Ranger v Suncorp General Insurance Ltd

[1998] QCA 258

COURT OF APPEAL

[1998] QCA 258

PINCUS JA THOMAS JA MACKENZIE J

Appeal No 4583 of 1998

SUNCORP GENERAL INSURANCE	Appellant (Second Defendant)
LIMITED
and
DEIDRE ANNE RANGER	Respondent (Plaintiff)

BRISBANE
..DATE 17/08/98
PINCUS JA: The appellant, having made an unsuccessful application for
leave to deliver interrogatories in the Supreme Court, appeals against
refusal of leave. Order 35 r. 21 empowers a judge to grant leave to
deliver interrogatories if "satisfied there is not likely to be available
to the applicant at the trial any other reasonably simple and inexpensive
way of proving the matter sought to be elicited by interrogatory".
According to the appellant's outline, paragraph 7, answers to the
interrogatories in question are likely to be useful because the appellant
will need expert evidence if it is to contest the respondent's allegations.

It is also suggested in the outline, paragraph 11, that obtaining answers

might conduce settlement and that point was pressed by Mr Stenson in

argument before us.

In the statement of claim, the respondent plaintiff alleges that she was
injured when struck by a Toyota motor vehicle of which the appellant was
the insurer. The collision was said to have happened at a service station

when the Toyota was being manoeuvred under the direction of the respondent.

The defence does not admit that there was any collision and in this sense

the case is an unusual one. The draft interrogatories in the record show
that the appellant wishes to interrogate, in detail, about the
circumstances of the collision alleged. The primary judge, Cullinane J.,

dismissed the application, saying among other things that:

"This is a case in which the resolution of the issue between the

parties falls to be determined by issues of credibility, there
having been only two persons present, the plaintiff and the

defendant, each of whom have different accounts of what occurred."

In the course of argument before Cullinane J., the appellant's solicitor
informed the judge that the driver of the Toyota, who is the first
defendant but not a party to this appeal, had some lack of recollection of
aspects of the matter; apart from that, and apart from the rather unusual
circumstance previously referred to, that the occurrence of the collision
was in issue, the case is simply one in which one party in a motor accident
case wishes to interrogate about the details of the opposing party's
version of the facts. Reference has been made, in the fairly elaborate
outline prepared by the respondent to the appeal, to authorities from the
1950's and 1960's, but they are not likely to be of any help in applying O.
35 r. 21 or indeed any other provision of the present rules about
interrogatories, which introduce a new system.
The opening words of r. 21 appear to me designed to give the judge a
discretion to depart from what is provided by the rest of the subrule, and
in particular to grant leave to deliver interrogatories even if not
satisfied of the matters set out in subr. (1)(b). But the expectation,
plainly, is that other than in quite special circumstances interrogatories
will only be allowed if the condition set out in subr. (1)(b) applies; here
it does not. The matters sought to be elicited by interrogatories can be
ascertained at trial by the simple means of listening to the evidence of
the respondent and cross-examining upon it. The only purposes of the
interrogatories suggested in the outline are to enable an expert to
consider the facts, and to facilitate settlement. It could, as it seems to
me, hardly ever be right to allow interrogatories not satisfying r.
21(1)(b) to be delivered for either of these purposes in a motor collision
case.

The present case is one in which, far from the facts alleged being nebulous or vague, the plaintiff has gone into detail, by particulars in the statement of claim. From the particulars given on the other side, the defendant appears to have some recollection of the details of the incident.

The fact that the defendant did not, it is said, see part of the overall

event is not unusual and is not a reason to depart from the usual rule set
out in subr. (1)(b) and is not a reason to grant leave to deliver
interrogatories.

It is my opinion that the primary judge acted correctly in dismissing the application and I would therefore dismiss the appeal, with costs.

THOMAS JA: I agree.

MACKENZIE J: I agree.

PINCUS JA: The order of the Court is: appeal dismissed with costs.

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