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Yamazaki v Mustaca

Yamazaki v Mustaca

Case [1999] NSWSC 1083 4 November 1999

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yamazaki v Mustaca

Details

AGLC: Yamazaki v Mustaca [1999] NSWSC 1083
Case: [1999] NSWSC 1083
Decision Date: 4 November 1999

CaseChat Overview and Summary

This appeal arises from a decision of the Master of the Supreme Court regarding the administration of interrogatories in a personal injury action. Mikiko Yamazaki, the widow of Tetsuya Yamazaki, filed a claim against several defendants after her husband died from injuries sustained while playing tennis at a premises in Belrose. The defendants, who allegedly owned the premises or operated a tennis academy there, denied negligence. Yamazaki sought leave to administer interrogatories to the third, fourth, and fifth defendants, but the Registrar refused the application. Yamazaki subsequently filed a Notice of Motion seeking a review of the Registrar's decision, which was also dismissed by the Master.

The central legal issue was whether the Master correctly exercised his discretion in refusing to order the defendants to answer interrogatories. Specifically, the court needed to determine whether the Master properly applied the test for necessity as outlined in Supreme Court Rules and in the precedent set by Cross J in Boyle v Downs. The threshold question was whether it was "reasonably necessary for the disposing fairly of the cause or matter" for the defendants to answer the interrogatories. If the threshold was met, the court would then consider whether it was just to exercise its discretion in favour of the plaintiff.

Sully J found that the Master erred in not applying the correct legal test for necessity as articulated by Cross J. Instead of focusing on whether the interrogatories were necessary for a fair trial, the Master appeared to focus on the plaintiff's evidentiary deficiencies. Sully J noted that the plaintiff was at a disadvantage in proving critical issues such as the defendants' roles and the presence of an aggressive dog, which were within the defendants' knowledge. Therefore, the plaintiff should have been entitled to use all proper procedural tools, including interrogatories, to gather this information. Additionally, the court found that it was just to exercise its discretion in favour of the plaintiff given the circumstances.

Accordingly, the appeal was allowed, and the matter was remitted to the Master to reconsider the application for interrogatories. The Master was tasked with determining which defendants, if any, should answer which interrogatories, whether any disallowed interrogatories could be amended, whether answers should be verified, and if any further orders were appropriate.

Orders