Salzano v Rolan Semaarn Salon Pty Ltd

[2009] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No  3753 of 2009

LARA SALZANO
	Appellant
v
ROLAN SEMAARN SALON PTY LTD	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	MANDIE JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2009
DATE OF JUDGMENT:	4 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 201

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PRACTICE AND PROCEDURE – Interrogatories – Interrogatories relating to a question between the parties.

PRACTICE AND PROCEDURE – Interlocutory decision – Discretionary decision relating to practice and procedure – Decision not attended with doubt – No substantial injustice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr JH Kennan SC with Mr ADB Ingram	Clark Toop & Taylor
For the Respondent	Mr MF Wheelahan SC with Ms MA Hartley	Minter Ellison

MANDIE JA:

1. I will ask Justice Beach to read the first judgment.

BEACH AJA:

1. In this proceeding the applicant claims damages for personal injury arising from her employment with the respondent between approximately 2001 and 2003, when she alleges she was required to work in a highly stressful work environment.  It is further alleged that the defendant was fully aware of the environment and failed in any way to control the environment.  The injuries claimed include psychiatric injuries. 

1. In its original defence, the respondent pleaded:

(a)       In paragraph 3:  “If the plaintiff suffers from a psychiatric condition, which is denied, then such psychiatric condition has been caused by her consumption of cannabis and/or methamphetamine known as 'ice'”.

(b)In paragraph 7(e), as a particular of contributory negligence:  “Consuming amounts of cannabis and/or methamphetamine 'ice', substances affecting the plaintiff's psychiatric state and mental acuity”.

1. Subsequently the respondent served interrogatories on the applicant.  Interrogatories 34 to 38 were in the following terms:

34.     Between January 2001 and July 2003, did you use marijuana?

35.If yes to the preceding interrogatory, state the number of occasions on which you used marijuana.

36.Between January 2001 and July 2003, did you use marijuana and whether you smoked it or ingested it in some other, and if so what, way?

37.Between January 2001 and July 2003, did you use a drug commonly known as 'ice'?

38.If yes to the preceding interrogatory, state the number of occasions on which you used ice and the manner in which you used it.

While the wording of interrogatory 36 is not entirely felicitous, it is tolerably clear that the interrogatory asks:

Between January 2001 and July 2003 did you use marijuana and state whether you smoked it, or ingested it in some other, and if so what, way.

1. In her affidavit of answers to interrogatories, the applicant took objection to answering these interrogatories on the grounds that they did not relate to any question between the parties, they were unclear or vague or too wide and they were oppressive. 

1. The applicant took out a summons for further and better answers to these interrogatories (and an additional interrogatory, which is no longer relevant).  The summons came on for hearing before Gardiner AsJ.  His Honour ordered the applicant to answer the interrogatories. 

1. The applicant appealed from the order of Gardiner AsJ and filed a summons seeking orders that paragraph 7(c) of the defence be struck out;  alternatively that the respondent provide further and better particulars of paragraph 7(c).  It is tolerably clear that in fact the applicant sought to attack paragraph 7(e) of the defence.

1. The appeal and summons came on for hearing before Kyrou J on 30 March 2009.  On that day, his Honour made orders:

(a)giving the defendant leave to file and serve an amended defence in which greater particularity was given of the defendant's allegations of the plaintiff's consumption of cannabis and/or methamphetamine; 

(b)dismissing the plaintiff's appeal from the order of Gardiner AsJ requiring her to answer interrogatories 34 to 38; 

(c)preventing the plaintiff from filing a request for further and better particulars of the defendant's defence before answering interrogatories 34 to 38;  and

(d)ordering the plaintiff to pay 66% of the defendant's costs of and incidental to the summons and the appeal.

1. Pursuant to the leave given by his Honour, the defendant's amended defence now contains an allegation: 

Between 8 January 2001 and approximately 2003, the plaintiff consumed amounts of cannabis and/or the methamphetamine 'ice' at nightclubs in St Kilda Road, Melbourne, in Chapel Street, Prahran, at her home and at other venues and as a consequence suffered the psychiatric disorders and symptoms alleged in the particulars of injury in paragraph 6 of the plaintiff's statement of claim.

These allegations in the amended defence are made in respect of both causation and contributory negligence. 

1. In her proposed notice of appeal, the plaintiff contends that Kyrou J erred in:

(a)ordering the applicant to file and serve further and better answers to interrogatories in circumstances where the pleadings had not closed and the issues were not sufficiently defined;

(b)ordering the applicant to file and serve further and better answers in circumstances where the respondent had failed to plead adequately or at all the material facts on which the interrogatories delivered for her examination were based; 

(c)failing to strike out paragraphs 3 and/or 7(e) of the defence; and

(d)not permitting the applicant to file a request for further and better particulars until after she filed and served further and better answers.

1. The decision from which leave to appeal is sought was a discretionary decision on a matter of practice and procedure.  It is to be remembered that appellate courts will exercise particular caution in reviewing decisions pertaining to discretionary decisions relating to practice and procedure.[1]

[1]See generally Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.

1. While it is not necessary to go so far, in my view the orders of Kyrou J were correct.  However, it is sufficient to say that the orders were clearly open.  The applicant has not demonstrated that his Honour acted upon a wrong principle; or allowed extraneous or irrelevant matters to guide or affect him; or mistook the facts; or did not take into account some material consideration.  Further, the orders of his Honour could not, on any view, be said to be unreasonable or plainly unjust so as to enable an inference to be drawn that there has been some failure to properly exercise the discretion which was reposed in his Honour. 

1. From the time when it delivered its first defence, there has been an issue between the parties as to the applicant's alleged consumption of cannabis and methamphetamine.  These matters were properly the subject of interrogatories 34 to 38.  The interrogatories relate to questions between the parties, as disclosed by the pleadings; they were neither unclear nor vague nor too wide nor oppressive.  Whether or not the applicant ultimately takes a privilege objection is, of course, a matter for her. 

1. There is no substance in the applicant's complaints concerning being required to answer interrogatories before pleadings have closed.  The questions between the parties were sufficiently defined upon the delivery of the respondent's original defence. 

1. Further, there is no substance in the applicant's complaints concerning the respondent's pleadings.  Additionally, there is no injustice in requiring the applicant to answer the interrogatories before requesting any further and better particulars of the respondent's defence.  The matters inquired of in the interrogatories are peculiarly within the applicant's knowledge.  She does not require particulars from the respondent in order to be able to answer the interrogatories. 

1. Finally, the applicant has not demonstrated that any substantial injustice will occur by leaving the orders of Kyrou J unreversed. 

1. For these reasons, the application for leave must be dismissed.

MANDIE JA:

1. I agree with Beach AJA.  I would only add that, accepting that allegations of

misconduct should be pleaded with precision, I think that there is sufficient precision in the circumstances having regard to the fact that these matters are matters peculiarly within the knowledge of the plaintiff.  In any event, the orders of the judge were within his discretion and I do not think that that discretion has miscarried.

1. The application will be dismissed.  The applicant will pay the respondent's costs including reserved costs.

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