Powercor Aust Ltd v Consolidated Broken Hill Holdings Pty Ltd
[2016] VCC 1029
•22 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-01277
| POWERCOR AUSTRALIA LIMITED | Plaintiff |
| v | |
| CONSOLIDATED BROKEN HILL HOLDINGS PTY LTD and CONSOLIDATED MINING & CIVIL PTY LTD | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2016 | |
DATE OF JUDGMENT: | 22 July 2016 | |
CASE MAY BE CITED AS: | Powercor Aust Ltd v Consolidated Broken Hill Holdings Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1029 | |
REASONS FOR JUDGMENT
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Catchwords: Interrogatories – objection to answering some of same on basis that they seek discovery of evidence that the defendants intend to adduce at trial – cause of action based upon trucks carrying oversize loads striking overhead power lines – whether information sought already provided by way of contents of Amended Defence and a letter – whether interrogatories are attempt at cross-examining witnesses – whether interrogatories generally are objectionable – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castelan | Logie-Smith Lanyon Lawyers |
| For the Defendants | Ms R Howe | Hicksons Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of a dispute concerning interrogatories and their answers. There is more than one aspect to this dispute. However, principally it involves some 11 interrogatories, each of which has been answered in the following way:
“I object to answering the interrogatory on the grounds that it seeks discovery of the evidence that the defendants intend to adduce at the trial.”
2 In argument before me, the 11 interrogatories were, in essence, dealt with collectively, as were the answers.
3 A subsidiary dispute relating to some other interrogatories, along with a request in relation to supplementary discovery, were effectively put to one side so that further instructions could be obtained.
4 Thus, the application before me by way of Summons in reality concerns a request by the plaintiff for further and better answers to 11 interrogatories, with the defendant denying that the plaintiff is entitled to further answers.
5 Mr J Castelan of counsel appeared on behalf of the plaintiff. Ms R Howe of counsel appeared on behalf of both defendants. At least for the purposes of the present application, the interests of the defendants overlap entirely. No oral evidence was called, but a number of documents were placed before me. Each counsel made succinct and helpful submissions.
Factual background
6 In the application before me, there was no great dispute concerning the factual basis of the claim itself. I should add that any finding of fact which I make is solely for the purposes of the present application.
7 The plaintiff is the owner of an overhead electricity cable at Bridgewater On Loddon. The first defendant is the owner of two heavy vehicles. The second defendant employed the drivers of such vehicles. On 11 February 2014 the vehicles were proceeding through Bridgewater On Loddon, each towing a trailer upon which was an oversized dump truck. A collision occurred with the overhead electricity cable. The plaintiff is suing the defendants in negligence and breach of statutory duty. It seeks damages for rectification works and for losses incurred in relation to interruption to the power supply.
8 The Amended Defence on behalf of the defendants makes various appropriate admissions. However, it asserts that the trucks were travelling as part of a convoy. Their height, including loads, was under 5.2 metres. It asserts that there had been an advance assessment of the course of the trucks and convoy and that no problems in Bridgewater On Loddon were detected. It further asserts that the vehicles were fitted with wire-prevention skid rails and that the vehicles were driven with due care and skill, including not being driven at an excessive speed. The speed of the convoy through Bridgewater On Loddon is said to be approximately 20-30 kilometres per hour. Contributory negligence is alleged. The basis of this is that the plaintiff failed to ensure that the overhead cable was at least 5.5 metres above the road surface. It is also asserted that there had been prior incidents on the same stretch of road and that the plaintiff had failed to relocate the cable after such incidents or attach to it a device that, in the event of an impact, would prevent the cable from snapping or contacting the main power lines.
9 It is against this background that the contentious interrogatories were served. I shall not set them out in detail. They enquire after such matters as the height of the cable; the distance of the first vehicle from the cable when the driver first observed it; the speed and location of the first vehicle at the time; steps taken by the driver to ensure that there was sufficient clearance; any alterations to the speed and course of the first vehicle; and the speed, direction and location of the first vehicle at the time that it passed under the cable.
10 That is a summary of the first five relevant interrogatories. Another set of five interrogatories are then directed towards the second vehicle and its driver. Finally, there is a general interrogatory concerning the state of visibility; the condition of the road surface below the cable; the state of the weather, including whether it was raining; and as to any other obstructions on the roadway.
11 I have previously set out the answer provided by the defendants to each interrogatory of this nature.
12 I turn now to a brief summary of the submissions on behalf of the parties.
Submissions on behalf of the plaintiff
13 The submissions of Mr Castelan on behalf of the plaintiff could be summarised as follows.
14 The interrogatories are based upon specific Particulars of Negligence set out in the Amended Statement of Claim. Those Particulars are allegations that one would expect to find in a standard or usual Statement of Claim based upon a motor vehicle collision. They allege such things as failing to ensure that there was sufficient clearance, travelling at an excessive speed in the circumstances, failing to keep a proper lookout and the like. In other words, in essence the case is in reality a standard “crash and bash” motor vehicle claim involving frequently encountered allegations.
15 Reference is made to the commentary in “Civil Procedure Victoria”, in particular to paragraph I30.02.405 (hereafter referred to as “the commentary”). This relates to interrogatories in motor vehicle claims. It is clear that it is perfectly proper in a motor vehicle accident claim for each party to interrogate as to relative speeds, distances, positions on the roadway and the like.
16 Reference is also made to the decision of his Honour Judge Parrish in Dawson v Lygon Food Store Pty Ltd [2013] VCC 1812. In that case, his Honour pointed out that interrogatories must relate to a question in a proceeding between the parties and the word “question” means any question or matter of fact for determination by the Court raised by the pleadings. His Honour referred to Order 1.13(1) of the County Court Civil Procedure Rules 2008. In addition, he stated that an interrogatory relates to a question if it has some association or connection with it. Therefore, interrogation is not confined to the facts directly in issue. He stated that the test is whether the interrogatory is directed to a question in the proceeding such that an answer to the interrogatory may enable the party interrogating to advance his own case or to destroy or impeach the case of the party interrogated. His Honour referred to authority in this regard. Clearly, the interrogatories in dispute in the present case satisfy that test.
17 The plaintiff was entitled to ask the questions which it did and should receive proper and appropriate answers to its interrogatories.
Submissions on behalf of the defendants
18 The submissions of Ms Howe on behalf of the defendants could be summarised as follows.
19 On 15 July 2016, the solicitors for the defendants wrote to the plaintiff’s solicitors in relation to their request for answers. That letter summarises a considerable part of the arguments advanced by the defendants in the present application. Essentially, that letter states in summary that the objection taken is pursuant to Rule 30.07(2)(c) of the County Court Civil Procedure Rules, in that the plaintiff was trying to ascertain the evidence by which the defendants intend to prove their case. It is alleged in that letter that answers to the interrogatories are not necessary for the plaintiff to understand the case of the defendants or ascertain the case it has to meet at trial.
20 Reference is made to material included in the Defence. The Defence has provided precise information, as opposed to generalised expressions. Further, the matters raised in the interrogatories are investigations that can be taken up in cross-examination of the drivers of the vehicles. They are not appropriate or necessary interrogatories.
21 Apart from what is contained in the letter of the defendants’ solicitors of 15 July 2016, the interrogatories are long and prolix. The number of interrogatories asked far exceeds that referred to in the Practice Note.
22 Further, the interrogatories under consideration are directed to the evidence which shall be given by the drivers and are essentially in the nature of cross-examination. The person who has sworn the answers to interrogatories, or will swear any other answers, is not one of the drivers. Thus, the information sought is of a hearsay nature and is an attempt to cross-examine the drivers through answers supplied by another person. The information which is sought can be found in the Amended Defence and in the letter of the defendants’ solicitors. The interrogatories in question are an attempt to ascertain the evidence by which the defendants intend to prove their case.
23 Reference is made to Rule I30.07(2). It is again emphasised that essentially the interrogatories represent cross-examination of the drivers, the answers being supplied on a “secondhand” basis.
24 The Summons, insofar as it relates to the contentious matters that have been discussed, should be dismissed. The defendants should not be required to file and serve supplementary answers.
Ruling
25 In relation to the specific matters to be determined, I am of the view that the plaintiff is successful. It is entitled to further and better answers to the specified interrogatories. I have come to that conclusion for the following reasons.
26 The arguments advanced by Mr Castelan seem to me to be correct. The cause of action, albeit on a large scale and involving well-known corporations, is basically a motor vehicle accident claim. It concerns whether the defendants were negligent in relation to the collision between the vehicle or vehicles and the overhead electric cable. It seems to me that interrogatories directed to issues involving speeds, distances, positions on the roadway, proximity to the object struck and the like are interrogatories which relate to questions arising between the parties. I would refer to Rule 30.02(1) of the County Court Civil Procedure Rules.
27 Mr Castelan directed me to the commentary in paragraph I30.02.405 and to the cases referred to therein. In particular, he referred to the decisions in Cappadona v Sullivan (1924) 30 ALR(CN) 13 and Dooley v Oldman [1949] ALR(CN) 1053. I note that, in Cappadona, his Honour Judge Dethridge stated as follows:
“A party is entitled to interrogate or elicit information or admissions which support his own pleaded case or destroy his opponent’s pleaded case, but I do not think he may by interrogatories seek information or admissions as to facts which neither could properly allege in his pleadings, notwithstanding that such facts may be admissible in evidence in support of his opponent’s pleaded case.”
28 In the present case, it seems to me that the plaintiff is interrogating to elicit information which may support its own pleaded case or destroy the pleaded case of its opponents. In the present case, the interrogatories of the plaintiff are directed in such a way.
29 In Dawson, his Honour Judge Parrish, at paragraph 14, set out the following quotation from the decision in Marriott v Chamberlain (1886) 17 QBD 154 at 163:
“…the right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue”.
30 In the present case, it seems to me that the interrogation is directed to the facts in issue and also extends to the facts the existence or non-existence of which is relevant.
31 Further, in Dawson, his Honour referred to Petchem Ltd (in liq) v B F Goodrich Chemical Ltd [1982] VR 482 and to the test set out therein. His honour stated as follows:
“The test is whether the interrogatory is directed to a question in the proceeding such that an answer to the interrogatory may enable the party interrogating to advance his own case or destroy or impeach the case of the party interrogated.”
32 His Honour also set out extracts from the Judgment of Gray J in Petchem, including the following:
“The question is whether the interrogatory is directed to a subject matter which can be seen to have potential relevance. … However, I do not consider that an interrogatory becomes objectionable merely because the answer may prove irrelevant to an issue. That result will only follow if the interrogatory can be seen to be directed to a factual area of no possible relevance.”
33 In my opinion, the interrogatories under consideration in the present case are directed to a subject matter of potential relevance. A collision has occurred. Interrogatories are directed to issues of height, distance, speed, location on the roadway, direction and the like. Answers to such interrogatories may enable the party interrogating to advance its own case or destroy or impeach the case of the parties interrogated, to employ the wording used in Petchem.
34 Further, they are interrogatories of the type used in motor vehicle claims and referred to in paragraph I30.02.405 of the commentary.
35 I am not persuaded that it is to the point that there are some assertions as to speed, height of vehicles and the like contained in the Amended Defence or in the letter of the defendants’ solicitors of 15 July 2016. The plaintiff is entitled to obtain answers on oath in relation to potentially relevant questions in a situation where such answers may enable it to advance its own case or destroy or impeach the case of the defendants.
36 It does not seem to me to be obliged to accept, without question, unsworn assertions in a Defence or in a letter. If it were not so, there would be little or no role for interrogatories to play. I would again refer to Rule 30.02(1) – “Subject to the other paragraphs of this Rule, any party may serve interrogatories on another party relating to any questions between them in the proceeding.” Complementing this, Rule 30.04(b) provides that “…the party interrogated shall … answer by affidavit …” (my underlining).
37 Interrogatories are required to be answered on oath, which distinguishes them from pleadings and letters.
38 In the present case, the plaintiff’s interrogatories seem to me to be relevant. They are directed towards issues which lie at the centre of the dispute. They seem to me to be in accordance with the established law and with the Rules. The answers provided are merely objections. The plaintiff is entitled to further and better answers to each of the interrogatories the subject of this dispute.
Conclusion
39 In relation to the central issues disputed before me, the plaintiff is successful. I rule that the defendants provide further and better answers to the interrogatories in question, being interrogatories 11-20 and 25. I leave to one side the other interrogatories and the issue of discovery, which issues are still under discussion. Consent orders as to the timetable for the disposition of the matter have been placed before me and those orders have been made.
40 I shall hear the parties as to any ancillary orders that are required.
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