Yamazaki v Mustaca

[1999] NSWSC 1083

CITATION:	Yamazaki v Mustaca & ors. [1999] NSWSC 1083
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	20849/97
HEARING DATE(S):	25 October 1999
JUDGMENT DATE:	4 November 1999
PARTIES :	Mikiko Yamazaki John Mustaca & ors.
JUDGMENT OF:	Sully J

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	20849/97
LOWER COURT JUDICIAL OFFICER:	Master Malpass

COUNSEL :	D. Jordan - Plaintiff J. Sleight - Defendant
SOLICITORS:	Blessington Judd - Plaintiff D La Rosa, Izzo & Co & ors - Defendants
CATCHWORDS:
ACTS CITED:	Supreme Court Act
CASES CITED:	Boyle v Downs (1979) 1 NSWLR 192
DECISION:	Appeal allowed with costs

SUPREME COURT OF
NEW SOUTH WALES

COMMON LAW DIISION

SULLY J

4 November 1999

20849/97 - MIKIKO YAMAZAKI v JOHN MUSTACA & ORS.

JUDGMENT

1   HIS HONOUR: This is an appeal, brought pursuant to SCR Part 60 Rule 10, against a decision of a Master. The relevant background appears clearly and comprehensively in the following extracts taken from the Master’s published judgment:

“These proceedings are brought pursuant to the Compensation To Relatives Ac t 1897. Initially, there were four plaintiffs. The first plaintiff was the widow of the late Tetsuya Yamazaki (the deceased). The other plaintiffs were children of the marriage. The process has been amended on a number of occasions. There is now only one plaintiff (the widow) who brings the claim on behalf of herself and the children.
On or about 5 August 1996, the deceased was on premises known as 1 Dell Street Belrose (the premises). He had attended the premises for the purposes of playing tennis. He suffered injury in a fall and died.
The case as presently pleaded is to be found in a Second Further Amended Statement of Claim. The court was told that it had been filed in June 1999. Its predecessor was an Amended Statement of Claim filed on 12 January 1998.
There are five defendants. It is alleged that the first and second defendants were the owners of the premises. It is alleged that the third, fourth and/or fifth defendant were carrying on the business of a tennis academy and school at the premises. It is alleged that the fall was caused by negligence.
In December 1998, the plaintiff brought proposed interrogatories to the attention of the defendants. The plaintiff was told that leave was required to serve a notice to amend interrogatories. On 25 February 1999, the plaintiff filed a Notice of Motion. The application sought inter alia leave to file and serve notices to answer interrogatories.
The application came before Registrar Irwin. He delivered a written decision on 6 April 1999. The Registrar refused the application for leave to administer interrogatories to the third, fourth and fifth defendants.
On 4 May 1999, the plaintiff filed a further Notice of Motion. It sought a review of the decision made by the Registrar. The application was heard on 5 August 1999. Apart from documentation tendered during submissions, the material consisted of the documentation contained in a folder produced by the plaintiff.
At the outset, it needs to be noted that the application made before the Registrar laboured under misconception (it was brought and dealt with as an application for leave). The relevant rules are to be found in Part 24 of the Supreme Court Rules 1970. The rules make no provision for the granting of leave to administer interrogatories.
Rule 1 enables the administration of interrogatories by way of notice. This rule has no application in the present case (see subrule (3) ). Rule 5 enables the court to make an order against any party to serve a statement in answer to interrogatories. The exercise of the power is expressly restricted by the prohibition contained in sub-rule (2). The power cannot be exercised unless the court is first satisfied that the order is necessary at the time when it is made. When this threshold requirement has been satisfied there is a discretion to make an order.”

2   The Master dismissed the plaintiff’s Notice of Motion. The Master reached his conclusion upon the basis that he was not satisfied that it was “necessary”, in the sense contemplated by SCR Part 24 Rule 5 (2), to make the order sought by the plaintiff. The Master indicated that, even had he been of a different view on that threshold question, he would not have been satisfied that, in the exercise of his relevant discretionary power that would thereupon have arisen, he should have made the order sought by the plaintiff. The Master noted, in general terms, that various of the particular interrogatories had been the subject of extensive criticism during the course of submissions before him; but, given his view on the threshold question, the Master did not find it necessary to deal with any of those particular objections to individual interrogatories. 3   The Master approached the threshold question, that is to say the question of defining what is entailed by the use in Rule 5(2) of the description “necessary”, by looking, first, to the ordinary dictionary meaning of that word. The Master said:

“Whilst there have been attempts to do so, in my view, it is not helpful to embark on an exercise of seeking to define the term “necessary”. It has a clear dictionary meaning (inter alia it involves the concept of that which cannot be done without or dispensed with). The task for the court is to apply that concept to the facts of the particular case before it. Each case will turn on its own particular circumstances.”

4 This threshold question was the subject of a carefully considered judgment of Cross J in Boyle v Downs (1979) 1 NSWLR 192. Cross J’s conclusions have stood for some 20 years and must now be taken as settled law on the topic. The relevant conclusions of Cross J are expressed as follows:

“Of course, in many cases the evidentiary difficulties of one party only, i.e. the moving party, may loom large as considerations; but the test is not solely a matter of how much more effectively the moving party can present his case but, I believe, whether, all in all, the order is reasonably necessary for the disposing fairly of the case; and where a plaintiff has evidentiary difficulties, considerations of those difficulties will probably be the most important, but not the only, considerations relevant to determining whether the order is so necessary. I feel that it is for the reason that the rule should take into account the interests of both parties that the rule in other places, e.g. England and South Australia, is framed to make the relevant test “necessary for the disposing fairly of the cause or matter”. I am of the opinion that the word “necessary” in r.5 (2) should be interpreted in a somewhat similar manner, namely “reasonably necessary for the disposing fairly of the cause or matter”. In considering the meaning of the word “necessary” in Pt. 23, r. 14 - a rule relating to discovery and inspection similar to r.5 in Pt. 24 relating to interrogatories - Rath J in Percy v. General Motors-Holden’s Pty Ltd. (61) interpreted it as “necessary in the interests of a fair trial”. This definition is similar to the one I have suggested; for in Griebart v Morris (62), Scrutton L.J. interpreted “necessary for disposing fairly of the cause or matter” (under the English rules relating to interrogatories) as “necessary for the fair trial of the action.” [ (1979) 1 NSWLR, 205B - E]

5   The Master’s judgment does not refer, in terms, to the decision of Cross J. Nor is there, otherwise, anything in the Master’s judgment to indicate that the Master turned his mind to the considerations that underpin the conclusions reached by Cross J and quoted above. The question for the Master was not whether the plaintiff was in the position to present a case without having the defendants answer properly administered interrogatories. The question was, rather, whether on the given facts of the particular case it was “reasonably necessary for the disposing fairly of the cause or matter” that the defendants should be required to make such answer. A bare comparison of the words used by Cross J and by the Master might not be thought to point up significant semantic differences; but, in my opinion, such a comparison does point up a significant difference in focus. In my respectful opinion, the Master should have considered the threshold question upon the basis propounded by Cross J; and fell into error in not doing so. 6 Of course, and as Cross J points out specifically, - ( [1979] 1 NSWLR, 203 A), - the foregoing finding of error on the part of the Master does not, without more, sustain the present appeal. The plaintiff must proceed to show that, applying the correct criterion, this Court should not make the orders requested. 7 In order to explore that further aspect of the present appeal, it is necessary to attend more closely to the known facts and to the pleadings. 8 As to the known facts, it is convenient to cite further, and as follows, from the Master’s judgment:

“It appears that the tennis activities were conducted on part only of the premises. There was one tennis court. It was bounded on one side by a paved viewing area. On the other side of that area was a retaining wall of about 3 metres in height. Above the retaining wall, was an elevated garden area. At the time of the injury, the deceased was part of a group playing tennis. The activity started some time after 6.00 p.m. The injury was suffered at about 8.00 p.m. It took place when the deceased went to retrieve a tennis ball hit from the court area by another player. In the process of endeavouring to retrieve the ball, the deceased passed through a gate and went up some wooden stairs. They gave access to the elevated garden area. It is alleged that in or near this area was a dog owned by the first and second defendants. It is alleged that the dog behaved in an aggressive manner. Two alternatives are alleged. It is said that either because of the dog he walked backwards through the garden area towards the retaining wall from which he fell onto the paved viewing area or that he fell from the elevated garden area onto the paved viewing area.”

9   It is not disputed that the plaintiff herself was not present at the scene of the fatality and that she is therefore unable to give, as a matter of her own direct knowledge, any evidence as to the facts and circumstances that gave rise to the fatality. 10   As I understand the fact, the plaintiff did not seek to lead before either the Registrar or the Master evidence as to what material is, as matters stand, available to her in aid of her case against the defendants. There is, so far as I can see, no evidence as to how many people were playing tennis at the relevant time; or where they variously were at the relevant time; or what any of them saw or heard in connection with the deceased’s fatal fall. I imagine that there would have been at least routine police inquiries into the fatality; and I should think it a reasonable inference that there is, somewhere or other in the relevant background, an insurer who will have made as exhaustive an investigation as was possible into the facts and circumstances giving rise to the fatality. All of these matters were wholly uncanvassed before the Master. The Master noted that he had been informed that the plaintiff had not sought discovery; but that various subpoenas had been issued and various documents produced in response to them. The Master noted that the premises in question had been inspected on behalf of the plaintiff; and that photographs had been taken. Some of the latter were tendered in evidence on the hearing before this Court; but they have limited present value by reason of the fact that it was common ground that the photographs were not contemporary with the fatality. 11   All of these uncanvassed areas appear to have led the Master to a conclusion that there were what the Master described as “evidentiary deficiencies”; the practical effect of which left the Master unsatisfied that the requisite threshold test had been satisfied in fact. 12   I respectfully agree with the Master that the way in which the plaintiff’s case was presented both before the Registrar and before the Master had “evidentiary deficiencies”. I have come, however, to the conclusion that such deficiencies did not entail that the application of the correct test in principle to the facts actually known justified a finding that the requisite threshold test could not be satisfied. 13   In that connection, I consider the following matters to be of significance:

(1) There seems to be no genuine dispute about the cause of the deceased’s death. He fell to his death through a distance of several metres.

(2) Any person or body corporate having at the relevant time, the care, control and management of the tennis court and of the adjacent elevated garden area, must have been, upon the application of basic principles of tort liability, under a duty to take reasonable care to ensure either that a person using the tennis court could not get up onto the elevated garden area; or that any such person would not fall from the elevated area onto the hard surface of the tennis court, whether the cause of the fall was the absence of proper protective fencing; or the combination of such a lack of reasonable protective fencing and the aggressive attentions of a dog known by some or all of the defendants to be present in the elevated garden area.
(3) The plaintiff is at a real and obvious disadvantage in seeking to establish the respective standing of each of the five defendants in terms of occupation, and of the concomitant duty of care in the matter of management and maintenance of relevant parts of the subject premises. Those are matters of which it is reasonable to suppose that they are within the knowledge of the defendants. The defence filed jointly by the five defendants says nothing about these matters except for an admission that the fifth defendant “was carrying on the business of a tennis academy and school at the premises” . I do not see why the plaintiff ought not to be entitled to build up her case on these critical issues by every proper use of the interlocutory procedures of the Court.

(5) In my opinion, it is fair to take the same approach to the question of the part played by the aggressive dog which is thought to have been present and to have been menacing the deceased immediately prior to his fall. Paragraphs 17 and 18 of the plaintiff’s relevant Statement of Claim plead precise allegations as to the dog. Paragraphs (e), (f), (g) and (h) of paragraph 20 of that pleading give particulars concerning the dog. The joint defence of the five defendants traverses by non-admission paragraphs 17 and 18, and denies outright the material portions of paragraph 20. That such a pleading complies with the letter of the Rules, as is the case, does not entail that the plaintiff should not be entitled to establish by every proper use of the interlocutory procedures of the Court, including the administering of interrogatories, exactly what the position of the defendants might be as to those issues in the litigation.

14 As with the threshold question, so also with the concomitant question of the proper exercise of the relevant curial discretion. If the correct test is, essentially, what justice to all parties might reasonably be thought to require, then in my opinion there is a convincing case for the exercise in the present plaintiff’s favour of the relevant discretion. 15 For the whole of the foregoing reasons, I have come to the conclusion that the appeal should be allowed and that the order of the Master should be set aside. It then becomes necessary to consider what practical steps are best suited to giving just effect to such conclusion. 16 At the hearing before this Court, it was not submitted that this Court should make for itself a detailed analysis of each of the proposed interrogatories, or that the Court should consider for itself the precise objections that have been foreshadowed by the third, fourth and fifth defendants to the proposed interrogatories. No detailed argument was addressed to this Court upon those questions. 17 In deciding how to deal with this particular problem, I have had regard to section 75A(10) of the Supreme Court Act, which I apprehend to be applicable to appeals of the present kind. Sub-section (10) provides that the Court “may………… make any order or give any direction …………….which the nature of the case requires”. 18   I make accordingly the following orders:

(1) The appeal is allowed with costs.

(2) The interlocutory proceedings are remitted to the Master for the decision by the Master of the following questions:

2.1 Whether any, and if so which, of the third, fourth and fifth defendants should be required to answer any, and if so which, of the interrogatories propounded by the plaintiff in the amended notices to answer interrogatories served upon the third, fourth and fifth defendants respectively;

2.2 If, and in so far as, any such proposed interrogatory is disallowed, whether an interrogatory in some other, and if so what, amended form, ought to be allowed;

2.3 Whether, as to any order to answer, it should be required that the answer be verified in accordance with SCR, Part 24, Rule 5(1)(b).
2.4 Whether any, and if so what, further ancillary order is appropriate to the nature of the case.
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Last Modified: 11/10/1999