Stoyles v Ivanoski - [2001] WADC 204

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: STOYLES -v- IVANOSKI & ANOR [2001] WADC 204

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 1 AUGUST 2001

DELIVERED : 31 AUGUST 2001

FILE NO/S: CIV 2084 of 2000

BETWEEN: GARY RAYMOND ANDREW STOYLES
Plaintiff
AND
STREBRE IVANOSKI
First Defendant
BLAGORODNA IVANOSKI
Second Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia and under the Rules of the District Court of Western Australia - Application for leave to interrogate - Turns on its facts

Legislation:

Rules of the District Court of Western Australia

Result:

Dismissed

Representation:

Counsel:

Plaintiff:     Mr A. Klein
First Defendant             :     Mr A Maughan
Second Defendant         :     Mr A Maughan

Solicitors:

Plaintiff:     Stephen Brown
First Defendant             :     Messrs Maughan & Leach
Second Defendant         :     Messrs Maughan & Leach

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

Adams v Dickeson [1974] VR 77
Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: By the application the plaintiff seeks leave under O 3 r 1 of the Rules of the District Court of Western Australia to interrogate the defendant in the terms of the minute filed 12 July 2001. The application was opposed. The applicant was unsuccessful. I gave oral reasons for that determination. The applicant subsequently sought written reasons.
But for the first and last questions the set of questions which the applicant seeks to put follows a pattern of seeking an admission in relation to a proposition put in broad terms and if the response is positive, some evidence of the fact that would be established by that admission.
By way of illustration: -
“2 Did you at any time prior to purchasing the house carry out an inspection of the ceiling from inside the roof space?
3 If yes to 2 above would you state the date of each and every occasion that such an inspection was carried out.”
The discretion provided by the rule is not expressed to be limited. Although the applicant seeks leave to interrogate ultimately the onus is upon the applicant to persuade the court that it ought to require the respondent to engage in the process that the applicant proposes. In order to appreciate the significance of the onus it is appropriate to reflect upon a number of considerations.
The first is that the only significant benefit that could accrue by the applicant’s success would be to the applicant. Although for the purposes of assessing the application is appropriate to focus upon the technical features of the application, ultimately the application is made within a broader context. It is a fair assessment of that context that no party to litigation necessarily has any interest in according any benefit to its opponent. In my opinion for the purpose of considering whether the applicant ought to be assisted in engaging the involuntary support of its opponent it is appropriate to consider that fundamentally the interests of the parties are adverse.
The principle that founds all interlocutory processes allows for processes which promote or preserve the prospect of a fair trial and which reduce the costs of litigation. The concept of a fair trial is ascertained by reference to the context in which litigation is commenced, by the rules that regulate litigation and the principles upon which those rules are founded. The qualification 'fair' is not a reference to the fanciful notion colloquially described as the level playing field. Rather, the court recognises that it is inevitable that parties will come to litigation with unequal resources and that throughout the proceedings will primarily be motivated by self-interest. There is no principle, rule or authority of general application which would suggest that it is appropriate for the court to engage in a process of seeking to redress any perceived imbalance simply because it possesses the power so to do. In any particular case, the recognition of some inequality may at most lead to a consideration as to whether it is appropriate to exercise discretion in a particular manner.
I accept that there may be benefits that may arise where parties display an open and helpful attitude to their opponents. The court does what it can to encourage that approach as it not only leads to the prospect of greater clarity being given to the issues raised in a case but also it enhances the prospect of settlement. However whilst it is appropriate for the court to foster such an approach it does so only by practice. That practice does not engage any principle that would disturb an appreciation of what is or is not an appropriate set of questions. It would be wrong for the court to exercise discretion other than in accordance with principle. For the court to ignore that consideration would allow for the prospect that an application for leave would be determined other than on its merits.
The second involves a consideration of the rules. The respondent contested the application. If the applicant was permitted to put the set the respondent would have the opportunity to object to each question. Thereby the respondent may readily defeat whatever purpose is sought to be served by the applicant’s resort to the process. If the standard by which an application for leave is judged allows for inappropriate questions to be put then that would simply facilitate the generation of oppression, cost and delay. The court has always been concerned to ensure that inappropriate resort to the interlocutory processes does not generate delay. The second important principle upon which the interlocutory processes are founded is that of reducing costs.
The third goes to the set itself. It is fundamental that the court should not allow a party to utilise the interlocutory processes to oppress its opponent. The prospect of oppression may be found having to interpret poorly framed questions prior to responding to them. It may also be found in having to read a set of questions and consider whether and in what terms to object. It may even be found in the fact that at the very time that the respondent is engaged in the process of getting up its case for trial it is troubled by its opponent’s interrogatories at all. What may constitute an inappropriate degree of oppression depends upon a consideration of relevant facts in each case. That is not to suggest that the court ought to countenance any degree of oppression.
By the process of interrogation a party is able to question its opponent prior to trial as to relevant facts. That does not mean that any form of question is permissible. A useful and in my opinion an uncontentious analysis of the process is provided in Adams v Dickeson [1974] VR 77 at p79.
“The prime purpose is to obtain admissions from the respective parties so as to narrow the necessary proof of the issues raised in the pleadings. ”
The reference to the narrowing of the proof of issues is a reference to the process of the proof of relevant facts at trial. Where the existence of a fact is admitted the question and admission may be tendered at trial to establish the existence of the fact.
The most direct method of seeking an admission in relation to a relevant fact is to put a simple unambiguous proposition as to the existence of that fact. To illustrate, in question 2 of the set the applicant puts what may conceivably be a simple proposition. The respondent if it chose to answer rather than object would answer ‘yes’, ‘no’ or ‘I do not know/remember’. In contrast, question 3 does not put a proposition and call for a response it calls for the defendant’s evidence.
Obviously one party can not expect to engage the court’s assistance require its opponent to assist it simply because it finds it more convenient or cost effective for its opponent to do the work on its behalf. And so it is that a party ought not expect the court to sanction a process where the preponderance of questions sought to be put go beyond seeking to establish relevant facts. Where the applicant presents the court with a set of questions that have been drawn with an eye to the prospect of scrutiny, the proposal is unlikely to encounter too much difficulty. However the evident lack of appreciation by practitioners of the limitations of the process, the fact that until recent times parties were entitled to interrogate and the robust self interest which parties and their solicitors bring to litigation combine to guarantee that parties will seek to go beyond whatever limits apply.
I accept that there is authority in the form of the reported decision in Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758 which was recently followed in a reported determination of this court and which is to the effect that any question may be asked. The overwhelming weight of authority would determine that proposition to be wrong on any analysis. It engages no principle and provides no useful test or basis for analysis. Significantly it tends to reverse the onus leaving it to the respondent to establish a basis for a contest. If I could put the matter in this way: ultimately any contest in relation to the process ought not engage a consideration of what questions may be asked but rather, what questions ought to be answered.
I accept that where evidence could only go to a discrete fact capable of short expression it may be that the court may not consider it to be sufficiently oppressive so as to rule against it. That does not change the character of the question, it simply recognises that the discretion may be exercised despite reservations being held. One issue that may bear upon such an exercise is the reason for the applicant seeking the evidence. It is difficult to conceive that whatever answer may be given to question 3 that the plaintiff would seek to tender the answer to establish a relevant fact at trial. There is no evidence brought in support of the application that would found an exercise of discretion on any other basis.
In the absence of evidence I do not know whether the applicant is without sufficient forensic resources with which to address the case. I might infer from the questions and the submissions put by the applicant that his case depends upon the prospect that he will obtain leave and that defendant will respond rather than object. If the applicant is without such resources then in my opinion that fact ought be unambiguously put along with evidence which would establish that there is something of significance which would encourage the court to the view that in the interests of justice the applicant ought to be entitled to obtain the respondent’s evidence by way of interrogation.
In the absence of such evidence, where the onus is wholly on that applicant in my opinion it would be utterly inappropriate to draw that inference. It is my opinion that if there is any doubt as to whether a set of questions is appropriate because of its length, the type of question or other feature which may give cause for concern, the appropriate response is not to give leave but rather to leave it to the applicant to focus on the fundamental considerations. If that means dismissal and the generation of a better proposal, that result would hopefully satisfy all of the considerations that I have canvassed to this point.
Finally, it is inevitable that the answers to interrogatories are framed by lawyers, not by 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 a 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. Particularly so as the respondent will effectively be bound by the answer.
Whilst one of the considerations which supports the process of interrogation is a reduction the costs of litigation, the founding principle is 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 inappropriate 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 of the existence of a relevant fact. That proposition should be clearly expressed.
The applicant put the proposition that without the information sought he was not able to frame the questions otherwise. If that is the case then in the absence of any evidence and any case as to the interests of justice being put, perhaps the unhappy result for the applicant is that it is inappropriate to seek to interrogate at all. It would be a strange result if it was that case that because the applicant was experiencing difficulties then the court would ignore the considerations by which an application of this nature is properly judged and allow for the applicant to oppress the respondent.
Turning to the questions themselves, whilst I would have no difficulty with the form of the first of each pair of questions, it is apparent from the pattern of questioning that the applicant is simply asking an introductory question prior to asking for evidence in the second. It is evident that the plaintiff’s purpose is to obtain evidence. It is not the task of the court to determine which questions from the set are appropriately put. It is appropriate that the court takes an overview of the process in which the applicant seeks to have the respondent engage.
There is no basis to exercise discretion in favour of the applicant.