The State of SA v White - [2008] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Interlocutory Order)
THE STATE OF SA & ORS v WHITE & ORS
[2008] SASC 32
Judgment of The Honourable Justice Duggan
19 February 2008
PROCEDURE - DISCOVERY AND INTERROGATORIES - INTERROGATORIES - UPON WHAT MATTERS
Objection taken to interrogatories on various grounds - whether interrogatories should be disallowed if information known to interrogating party - whether some interrogatories are oppressive - whether interrogatories on contents of documents permissible.
Appeal allowed in part.
Supreme Court Rules 1987 (SA) r 57.01, r 46A; Local Court Rules 1970-1988 (SA) r 127(1), referred to.
Pearce v Hall (1989) 52 SASR 568; Barber v Nominal Defendant & Ors (1989) 153 LSJS 8; Adams v Dickeson [1974] VR 77; WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559, discussed.

THE STATE OF SA & ORS v WHITE & ORS
[2008] SASC 32
Appeal against a Master

DUGGAN J. This is an appeal against the grant of leave by a master to the plaintiffs to administer interrogatories to the defendants in an action by the plaintiffs for damages for personal injury. The thirteen plaintiffs have commenced proceedings against the first defendant, the State of South Australia and 25 individual defendants.
The actions arise out of demonstrations by the plaintiffs at a uranium mine near Arkaroola on 7, 8 and 9 May 2000. According to the amended statements of claim the plaintiffs and others set up an informal camp near the entrance to the mine site. The individual defendants were police officers deployed in the area during the demonstration. In broad terms the plaintiffs complain that they were falsely imprisoned, assaulted, deprived of food and water, subjected to threats and subjected to mental and physical injuries by the police officers. In the case of some plaintiffs it is alleged that their property was damaged by the defendants.
Leave was granted to administer sets of interrogatories to each of the defendants.
The grounds of appeal assert that the learned master failed to have regard to a variety of matters when considering whether to grant leave to serve the interrogatories. It is contended that: the answers to many of the questions are within the knowledge of the plaintiffs; many of the questions are irrelevant; some questions relate to the contents of documents; many of the questions are vexatious or oppressive and would involve considerable cost and inconvenience to answer; and the plaintiffs have not sought further and better particulars of the amended defences.
The 1987 Supreme Court Rules govern the actions. Rule 57.01 provides as follows:
57.01 (1) In any action a party may only file and deliver interrogatories for the examination of another party with the leave of the Court;
(2) [Where leave is sought] Where leave is sought under sub-rule (1) above:
(a)Such leave may be sought on the application for directions;
(b)The proposed interrogatories must be put before the Court and served prior to the leave being sought; and
(c)If leave is not to be granted for all the proposed interrogatories, the Court may refuse leave generally and without specifying all the respects in which it is not appropriate to grant leave for the proposed interrogatories.
The master was guided in his general approach to the application by the judgment of King CJ in Pearce v Hall[1] and, in particular, the adoption by the Chief Justice of comments made by Judge Lunn in a District Court judgment, in Barber v Nominal Defendant and Ors[2]. Judge Lunn was dealing with r 127(1) of the Local Court Rules 1970-1988 in a case involving a motor vehicle accident, but the observations of King CJ and Judge Lunn are also of application to the present case. Some of the remarks by Judge Lunn bear repeating. He said at 13:
There is a popular misconception that answers to interrogatories are a substitute for proper particulars of the pleadings. This confuses the proper functions of particulars on the one hand and answers to interrogatories on the other. The pleadings, including particulars, are a statement of the material facts which a party will seek to establish at the trial and on which it bases its legal rights. They do not require a statement of the evidence by which those material facts are to be proved except insofar as it is necessary to give sufficient particularity of them. Except with leave of the court generally a party cannot go outside of its particulars in the case which it presents at trial: Dare v Pulham[3]. Answers to interrogatories are not part of the pleadings. They are evidence. They are only admissible if they are tendered as evidence. If they cannot be received as evidence, they cannot be put before the court. A party is not bound by his answers to interrogatories and can adduce contrary evidence: Stateliner Pty Ltd v Legal and General Assurance Society Ltd[4]. Interrogatories cannot be used as a substitute for a request for further particulars, if that is their prime object: Conde v 2KY Broadcasters Pty Ltd[5] Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission[6].
Thus if proper attention is paid to the pleadings in an action the need for subsequent interrogation is likely to be vastly reduced. However, leave to interrogate under r 127 should not generally be employed as a penalty for inadequate pleadings. If a party does not receive an adequate pleading from another party, it should seek further particulars and take the steps provided by r 67 to enforce proper pleadings. The question of whether fairness requires that a party should be given leave to interrogate under r 127(1) should normally only be assessed in the light of the completed pleadings.
[1] (1989) 52 SASR 568.
[2] (1989) 153 LSJS 8.
[3] (1982) 148 CLR 658.
[4] (1981) 29 SASR 16.
[5] [1982] 2 NSWLR 221.
[6] (Unreported, Supreme Court, SA, O’Loughlin J, No 1054, 14 October 1988; R M Lunn, Civil Procedure South Australia, par 57.04.9).
As the learned master pointed out in the present case, these remarks were made before the introduction of r 46A of the Supreme Court Rules.
The master referred to some of the considerations which, in his view, put this case in an exceptional position in the context of the application before him. He said:
I have given careful consideration to the question of whether it is appropriate to grant permission for these interrogatories to be delivered where arguably a number of them seek to address matters that might be the subject of further and better particulars of the defence. However a defence need only respond to the plaintiffs’ statement of claim. I can see significant potential difficulties and considerable cost and delay in the plaintiffs endeavouring to obtain necessary information in that manner. I can envisage such a process requiring each of the twenty-six defendants to file a separate defence which in itself has considerable potential to cause confusion. Similarly, the assertion that the plaintiffs may well be non suited against a number of the defendants if the information sought in the interrogatories is not provided is a matter of particular concern.
There is no doubt that the plaintiffs have taken every step they can to obtain the statements of the individual defendants. If they had been successful in that course then it is unlikely that leave to issue interrogatories would have been sought and even more unlikely that it would have been granted. At least the prospects of that occurring would have diminished. However, the defendants have steadfastly refused to provide those statements or any statements from the individual defendants.
It must be borne in mind that the events giving rise to the plaintiffs’ claim occurred in a demonstration in outback Australia in circumstances where it is unreasonable to expect that any particular plaintiff would have preserved if they ever knew it careful information of the identity of the police officer by whom he or she was confronted and a precise record of events. Nor could it be expected that they would know the background to the training and instruction of the relevant officers in the use of the equipment that was used in that demonstration, nor whether that training and instruction was adhered or to exceeded.
I am particularly influenced by a concern that the trial of this matter could well occupy many weeks in relation to identification alone which time might well be avoided by answers to the proposed interrogatories. I am told that there are some 47 hours of video tape on the plaintiffs’ side alone. This is so even though not all events were video taped.
In all the circumstances it is my view that this matter is one of those rare and exceptional cases where it is appropriate to grant permission for these interrogatories to be delivered. It seems to me that it will be wasteful in time and expense in endeavouring through further and better material facts processes to obtain some of the information sought in the interrogatories. Rather it is more convenient and efficient and will occupy less time for the interrogatories to be answered by the defendants and those answers filed. Once that has occurred then it seems to me that this matter must be reasonably close to being ready to be listed for trial.
There is a wide discretion given to a master or judge to grant leave to deliver interrogatories and appellate courts are reluctant to interfere with the exercise of that discretion.[7]
[7] See Bailey & Evans, Discovery and Interrogatories Australia [21,220] and the cases cited therein.
The procedure adopted by the defendants in the present case, in argument on the appeal, was to take one set of interrogatories as an example and to comment on the questions asked in that set of interrogatories. The interrogatories used for this purpose were those administered to the twenty-sixth defendant. I will use them as the basis for my consideration of the issues raised at the hearing.
It will be necessary at trial for the plaintiffs to identify the defendants, to establish which defendants had contact or dealings with the various plaintiffs and to prove what occurred during those contacts. Because of the nature of the series of incidents which are the subject of the litigation, this will be no easy task. The amended statements of claim and the amended defences deal with the issues in a relatively broad fashion and I agree with the master’s view that it is preferable to resolve some of these issues in the course of pre-trial procedures.
Interrogatories 1 to 10 inclusive deal with the interaction between the plaintiffs and the defendants and are aimed at eliciting some of these details which will be relevant at the trial.
Mr Cuthbertson QC, for the defendants, argued that a number of the details sought would be known to the plaintiffs. This objection was raised in relation to most of the interrogatories.
It is clear that some interrogatories seek information which could be known, in whole or in part, to the plaintiffs. However, such knowledge does not necessarily exclude the topic as a proper subject of interrogation.
In Adams v Dickeson[8] the Full Court (Winneke CJ, Gillard and Nelson JJ) said:
The prime object of interrogation is to enable the party to litigation to obtain discovery of material facts in order either to support or establish proof of his own case, or to find out what case (but not the evidence) he has to meet; or to destroy or damage the case brought by his opposition.
. . . . . .
Nevertheless, the practice of interrogation under the rules of various courts in this State has developed considerably in modern times. It would be rare that legal proceedings in courts of competent jurisdiction would be conducted without interrogatories being delivered by each side for the examination of the other side. 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. In jurisdictions where there are no pleadings, their main purpose lies in obtaining particulars of the material facts being alleged against the litigant interrogating. Above all, by such method, necessary proof of material facts which may be beyond doubt, can be facilitated by admission in answers to interrogatories, thereby removing proof of such facts from the arena of dispute at the trial, so saving time and expense of the parties, and permitting the court and the parties to get immediately to the vital issue or issues requiring determination by the court.
[8] [1974] VR 77 at 79.
It would unduly narrow the purpose of interrogatories to exclude questioning on matters known to the interrogating party. As the court pointed out in Adams v Dickeson, the obtaining of admissions is at the core of the process of interrogation.
In my view the master did not err in exercising his discretion to allow interrogatories 1 to 10.
Interrogatory 11 seeks details relating to the container in which demonstrators were held after being arrested. The details relate to matters such as the dimensions of the container, the nature of the interior, the ventilation and the food and water supplied to the plaintiffs who were in the container. Again, the main objection is that the plaintiffs themselves would have knowledge of these matters. The response must be that this is not a proper ground of objection to the interrogatories. The same can be said of interrogatory 12 which deals with the welding of steel mesh onto the container while prisoners were detained inside it.
There can be no proper objection to interrogatories 13 and 14 which ask whether the defendants had capsicum spray or batons in their possession and whether they had training in the use of these objects. However, interrogatory 15 requests the “usual particulars” of the training and instruction.
The phrase “usual particulars” is defined at the commencement of the interrogatories as follows:
Wherever you are asked to give “the usual particulars” of any matter you are required to state if the same was oral or partly so, in writing or partly so or to be implied or partly so. Insofar as the same was –
(a)oral or partly so, you are required to set out the substance of each conversation constituting the same and say when, where and between what persons each such conversation took place;
(b)in writing or partly so, you are required to identify the document or documents constituting the same and to state in whose possession, custody and power each such document now is and where they may be inspected. If any such document has been destroyed or lost you are required to set out its contents as well as they may be recollected;
(c)to be implied or partly so, set out the facts, matters, things and circumstances giving rise to each such implication and state the relevant date thereof.
In my view, interrogatory 15 is oppressive because it is too widely drawn. The information, training or instruction is not confined to the preparation for this operation. It would include all the training of the individual defendants in relation to the particularised issues and what had been said or supplied in writing to the defendants at any time prior to this operation. It would also include aspects of their general training as police officers. Some enquiry might be made along these lines in cross-examination under the supervision of the court, but it is inappropriate to obtain this information by way of interrogatories.
The same reasoning applies to interrogatory 17 which seeks “the usual particulars” as to information, training and instruction in relation to a wide range of activities from arresting persons and imprisoning them for breaches of the peace to the risks of welding in enclosed spaces. In my view interrogatory 16, which asks whether there was any training given in these matters, should be allowed but the wide ambit of interrogatory 17 is oppressive.
By way of contrast interrogatories 18 and 19 are specifically directed to orders, directions and instructions in relation to this operation. These are appropriate topics for interrogation.
Interrogatories 20 and 21 are as follows:
20    Did you make
(i)    a written report;
(ii)     an oral report;
(iii)    a statement –
to:
(a)South Australian Police;
(b)the Police Complaints Authority;
(c)to some other, and if so what, person or authority – concerning the events the subject of these proceedings?
21    If yes to any part of interrogatory 20:
(i)    give date or dates thereof;
(ii)     say whether the said report or statement true and correct;
(iii)    give the usual particulars thereof.
These are particularly broad interrogatories which encompass oral and written statements made to any person or authority in formal or informal circumstances.
In so far as they relate to the contents of documents, they would seem to come within the general proposition that there can be no interrogation as to the contents of an existing document.[9] The questions do not come within any of the exceptions to that proposition.
[9] Bailey & Evans, Discovery and Interrogatories Australia [21,380]; Sharpe v Smail & Anor (1975) 5 ALR 377 at 381.
Furthermore, the requirement to provide details of statements made to any person concerning the subject of the proceedings is too wide and of an oppressive nature. It is inappropriate on appeal to read down interrogatories 20 and 21 so as to confine them to aspects which would be the legitimate subject of interrogation. In my view they should be disallowed.
No valid reason has been put forward for excluding interrogatories 22 to 27 inclusive.
Interrogatories 28 and 29 are as follows:
28    During the subject period did you drive a vehicle:
(a)     into;
(b)     in close proximity to:
(i)the plaintiffs, identifying whom;
(ii)a group of persons on the mine site;
(iii)some other and if so what person or persons?
29    If yes to any part of interrogatory 28:
(i)    what if any warning did you give to the persons in the vicinity;
(ii)     what speed were you travelling;
(iii)    did you make any and if so what contact with any and if so which of the plaintiffs;
(iv)    if yes to the preceding part herein describe the force of such contact;
(v)     state the reasons you did so.
It would be surprising if the police officers did not drive vehicles in close proximity to the demonstrators on a number of occasions. The interrogatories are too wide in that they do not sufficiently direct attention to a particular incident or incidents. The use of the word “into” is also ambiguous. These interrogatories will be disallowed.
Interrogatories 30 to 61 inclusive interrogate with respect to various assertions in the amended defence. The principal criticisms made of them by the defendants are that the questions seek information already known to the plaintiffs and in other instances, that there is an obvious dispute on the pleadings as to the course of events so that there is no point in interrogation.
I have already commented on the legitimate use of interrogatories to obtain admissions, notwithstanding that the content of the admissions might be within the knowledge of the party interrogating. Another legitimate use of the procedure is to ascertain the case to be met at trial. While it is true that the alternative process of seeking further and better particulars can also be employed, there is nothing to prevent the use of interrogation to acquire such information[10].
[10] Bailey & Evans supra at [21,075].
It is necessary to refer again to the purposes of interrogatories. They are summarised by Lockhart J in WAPines Pty Ltd v Bannerman[11]:
[11] (1980) 30 ALR 559 at 574.
There are four objects of interrogatories:-
(1)to obtain admissions as to facts which will support the case of the interrogating party;
(2)to obtain admissions which will destroy or damage the case of the party interrogated;
(3)interrogatories which are in the nature of a request for further and better particulars; and
(4)interrogatories which seek to obtain accounts from a party occupying a fiduciary position.
However, among the well established limitations upon the power to interrogate and to discovery of documents is the rule that this power cannot be used for the purpose of “fishing”.
In Hennessy v Wright (No 2[12] Lord Esher MR said at (p 448):
“In other words, the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present. If that is the effect of the interrogatories, it seems to me that they come within the description of ‘fishing’ interrogatories, and on that ground cannot be allowed. The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either of complaint or defence, of which at present he knows nothing, and which will be a different case from that which he now makes, the rule against ‘fishing’ interrogatories applies.”
[12] (1882) 24 QBD 445 (reported as a note to Parnell v Walter (1890) 24 QBD 441).

In my view interrogatories 30 to 61 inclusive answer to one or more of the objects identified by Lockhart J and do not constitute any of the misuses of the procedure.
By way of summary, I allow the appeal for the limited purpose of disallowing interrogatories 15, 17, 20, 21, 28 and 29 of the interrogatories which the plaintiffs have applied to deliver to the individual defendants.
For the reasons stated above when dealing with the interrogatories administered by the plaintiffs to the individual defendants, I disallow interrogatories 6, 7 and 9 which the plaintiffs have applied to deliver to the State defendant.
In my view, the remaining interrogatories which the plaintiffs have applied to deliver to the individual defendants and the State defendant relate to relevant matters and are not vexatious or oppressive. I reject the assertion that the master should have found that the cost and inconvenience of answering the questions outweigh the contribution the answers might make to the proper disposal of the proceedings. I do not regard the fact that the plaintiffs might have sought further and better particulars of the amended defences as precluding the delivery of interrogatories.