The State Housing Commission v Lang - [2001] WADC 55

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THE STATE HOUSING COMMISSION -v- LANG [2001] WADC 55

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 15 FEBRUARY 2001

DELIVERED : 7 MARCH 2001

FILE NO/S: CIV 346 of 1994

BETWEEN: THE STATE HOUSING COMMISSION
Plaintiff
AND
MAXWELL BRUCE LANG
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Sufficiency of answers to interrogatories - Determination turns on its facts

Legislation:

Nil

Result:

Plaintiff required to answer

Representation:

Counsel:

Plaintiff: Mr R A Cullen
Defendant: Mr K C Staffa

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Kevin Staffa

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: On 1 September 2000 the defendant obtained a grant of leave to interrogate the plaintiff in terms of his minute of interrogatories filed 10 July 2000. On 17 November 2000 the defendant issued a chamber summons taking issue with the plaintiff's answers to a number of interrogatories and it is that application which is before me for determination.
Broadly speaking the relevant claims of the plaintiff claims against the defendant for the costs associated with the repair of fencing on the plaintiff's property and for agistment fees due pursuant to agreements between the parties.
The defendant denies any obligation to repair and alleges that the plaintiff made an undertaking to the defendant to repair the fences on the property. The defendant denies that he owes the plaintiff any agistment fees. He asserts that the parties entered into a different agreement for the defendant’s occupation of the plaintiff's property. Alternatively he alleges that the plaintiff made certain representations in relation to the defendant's future occupation of the property and that he acted to his detriment in reliance upon those representations. In either event the defendant asserts that he was entitled to peaceful possession of the property. Contrary to the representation or in breach of the agreement he asserts that the plaintiff carried out certain works on the property, which had the effect of depriving the defendant of peaceful possession. As a consequence the defendant claims damages against the plaintiff and in particular the value of cattle lost or poisoned as a result of the activities of the plaintiff and/or its agent.
By the application the defendant seeks that the court exercises discretion under O 27 r 7. The significant feature of such an exercise of discretion is expressed at r 5(2); the plaintiff would be required to answer the question. Whilst it is the case that the respondent is bound by the terms of its statement in answer, ultimately the success or failure of the applicant is not properly determined by the respondent’s default or error but rather upon the court’s assessment of the question. That assessment engages the principle upon which the process and indeed all of the interlocutory processes are founded. Interrogation is a process designed to facilitate the proof of relevant facts by way of admission under oath at trial. To that end a party is entitled to put unambiguous questions which call for such admissions to its opponent. By that process the costs of getting up the case in relation to admitted facts may be saved and as to those denied, resources allocated accordingly. In a proper case regardless of defeat at trial on an issue, a party may recover the costs of the proof of a relevant fact where it is found that it ought to have been admitted. Whilst resort to the process will agitate relevant facts it is not a process whereby the interrogating party is entitled to seek its opponents evidence or particulars of allegations of material fact. That is not to deny the prospect that in a particular case there may be grounds for the exercise of jurisdiction to allow for that prospect. In exercising discretion in such special cases it is important to reflect upon the fact that a party ought not to plead a material fact if it has to evidence to bring in support of that fact and that generally the courts have considered that it is for the parties to prepare their own cases for trial without being troubled by their opponent. In particular, the prospect that there may be a resource imbalance between the parties is inevitable and of itself does not justify an exercise of discretion. The process of litigation is adversarial in nature; the parties are motivated by self-interest. It is not for the court to exercise jurisdiction simply because jurisdiction is available. The onus is upon the applicant.
Turning to the questions themselves, questions 1(a), 3(b) (in part), 5(b) and 20 (in part) ask whether the particular letters identified by the defendant were sent as he proposes. The plaintiff's answer in each case is to the effect that the plaintiff presumes that it was sent. That answer is ambiguous in the sense that it does not amount to an admission or denial yet it does not reveal the extent of the plaintiff’s investigations to determine whether it could offer a more definitive response. In my opinion each question deals with a relevant fact. There is nothing to suggest that to require the plaintiff to conduct investigations would be inappropriately oppressive. The plaintiff should answer the questions.
The balance of Question 3(b) puts a number of supplementary questions. The plaintiff contends that it is not required to answer the interrogatory but fails to explain why that ought to be the case. For the reasons just given the plaintiff is required to answer whether the letter was sent on the instructions of the plaintiff. In my opinion it is beyond the proper scope of interrogation to inquire as to whom it was who gave any such instruction and the particulars sought by the defendant in relation to that instruction. Those questions seek the plaintiff's evidence. The defendant is not entitled to evidence regardless of the prospect that it may be readily available to the plaintiff. He may be entitled to particulars of a pleading but not of evidence and in any event, not in the form of answers to interrogatories. Although I am aware that there is commentary in some cases to the contrary, answers to interrogatories are not a substitute for particulars. The processes serve different ends; particulars inform as to the impact of allegations of material fact; answers to interrogatories inform as to the proof of a relevant fact. I accept that some are confused and see both processes as simply a means of informing. In my opinion a relatively simple reduction which overlooks their distinguishing features. However if it is considered appropriate to examine results of inappropriate recourse to interrogation at the very least the court ought to reflect upon the fact that it is impossible to amend an answer but relatively easy to amend a particular.
Accordingly I would refuse to exercise jurisdiction to require the plaintiff to answer those questions.
Question 3(c) deals with a discussion that is referred to in the relevant letter and again seeks particulars of the discussion.
There is a class of permissible interrogation that falls outside the general outline expressed above. A party may interrogate in order to obtain an understanding of symbols and terminology used in written communication. That is to allow for the fullest appreciation to be had of discovered documents. There is a proper limit on the process and is exceeded in this case. The reference in the letter to a discussion is not a reference to a term of art, a symbol or the like. Simply because the parties to a communication are now parties to litigation does not entitle one to demand detail of the content of that communication.
Question 4(a) again refers to the communication and asks whether a meeting contemplated in that communication took place, if so it asks whether particular issues were discussed and whether instructions or information was given. The objection taken is that the question seeks confidential information and that the question goes to an irrelevancy.
In my opinion the question goes to relevant facts. There is no basis for the objection of confidentiality. In my opinion the plaintiff should answer.
Following from that question, at 4(b) the defendant seeks particulars of the discussions and instructions and information. The defendant is not entitled to those particulars or indeed any answer to that question for the reasons I have already given.
Question 4(c), refers to the draft of the agreement also referred to in the communication and seeks to know whether it was prepared, what became of it and where it may be inspected.
It is settled law that no party is entitled to seek to impugn the discovery process by means of interrogation. The plaintiff is not required to answer.
Question 4(d) seeks an admission and subsidiary evidence in relation to whether the plaintiff continued with or withdrew any instructions to its solicitor. Other than to the extent that the question seeks an admission the plaintiff is not required to answer.
I appreciate that unless the plaintiff is required to answer the question the defendant may not otherwise be able to obtain the information or evidence prior to cross-examination. That prospect does not found a proper basis for the exercise of jurisdiction. It may be that the defendant is at some disadvantage but such a prospect exists in every case. If disadvantage alone could justify the exercise of discretion then by this point of time in the evolution of the Rules there would be a rule which required parties to redress any such imbalance in information and or evidence. There is neither rule nor principle that would support the defendant. I accept that in relatively recent times one will encounter fine sentiment expressed in various contexts to the effect that the court promotes the creation of a level playing field and does what it can to facilitate the settlement of actions. Such sentiment has no impact upon the proper determination of the issue raised by the question. No such field exists. Whilst the court may promote the prospects of settlement it ought not to not allow such encouragement to impinge upon the proper determination of an application of any nature, especially one where the effect of a positive exercise of discretion would be manifest at trial and not necessarily in settlement at all. The only application of principle engaged by the exercise proposed by the defendant works against him. That being that the onus is upon the applicant to satisfy the court that there is some good reason to exercise discretion in his favour. The plaintiff is not required to answer.
Question 6 in its parts seeks particulars of evidence. The plaintiff is not required to answer. Similarly so questions 9(a) and (b), 10, 11(a), (b), and (c), 12 and 13 (a), (b) and (c).
Question 13(d) asks whether the method of eradication of Cape Tulip involved it being eradicated in situ in the ground and if so whether eradication process resulted in the withering of the plants and if so over what period the withering occurred. The plaintiff is required to answer the first two parts of the question but is not required to provide an answer to the last.
Questions 13(e) and (f) enquire as to whether the tulip was removed after implementing the eradication and whether any of the paddocks or areas where eradication was undertaken was being used to agist the defendant's cattle at the time.
In my opinion the questions are not straightforward. Both refer to eradication which in the context of question (e) may describe a process which extends beyond the single activity of chemical spraying, accordingly they are ambiguous and are not required to be answered.
Questions 14 (a), (b) and (c), 15 (a) and (b), 17 (a), (b), and (c), 18(a), (c) and (d) and 19 seek particulars of evidence, so too the second part of question 16. None are required to be answered.
As to Question 18(b), in its first part it seeks an admission and in my opinion is unambiguous and relevant. It ought to be answered. Not so the second part.
The balance of question 20 asks for the date of receipt of the letter. It seeks the plaintiff’s evidence. It is not required to be answered.
Question 23 (a) to (e) inclusive deals with a note attached to the questions. The defendant objects to answering the question on the basis that the note has not been discovered. It may be the case that the note has not been discovered and technically it may accordingly be irrelevant. That does not mean that it is irrelevant and the fact that it has not been discovered ought to be of no consequence unless it was the plaintiff’s contention that the defendant by posing any questions in relation to it is seeking to somehow mislead the plaintiff. That is not the case and was not contended for at the hearing.
In any event it would appear to me that two items in the plaintiff's discovery might refer to the note. The fact that one can not be certain of that prospect reflects a failure in the process of discovery. If it is the case that a document may be amenable to a general description, as it is subject to that process it ought to be identified as being constituted as a certain item for which discovery has been given. I accept that the discovery to which I have referred was not given prior to the interrogatories being issued and my comments are only therefore able to address the prospect that the document has now been discovered. In my opinion the opening question ought to be answered. The balance seeks evidence and is not required to be answered.
Question 24 in its contested parts deals with the affidavit sworn by the plaintiff's agent on 28 July 1994. It seeks particulars or the identification of relevant facts for the purposes of understanding the content of that affidavit. The defendant is not entitled to that detail. Similarly question 25 addresses a later affidavit of the plaintiff's agent in similar terms with the same result.
Question 26 deals with details and particulars of any fires lit by the plaintiff. Whilst I am satisfied contrary to the terms of the plaintiff's objection that the questions are relevant, in my opinion they seek evidence and are impermissible.
Question 27 relates to the defendant's cattle and whether any were caught and/or sold by the plaintiff. The defendant then goes on to seek details of any positive response. The defendant is not entitled to those details however the propositions put by the defendant which call for admissions stand alone and are required to be answered. In my opinion the plaintiff's answer which is qualified by the statement that it has been unable to ascertain whether or not it caught any of the defendant's cattle is unsatisfactory. The plaintiff is required to answer.