Bissicks v Re.Turn It

1. These are proceedings for damages for personal injury arising out of an incident in which the plaintiff allegedly trod on a broken bottle at the premises of the defendant, who conducts a recycling depot.

2. Each party has administered interrogatories to the other and seeks an order of the court under r 630(1) of the Court Procedures Rules 2006 (ACT) for the other party to answer those interrogatories.

3. The plaintiff consents to answer the interrogatories administered by the defendant. However, the defendant objects to answering some of the interrogatories administered by the plaintiff. Rule 630(4) provides that, before making an order under r 630(1) requiring a party to answer interrogatories, the court must have regard to the matters mentioned in r 632(3). Separately, r 631 specifies the grounds on which a party may object to answering an interrogatory and is framed in terms that confine any objection to the grounds set out in the rule.

4. The interrogatories to which the defendant objects may broadly be classified into two categories: first, questions directed to ascertaining whether the defendant had a system of inspection, cleaning and removal of hazards, including questions directed to the implementation of that system in the period immediately before the plaintiff claims to have trodden on the bottle; and, secondly, the identity of any person who was involved in undertaking those tasks.

5. The defendant objects to answering the interrogatories address to the existence of any system of cleaning and inspection on the ground specified in r 631(d), which affords a ground for objection if the interrogatory is irrelevant, is of a “fishing” nature or inquires into a matter of evidence. The defendant submits that the interrogatories administered by the plaintiff inquire into matters of evidence.

6. In fairness to the argument put by the solicitor for the defendant, it must be observed that the rule is curiously worded. It has been in the same form from an early point in time. Recent amendments to the rule in 2023 considered in my judgment in Mitchell v Australian Capital Territory [2023] ACTSC 249 did not change the wording of that part of the rule.

7. Some insight into the purpose for permitting an objection on the ground that it enquires into matters of evidence may be obtained from the text, Australian Civil Procedure, by Bernard Cairns, The Law Book Company Limited, 1992. The author discusses objections to answering interrogatories at p 344 of the text, under the topic of evidence, credit and cross-examination.

8. The author writes, “[i]nterrogatories cannot be used to obtain access to another party’s evidence or witnesses. That does not relate to a matter in question in the action. For the same reason, it is not permissible to cross-examine by interrogatories. So interrogatories that relate to evidence, credit or cross-examination do not relate to matters in question in the action and are therefore inadmissible”.

9. Before the publication of that text, there was the decision of Miles CJ in Ryan v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396, where his Honour considered the use of interrogatories in the context of a defamation action. His Honour said at p 397: Interrogatories tend to increase delay and add to the cost of litigation. In 1883 they were described as “a more perfect but most expensive machinery”. These days they are increasingly the product of word processors which store banks of standard form questions.

10. I interpolate to note that that criticism was specifically (and rightly) directed to interrogatories in defamation proceedings, which these proceedings are not. It is clear the parties in the present case have given careful thought to formulating the terms of their interrogatories. In any event, returning to the quote, Miles CJ said: In principle and in accordance with [order 34, r 1(4) (the predecessor to r 630)], a party may interrogate the other on any relevant matter to the same extent as questions may be asked in oral examination (although interrogatories may not be directed towards attacking the credit of the person interrogated, see Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44, at 57, per Hunt J). In practice, the unrestrained application of this principle means that questions asked by way of interrogatories can be and often are more prolix than those asked in cross-examination. The cross-examiner tends to ask only those questions to which a favourable answer is expected. No such inhibition restricts the range of interrogatories, particularly those generated or assisted by the word processor.

11. His Honour proceeded to formulate the principle that, while interrogatories can serve a useful purpose, an order compelling the answering of interrogatories should be made only when it serves some necessary and useful purpose. That principle is now reflected in r 632(3).

12. While I can understand the confusion created by the curious wording of r 631(d), the authorities to which I have referred indicate that the objection that an interrogatory “inquires into a matter of evidence” is not to be understood to mean that a party cannot interrogate as to a fact in issue in a manner that will obtain an answer of use to the interrogating party, either because it helps that party prove their case or because it helps them attack the case of their opponent.

13. In the present case, the existence or otherwise of a system of cleaning and inspection will be important to the plaintiff’s ability to establish negligence on the part of the defendant. I do not accept that the questions as formulated inquire into matters of evidence. An enquiry into matters of evidence might be, for example, what will the principal of the company say in evidence about your cleaning system? Here, the questions are directed to facts in issue in the proceedings. They should be allowed.

14. As to the questions directed to obtaining the names of witnesses, the position is more complex. There are mixed authorities on this issue. In the time I have had available to consider the issue during the lunch adjournment, it appears there are some authorities that say the name of a witness cannot be sought, as that is a matter that inquires into a matter of evidence. The plaintiff drew my attention to my own decision in Mitchell, to which I have already referred. In that case, I allowed a question directed to the identity of a witness, but that was in a medical negligence case where the identity of the person who had participated in a particular procedure was plainly relevant to the substance of the plaintiff’s claim.

15. The general rule appears to be that a party cannot be asked to identify their witnesses unless that relates to a fact in issue in the proceedings. In the present case, I am not persuaded that the identity of the person, if anyone, who carried out the cleaning system is relevant to any issue in the proceedings but rather goes to inquiring as to the manner in which the defendant will prove its case. Accordingly, I do not propose to allow those questions.

16. I have already recorded the fact that the plaintiff has agreed to answer the interrogatories administered by the defendant. Having considered the relevant principles more closely during the lunch adjournment, it appears to me that some of those questions might have been objected to as trespassing on the rule that interrogatories are not to be in the form of cross-examination. However, the plaintiff having consented to answer them, I do not propose to interfere with that agreement. It may be that the process of answering them will assist the plaintiff in his own preparation for the proceedings.

Orders

17. For those reasons I make the following orders: (1) The defendant is granted leave to serve the amended interrogatories as agreed between the parties on 3 April 2025 on the plaintiff pursuant to r 630 of the Court Procedures Rules. (2) The defendant is to serve the interrogatories on the plaintiff on or before 7 April 2025. (3) The plaintiff is to file and serve his affidavit verifying answers to interrogatories on or before 9 May 2025. (4) The costs of and incidental to the Defendant’s application in proceeding dated 14 March 2025 are costs in the cause. (5) Direct the plaintiff to provide a form of orders to chambers.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: