Yamazaki v Mustaca

[1999] NSWSC 864

CITATION:	YAMAZAKI v MUSTACA & ORS [1999] NSWSC 864
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20849/1997
HEARING DATE(S):	5 August 1999
JUDGMENT DATE:	27 August 1999
PARTIES :	Mikiko Yamazaki (Plaintiff) v John Mustaca (First Defendant) Mary Mustaca (Second Defendant) Peter F Gibson (Third Defendant) Tina S Gibson (Fourth Defendant) PGTA Pty Ltd (Fifth Defendant)
JUDGMENT OF:	Master Malpass

LOWER COURT JURISDICTION:	Registrar's Court
LOWER COURT FILE NUMBER(S) :	20849/1997
LOWER COURT JUDICIAL OFFICER:	Registrar Irwin

COUNSEL :	Mr A Morrison SC/Mr D K Jordan (Plaintiff) Mr J Sleight (Third to Fifth Defendants)
SOLICITORS:	Blessington Judd (Plaintiff) J N Tully (Third to Fifth Defendants)
CATCHWORDS:	Interrogatories; order to serve a statement in answer; prohibition on exercise of discretionary power; order must be necessary; meaning of necessary; onus of proof.
ACTS CITED:	Compensation To Relatives Act 1897. Supreme Court Rules 1970, Pt 24 r 1; Pt 24 r 5; Pt 24 r 6.
CASES CITED:	Davis v Bunn (1936) 56 CLR 246.
DECISION:	See paragraph 28.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 27 AUGUST 1999

20849/1997 MIKIKO YAMAZAKI v JOHN MUSTACA & ORS.

JUDGMENT


1   These proceedings are brought pursuant to the Compensation To Relatives Act 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.

2   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.

3   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.

4   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.

5   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.

6   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.

7   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.

8 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.

9   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.

10   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.

11   Since the matter was before the Registrar, some changes have taken place. There is now a Second Further Amended Statement of Claim. The plaintiff has abandoned some of the proposed interrogatories. There have been some changes to the remaining interrogatories which the plaintiff treats as being of no consequence. Those which are still pressed appear from the copy Amended Notice to Answer Interrogatories (Exhibit A). There has been a response to the Amended Notice (Exhibit B).

12   The remaining interrogatories are still numerous. They are subdivided into five categories. The first category is headed “The lease”. The second category is headed “The dog”. The third category is headed “The elevated garden area and the yard adjacent to it”. The fourth category is headed “The gate and the stairs”. The fifth is headed “The tennis courts”.

13   Before proceeding further, I should briefly mention certain other matters. Firstly, I should mention some interlocutory matters. Secondly, I should mention some further factual background. Largely, these matters emerged from what was said from the bar table or in submissions or pleadings.

14   The court has been told that the plaintiff has not sought discovery. Subpoenas have been issued and documents have been produced (including a lease document which describes a person having the name of the third defendant as lessee). There has been inspection of the premises and photographs have been taken (including those which appear in Exhibit C).

15   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 6.00pm. The injury was suffered at about 8.00pm. 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.

16   The thrust of the plaintiff’s case is that she was not present at the time of the accident and lacks knowledge of relevant circumstances. Attention is also directed to the contents of the Defence filed by the three defendants.

17   The Defence traverses many of the allegations made in the plaintiff’s process. There is an admission that the fifth defendant was carrying on the business of a tennis academy and school at the premises. The third, fourth and fifth defendants deny that they had the care, custody and control of the premises.

18   It might be thought that the case may have been presented by inter alia evidence adduced from other members of the tennis group and/or by way of inference from proven facts ( Davis v Bunn (1936) 56 CLR 246). However, for present purposes, I put these considerations aside as they were not canvassed during the hearing.

19   Apart from what has already been the subject of mention in this judgment, the court has been left uninformed as to the evidence and other material available to the plaintiff for the preparation and prosecution of her case.

20   On behalf of the plaintiff, detailed written submissions have been placed before the court. These submissions inter alia address the responses made to the remaining proposed interrogatories.

21   The third, fourth and fifth defendants take the stance that the plaintiff has failed to satisfy the relevant threshold requirement (that an order is necessary in the relevant sense). Further, it was said that in any event, there were discretionary reasons for the refusing of an order. Largely, these may be found in the response (which inter alia seeks comfort from grounds identified in rule 6 (3)). The response was supplemented by oral argument.

22   For the purposes of disposing of this application, it is not necessary to address the various arguments presented in respect of each of the many interrogatories. The plaintiff bears the onus of satisfying the court that an order should be made. The discharging of this onus requires the plaintiff to firstly satisfy the threshold requirement and to secondly satisfy the court that the discretionary power should be exercised in her favour. Because of the stringent nature of the threshold requirement, the burden of discharging the onus will largely be a heavy one.

23   In this case, there are evidentiary deficiencies. This may be due, at least in part, to the misconception had as to the nature of the relief that was available under the rules.

24   In my view, the threshold requirement has not been satisfied. In the circumstances of this case, I am not satisfied that it is necessary in the required sense to make an order.

25   Perhaps it may be of assistance, to emphasize the distinction between that which may have potential to afford assistance to a party in the preparation and prosecution of a case and that which is necessary at the relevant time. The court must have before it the evidence which demonstrates that an order is necessary in the sense required by the rule.

26   I may add that even if I had taken a different view on the threshold question, I would not have been satisfied that the discretionary power should have been exercised in favour of the plaintiff.

27   For completeness I may mention that certain of the interrogatories have been the subject of sustained criticism (inter alia as to matters such as form and relevance). In the light of the decision that has been reached, it is unnecessary to dwell on these matters. It suffices to say that there is force in the criticism.

28   I dismiss the Notice of Motion. The plaintiff is to pay the costs of the Notice of Motion. The exhibits may be returned.
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Last Modified: 08/30/1999