Smith v High Energy Service Pty Ltd - [2019] WADC 142

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   SMITH -v- HIGH ENERGY SERVICE PTY LTD [2019] WADC 142
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   25 SEPTEMBER 2019
DELIVERED          :   10 OCTOBER 2019
FILE NO/S:   CIV 497 of 2017
BETWEEN:   GLENN ANTHONY CHARLES SMITH
Plaintiff
AND
HIGH ENERGY SERVICE PTY LTD
First Defendant
DAVID ALUN RICHARDS and JANET ELIZABETH RICHARDS t/as RICHARDS ENERGY SERVICES
Second Defendant
VICINITY CUSTODIAN PTY LTD
Third Defendant
PERRON INVESTMENTS PTY LTD
Fourth Defendant
VICINITY CUSTODIAN PTY LTD
Fourth Third Party

Catchwords:

Practice and procedure - Application for further and better particulars and answers to interrogatories - Turns on its own facts

Legislation:

Nil

Result:

Leave to administer interrogatories granted
Application otherwise dismissed

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	Mr T Lampropoulos SC
Second Defendant	:	Mr G R Hancy
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fourth Third Party	:	No appearance

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Kott Gunning
Second Defendant	:	Hall and Wilcox
Third Defendant	:	Not applicable
Fourth Defendant	:	Not applicable
Fourth Third Party	:	Not applicable

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

Dare v Pulham (1982) 148 CLR 658

DEPUTY REGISTRAR HEWITT:

This action concerns a claim by the plaintiff for injuries which he received on or about 3 February 2015, when he, as an employee of the first defendant, attended a switch room of a power substation when a piece of electrical equipment within the switch room exploded with the effect that the plaintiff was seriously injured. Another person in the room was also seriously injured and two other people within the room were killed.
The plaintiff's claim against the first defendant as his employer in breaching its duty of care to its employee. The claim against the second defendant is also based on a breach of the common law duty of care, the allegation being that the second defendant was an expert in relation to insulated switch gear, and in particular the equipment used within the switch room, and was engaged by the first defendant to supply the expertise necessary to carry out the tasks which were required in the switch room.
The application with which I am required to deal with is that brought by the first defendant against the second defendant filed on 25 July 2019. Within that application, there are two matters which were argued before me. The first is an application by the first defendant that the second defendant provide further and better particulars of its defence to the plaintiff's claim. I reproduce below the terms of the request for further and better particulars:
1.As to paragraph 5(a) of the Second Defendant's Defence to Plaintiff's Statement of Claim in Consolidated Action state the basis upon which Mr Richards attended the switch-room on 3 February 2015 and the purpose of that attendance.
2.As to paragraph 5(c) of the Second Defendant's Defence to Plaintiff’s Statement of Claim in Consolidated Action:
(a)state what is meant by the allegation that the First Defendant was 'engaged' by the owner;
(b)explain what is meant by 'adequate' knowledge and expertise, and describe that 'knowledge and expertise'.
3.As to paragraph 7(d)(i) of the Second Defendant's Defence to Plaintiff's Statement of Claim in Consolidated Action:
(a)explain what is meant by 'the substation’s downstream protection against power overload';
(b)explain how it was 'not operational'.
4.As to paragraph 10(c)(i) of the Second Defendant's Defence to Plaintiff’s Statement of Claim in Consolidated Action state what downstream protection against power overload was absent.
5.As to paragraph 10(d)(i) of the Second Defendant's Defence to Plaintiff's Statement of Claim in Consolidated Action state what downstream protection against power overload was absent.
6.As to paragraphs 10(c) and 10(d), state how the absence of downstream protection against power overload caused the explosion.
The very nature of the request raises an interesting question because it is a defence directed to the plaintiff, not to the first defendant and the general rule in regard to further and better particulars is they may be required to be given when necessary, to a party entitled to a statement of the case sufficiently clear to allow him or her a fair opportunity to respond to it. Dare v Pulham (1982) 148 CLR 658. Clearly such a consideration is not relevant in this case because the defence has been filed in answer to the plaintiff's claim not in answer to any issue which exists between the first defendant and the second defendant. In truth, the request is an attempt by the first defendant to obtain more information about the second defendant's evidence in regard to a telephone call by the plaintiff to the second defendant and the second defendant's attendance at the switch room on the relevant day.
In short, therefore, my opinion is that the request for further and better particulars is no more than a fishing expedition to determine what evidence a co-defendant will be giving in regard to the proposition that the second defendant was engaged by the first defendant to assist in the tasks which were required in the switch room
Putting aside the question as to whether or not there is any issue between the first defendant and the second defendant, which would entitle the first defendant to render the request, it is my view that the further and better particulars are intended to elicit answers which will reveal the evidence which is likely to be given by the second defendant at the trial of this matter.
It is not necessary for the first defendant to defend against any claim levelled against it by the second defendant because there is no such claim. It is not necessary for the first defendant to fully understand the nature of the defence presented by the second defendant because that is a matter between the plaintiff and the second defendant. What is sought by virtue of the request for further and better particulars is a better understanding of facts, which might be of use to the first defendant in his defence of the claim. It is my view that to obtain information of this kind by way of further and better particulars as has been done here, is simply not permissible and in so far as answers to the request for further and better particulars are sought, that part of the application is refused.
I now turn to the proposed interrogatories. To elicit information by way of interrogatories is a more conventional and acceptable method of obtaining the information which is sought by the first defendant. The conventional way in which interrogatories are administered, where leave of the court is required is to:
(1)Firstly obtain the leave of the court to administer the interrogatories and serve them.
(2)Secondly, if necessary, to obtain an order that the interrogatories be answered or objected to.
(3)Thirdly, if unsatisfied with the answers or taking issue with objections to bring an application in that regard.
In dealing with such an application, the interrogated party is limited to the objection raised and if that objection is not made out, then the court will order the interrogatory to be answered.
That process seems to be sidestepped by the first defendant in its application. As far as interrogatories are concerned, the first defendant seeks leave to issue them for answer by the second defendant and I see little reason why the first defendant should not be permitted to administer the interrogatories.
In making that remark, I am having regard to the fact that the action was set down for a trial on 11 March 2019, that trial to take place between 3 and 28 February 2020 in circumstances where it is clear that the listing officer anticipated that some aspects of the case might need attention and ample time was provided for those matters to be addressed. In addition to seeking leave to issue the interrogatories, the first defendant also sought orders that the second defendant answer those interrogatories by a nominated date (which has now passed). In my view, that is not the proper way in which the issue of interrogatories should be dealt with. First should be the leave. Second should be the delivery of the interrogatories, third should be the answers or objections to the interrogatories and the fourth should be any challenge to the adequacy of the answers or the objection which has been raised.
Accordingly, in my view, the proper way to deal with the application brought by the first defendant is to grant the leave which is sought and order the second defendant to respond to the interrogatories within a fixed period. If the response contains objections or answers which are regarded as inadequate by the first defendant, it is open to that defendant to take the matters further by way of a chamber summons.
Therefore, in so far as the first defendant seeks orders in regard to interrogatories, the orders I propose are to grant leave to administer those interrogatories and to order the second defendant to respond within a period of time. It will then be up to the first defendant to challenge the adequacy of the answers or any objection which may be raised if it wishes to take that course. That is a proper and orderly way for the issue of interrogatories to be dealt with and in my opinion that is the way these interrogatories should be dealt with.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer
9 OCTOBER 2019