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…

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 864
Case: [1999] NSWSC 864
Decision Date: 27 August 1999

CaseChat Overview and Summary

The case of Yamazaki v Mustaca was heard in the Supreme Court of South Australia. The dispute centred around the interpretation and application of certain court orders regarding the serving of interrogatories. The plaintiff, Yamazaki, sought to enforce an order made by the court for the defendant, Mustaca, to serve a statement in answer to interrogatories. Mustaca argued against the enforcement of the order, claiming that the court had exceeded its discretionary power in making it.

The court was required to decide whether the order for Mustaca to serve a statement in answer to interrogatories was necessary, and if so, whether the onus of proof lay with Mustaca to demonstrate its unnecessary nature. Additionally, the court had to interpret the meaning of "necessary" in the context of court orders. The court examined whether an order is necessary if it is required to ensure a fair trial or to expedite the proceedings.

The court found that the order in question was indeed necessary as it was required to ensure a fair trial. The court held that the term "necessary" in the context of court orders should be interpreted broadly, to include any order that is essential for the proper administration of justice. The court also found that the onus of proof lay with the party seeking to challenge the necessity of an order, which in this case was Mustaca. The court ruled that Mustaca had not discharged the onus of proving that the order was unnecessary.

The court made an order that Mustaca was to serve a statement in answer to interrogatories within a specified timeframe. The court also ordered Mustaca to pay a portion of the plaintiff's costs associated with the enforcement of the order.

Orders