Ugle v State of Western Australia - [2001] WASC 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: UGLE -v- STATE OF WESTERN AUSTRALIA & ANOR [2001] WASC 142

CORAM: MASTER SANDERSON

HEARD: 30 MAY 2001

DELIVERED : 15 JUNE 2001

FILE NO/S: CIV 2462 of 1999

BETWEEN: SIDNEY LEONARD UGLE
Plaintiff
AND
STATE OF WESTERN AUSTRALIA
First Defendant
ALAN PIPER, ACTING CHIEF EXECUTIVE OFFICER, MINISTRY OF JUSTICE
Second Defendant

Catchwords:

Practice and procedure - Application for leave to administer interrogatories

Legislation:

Prison Act 1981, s 35, s 47

Result:

Leave refused

Representation:

Counsel:

Plaintiff:     Mr K N Allan
First Defendant             :     Mr B P King
Second Defendant         :     Mr B P King

Solicitors:

Plaintiff:     Aboriginal Legal Service
First Defendant             :     State Crown Solicitor
Second Defendant         :     State Crown Solicitor

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

Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Norton v Hoare (1913) 17 CLR 348
Sharpe v Smail (1975) 5 ALR 377
Verdell Pty Ltd v F & G Nominees Pty Ltd [2000] WASC 143

Case(s) also cited:

American Flange and Manufacturing Co Ltd v Rheem (Australia) Pty Ltd (No 2) (1965) NSWR 193
Dunbar v Perc (1956) VLR 583
Frater v Ward, unreported; SCt of WA; Library No 980211
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 47,931
Konings v Naylor [1964] QR 235
Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70
Makin v Troy, unreported; SCt of WA; Library No 940256;
McBride v Sandland [1917] SALR 249
Ryan v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396
Seidler v John Fairfax & Sons Ltd [1983] NSWLR 390

MASTER SANDERSON: This is the plaintiff's application for leave to administer interrogatories brought under O 27 r 1 of the Rules of the Supreme Court 1971. Annexed to the application is a draft of the interrogatories the plaintiff seeks leave to administer. The defendants opposed the grant of leave arguing that in the context of this case interrogatories were unnecessary. Before dealing with the application itself it is necessary to say something about the facts of the case and the general principles governing applications of this nature.
The plaintiff is and was at all material times a prisoner incarcerated either in Casuarina Prison or Canning Vale Prison. As is well‑known, on Christmas Day 1998 a riot occurred at the Casuarina Prison. It is common ground the plaintiff took no part in the riot. However, the plaintiff, by an amended statement of claim, alleges that on 26 December 1998 he was assaulted at Casuarina Prison by prison officers employed by the first defendant. He says that the assaults were malicious and without reasonable cause and as a consequence he has suffered injury, loss and damage. These matters are pleaded in par 1 through to par 6 of the amended statement of claim.
The plaintiff alleges that immediately following the assault he was transferred to Canning Vale Prison and was held in what is referred to in the statement of claim (par 7) as "separate confinement". This amounts to being held in isolation in a punishment block for 23 hours per day. It is alleged by the plaintiff that his being held in separate confinement was not authorised by s 43 of the Prison Act 1981 and was unlawful. Furthermore, it is said that the exercise of the power - that is to say, holding the plaintiff in separate confinement - was undertaken for an ulterior purpose and was not bona fide. As an alternative plea it is said that the holding of the plaintiff in separate confinement and the withdrawal of his privileges amounted to torture within r 2K of the Rules made pursuant to s 35 of the Prison Act. There are further alternative pleas in negligence, breach of statutory duty and for wrongful imprisonment. The plaintiff claims aggravated and exemplary damages.
This is a truncated summary of a pleading which runs to 19 paragraphs and 18 pages. It will suffice for the purposes of this application.
The underlying principles which govern an application for leave to administer interrogatories were considered by the Full Court in Dalecoast Pty Ltd v Monisse [1999] WASCA 103. In the course of his judgment Owen J said (at 5 ‑ 6):
"It is often the case that the benefit to be obtained from delivering interrogatories is far outweighed by the inconvenience and expense to the other party in having to answer them. As a mechanism for understanding the case which a party has to meet they have, at least to some extent, been replaced by the pre‑trial exchange of witness statements which is ordered in most cases. The standard form of pre‑trial documents orders mean that a party will seldom go to trial not knowing what documents it has to prove strictly.
These are developments that have occurred in recent times and the present regulatory framework for interrogatories has to be seen against that background. In the 1996 amendments to the Rules of the Supreme Court there was a significant change to the regime for interrogatories. It is now necessary to obtain leave before any interrogatories are administered … The leave regime is administered with case management principles in mind. Considerable thought needs to be given to whether it really is necessary to administer interrogatories consistent with the principles enshrined in O 1 r 4B. If they are considered necessary, great thought must go in to the framing of them so that they achieve the object for which they are designed without putting the other party to unnecessary trouble and expense. …"
While a draft set of interrogatories should accompany any application for leave I doubt that it is appropriate to consider the interrogatories in detail when determining whether leave ought be granted: see Verdell Pty Ltd v F & G Nominees Pty Ltd [2000] WASC 143 at 8. The grant of leave to administer interrogatories does not necessarily mean that the interrogatories administered pursuant to leave must be answered. There is a two‑stage process. Nonetheless the grant of leave cannot be considered in isolation. A consideration of the draft interrogatories should establish what forensic purpose the party seeking the leave is attempting to achieve.
In considering the draft interrogatories the first four can be conveniently taken together. They are directed at the nature of the employment relationship between certain prison officers, the superintendents at the Casuarina and Canning Vale Prisons and the first defendant. This is an issue raised on the pleadings but it is not a central issue in the action. It is a matter which will undoubtedly be addressed by the defendants in their witness statements and I would see these interrogatories as unnecessary.
Interrogatory 5 seeks certain details of the assault allegedly committed by prison officers on the plaintiff. The defendants deny the alleged assault and it is clearly a central question in the case. Even if the interrogatory were proper it covers matters which will be dealt with by witness statements. Interrogatories 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 22 all deal with documents. Not all of these questions are framed in precisely the same way. For instance, question 6 is in the following terms:
"Look at Discovered Document No 552, a copy of which is attached. Is this the Transfer Advice relating to the transfer of the plaintiff from Casuarina Prison to Canning Vale Prison If so:-
(a)What is the name of the person who authorised the transfer?
(b)What is the name of the Information Officer who signed the transfer and what office does he hold?
(c)Was the reason for the transfer 'Management Problem' as shown in the document? If so, what is meant by 'Management Problem'?
(d)What is meant by the comment in the document 'No Action Specified'?"
Clearly subpar (c) and subpar (d) would not be proper interrogatories in any circumstances: see Norton v Hoare (1913) 17 CLR 348 at 354. But it is doubtful objection could be taken to question 6(a) and (b): see Sharpe v Smail (1975) 5 ALR 377 at 381. The question is whether the information sought in par 6(a) and par 6(b) is necessary and whether it is likely that such information will emerge from witness statements exchanged in due course.
As I understand the plaintiff's case the reason for his transfer from Casuarina Prison to Canning Vale Prison is not an issue between the parties. The plaintiff says he was assaulted at Casuarina Prison and then, when he was transferred to Canning Vale Prison he was treated inappropriately. The allegation that he was inappropriately held at Canning Vale Prison has nothing to do with the transfer itself. In those circumstances it is difficult to see what would be achieved by requiring the defendants to answer questions 6(a) and (b). While answering the questions would not be oppressive it would not serve any forensic purpose.
The same reasoning applies in relation to all of the documents in this category.
In relation to interrogatories 23, 24 and 25 these are directed at ascertaining what instructions were issued by certain prison officials after the riot on 25 December 1998. These questions relate to the plea in par 8 of the amended defence where the defendants allege, dealing with the claim brought in negligence, that adequate instructions were issued to prison officers as to their powers and duties under the Prison Act. Properly considered these interrogatories are a request for particulars. I would be prepared to order that the defendants provide particulars of par 8 of the defence but I am not satisfied that it would be appropriate to grant leave to administer interrogatories on this issue.
Dealing with the remaining interrogatories, question 26 is clearly fishing and questions 27, 28 and 29 deal with matters which are not in issue between the parties. Question 31 deals with the contents of documents. Question 32 is a fishing interrogatory and does not relate to any matter in issue between the parties. Question 34 is an attempt to obtain further discovery by way of interrogatories.
That leaves questions 30 and 33. Question 30 is directed at ascertaining the knowledge of the Director Prison Operations in relation to the plaintiff's separate confinement. Presumably this is relevant to the question of damages and in particular, aggravated or exemplary damages. Given the nature of the dispute between the parties this is a matter which the defendants' witnesses will necessarily have to address. I cannot see that the interrogatory is necessary. In relation to interrogatory 33 it is not clear whose name appears on document number 455. However, it is difficult to see what relevance that information might have to the conduct of the plaintiff's case. Once again I am not satisfied that the interrogatory is necessary.
In all the circumstances I would refuse leave to issue interrogatories in this case. I am not satisfied that it is necessary for the proper conduct of the plaintiff's case for such leave to be granted.
There is one further matter which I should refer to as it was raised by counsel for the defendants during the course of the hearing. Counsel offered an undertaking to make available at trial all witnesses who have any connection with the matters raised by the plaintiff in the statement of claim. Counsel submitted that this undertaking removed any need for leave to be granted to administer interrogatories. I have some doubts about the utility of such an undertaking. It may well be that at trial a defendant makes available certain witnesses and their statements but those witnesses may not be called by the defendant to give evidence. That may complicate the whole process. As I understand the procedure with witness statements, the statements can only be used if a witness is called by the party who has prepared the statement. In any event, the other party - in this case the plaintiff - may be reluctant to call a witness to confirm one point only to find the witness gives evidence damaging to the party's case. While I appreciate the spirit in which the undertaking was offered by counsel for the defendants, it does not seem to me proper to determine an application such as this based upon the offer of such an undertaking. The plaintiff has the right to have this application determined on its merits and that is the approach that I have adopted.
I will hear the parties as to the precise form of order and as to costs.