Tom v BAE Systems Australia Limited (ACN 008 423 005)
[2023] VCC 1641
•15 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-02779
| CARMEL TOM | Plaintiff |
| v | |
| BAE SYSTEMS AUSTRALIA LIMITED (ACN 008 423 005) | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2023 | |
DATE OF RULING: | 15 September 2023 | |
CASE MAY BE CITED AS: | Tom v BAE Systems Australia Limited (ACN 008 423 005) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1641 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Interrogatories length – objection oppressive
Legislation Cited: County Court Civil Procedure Rules 2018, o30.02
Cases Cited:Elisha v Vision Australia Limited [2022] VSC 754; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group LtdACN 005 357 522 [2010] FCA 230; Adams v Dickeson [1974] VR 77; Clarke v Garwood (1995) 22 MVR 387; [1995] TASSC 104; Ryan v The Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396; Re Aspar Autobarn Co-operative Society Limited and Ors v Dovala Pty Ltd and Ors (1987) 16 FCR 284; American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290
Ruling: Defendant’s application for leave to serve more than 30 interrogatories refused. Leave to serve interrogatories limited to 30. Trial date 4 October 2023 vacated.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G Angelowitsch | Mr M R Wolf Legal |
| For the Defendant | Mr G Worth | IDP Lawyers |
HIS HONOUR:
Introduction
1The plaintiff commenced proceedings by way of Writ and Statement of Claim dated 15 July 2022. The plaintiff alleges whilst employed by the defendant, she was subjected to bullying and harassment conduct. The proceedings are brought under paragraph (c) and are limited to pain and suffering only.
2On 15 September 2022, the Court made the standard timetabling orders, listing it for trial on 4 October 2023 before a judge and jury with an estimate of ten days.
3The defendant brought an application by way of Summons and Directions Hearing Application Form seeking to vacate the trial date and leave from the Court to serve more than thirty interrogatories in total and/or seeking further and better answers to the interrogatories provided by the plaintiff.
4The application to vacate the trial date was initially opposed by the plaintiff, but after hearing submissions from counsel for the defendant, the plaintiff consented to the vacation of the trial date.
5I also considered it appropriate for the trial date to be vacated and the proceeding is now fixed for trial on 13 March 2024, with an estimate of fifteen-plus days.
6This ruling is confined to the defendant’s application on interrogatories.
Background to this application
7The Court Timetable Orders of 15 September 2022 provided interrogatories were to be served by 6 January 2023 and for mediation to occur by 3 August 2023.
8On 18 July 2023, the defendant’s solicitors wrote to the Court requesting a directions hearing “to ventilate the inadequacy of the Plaintiff’s answers to the Defendant’s interrogatories”. An affidavit of the defendant’s solicitor sworn 18 July 2023, was attached (“defendant’s first affidavit”).
9The Court informed those solicitors that there had been non-compliance with the Common Law Division Practice Note and a directions hearing application form was required and the required form was then submitted.
10The parties were informed the direction hearing was listed on 10 August 2023.
11On 25 July 2023, the defendant’s solicitor wrote to the Court stating:
“For the sake of clarification, as on reflection the Directions Hearing Application form does not make it abundantly clear, the Defendant seeks an indulgence from the Court to expand beyond the 30 interrogatories allowed by the Practice Note PNCLD-2023 and further and better answers.”
12On 3 August 2023, the previously submitted defendant’s first affidavit and a direction hearings application form to adjourn the trial was submitted.
13The Court notified the defendant’s solicitors the Practice Note required a summons date application form, a summons and an affidavit in support to vacate the trial.
14In the summons date application form it was stated:
“The Defendant seeks an order to adjourn the trial listed for hearing on 4 October 2023, pending the appeal in Elisha, which is listed for hearing in the Supreme Court of Appeal on 6 September 2023. … .”
15An affidavit in support was provided, sworn on 7 August 2023 (“defendant’s second affidavit”).
16The parties were notified the summons application would be listed together with the directions hearing.
17In the defendant’s first affidavit, it was deposed that the plaintiff’s Statement of Claim raised many allegations of fact over a long period of employment. The defendant had filed an amended request for further and better particulars and obtained further and better particulars from the plaintiff.
18The affidavit stated that on 12 May 2023, the defendant served interrogatories for examination of the plaintiff. On 23 June 2023, the defendant’s solicitor requested answers, stating that the “deadline for receipt of the answers was 23 June 2023”.
19The plaintiff served answers on 3 July 2023, and on 6 July 2023, the defendant served a letter and notice of default for further and better answers.
20The plaintiff replied on 6 July 2023 that they would not provide further and better answers.
21A letter from the defendant solicitor of 6 July 2023 was exhibited, and noted the plaintiff failed to provide answers within time and had refused to answer any interrogatory beyond thirty. Further, despite being asked whether the plaintiff had any issues with the number of interrogatories when served, no response was received until the answers were served.
Pleadings
22In the Statement of Claim, it is pleaded in paragraph 3 that from approximately 2015 onwards, the plaintiff reported to, and was subject to, the direction of James Keating (“Keating”). At paragraph 4, that, during the course of her employment and in particular from June 2018, Keating engaged in “the abusive behaviour” towards the plaintiff which included swearing at her, treating her rudely and abruptly and otherwise bullying her.
23Paragraph 5 refers to a meeting on 15 March 2019 (“the March meeting”), where officers of the defendant met with the plaintiff. It is alleged the defendant had failed to give the plaintiff sufficient notice of its intention to conduct such a meeting, which concerned alleged poor conduct in the performance of her duties. Further, a letter is alleged to have been read to the plaintiff which referred to discussions previously held, which the plaintiff disputed. The plaintiff had been given no, or no adequate opportunity to inform of her account of such activities which the defendant relied upon regarding her performance.
24From that meeting the plaintiff suffered immediate and irreversible disadvantage in her present and future employment by reason of her being downgraded regarding her securing any clearance.
25The plaintiff alleges unreasonable time limitations were imposed upon her, that she failed to receive adequate support and was denied access to relevant information.
26The plaintiff did not return to work after the March meeting.
27The injuries arose due to abusive behaviour, the conduct at the March meeting and the defendant’s conduct after that meeting.
28In the Defence dated 12 October 2022 at paragraph 4 on the conduct of Keating, it was pleaded the conduct and relationship, and any mental injuries sustained by the plaintiff, were the subject of a determination by a magistrate in a previously-related proceeding, and the magistrate was ultimately not satisfied that the plaintiff had suffered mental injury as a result of the conduct of Keating.
29Further, the defendant admits the plaintiff was present at the March meeting, but denied the further allegations made.
30At paragraph 8, the defendant admits it owed the plaintiff a duty of care as the employer, but denied the defendant owed a common law duty in respect to the matters concerning disciplinary action or termination of the plaintiff’s Contract of Employment. As such duty was not recognised by the common law.
31The defendant served an Amended Request for Further and Better Particulars of the plaintiff’s Statement of Claim on 2 September 2022 confined to three issues. The first request was for details of abusive behaviour and the swear words used by Keating which were said to be rude and abrupt, and the bullying.
32The second request related to paragraph 5 of the Statement of Claim, the March meeting and requested details of insufficient notice.
33The last request related to paragraph 6, asking the plaintiff to provide details of the unreasonable time limitations pleaded that were imposed, and the Particulars of the inadequate support and lack of proper opportunity provided.
34The plaintiff’s Answers to the Further and Better Particulars are dated 19 September 2022, giving particulars of the alleged behaviour on the part of Keating. Particulars were provided on the invitation to the meeting and what was discussed at the meeting and reference to a letter of 15 March 2019, headed “Suspension of Employment” is made. That letter stated the plaintiff had to immediately inform the Commonwealth Defence Agencies, including AGSVA, of her suspension, which impacted on her security clearance, which meant she could no longer perform her role.
The Defendant’s submissions
35The Court was provided with a detailed factual summary from counsel providing details giving rise to the pleadings and the dispute between the parties.
36Counsel provided a copy of the judgment of O’Meara J in Elisha v Vision Australia Limited,[1] together with a copy of the application for Leave to Appeal and Notice of Contention in that matter. He was briefed as junior counsel in those proceedings.
[1][2022] VSC 754
37The theme of the defendant’s submissions is that the simplicity of the Statement of Claim hid the very complex factual matters involved in these proceedings. There were issues regarding workplace protocols and standards brought about by the sensitive security and matters of national interest which touched upon the plaintiff’s employment. Issues regarding the way the plaintiff undertook her duties had been in existence well before the March meeting and continued after that meeting.
38Counsel accepted that leave was required if the defendant wished to serve interrogatories exceeding thirty and that the interrogatories were served well outside the time pursuant to the Court Order.
39However, counsel said it was the complexity of the factual issues in dispute that brought about the need to serve more than thirty interrogatories and to fully identify the facts and the real issues in dispute between the parties.
The Plaintiff’s submissions
40It was submitted that, on counting the interrogatories served, they numbered 123, including sub-paragraphs, but not including further questions. That number far exceeded the Practice Note direction. An objection was taken to the totality of the interrogatories, which were considered oppressive due to their number.
41Further, matters interrogated were not matters in dispute between the parties based on the pleadings and adequate answers had been provided.
Appropriate Orders
42I requested submissions on what the parties considered the appropriate order should be if I ruled against the defendant in not granting leave to serve more than thirty interrogatories.
43Both parties agreed that the defendant should be granted leave to serve new interrogatories limited to thirty.
44It was also noted that the plaintiff had served interrogatories outside the time pursuant to the Court Order and leave would also be required to serve those interrogatories.
The Defendant’s interrogatories
45The defendant’s interrogatories dated 12 May 2023 are numbered as sixty questions, but this is not a true reflection of their number, as it does not include sub-questions and some require multiple answers. An example is Interrogatory 60 which asked the plaintiff to look at paragraph 12 of the Statement of Claim and provide the usual particulars of each and every contractual term the plaintiff alleged the defendant breached, that she now alleges is the cause of her injury.
Consideration
46Order 30.02 of the County Court Civil Procedure Rules 2018 is headed “When interrogatories allowed”. Relevant is sub-rule (6), which states that interrogatories shall not be served on any other party without leave of the Court if the proceedings are brought under the provisions of the relevant workers compensation legislation. Leave was granted pursuant to the Orders of 15 September 2022.
47Paragraph 15.5 and 15.6 of the Common Law Division Practice Note, reference PNCLD 1–2023, sets out the practice for interrogatories within the Division. Paragraph 15.5 states that without leave of the Court, the number of interrogatories served in proceedings in the Lists within the Division, including sub-parts, are to be limited to thirty. Paragraph 15.6 states that in industrial accident cases, interrogatories should be confined to questions of liability.
48A summary of the principles which apply to interrogatories was provided by Greenwood J in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group LtdACN 005 357 522[2] at paragraphs 91−101 inclusive.
[2][2010] FCA 230
49At paragraph 92, his Honour said, after setting out the three questions he wished to consider in the application before him, as follows:
“Those questions seem to me to address the essential objective of interrogatories identified by Simpson J in Green v Green (1912) 13 SR (NSW) 126 at pp 132 and 133 (a view also adopted by Lockhart J in WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 574 (Bowen CJ agreeing at 562)) that interrogatories are characterised as questions in the nature of a demand for further and better particulars; questions directed to obtaining admissions as to facts which support the case of the interrogating party (here, the ACCC); questions directed to obtaining admissions as to facts which will destroy or damage the case of the interrogated party (here, ANZ); and, where the interrogated party is a fiduciary with an obligation to keep accounts, interrogatories may seek those accounts or a summary of them.”
50However, his Honour also said, at paragraph 94:
“In principle, an interrogatory ought only to be allowed if the end sought to be achieved by administering the question is reasonably proportionate to the effort required in answering the question.”
51Greenwood J also referred to the Full Court of the Supreme Court’s decision in Adams v Dickeson,[3] where, at page 79, the Court said:
“The prime object of interrogation is to enable a 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. ...
…
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.”
[3][1974] VR 77
52At paragraph 97, Greenwood J discussed the principles that interrogatories were not to be a de facto written cross-examination of the interrogated party, and they must be relevant in the sense that they relate to a matter in question framed by the pleadings.
53In Clarke v Garwood,[4] a decision of the Supreme Court of Tasmania, where the plaintiff applied to have interrogatories served by the defendant, which numbered 103, was disallowed on the grounds they were oppressive and an abuse of process. Crawford J, at page 390, quoted Miles CJ, in Ryan v The Federal Capital Press of Australia Pty Ltd,[5] as follows:
“The tendency towards the greater use of extensive interrogatories has led to a more widespread recognition in the courts if not among practitioners that interrogatories should not be used as a general substitute for a request for further and better particulars of the opponent’s case nor as a means of pinning down a witness to a particular answer in the hope of having the witness contradict it at the trial. In some cases a notice to admit will be an appropriate alternative or preliminary to interrogatories and will be far cheaper.”
[4](1995) 22 MVR 387; [1995] TASSC 104 “Clarke”
[5](1990) 101 FLR 396 at 397
54In Clarke,[6] his Honour also discussed the position on disallowance of interrogatories in their entirety if they were oppressive and an onerous and unreasonable task. At page 388, his Honour said:
“The provisions of other jurisdictions are not closely comparable to the provisions of this Court’s rules, but some guidance can be found in the decisions of their courts. It has been accepted in many that a court has power to disallow an entire set of interrogatories on the grounds of oppressiveness and prolixity without the need to examine each interrogatory separately and determine its individual merit. In Cawley v Burton (1883) 32 WR 33 it was so held as it was in Austin v Austin [1905] VicLawRp 56; (1905) VLR 377 particularly by A’Beckett J at 384 and 385. See also Lyte v Currey [1927] VicLawRp 68; (1927) VLR 472. In American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) (1965) NSWR 193 at 196 Myers J said:
‘It was established under the earlier English rules that interrogatories which were prolix and oppressive or unnecessary could be disallowed as a whole, even though some of them were proper, and that the Court was not required to go through interrogatories of that kind and ascertain which were admissible and which were not. It was also established that the Court was entitled to come to the conclusion that interrogatories were of the kind specified on a general view of the interrogatories and indeed that the mere obligation of the opposite party and the Court to go through the interrogatories and pick out from a large number that were improper the comparative few that were allowable, was itself unreasonable and itself could constitute oppressiveness. It has been contended that that principle does not any longer apply because the English rules have been altered. But the Annual Practice for 1965 and Halsbury’s Laws of England at the page to which I have earlier referred treat the practice as still being observed in England notwithstanding the alteration of the rules. It is, too, within my own personal knowledge that the practice established by the earlier cases has always been followed in this Court. Indeed, it was followed as recently as 1962 by Jacobs J, in Lamerand v Lamerand (No 3) (1962) NSWR 1223.’ ”
[6]Supra
55The plaintiff’s submission is that the interrogatories considered as a whole were oppressive. In Re Aspar Autobarn Co‑operative Society Limited and Ors v Dovala Pty Ltd and Ors,[7] Woodward J said, at pages 287−288, on what was meant as “oppressive”:
“The word “oppressive” ... means, I think, unfair, or unreasonable, in the sense that a good deal too much is expected of the party questioned. It may be that the details sought would take many hours to extract from records and would only be relevant to some side issue in the case. Or the question may be so ambiguous that it would be unfair to expect the party questioned to make assumptions about its meaning. Or the question may cover a wider geographic area or a longer period of time than is reasonably necessary in readying the case for trial. There are many questions which might be admissible in cross-examination, but are by their very nature inappropriate, and thus oppressive, in interrogatories. Questions going to credit or to motive are obvious examples.
Thus it can be seen that the types of question which may properly be objected to as “oppressive” are many and varied. Each contested instance will have to be resolved on the basis of the court’s general impression as to what is reasonable.”
[7](1987) 16 FCR 284
56Similarly, Myers J, in American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2),[8] considered the following matters in ascertaining whether a set of interrogatories were oppressive:
· the number of individual interrogatories;
· the extent to which providing an answer imposes an unreasonable onerous burden on the interrogated party;
· whether the interrogatory required the interrogated party to form opinions, exercise judgment or draw conclusions;
· the repetitiveness of the questions;
· whether the questions were, in truth, asked for the purpose of discovering trade secrets.
[8][1965] NSWR 193 (“American Flange”)
57Further, in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd,[9] Mansfield J stated, at paragraph 36:
“In ascertaining whether interrogatories taken as a whole are oppressive, one must consider the number sought to be administered, the extent to which providing an answer imposes an unreasonable and onerous burden on the interrogated party, whether the interrogatory requires the interrogated party to form opinions, to exercise judgment or to draw conclusions, and whether the questions are repetitive: ACCC v ANZ (at [101]). If the energy, effort, time and cost required to address the interrogatories is not reasonably proportionate to the end sought to be achieved, then the interrogatories should not be administered. In making a decision, a balancing exercise must be undertaken: the benefits of narrowing and clarification of issues against the costs and the burden placed over the respondents inherent in the task of answering the written questions fully and accurately.”
[9][2012] FCA 290
58I consider the Interrogatories served are oppressive and I am not satisfied that leave should be granted to the defendant to serve more than 30 interrogatories. This is a claim for damages with an allegation of bullying and harassment in the workplace. I accept that in such cases, particularisation of the allegations is most important. I further accept that there may be factual matters that have not been adequately addressed by the pleadings which may go to the real issues in dispute between the parties.
59However, the defendant, has had an opportunity to seek further and better particulars. As set out in paragraphs 33-35, that request does not raise many of the issues which the defendant maintains are issues in dispute between the parties and which are interrogated upon. For reasons, the defendant chose only to seek better particulars confined to the conduct of Keating, notification of the March meeting, and lack of support at the meeting.
60Further, I am satisfied I am not required to analyse each interrogatory because to do so in itself would be oppressive given the number of questions asked.
61However, I wish to identify the oppressive nature of some of the individual interrogatories by considering Interrogatories 3 and 4.
62Interrogatory 3 asks:
“In respect of any, and if so what, aspects of your work in 2018, did you hold the belief that you had a right, power, mandate, responsibility, or authority to ignore lawful instructions, directions, procedures, and/or protocols from the Defendant if you believed such instructions, directions, procedures, and/or protocols from the Defendant conflicted with a duty you owed directly to the Commonwealth government or a department thereof?”
63Interrogatory 4 asks:
“If you did hold a belief that you had, in 2018, a right, power, mandate, responsibility or authority to ignore lawful instructions, directions, procedures, and/or protocols from the Defendant if you believed such instructions, directions, procedures, and/or protocols from the Defendant conflicted with a duty you owed directly to the Commonwealth government or a department thereof, set out in detail precisely how you arrived at that belief.”
64Matters enquired of in those interrogatories go way beyond what had been raised in the pleadings, and ask the plaintiff to form opinions, exercise judgment and draw conclusions. They, like many of the interrogatories, are a form of defacto cross examination.
65I consider the interrogatories, taken as a whole, do not narrow the factual issues in dispute raised in the pleadings as many of the matters enquired upon are based upon what the defendant’s case will be at trial on its own material.
66Finally, when considering the test as identified by Myers J in American Flange,[10] the interrogatories are oppressive due to their number, the burden that is placed on the plaintiff in answering, and the repetitiveness of many of the questions asked.
[10]Supra
67Considering paragraph 41, as I have ruled against the defendant, I am satisfied that leave should be granted to the defendant to serve interrogatories limited to thirty.
68I will make orders granting leave for the plaintiff to serve interrogatories.
Costs
69To avoid further costs to the parties, I asked for submissions at the hearing on costs.
70The defendant has been unsuccessful in its application. However, no objection was properly taken by the plaintiff at the time of service of the interrogatories to the number of interrogatories and having been served outside the Court timetable.
71Equally so, the plaintiff seeks an indulgence from the Court to serve its interrogatories out of time.
72The application to vacate the trial date given the pending Court of Appeal decision was appropriately brought. However, neither the Court nor the plaintiff were fully informed of the significance of that appeal to the present proceedings until hearing submissions from defendant’s counsel.
73Had a better explanation been given, then the application may have proceeded by way of a consent order.
74But consent to that application does not alleviate the difficulties with respect to the interrogatories.
75For those reasons, I consider it is appropriate for neither party to directly benefit by way of an order of costs.
76I will therefore make an order that there be no order as to costs for the defendant’s application by way of summons to vacate the trial date and for the directions hearing application for leave to serve more than thirty interrogatories.
77Appropriate orders will be made.
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