Straney v Lithgow and District Workmens Club Ltd

[2005] NSWSC 69

CITATION:	Straney v Lithgow & District Workmens Club Ltd [2005] NSWSC 69
HEARING DATE(S):	10 February 2005
JUDGMENT DATE :	17 February 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Harrison
DECISION:	(1) The decision of Assistant Registrar Howe dated 13 October 2004 is affirmed; (2) The notice of motion filed 8 November 2004 is dismissed; (3) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:

Review of Registrar's decision - interrogatories

LEGISLATION CITED:

Part 24 r 5 - SCR

CASES CITED:

Abram v National Australia Bank Limited [2001] NSWSC 916
American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Limited (No 2) [1965] NSWR 193
Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (Master Malpass, 18 December 1992, unreported)
Brijeski v Sunbeam Corporation Limited (Master Greenwood, 29 January 1997, unreported)
Cole & Anor v South Tweed Heads Rugby League Football Club Ltd [2004] CA 29 (15/06/2004); (2004) 207 ALR 52
Mariala Estates Limited v Athanasi & Ors [2001] NSWSC 1013
Modern Woodcraft Pty Ltd v Nott (Young J, 7 March 1997, unreported)
South Tweed Heads Rugby League Football Club Ltd v Cole & Anor (2002) 55 NSWLR 113
Westpac Banking Corporation v Abemond Pty Ltd & Westpac Banking Corporation v Cameron (Santow J, 3 November 1994, unreported)

PARTIES:

Alan Straney
(Plaintiff)

Lithgow and District Workmens Club Ltd
(Defendant)

FILE NUMBER(S):

SC 20243/2002

COUNSEL:

Mr K Rewell SC
(Plaintiff)

Mr J Duncan
(Defendant)

SOLICITORS:

Firths
(Plaintiff)

Deacons
(Defendant)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20243/2002
LOWER COURT JUDICIAL OFFICER :	Assistant Registrar Howe

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 17 FEBRUARY 2005

20243/2002 - ALAN STRANEY v LITHGOW AND
DISTRICT WORKMENS CLUB LTD
JUDGMENT ( Review of Registrar’s decision -
Interrogatories )
1 MASTER: By notice of motion filed 8 November 2004 the plaintiff seeks, firstly, that the orders made by Assistant Registrar Howe of 13 October 2004 be vacated; and secondly, an order that the plaintiff have leave to administer interrogatories to the defendant.

Background

2 On 18 August 2004, the plaintiff filed a Notice of Motion applying for orders enabling the plaintiff to administer interrogatories on the defendant. Assistant Registrar Howe heard the application on 11 October 2004 and delivered his decision on 13 October 2004. Assistant Registrar Howe refused leave to administer interrogatories. The plaintiff now seeks a review of that decision.

Review


3 There are some cases that are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (Master Malpass, 18 December 1992, unreported); Brijeski v Sunbeam Corporation Limited (Master Greenwood, 29 January 1997, unreported); Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (Santow J, 3 November 1994, unreported); Modern Woodcraft Pty Ltd v Nott (Young J, 7 March 1997, unreported); Mariala Estates Limited v Athanasi & Ors [2001] NSWSC 1013; and Abram v National Australia Bank Limited [2001] NSWSC 916.

4 From these decisions, the approach I should take is that I should inform myself of all the material before the Assistant Registrar at the time when he made the decision. I can also allow fresh evidence to be tendered. I should make my own decision based on the material before me after having the benefit of counsel’s submissions.

Interrogatories


5 In modern litigation, the test as to interrogatories remains that the party seeking to interrogate is required to satisfy the court that interrogatories are, after taking into account the interests of the parties, reasonably necessary for the fair disposal of the matter. The court may make such an order to prevent unnecessary interrogatories or unnecessary answers to interrogatories. Normally interrogatories are not available in personal injury matters.

6 Part 24 rule 5 of the Supreme Court Rules 1970 ( SCR ) states:

“(1) The Court may, at any stage of any proceedings, order any party to serve on any other party (whether the interrogating party or not) -


(a) a statement in accordance with rule 6 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings; or

(b) a statement as mentioned in paragraph (a) verified by affidavit.
(2) The Court shall not make an order under subrule (1) unless satisfied that the order is necessary at the time when the order is made.”
7 As was stated in American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Limited (No 2) [1965] NSWR 193. The first principle is:
“… it is not permissible to interrogate as to matters beyond the issues as disclosed by the pleadings and the particulars, but interrogatories may be directed not only to matters directly in issue but also to facts which are relevant to some question in issue.”

The pleadings


8 It is alleged that on 9 February 2002 at about 9.12 pm the plaintiff assisted Barry Cavanagh, a fellow patron at the defendant's premises who was heavily under the influence of intoxicating liquor, to negotiate some stairs to leave the defendant’s premises. Mr Cavanagh while holding the plaintiff’s hand stumbled and fell, which caused the plaintiff to also fall down the stairs and suffer injuries rendering him a quadriplegic.

9 It is alleged that the accident was caused by the breach of the defendant of an implied term of contract or duty of care and the particulars of the breach include continuing to serve alcohol to Barry Cavanagh, failure to direct staff not to serve patrons who were obviously under the influence of intoxicating liquor, failure to train bar staff in the responsible service of alcohol and failing to assist the plaintiff to escort Mr Cavanagh from the premises [paras 8 & 9 S/C]. The defendant denies these and denies being guilty of any negligence or breach of any implied term.

10 In Cole & Anor v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 (15/06/2004); (2004) 207 ALR 52; Mrs Cole attended a breakfast at the Club and drank alcohol throughout the day. Some, but not all, of the alcohol was supplied by the Club. The Club manager’s wife refused to serve Mrs Cole any more alcohol at about 3.00 pm. Mrs Cole was offered use of the Club’s courtesy bus and driver or, alternatively, the use of a taxi; Mrs Cole refused those offers. After Mrs Cole left the Club she was hit by a taxi and was injured.

11 One of the particulars of negligence alleged that the defendant allowed Mrs Cole to leave the Club’s premises when she was intoxicated. Because Mrs Cole refused assistance offered by the Club it was held that the Club was not negligent.

12 In South Tweed Heads Rugby League Football Club Ltd v Cole & Anor (2002) 55 NSWLR 113 Ipp JA [at para 198] specifically excluded what was said in Cole as being applicable to the situation where an intoxicated person causes damage to third parties. As Ipp JA stated different considerations, of which account would have to be taken, would come into play in such a situation. This case is one involving such a third party, namely Mr Straney.

Interrogatories addressed to the defendant

13 The interrogatories that the plaintiff seeks to administer are:

“1. On 9 February 2002, was alcohol served by any employee of the defendant to Mr Barry Cavanagh?

2. If the answer to Interrogatory 1 is affirmative, what were the names of all employees of the defendant who served alcohol to Mr Barry Cavanagh?

3. Was a decision made by an employee or employees of the Defendant, to cease serving alcohol to Mr Barry Cavanagh on 9 February 2002?

4. If the answer to Interrogatory 3 is affirmative:


(i) What was the name(s) of the employee(s) who made the decision to cease serving alcohol to Mr Barry Cavanagh?

(ii) At what time was that decision made?

(iii) What was the reason for the decision to cease serving alcohol to Mr Barry Cavanagh?

(iv) Were any other steps taken in connection with Mr Cavanagh, other than the decision to cease serving alcohol to him?


5. Did any member(s) of the Defendant's staff observe that Mr Barry Cavanagh was intoxicated whilst within the club premises on 9 February 2002?

6. If the answer to Interrogatory 5 is affirmative:


(i) What is the name(s) of the staff member(s) who made the observation that Mr Cavanagh was intoxicated?

(ii) At what time was that observation made?

(iii) What action(s) was taken by the Defendant's staff in response to the observation that Mr Cavanagh was intoxicated?


7. On 9 February 2002, did the Defendant take any steps to remove Mr Barry Cavanagh from the club premises?

8. If the answer to Interrogatory 7 is affirmative:


(i) What steps were taken?

(ii) Who took those steps?

(iii) At what time were those steps taken?


9. At or around 9.11pm on 9 February 2002, did any employee of the Defendant see the Plaintiff and Mr Barry Cavanagh leaving, or attempting to leave, the Defendant's club premises?

10. If the answer to Interrogatory 9 is affirmative:


(i) What was the name(s) of the Defendant's employee(s) who saw the Plaintiff and Mr Cavanagh leaving, or attempting to leave, the club premises?

(ii) Did any employee of the Defendant have any conversation with Mr Cavanagh as he was leaving, or attempting to leave, the club premises?

(iii) If the answer to 10 (ii) is affirmative, what were the terms of that conversation?


11. Did any employee(s) of the Defendant attempt to assist Mr Barry Cavanagh to leave the club premises at about 9.11pm on 9 February 2002?

12. If the answer to Interrogatory 11 is affirmative:


(i) What was the name(s) of the employee(s) of the Defendant who assisted Mr Cavanagh?

(ii) Where was such assistance provided?

(iii) At what time was such assistance provided?

(iv) What was the nature of the assistance provided?


13. Mr Barry Cavanagh and the Plaintiff are shown on video film provided by the Defendant, to walk past the front reception desk of the Defendant's club, at about 9.11pm on 9 February 2002. What were the names of the employees of the club who were at or near the front reception desk at that time?

14. Did the employees of the Defendant who were at or near the front reception desk as Mr Cavanagh and the Plaintiff walked past the front reception desk at about 9.11pm on 9 February 2002, attempt to assist Mr Cavanagh in leaving the club premises?

15. If the answer to Interrogatory 14 is negative, for what reason(s) was no assistance provided to Mr Cavanagh in leaving the club premises?

16. At approximately what time on 9 February 2002 did Mr Barry Cavanagh enter the Defendant's club premises?

17. What are the names of all of the Defendant's bar staff, who were on duty between the time Mr Barry Cavanagh arrived at the Defendant's club on 9 February 2002, and the time of the Plaintiffs injury at about 9.12pm on 9 February 2002?

18. Two employees of the Defendant, one male and one female, are shown on video film provided by the Defendant, to go to the Plaintiffs aid immediately after his fall. What are the names of those employees?”

Registrar’s Decision

14 The relevant portions of the learned Registrar’s reasons to dismiss the plaintiff’s application for the interrogatories read:


“5 The object of interrogatories is to discover the truth (Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101). The function of interrogatories is to enable a party to obtain from an opponent information about matters directly in issue or facts relevant to a question in issue to the dispute between them (American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193 and also SCR Part 24, rule 6(3)(a)). An order to answer interrogatories cannot be exercised unless the court is first satisfied that the order is necessary at the time when it is made. When this threshold requirement has been satisfied there is a discretion to make an order (Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252).

…

7. …An examination of the questions to be posed reveals that the plaintiff is seeking to identify various club employees who served intoxicating liquor to Mr Cavanagh on the night of the accident; whether a decision was taken to cease serving him, and if so, by whom; whether any club employees made observations of Mr Cavanagh during the evening and whether any assisted him to leave. As well, the identity of two employees captured on the video film supplied by the defendant is sought.

…

9. The defendant classed the interrogatories as a "fishing expedition" and relied upon a principle expounded in paragraph 24.1.9 5 found under Part 24, rule 1 to the SCR being "Interrogatories will not be ordered as to the manner in which a party intends to prove his case ... or as to the witnesses to be called."

10 In West -v- Conway (1923) 23 SR (NSW) 344, Chief Justice Street, at page 347, set out two rules which he claimed are universally observed:
‘One is that, generally speaking, it is not permissible for a party to ask for the names of persons who are going to be witnesses for his opponent. The other is that the right to withhold the names of witnesses gives way to the right of discovery, where the name of the person is a relevant fact in the case.’

11 Further on the page, the Chief Justice determined,

‘A litigant is entitled to know the nature of the case which he has to meet, and he may therefore, according to the authorities, interrogate as to the material facts on which his opponent relies, but he is not entitled to put interrogatories in order to ascertain how his opponent is going to prove the facts on which he relies, or who the witnesses are by whom they are to be proved.’


12 As to the matter of a fishing expedition, on a reading of the authorities, it appears that one is allowed to dangle a line in the pond to catch one fish, or maybe several fish of one kind, but one is not allowed to cast a net over the entire pond and trawl every fish from the pond and then pick over the entire catch to see whether there is one, or one species, of fish in the catch. Put in legal terms, a fishing expedition seeks not to obtain evidence to support one's case, but to discover whether one has a case at all, or to discover the nature of the opponent's case.

13 …Mr McKean deposes that for the plaintiff to adequately prepare, these allegations will need to be tested. From this it appears that the plaintiff appears to have confused the role and onus of proof at trial in that rather than the plaintiff having to prove its claim, the plaintiff will be attempting to disprove the defendant's claim.

14 Because the proposed interrogatories seek the names of person who are going to be witnesses for the defendant; they appear to be a "fishing expedition", and that there is no evidence to satisfy the Court that an order is necessary at the present time, the application fails to clear the "threshold" question of necessity and so the discretion vested in the Court will not be activated. The application therefore fails.”
15 The plaintiff submitted that the Registrar fell into error when he stated that the plaintiff is confusing the role and onus of proof at trial and that the plaintiff will be attempting to disprove the defendant’s claim. This may have come about because the plaintiff’s solicitor deposed that [aff McKean 18/8/04]:
“…it is my understanding and belief that an allegation will be made that an employee and/or employees of the defendant ceased to serve alcohol to the third party who caused the plaintiff injury prior to the injury in question.
In order to adequately prepare these allegation this will need to be tested. …”

16 Much of the learned Registrar’s reasoning centres around the interrogatories that request the supply of witnesses’ names. Leaving that issue to one side, there are other interrogatories that do not.

17 Turning back to the test for interrogatories, are they necessary at this stage? I have viewed the videos [Exs A & B], which show Mr Straney (the one in shorts) accompanying Mr Barry Cavanagh past the reception desk and then down the staircase. The staircase leads to the exit of the Club. They passed through a door which led to the staircase. In the stairwell, Mr Cavanagh appeared to be confused as to the direction of the stairs. Once Mr Cavanagh identified the staircase, he commenced descending the stairs. After successfully negotiating a few stairs, he stumbled against the wall. By this time the plaintiff was holding Mr Cavanagh’s hand and the video shows Mr Cavanagh falling down the stairs followed by the plaintiff also falling down the stairs to the base of the staircase near the exit door. Two employees of the Club, a male and female (who were seen at the reception earlier on the video) are among the first people to go to the aid of Mr Cavanagh and the plaintiff.

18 In order for the plaintiff to prove his case, he needs to prove that the Club supplied Mr Cavanagh with alcohol, that Mr Cavanagh was heavily intoxicated and that the defendant knew, or should have known, that Mr Cavanagh was in such a condition. Further, the plaintiff will need to satisfy the court that, in these circumstances, the Club had a duty to escort Mr Cavanagh from the Club and that responsibility should not have been placed upon a third party, namely the plaintiff, who was also a patron of the Club.

19 The plaintiff’s counsel submitted that it should be assumed that Mr Cavanagh, if he has any recollection of the events when giving evidence at trial, will be the subject of strenuous attacks upon his credibility based upon his alcohol consumption at the time. The plaintiff’s counsel also submitted that the interrogatories are required to prove his case and it is likely that the defendant will not call any evidence on liability at trial. The issues to which the interrogatories are directed are matters for which the defendant through its employees would have knowledge. The plaintiff has not deposed as to his state of knowledge in relation to Mr Cavanagh’s drinking and the other relevant events referred to in the interrogatories. Nor has his solicitor deposed as to whether Mr Cavanagh has provided a statement and if so, what was the state of his [Mr Cavanagh’s] knowledge. It is not known whether the plaintiff was Mr Cavanagh’s drinking partner at the Club for part or the whole of the time. If the plaintiff was present with Mr Cavanagh, he [the plaintiff] may have knowledge of what Mr Cavanagh drank, what behaviour he exhibited and whether the Club refused to serve Mr Cavanagh with more alcohol.

20 Certainly, to have independent corroboration of the events by the defendant’s employees would assist the plaintiff’s case, but I do not think that it is necessary at this stage. For the defendant to answer these interrogatories would involve the defendant’s solicitor interviewing the staff of the Club that were on duty on the day and night in question and seek their answers and compile them. This process would take time and involve expense. It is not fair for the plaintiff to put the defendant to this expense and inconvenience when he has not put on any evidence on these issues but has rather made assumptions. If there is evidence to show that the plaintiff or Mr Cavanagh do not have any recollection of events, or that there are large gaps in their recollections, interrogatories may be necessary. At this stage, it is my view that it cannot be said that these interrogatories are necessary for the fair disposal of the case.

21 The result is that I agree with the decision of the Registrar. I affirm his decision. The notice of motion is dismissed.

22 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The court orders:

(1) The decision of Assistant Registrar Howe dated 13 October 2004 is affirmed.

(2) The notice of motion filed 8 November 2004 is dismissed.

(3) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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