denial of liability pursuant to s.84 of the Act is an exception in that the first defendant does not take the defence that it does not carry on business in Victoria and, accordingly, was not interrogated concerning this.

25        Further, it is argued that some of the interrogatories are irrelevant, or relevance is so attenuated or indirect as to not justify the interrogatory. Others, such as those in relation to the plaintiff’s visa status whilst in Vietnam, are objected to as being irrelevant and fishing or sought for a collateral purpose. Reference is made to the decision of Habersberger J in Perpetual Trustees Australia v Onesteel Trading (No. 2) [2008] VSC 21, in which is it said that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the compelling of production of documents where there is already some evidence that a case exists. The second defendant should not be interrogated about matters to do with the plaintiff’s health, socialising and the like in the mere hope that something might “turn up”.

26        In summary, Mr Fleming argued that leave should be refused in relation to the service of the interrogatories in the proposed form.

The arguments on behalf of the plaintiff

27        Mr Smith, on behalf of the plaintiff, essentially argued that the interrogatories, whilst numerous, were not complicated and could be readily answered by the second defendant. The fact that similar, although not identical, interrogatories have been answered by the first defendant, being a firm closely related to the second defendant, demonstrates that such interrogatories could and should be answered. Thus, it is argued the submissions of the second defendant in this regard in fact support the position of the plaintiff. Furthermore, the answers of the first defendant cannot in some way stand as the answers of the second defendant. Accordingly, interrogation of the second defendant is necessary, regardless of answers that may have been provided by the first defendant.

28        Mr Smith submitted that the interrogatories ought to be comparatively easy to answer. They relate to information which should be readily accessible to the officers of the second defendant. The interrogatories are relevant to the central issues that have been raised.

29        As was stated in Dunbar v Perc [1956] VLR 583, a plaintiff is entitled to interrogate a defendant if it is reasonably possible that the plaintiff may more effectively make a case by obtaining admissions on oath from the defendant’s answers to the interrogatories.

30        Interrogatories concerning the plaintiff’s visa situation and arrangements concerning his Austrade Fellowship are clearly relevant in relation to both the timing of the plaintiff’s ultimate return to Melbourne and in relation to causation of his injury. Interrogatories directed towards the state of the plaintiff’s health and his movements in the days immediately prior to his suffering the injury are also obviously relevant to the central issues in the case.

31        The second defendant is a very large organisation, and the fact that the events enquired about occurred in excess of 13 years ago does not mean that interrogatories are not answerable or that enquiries could not be made.

32        The plaintiff is profoundly brain damaged. Obtaining instructions from him is impossible. However, he does have a case that he is entitled to statutory benefits, and the interrogatories and their answers may assist him in making his case more effectively. The interrogatories generally should be viewed in this context. In the circumstances they are not prolix; they are relevant; and the expense, inconvenience and trouble claimed has not been demonstrated to be such as to warrant the refusal of leave on the basis that the interrogatories are oppressive.

Ruling

33

I am of the view that leave pursuant to Order 30.02(6) should be granted, and should be granted in respect of the interrogatories which are before me and which are exhibited to the affidavit of Mr John Xavier Smith. I am not of the view that they are oppressive within the meaning of Order 30.07(1) or are otherwise objectionable. Whilst numerous, when viewed as a whole they are not prolix. They are relevant, being directed to the core issues raised in the case. They seem to me to be capable of being answered, and I am not of the view that any expense, inconvenience or trouble caused by their answering would be so significantly expensive or burdensome as to lead to the conclusion that the interrogatories exceed the legitimate requirements of the particular occasion.

34

I have arrived at this conclusion for the following reasons, which are not listed in order of importance:

(a)	The plaintiff is severely brain damaged and unable to give instructions. As shall be discussed, this does not mean that he does not have a potential case against the second defendant. What it does mean, as a matter of common sense, is that more interrogatories than would otherwise be required may be needed. Indeed, given the nature of this case, it would be no surprise if substantially more interrogatories than the norm were necessary. Propositions which one might expect could be readily confirmed by a plaintiff not suffering the severe disabilities of this plaintiff may need to be the subject of interrogation.
(b)	I do not agree with the submissions of Mr Fleming that the plaintiff does not have any case at all, let alone a good case proof of which will be aided by interrogation. This is a claim for statutory benefits pursuant to the Act. Compensation law in relation to injuries arising out of or in the course of employment, and particularly the scope of that employment, is quite complex and has long been the subject of debate and determinations. Not all of them sit happily with each other. There have been a number of decisions relating to the breadth of that scope, including some concerning employees working far from what could be described as the headquarters of their employer, and who are absent from such place for quite lengthy periods. I shall refer to a couple of them, not for the purposes of in any way determining the merits of this matter but in order to deal with the argument that the plaintiff, absent interrogation, effectively has no case at all.
(c)	In Favelle Mort Ltd v Murray (1976) 133 CLR 580, the High Court, in dealing with the Workers Compensation Act 1926 (NSW), had to consider the situation of an engineer sent by his employer to a foreign country to work as a supervisor of cranes. The employee was on call at all times. Whilst so employed overseas, he was attacked by a virus and developed meningo-encephalitis. It was held by the High Court that the plaintiff had suffered an injury in the course of his employment. I would refer to the following observation of Barwick CJ at page 584:

“Clearly, it cannot be said that the nature of anything the respondent was required to do by his employment contributed to cause his morbid physical condition. But it is also quite clear that it is not necessary that this should be so in order that it may be concluded that the employment contributed to the contraction of that condition.”

Of course, I am not saying that the facts in the present case are “on all fours” with those in Favelle Mort, which concerned the invasion of the employee’s body by a virus. However, what I am endeavouring to point out is that it cannot be said that the plaintiff in the present matter simply has no case or no prospect of establishing a good case. One can imagine that those presenting the matter on behalf of the present plaintiff might draw upon what is contained in cases such as Favelle Mort and endeavour to point out similarities when submitting that the plaintiff has an arguable case.

There are also a number of cases, the so called “camp” cases, dealing with employees who suffer injury whilst staying overnight or for lengthy periods in areas remote from what could be described as their central place of employment. Such cases may also be of assistance in relation to the argument as to whether the plaintiff has any case at all, and again factual similarities may also be of interest. For example, in the present case, I note from attachment C to the interrogatories that the second defendant’s offer of employment included the payment to the plaintiff of an annual housing allowance payable monthly or to coincide with rental payments. Arguably, therefore, the second defendant was providing accommodation to the plaintiff. If that be so, cases such as Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 may be relevant in considering whether the plaintiff has at least an arguable case. In Danvers, Windeyer J stated as follows as page 544-5:

“A worker who is using a place provided for his use by his employer as an incident of his employment is ordinarily in the course of his employment if he is using it for the purpose for which it was made available to him and at a time when he might be expected to do so. It may be a sleeping place, a luncheon place or a shower bath. That he had no contractual obligation to sleep there or to eat lunch or to take a bath would not put him outside the course of his employment…”

Again the situation is not “on all fours” with the present case. Again the decision is referred to so as to refute the submission that the plaintiff has no case or could not have the basis for a good case.

Cases such as Danvers received attention from the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, which case concerned a worker who, whilst working for his employer in New South Wales, successfully applied for a job with that employer at Mount Newman in Western Australia. The contract there was to last some three months. Whilst working there and during free time, the employee was injured when on a trip to Wittenoom Gorge. The trip was, in essence, something that had been organised from work although it bore no relationship to normal work duties. Again, the facts are certainly not identical to those in the present case, but the decision may assist in underlining the proposition that the plaintiff’s case, absent interrogatories, is necessarily hopeless or doomed to failure. In Hatzimanolis, the judgment of the majority contains the following at p.483:-

“… there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work.”

Doubtless, counsel from each side could draw some comfort from what has been said in decisions such as Danvers and Hatzimanolis, and doubtless each could point to distinguishing features. Further, the issue of causation remains alive. However, to simply assert that, on the basis of the known facts and prior to interrogation, the plaintiff has no real prospects of establishing that the injury suffered by him arose out of or in the course of his employment does not seem to me to be accurate.

In concluding the discussion on this point, perhaps one could do no more than refer to the following extract from Principles of Workers Compensation by E.F. Hill and J.B. Bingeman at page 56:

“The course of employment certainly does not run smooth. A bewildering maze of seemingly contradictory decisions faces the researcher.”

If it be true that such a maze exists, it is all the more difficult to assert that the plaintiff in the present matter has no basis for a case, or indeed for a good case. I reject the submissions of Mr Fleming in this regard.

(d)

I am not of the view that the interrogatories under consideration are prolix. Mr Fleming argued that the sheer multiplicity of questions can in itself constitute prolixity, and, as previously stated, referred me to decisions such as American Flange and Coalcliff. In American Flange 27 interrogatories so divided as to constitute some 300 interrogatories were considered to be prolix. However, as pointed out by Mr Smith, American Flange was a case involving a vastly different factual context. In my opinion, whilst pronouncements in relation to the sheer number of interrogatories as a basis for prolixity might arguably provide some guideline, the situation existing in each individual case should be assessed. As was said by Vaughan Williams LJ in Heaton v Goldney

[1910] 1 KB 754 at 758:

“… the allowance or disallowance of interrogatories is a matter for discretion, and they should be allowed or disallowed on the merits of the particular case.”

In this particular case the facts are not simple, some of the defences are quite technical, and the plaintiff cannot give instructions, which severe restriction clearly includes the inability to confirm or deny matters which are being alleged. Matters which might be expected to be well within the range of knowledge of a plaintiff not so severely impaired may require investigation and interrogation.

(e) Whilst Mr Fleming pointed to the sheer number of interrogatories as being the basis upon which they might be considered prolix, the content of the interrogatories arguably is something that should be considered both in relation to prolixity and as to whether or not they are generally oppressive. As was said by Woodward J in Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550:

“In reaching a conclusion, the court may find that the particular interrogatory or answer takes colour from those surrounding it. Thus, an apparent attempt to pose clear and precise questions, related directly to the particular case, should be treated more sympathetically than one bearing the hallmark of mass production.”

The interrogatories in the present case are clear and precise, and are related directly to the particular case. In no way could it be said that they bear the hallmark of mass production. They have obviously been carefully crafted so that, in a clear fashion, they enquire of issues that are both important and peculiar to this case. Thus, neither by their number nor by their content could they be described as prolix or oppressive.

(f) It follows from what I have just said that I do not agree with the submission that any of the interrogatories are irrelevant or that their relevance is in some way minimal or indirect. That is so even if any expense and difficulty which may be associated with the answering of them is considered, and as shall be discussed, I am far from persuaded by arguments based upon expense, inconvenience and trouble.

In my view, the interrogatories focus directly upon important issues in the case and frequently issues which are apparent from the pleadings. I do not agree that interrogatories directed to the plaintiff’s visa status and arrangements with Austrade are irrelevant or sought for a collateral purpose. They seem to me to be directly related to important and arguable issues concerning causation and the nature and duration of the plaintiff’s time in Vietnam. Enquiries as to his state of heath generally and activities in the days and hours immediately before the onset of injury seem to me to be similarly relevant. I do not accept the submissions advanced on behalf of the second defendant in this regard.

(g)

If it is not already apparent, the defendant’s submissions in relation to expense, inconvenience and trouble are similarly not persuasive. If it were not something of which judicial notice could be taken, one only has to look at the schedule of partners at the relevant time, which schedule is attached to the Notice of Appearance of the second defendant, in order to gain an impression of the size of Freehills and of that party. At the relevant time it was a very large legal firm, and there is no suggestion that it is now anything other than that. As previously stated, the questions asked of it are not complex and it seems to me that the answering of them is something that is well within the resources of the second defendant. If, for some reason, an individual interrogatory or part thereof cannot be answered, that can always be the subject of further argument. I might say that the fact that the events enquired of occurred in excess of 13 years ago does not detract from the capacity of a party such as the second defendant to make due enquiries and obtain appropriate answers.

(h)

Earlier I have referred to the submission that the first defendant has already been interrogated and has provided answers. This argument of the second defendant seems to me to be very much a double-edged sword. It may be that there is a significant overlap with the smaller number of interrogatories answered by the first defendant, but, if, as argued by the second defendant, the same persons are effectively being asked to answer questions of the same kind for a second time, that only goes to show that such persons have the capacity, and at least some of the knowledge, required to answer the present interrogatories. Further, given that the first defendant has denied employing the plaintiff with the result that potentially its answers may be of only limited assistance, I can fully understand why the plaintiff seeks to interrogate and to obtain answers from the second defendant. Its submissions based on this ground also appear to me to be without merit.

(i)         I have previously commented upon the objection to the interrogatories relating to the places of residence of partners of the second defendant at the relevant time. Given that the State in which such persons resided, as opposed to their precise address, is all that is required, I am far from convinced that the answering of such interrogatories imposes a substantial expense and inconvenience upon the second defendant which is wholly unjustified in relation to any significant forensic purpose. The forensic purpose seems to me to be apparent, and any expense or inconvenience should be far from major.

(j) I have previously referred to the observations of Vaughan Williams LJ in Heaton. Interrogatories should be allowed or disallowed on the merits of the particular case. I would also refer to the following general observations. It was stated by Esher NR in Hennessy v Wright (No.2) 24 QBD 445 that, as a general rule, interrogatories will be allowed whenever the answers to them will serve either to maintain the case of the party administering them or to destroy the case of his adversary. I would further refer to the following from Odgers on Pleading and Practice (12th edition) at page 271:

“The object of interrogating is two-fold: first, to obtain admissions to facilitate the proof of your own case; secondly, to ascertain, so far as you may, the case of your opponent…To secure this, it is well to ask a series of short questions rather than one long question. Each additional detail should be put in a question by itself.”

Whilst those remarks are contained in a text published in 1939, they seem to me to be pertinent, and to describe what the plaintiff is attempting to achieve by reason of these interrogatories, as well as describing the manner in which he has gone about the task.

35 In summary, I can only repeat that the plaintiff has satisfied me that leave should be granted pursuant to Order 30.02(6). The plaintiff is entitled to serve interrogatories on the second defendant, and to serve them in the form set out in Exhibit “JXS1” appended to the affidavit of John Xavier Smith sworn 18 May 2009.

36        I shall hear the parties as to any ancillary orders that are required.