Ryan v Minister for Health in His Capacity as the Board of Sir Charles Gairdner - [2001] WADC 171

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RYAN -v- MINISTER FOR HEALTH IN HIS CAPACITY AS THE BOARD OF SIR CHARLES GAIRDNER & ORS [2001] WADC 171

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 25 JUNE 2001

DELIVERED : 23 JULY 2001

FILE NO/S: CIV 4870 of 1998

BETWEEN: BRENDAN JAMES RYAN
Plaintiff
AND
MINISTER FOR HEALTH IN HIS CAPACITY AS THE BOARD OF SIR CHARLES GAIRDNER
First Defendant
JOHN DUNNE
Second Defendant
RICHARD HERRMANN
Third Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for further and better answers to interrogatories - Consideration of the exercise of discretion in O 27 r 7

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr J R Potter
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Mr D J Matthews

Solicitors:

Plaintiff:     Ilbery Barblett
First Defendant             :     State Crown Solicitor
Second Defendant         :     Clayton Utz
Third Defendant           :     State Crown Solicitor

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

Dalrymple v Gray (1996) 17 SR (WA) 99

Case(s) also cited:

Austin & Ors v Austin & Ors [1905] VLR 377
Coal Cliff Collieries Pty Ltd & Anor v C E Health Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703
Hennessy v Wright (1890) 24 QBD 445
Marriott v Chamberlain (1886) 17 QBD 154
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101
Sharpe v Smail & Anor (1975) 49 ALJR 130
Simpson v Midalco Pty Ltd, unreported; SCt of WA; Library No 6637; 1987

DEPUTY REGISTRAR HARMAN: The action is for damages for loss as a consequence of the alleged failure of the third defendant to either warn or inform the plaintiff. That allegation is founded in the context of the plaintiff receiving medical treatment.
By the application presently before the Court the plaintiff seeks further answers to questions 15, 16, 20(d) and 22 of the plaintiff's interrogatories to the defendant.
Those questions are as follows:
15.Did the third defendant arrange for the plaintiff to undergo cranial MRI scan at any time between 19 March 1991 and 31 December? If not, why not?
16.Did the third defendant arrange for the plaintiff to under go serial EEG recordings during the period 19 March 1991 to 31 December 1991? If not, why not?
20.Did the third defendant at any time during the period 27 November 1990 to 17 March 1991 consider the plaintiff had any risk of developing leucoencephalopathy ("the risk")? If so:
(d)did the third defendant discuss the risk with the plaintiff and/or the plaintiff's parents? If so:
(ii)provide the substance of the discussion.
22.Did the third defendant on 28 November 1990 discuss a bone marrow transplantation with the plaintiff and/or the plaintiff's parents (and specify which)? And if so, state:
(a)who was present during the discussion;
(b)where the discussion occurred;
(c)the length of the discussion; and
(d)the precise content of the discussion regarding:
(i)the plaintiff's clinical condition at the time;
(ii)the risks associated with:
(1) bone marrow transplantation;
(2)continuing the plaintiff's intrathecal chemotherapy regime after the bone marrow transplantation; and
(3)discontinuing or altering the plaintiff's intrathecal chemotherapy regime after the bone marrow transplantation;
(iii)any other risks associated with the plaintiff's current and/or planned treatment.
The application engages only the second part of each of questions 15 and 16, question 20 (d)(ii) and question 22(d)(ii)(1).
It is a fair assessment that the defendant’s responses to those questions have been substantial however the plaintiff finds fault with the sufficiency or utility of each response.
The applicant seeks to have the Court exercise jurisdiction under O 27 r 7. It is in the following terms:
"If any person on whom interrogatories have been served fails, within the prescribed time or within such other time as the Court may allow, to answer the interrogatories or answers any of them insufficiently, the Court may make an order requiring him to answer or answer further as the case may be, by a statement verified by affidavit…"
In considering the exercise of that discretion, the court ought to reflect upon r 5(2). It is in the following terms:
"Where on an application under rule 7 the Court decides that an objection by the party interrogated to answering an interrogatory is not sufficient or the party interrogated does not object to answering an interrogatory, that party shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories."
The onus is upon the plaintiff to satisfy the court that it is appropriate to exercise jurisdiction to require the defendant to answer.
The fact that the defendant has chosen to answer rather than object ought not to fetter consideration of whether it is appropriate to exercise discretion in favour of the plaintiff. There may be any number of factors, which may have no bearing upon the exercise of discretion which may have influenced the defendant in his assessment of how to respond to the questions. Although I accept that within the confines of the application the defendant is limited by the terms of his response to the questions, ultimately any exercise of discretion in favour of the plaintiff should turn on a consideration of the questions. Ultimately the court could not require a party to answer what it considers to be an objectionable question.
The Court ought to be circumspect in considering the exercise of jurisdiction where one party seeks to engage the involuntary assistance of its opponent to assist it in preparing its case for trial. Particularly so since the advent of case management. Case management describes the implementation of a strategy that ultimately is founded upon a perceived need to facilitate the early resolution of disputes. For present purposes it is significant that the strategy was developed and is implemented by the court. There also appears to be a developing practice whereby the court may alight upon some perceived imbalance in the resources of the parties and seeks to redress that imbalance, particularly by requiring the provision of information or evidence by one to the other. I gather that the practice may derive not only from the considerations that found case management but also in order to promote the prospects of settlement. Both no doubt laudable considerations but in my opinion no proper basis for determining any application. The principle that founds all of the interlocutory processes is that their utilisation does not impinge upon the prospect of a fair trial. Any principle that supports either the practice or case management is elusive. If it is capable of distillation it could not disturb the principle to which I have referred.
That said, in this case the references in the pleadings to events that occurred as far ago as 1989 must attract some comment. Any particular case may provide cause for concern that it has not been determined at an earlier time. Both parties and the court may feel the consequences of delay. None the less the only significant consideration is that at the trial the plaintiff will carry the onus.
In determining the application it is important to focus upon the applicant’s entitlement to an exercise of discretion independent of any considerations which either derive from case management or promote settlement.
The plaintiff submitted that he is entitled to know the defendant’s case. It is significant that there is no principle, rule or authority that propounds any such entitlement. A party is entitled to no more than its opponent’s pleading and particulars of that pleading. The authority which suggests that the processes of seeking particulars and interrogation are interchangeable is fundamentally flawed. Apart from the fact that the processes are distinct, to answer interrogatories is more onerous and inevitably more costly. Significantly it is practically impossible to amend an answer to interrogatories. In this case evidently the plaintiff is content with the defendant’s pleading and particulars.
The plaintiff submitted that the only issue raised by the application were the defendant’s answers not the questions. He relied upon par 13 in his outline of submissions. It is as follows:
"A party in his interrogatories is entitled to ask the same questions of the other party as could be asked if the other party were called as a witness at trial. Dalrymple v Gray (1996) 17 SR (WA) 99 at 102."
Whether or not it is supported by Dalrymple v Gray that submission is significant because it utterly misses the most significant feature of the court’s engagement in any aspect of the process of interrogation. The issue to be determined by the Court is ultimately concerned not with which questions may be put but rather, which ought to be answered.
That issue is addressed in the defendant's submissions at point 6 as follows: -
"Interrogatories are intended to be clear and concise so as to produce answers that may be tendered as admissions: not as a means for obtaining the detail of evidence or, as on occasion, for a fishing expedition."
Regardless of whether the plaintiff is fishing, a plain reading of the questions demonstrates that the plaintiff seeks more than admissions.
In a broader sense any interrogatory is oppressive, as it requires one party to assist its opponent in getting up its opponent’s case for trial. None the less the court is prepared to countenance a degree of oppression to the extent that if a proper question is put the respondent will be accorded the opportunity to admit, deny or object. In recognition of the fact that in order to fully state any objection may take some time and consideration, and that in the event of a contest the respondent is limited by the terms of objection, the court will properly consider that a patently objectionable question is patently oppressive.
In my opinion it would only be appropriate to require a party to answer a patently oppressive question, such as one which calls for evidence, if there is some good reason to do so.
In considering that prospect the Court would reflect upon whether the applicant had satisfied the Court that it does not have but needs the information sought and that there is no other means available to it. The applicant would need to produce some compelling evidence. First it would be appropriate to consider the likely significance of the evidence sought and in particular whether the court ought to be concerned that a case may fail to be made out without it. It would then be appropriate to reflect upon the obligation that the question would appear to cast upon the answering party. In particular, whether the answering party may be called upon to provide what may conceivably be a volume of information.
Ultimately, there are considerations that arise from the likely form of answer. It is appropriate to consider that at some stage in an action credibility will be in issue. To require the respondent to provide evidence would put him in a position where he could be cross‑examined on the answer at trial.
Inevitably, answers to interrogatories are framed by lawyers, not by the parties. Significantly, that is likely to be the case where questions call for evidence. Whilst it may be prudent to provide the most comprehensive answer in order not to expose a witness at trial, there will always be certain attraction in recourse to a summary. In my opinion it is well beyond the scope of the process for the respondent to have to consider how to formulate such a response, that is whether it would be prudent to provide all of the relevant evidence or whether it could be reduced to a summary. As I have indicated within the context of the subject application the respondent is bound by its response.
Whilst one of the considerations which supports the process of interrogation is a reduction of the cost of litigation, the founding principle it to promote and preserve the prospect of a fair trial. It would be absurd to allow for the prospect of the generation of issues of credit at trial by resort to a process that ultimately is founded upon the preservation of fairness.
In my opinion the standard by which a question ought to be judged is properly determined by the ends that the process is designed to serve. That is, to commit a party to the existence or denial of a relevant fact. A proper question would seek no more than a response to the proposition as to the existence of a relevant fact. The proposition should be clearly expressed.
The relevant parts of questions 15 and 16 do more than put propositions and call for a response. Indeed they go further than seeking what objectively could only be a discrete fact. In my opinion it is difficult to envisage that a party would ever be entitled to a response to a question which calls for reasons and conceivably an opinion. Such a question is so far removed from an appropriate form of questioning that it is surprising that they have been put forward by the application.
Any answer to question 20(d)(ii) could not be utilised for the production of evidence as to the existence of a relevant fact at trial. The question seeks relevant particulars of a discussion. I am not aware of any basis for the court to require the involuntary provision of particulars other than of an allegation of material fact. There was no suggestion that the defendant had pleaded the discussion. The question does not seek an admission. It does not even seek evidence. It seeks a summary and is therefore inappropriate as it is oppressive.
It follows from all of the above that no part of question 22 is an appropriate interrogatory.
None of the questions in issue are appropriately put as interrogatories; accordingly the application is dismissed.