Tracey & Peter Greig v AAI Limited
[2022] VCC 1437
•5 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-21-05543
| Tracey & Peter Greig | Plaintiffs |
| v | |
| AAI Limited | Defendant |
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Judicial officer: | JUDICIAL REGISTRAR MULLER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | In chambers (based on correspondence from the defendant on 22 June 2022 and the plaintiff dated 4 July 2022). | |
DATE OF RULING: | 5 September 2022 | |
CASE MAY BE CITED AS: | Tracey & Peter Greig v AAI Limited | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1437 | |
RULING
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Subject:INTERROGATORIES
Catchwords: Reasonable, Proper, Necessary.
Legislation Cited: County Court Civil Procedure Rules 2018 Rule 34A.17; Civil Procedure Act 2010 s 7.
Cases Cited:Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Abduramanoski v Aidan Nominees Pty Ltd [1987] FCA 607; Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLsR 390.
THE JUDICIAL REGISTRAR
The application
By email dated 22 June 2022, the defendant made an application for leave to administer interrogatories by providing the Court with draft interrogatories directed to both plaintiffs (substantially in the same form) and reasons in support.
By email dated 4 July 2022, the plaintiff objected to the defendant’s application for leave to administer interrogatories.
The defendant submits that interrogatories are appropriate in this matter in the form provided for the following reasons:
a.the underlying cause of action in this matter relates to the defendant insurers obligations to repair damage to the residential property located at 35 Oakland Drive Warrandyte in the State of Victoria (‘Property’);
b.the interrogatories are sought to be administered to each of the plaintiffs in respect of their first-hand observations of damage to the Property in relation to the following matters:
i. paragraph 4 of the Statement of Claim which pleads damage to the roof of the Property, water entering into the Property through the roof and damage arising as a result of failure to repair the roof. The defendant says that the parties would be assisted by the plaintiffs’ responses to the interrogatories sought in respect of paragraph 4;
ii. paragraph 8 of the Statement of Claim pleads that the Property became unliveable and the defendants seeks to administer interrogatories as to why and how the plaintiffs reached the conclusion that they could not reside at the Property;
iii. paragraph 11 of the Statement of Claim pleads that repair attempts at the Property failed and the defendant seeks interrogatories as to the nature of the failed repairs observed and how this resulted in the items claimed.
The plaintiffs object to leave being granted for the administration of the proposed interrogatories on the following grounds:
a. no exceptional circumstances have been demonstrated as required by Cl. 14 of PNCO 1 – 2019;
b. the administration of interrogatories will not facilitate the expeditious resolution of the dispute;
c. the administration of interrogatories is unnecessary as they largely duplicate the Defendant’s Request for Further and Better Particulars;
d. many of the interrogatories are objectionable, including on the basis of relevance;
e. the administration of interrogatories is likely to lead to dispute as to the sufficiency of the answers;
f. the administration of interrogatories is likely to lead to increase in cost, complexity and delay, particularly important in the present case where the Plaintiffs are living in a caravan because their home is unliveable.
The plaintiffs also submit that the defendant’s justification in their email that the Court and parties would be assisted by interrogating the plaintiffs “…in respect of their firsthand observations of damage to the Property” is misplaced as the relevant evidence in this proceeding will be expert evidence. Further, the plaintiffs say this is borne out by the fact that in answer to many of the plaintiffs’ requests for further and better particulars the defendant responded by stating that they were: “a matter for expert evidence in the proceedings”.
The plaintiffs submit that:
a. interrogatories 1-5 (which enquire as to the plaintiffs’ observations (at an unspecified time) and recollections, now some years later) are irrelevant. They also question the relevance of interrogating the plaintiffs as to their recollection of the weather (interrogatory 6) when the event and damage has been admitted and Bureau of Meteorology records (as well as press reporting of the storm) have been discovered;
b. interrogatories 6 - 12 and, in part 14 and 15, duplicate the defendant’s request for further and better particulars;
c. interrogatories 13, 14 and 15 seek answers irrelevant to the proceeding; and
d. interrogatories 2a and 8d simply duplicate discovery.
The pleadings and the critical issues
The pleadings comprise of a statement of claim, a defence and a reply. Requests for particulars have also been made. Without reciting all of the matters set out in those documents the issues in dispute centre around:
a. whether the damage to the roof of the Property resulted from the Storm Event (as defined) or was caused (or to what extent was caused) by maintenance and deterioration damage not arising from the Storm Event;
b. whether the defendant’s actions at the Property caused airborne mould and or mould damage or whether the mould damage was caused by the plaintiffs’ failure to take any reasonable steps to conduct maintenance to the roof of the Property prior to the Storm Event or conduct any maintenance repairs to the roof at the Property once it was identified;[1]
c. mitigation and contribution arguments.
[1] Presumably ‘it’ is a reference to airborne mould or contents that were mould damaged.
The plaintiffs say that much of the relevant evidence in this proceeding will be expert evidence. Support for that submission, they say, is found in the defendant’s further and better particulars dated 28 March 2022.
While that is almost certainly correct that much of the case will turn on the expert evidence, the parties will of course have to adduce evidence of the facts upon which the experts will opine. In turn, those facts are likely to be obtained from witnesses, present at particular times, giving direct evidence as to what they observed at those times.
The framework for permitting interrogatories
Leave must be granted to serve interrogatories.[2] In deciding whether to permit interrogatories, I have a wide discretion and I ought to consider if the interrogatories are really necessary. Necessary in this context means “reasonably necessary” rather than “essential”.[3] There might appear to be a tension between this and the fact that nowadays, Courts will only permit interrogatories in exceptional circumstances. However, the tension can be resolved by looking at the interrogatories sought and asking: what is the utility of the proposed interrogatories? Does their service and the responses thereto likely facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[4]
[2] Rule 34A.17 of the County Court Civil Procedure Rules 2018.
[3] Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [51].
[4] Civil Procedure Act 2010, s.7.
The above questions should be answered in two stages. First, is the allowing of interrogatories at all reasonably necessary at all?
Second, if I am of the view that allowing interrogatories might be reasonably necessary, I should then examine the proposed interrogatories and determine whether they are relevant, proper and necessary "having regard to the fair and expeditious conduct of the proceeding".[5] The proposed interrogatory must relate to a question between the parties in the proceeding and it does so if it has some association or connection with the question.[6]
Analysis - is the allowing of interrogatories at all reasonably necessary at all?
[5] Abduramanoski v Aidan Nominees Pty Ltd [1987] FCA 607.
[6] Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390. However, while the right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue, it is not so broad as to encompass any question that might properly be put on the oral examination of the party at the trial. An example is an interrogatory directed at impeaching the credit of the party interrogated.
I take this question to be directed at the nature, complexity and quantum of the proceeding and in particular to whether allowing interrogatories would be consistent with Civil Procedure Act obligations to keep costs proportionate, only take steps to resolve or determine the dispute or to narrow the issues in dispute.
In the circumstances of this proceeding, which is listed for five to six days and involves a considerable quantum, and which will require the establishing of facts to underpin expert opinion, I am satisfied that the allowing of (properly drawn and well-crafted) interrogatories may be said to be reasonably necessary.
Analysis – are the interrogatories proposed relevant, proper or necessary?
My analysis is referrable to the interrogatories directed to the first plaintiff. However, as noted above, the interrogatories directed to the second plaintiff are materially identical.
Interrogatories relating to paragraph 4 of the Statement of Claim
Interrogatories 1 and 2 go to the question of what the first plaintiff saw in respect of the alleged damage at the time it was said to have occurred and whether any records were made or photos taken of any observations. However, the first issue (what damage was observed) is better and more efficiently obtained by particulars, and the second issue (records made or photos taken) is covered by the orders made for discovery, which is to be made by affidavit. In my view, whilst they are relevant and proper, they are not necessary.
Interrogatories 3, 4 and 5 are premised first on the first plaintiff having a recollection. The existence of that fact has not been established and is not asked. Therefore, interrogatories 3, 4 and 5 are not proper. In addition, the questions do not ask what the first plaintiff observed but are directed to obtaining an opinion about what damage was caused by water entering the home through the roof. That is a question properly answered by expert opinion, or by the Court drawing conclusions from the evidence given. There is no suggestion that the first plaintiff is properly qualified to give an opinion on these matters. Therefore, it is not proper to ask those questions of the first plaintiff.
The answers sought by interrogatory 6 are best obtained by a request for particulars or by reference to meteorological records. It is not necessary to interrogate the first plaintiff on them.
Interrogatory 7 is reasonable and proper. However, the answers sought are again best obtained by a request for particulars or by reference to meteorological records. It is not necessary to interrogate the first plaintiff on them.
Interrogatory 8 is poorly drafted. It directs the first plaintiff to speculate (i.e. it does not ask, ‘did you see mould in [a particular location] and if so when?’) and in respect of sub-paragraph (c) is best obtained by a request for particulars or by reference to meteorological records and sub-paragraph (d) through discovery. It is not necessary to interrogate the first plaintiff on them.
Interrogatories related to the liveability of the home - paragraph 8 of the Statement of Claim
Each of interrogatories 9, 10, 11 and 12 ask the first plaintiff for an opinion for which there is no suggestion that she is qualified to give. They are, as drafted, unlikely to lead to admissible evidence being given. They are not reasonable or necessary.
Interrogatories related to paragraph 11 of the Statement of Claim
Interrogatory 13 comprises nine questions:
a. The first is better obtained by a request for particulars.
b. The second asks for an opinion.
c. The third does not make sense to me. The allegation is that the defendant’s attempted repair, I would expect the answer to that question lies with the defendant.
d. The fourth is best obtained by a request for particulars.
e. The fifth is best obtained by a request for particulars.
f. The sixth is best obtained by a request for particulars.
g. The answer to the seventh question will be more efficiently obtained from oral evidence. It is not necessary.
h. The eighth is best obtained by a request for particulars.
i. The ninth is best obtained by a request for particulars.
Interrogatory 14 comprises six questions:
a. The first is imprecisely drafted and requires the first plaintiff to express an opinion for which she is not qualified.
b. The second is best obtained by a request for particulars.
c. The third is best obtained by a request for particulars.
d. The answer to the fourth question will be more efficiently obtained from oral evidence or particulars. It is not necessary.
e. The fifth is best obtained by a request for particulars.
f. The sixth is best obtained by a request for particulars.
Interrogatory 15 comprises seven questions:
a. The first is imprecisely drafted and requires the first plaintiff to express an opinion for which she is not qualified.
b. The second is best obtained by a request for particulars.
c. The third is best obtained by a request for particulars.
d. The fourth is best obtained by a request for particulars.
e. The answer to the fifth question will be more efficiently obtained from oral evidence or particulars. It is not necessary.
f. The fifth is best obtained by a request for particulars.
g. The sixth is best obtained by a request for particulars.
h. The seventh is best obtained by a request for particulars.
Conclusion
Accordingly, while I accept that properly drawn and well-crafted interrogatories may be reasonably necessary in this case to further the overarching purpose, I do not accept that the interrogatories sought (as drafted) are, when examined, relevant, proper or necessary (as identified above).
The defendant’s application for leave to administer interrogatories is dismissed. I am inclined to order that the costs be reserved given that the costs are likely to be modest. However, if a party wishes to make a submission to the contrary, then they must file written submissions of no more than two A4 pages by Thursday 8 September 2022 at 12.00pm and I will determine the question on the papers.
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