CITATION: SCHUTT v QUEENAN & ANOR [2000] NSWCA 341 FILE NUMBER(S): CA 40367/00 HEARING DATE(S): 23 November 2000 JUDGMENT DATE:
23 November 2000PARTIES :
CASSANDRA SCHUTT (BY HER NEXT FRIEND STEPHEN SCHUTT) v BRIAN QUEENAN & ANORJUDGMENT OF: Mason P at 1; Powell JA at 23; Fitzgerald JA at 24
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC 514/99 LOWER COURT
JUDICIAL OFFICER :Downes ADCJ
COUNSEL: Claimant/Appellant: J V Agius SC/J Springthorpe
1st Opponent/Respondent: J D Hislop QC/M A Elkaim
2nd Opponent/Respondent: P D RyanSOLICITORS: Claimant/Appellant: Beilby Poulden Costello
1st Opponent/Respondent: Windeyer Dibbs
2nd Opponent/Respondent: Sparke HelmoreCATCHWORDS: District Court - personal injury - motor vehicle accident - interrogatories to defendant driver - plaintiff unable to produce any eye witness - District Court Rules Pt 22A r5 - whether interrogatories "necessary". D. DECISION: See par 22 of judgment.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL1 MASON P: On 22 November 1995 the claimant was injured when struck by a car driven by the first opponent along a public street in Bundeena. The claimant had then just turned six. According to the facts alleged in the amended ordinary statement of claim in the District Court, the claimant was being driven to her grandmother’s house by lady called Mrs Hall. Mrs Hall had dropped her on the south side of the street, roughly opposite the grandmother’s house. The claimant ran out from an obscured position and was struck by the first opponent's vehicle. 2 The claimant has propounded an alternative claim in negligence against Mrs Hall, but that does not concern us at the moment. It is however common ground that Mrs Hall did not see the immediate accident. Nor is the claimant able to give evidence about it, having regard to her injuries and her age at the time of the accident. It is common ground that there are no other known eye witnesses. 3 The usual particulars of driver’s negligence have been alleged against the first opponent. It is however clear that liability will be seriously in issue. The insurer’s solicitors indicated this on 18 November 1999. The denial of liability has been backed up by the service of two reports of a crash investigation engineer. 4 The first opponent was interviewed by the police on the day of the accident. He is an experienced driver, now aged 75. According to his police statement, he was driving at 10-15km/h. He also said:
CA 40367/00
MASON P
Thursday 23 November 2000
POWELL JA
FITZGERALD JA
CASSANDRA SCHUTT v BRIAN QUEENAN & ANOR
JUDGMENT
I was driving east on Scarborough Street and I saw a car parked on the left hand side of the road and I moved slightly to the centre of the road to pass the parked car. Then I saw a little girl’s head in front of my car. I started to brake and I think I swerved into the middle of the road. I stopped the…
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- AGLC
- Schutt v Queenan [2000] NSWCA 341
- Case
- [2000] NSWCA 341
- Decision Date
CaseChat Overview and Summary
Schutt v Queenan concerned an appeal to the Court of Appeal of New South Wales following a decision in the District Court. The dispute arose from a motor vehicle accident, where the plaintiff, Schutt, sought to deliver interrogatories to the defendant driver, Queenan. A key factual element was the plaintiff's inability to produce any eyewitness to the accident.
The central legal issue before the Court of Appeal was whether the interrogatories sought by the plaintiff were "necessary" within the meaning of rule 5 of Part 22A of the District Court Rules. This rule governs the circumstances under which interrogatories may be administered in District Court proceedings.
The Court of Appeal considered the purpose of interrogatories, which is to obtain admissions or information to assist in the conduct of the litigation. It held that the "necessity" required by the rule did not mean that the interrogatories were the only way to obtain the information, but rather that they were reasonably required for the proper disposal of the cause. The Court found that, given the absence of eyewitnesses, the interrogatories were reasonably necessary to ascertain the defendant's account of the accident and to avoid surprise at trial. The appeal was allowed, and the plaintiff was permitted to administer the interrogatories.
The central legal issue before the Court of Appeal was whether the interrogatories sought by the plaintiff were "necessary" within the meaning of rule 5 of Part 22A of the District Court Rules. This rule governs the circumstances under which interrogatories may be administered in District Court proceedings.
The Court of Appeal considered the purpose of interrogatories, which is to obtain admissions or information to assist in the conduct of the litigation. It held that the "necessity" required by the rule did not mean that the interrogatories were the only way to obtain the information, but rather that they were reasonably required for the proper disposal of the cause. The Court found that, given the absence of eyewitnesses, the interrogatories were reasonably necessary to ascertain the defendant's account of the accident and to avoid surprise at trial. The appeal was allowed, and the plaintiff was permitted to administer the interrogatories.
Orders
Orders of the court
See par 22 of judgment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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