PRACTICE AND PROCEDURE - Interrogatories - whether relevant and necessary - power to amend - whether 'fishing' - whether matter of opinion - knowledge, information and belief - scope of obligation on individual to make enquiries

Court Procedures Rules 2006 rr 630, 631, 632, 634

Abreu v Thomas Peacock & Sons Pty Ltd [No 2] [2012] WADC 10

Adams v Dickeson [1974] VicRp 10; [1974] VR 77

American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd (No. 2) [1965] NSWR 193

Arnold Mann v The Board Of Health Of The Australian Capital Territory And Ors (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 9 July 1997)

Attorney-General v Gaskill (1882) LR 20 Ch D 519

Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 2) [2008] WASC 204

Bailey v The Commissioner of Taxation (Cth) [1977] HCA 11; (1977) 136 CLR 214

Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481

Bateman v Nationwide News Pty Limited [2002] ACTSC 73

Bayliss v Cassidy (Unreported, Supreme Court of Queensland, Helman J, 19 December 1997)

Bonding v Spring and the South Australian Railways Commissioner [1959] SASR 33

Brey v Official Trustee In Bankruptcy (As Trustee Of The Bankrupt Estate Of Brian Stewart Winzor), Diane Winzor, Westpac Savings Bank Ltd And Eugence McGee (Unreported, Supreme Court of South Australia, Duggan J, 10 May 1991)

Derham v Amev Life Insurance Co Ltd (1978) 20 ACTR 23

Edwards v Hornsby Shire Council [2014] NSWSC 600

Foakes v Webb (1884) 28 Ch D 287

Goding v Queensland Newspapers Pty Ltd [1965] HCA 33; (1965) 113 CLR 170

Hennessy v Wright (No 2) (1888) 24 QBD 445

Horsnell (by his tutor Horsnell) v Allworth Constructions [2016] NSWSC 1700

Kalgeracos v Bomba [2009] NSWSC 1271

Konings v Naylor [1964] Qd R 235

Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32

Leucadia National Corporation v Chichester Metals Pty Ltd (formerly FMG Chichester Pty Ltd) (No 3) [2012] WASC 152

Lyell v Kennedy (1884) 27 Ch D 1

Lyell v Kennedy (No 2) (1883) 9 App Cas 81

Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99

Parnell v Walter (1890) 24 QBD 441

Petcham Ltd (in liq) v BF Goodrich Chemical Ltd [1982] VicRp 48; [1982] VR 485

Rofe v Kevorkian [1936] 2 All ER 1334

Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390

Sharpe v Smail (1975) 5 ALR 377

Simpson v Midalco Pty Ltd (Unreported, Supreme Court of Western Australia, Master Seaman QC, 19 March 1987)

Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758

Thiess v TCN Channel Nine Pty Ltd (No 3) [1992] 1 Qd R 587

WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175

1. This is an interlocutory dispute in personal injury proceedings arising out of an accident at a residential premises occupied by the defendants in Calwell in July 2014.

2. The plaintiff consumed intoxicating liquor while attending a 40th birthday party at the Calwell Tavern (Tavern) and later at the defendants' home. She lost her balance when standing up to get into a taxi after visiting the premises, left the path where she had been waiting for the taxi and fell what appears to have been more than two metres onto a concrete driveway leading to a garage below. She suffered significant injuries including a fractured skull and ribs, and pleads a consequent brain injury with ongoing disabilities, the detail of which is immaterial to the present dispute.

3. The parties come before the Court disputing specified interrogatories that have been exchanged between them. The plaintiff's interrogatories were served on 17 February 2017. Verified answers to interrogatories were affirmed by each defendant on 19 May 2017, and filed on 22 May 2017. The defendants served their interrogatories on the plaintiff on 16 May 2017. On 29 June 2017, the plaintiff filed verified answers to interrogatories (by affidavit affirmed on 28 June 2017). Further interrogatories were sought from the plaintiff (without the leave of the Court) in a letter dated 21 July 2017.

4. Each party has objected to answering some of the interrogatories served, and the plaintiff further complains about the sufficiency of the answers given by the defendants.

5. The issues for determination are whether the Court should set aside the interrogatories that are the subject of objection or require the parties to answer them, and further, whether the answers that the defendants have provided to specified interrogatories are adequate.

6. Counsel representing each party each provided helpful written submissions, parts of which have been incorporated into the reasons that follow. The specific interrogatories are considered in detail below. However, in broad overview, the parties' arguments included that certain interrogatories were irrelevant or in the nature of fishing for a case, impermissibly included assumptions, or sought an opinion.

7. It was further argued by the plaintiff that some of the answers given by the defendants were insufficient, and as part of that argument, that it was incumbent upon the individual defendants to make further enquiries of others before answering to the best of their knowledge, information and belief.

The power to set aside or require answers to interrogatories

8. Rule 631 of the Court Procedures Rules 2006 (Rules) expressly envisages that a party may object to interrogatories, but only on one or more of the grounds listed. These include (relevantly) that the interrogatory is oppressive or improper, uncertain, irrelevant, of a 'fishing' nature, or that it inquires into a matter of evidence.

9. Rule 632 broadly permits the Court to either set aside the interrogatories in question or order a party to answer them. In undertaking this task, pursuant to r 632(3) of the Rules, the Court must consider (but is not limited to considering, as made clear by r 632(4)):

(a) what is reasonable and necessary for fairly disposing of the proceeding (or part thereof), or for saving costs;

(b) the likely relevance and significance of the interrogatories and the answers; and

(c) the likely time, cost and inconvenience of answering particular interrogatories.

10. I have had regard to these matters in considering each specific interrogatory discussed below. No party made any submission that answering any particular interrogatory would be unduly costly or inconvenient.

11. Relevant to the arguments before this Court, under r 632(1)(d) of the Rules, the Court may make any other order about the service or answering of interrogatories (including an order about costs) that it considers appropriate.

12. These words do not in terms give the Court the power to amend an interrogatory that is ill-drawn. It need hardly be said that interrogatories and answers should be expressed in language of the most rigorous precision. The requirement is not mere pedantry. The nature and purpose of interrogatories and answers (being the seeking and the supply, respectively, of evidence in writing on oath) call for the strictest adherence to the letter of the words used. There is no place in interrogatories and answers for 'reading between the lines', adopting a liberal construction, or seeking the author's intention rather than the meaning the words bear on their face: Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32 (Kupresak) per Blackburn CJ.

13. The authorities give guidance as to the proper approach when faced with interrogatories that if properly phrased would be unobjectionable. In Goding v Queensland Newspapers Pty Ltd [1965] HCA 33; (1965) 113 CLR 170 at 175, the Court expressly declined to deal with whether the rules of the Supreme Court in Queensland permitted the grant of leave to amend interrogatories that had already been answered, going on to state that it was not for the Court to re-draft a party's interrogatories. Instead, the Court preferred to deal with the dispute as an application for leave to interrogate further (where cogent reasons made it appropriate to grant leave). Such leave may be granted in this jurisdiction pursuant to r 630(4) of the Rules.

14. Further, in Konings v Naylor [1964] Qd R 235 (Konings v Naylor) it was held that a court ought not modify interrogatories that are ill-drawn if that would deprive the party served to take objection to the interrogatory in its amended form.

15. Parties are, of course, able to agree between themselves, including during a hearing, to recast interrogatories so as to resolve ambiguities and other problems identified (as was the case in Edwards v Hornsby Shire Council [2014] NSWSC 600 at [20]- [21]).

Legal principles applying to the parties' arguments

16. The object of interrogatories is to enable a party to obtain discovery of material facts in order to support or establish proof of that party's case, or to find out the case to be met, or to destroy or damage the opposing case: Adams v Dickeson [1974] VicRp 10; [1974] VR 77 (Adams v Dickeson) at 79.

17. Interrogatories may be administered in the course of proceedings if they are necessary and serve a useful purpose.: Bateman v Nationwide News Pty Limited [2002] ACTSC 73 per Gray J at [3] and the cases there-cited. This is consistent with r 632(3)(a) of the Rules, paraphrased above.

18. A legitimate purpose of interrogatories is that the answers will inform the plaintiff as to evidence to be obtained and may save the expense of proving part of its case: see Attorney-General v Gaskill (1882) LR 20 Ch D 519 per Jessel MR at 528; Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 2) [2008] WASC 204 at [8].

19. The purpose of interrogatories is not to elicit evidence, nor to serve as a means of cross-examination: see Kalgeracos v Bomba [2009] NSWSC 1271 (Kalgeracos), per Brereton J at [1] and the cases there-cited.

20. An interrogatory may be directed not only to matters directly in issue, but also to facts which are relevant to some question in issue: Sharpe v Smail (1975) 5 ALR 377 (Sharpe v Smail) at 381. See also Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 at 392 and the cases there-cited.

21. The measure of 'relevance' or 'direct relevance' is defined and limited by the pleadings and particulars: Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at 110; Bailey v The Commissioner of Taxation (Cth) [1977] HCA 11; (1977) 136 CLR 214 at 219 and 227.

22. A party may interrogate his opponent as to every relevant matter in which it could examine him if he called him as a witness at trial: Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758 (Spedley Securities) at 762.

23. Further, where a party's state of mind or knowledge is in issue, another party may interrogate as to that state of mind or knowledge: Simpson v Midalco Pty Ltd (Unreported, Supreme Court of Western Australia, Master Seaman QC, 19 March 1987).

24. However, the interrogatory must still be sufficiently material at the stage at which it is administered: Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481; Bonding v Spring and the South Australian Railways Commissioner [1959] SASR 33.

25. The defendants submitted that an interrogatory may not contain an assumption about any fact in question, relying on Konings v Naylor. However, later decisions have held that a proper objection is not raised purely because of the existence of an assumption in the question: Thiess v TCN Channel Nine Pty Ltd (No 3) [1992] 1 Qd R 587; Leucadia National Corporation v Chichester Metals Pty Ltd (formerly FMG Chichester Pty Ltd) (No 3) [2012] WASC 152 at [26]- [27]. The principle is whether unfairness manifests by the making of an assumption in the question.

26. An interrogatory is improper if it would require a party to express an opinion: American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd (No. 2) [1965] NSWR 193 at 199; Rofe v Kevorkian [1936] 2 All ER 1334 (Rofe v Kevorkian).

27. Similarly, a party should not be interrogated on a question which that party can only answer by consulting an expert and repeating that expert's opinion: Rofe v Kevorkian.

28. A well-established limitation upon the power to interrogate, separately reflected in r 631(1)(d) of the Rules, is that the power cannot be used for the purpose of 'fishing': WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 per Brennan J at 181-182; per Lockhart J at 190-191.

29. Lord Esher MR described 'fishing' in the context of interrogatories in Hennessy v Wright (No 2) (1888) 24 QBD 445 (reported as a note to Parnell v Walter (1890) 24 QBD 441) as follows:

In other words, the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present. If that is the effect of the interrogatories, it seems to me that they come within the description of 'fishing' interrogatories, and on that ground cannot be allowed.

The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either of complaint or defence, of which at present he knows nothing, and which will be a different case from that which he now makes, the rule against 'fishing' interrogatories applies.

30. However, an interrogatory cannot be described as fishing if it is directed to obtaining information as to facts relevant to an issue raised in the pleadings: Sharpe v Smail at 381; Petcham Ltd (in liq) v BF Goodrich Chemical Ltd [1982] VicRp 48; [1982] VR 485.

31. In considering whether an answer to an interrogatory is sufficient, the court looks to the substance of the answer and 'not the form of the answer or the precise dotting of the i's and crossing of t's': Lyell v Kennedy (1884) 27 Ch D 1 at 16 per Cotton LJ.

32. Given that this case involves allegations of negligence in circumstances where the plaintiff might be unable to know precisely what happened, either because of the state she was in at the time or the nature of the injuries or both, I have also borne in mind the comments of Adamson J in Horsnell (by his tutor Horsnell) v Allworth Constructions [2016] NSWSC 1700 (Horsnell), where her Honour said at [29]-[30]:

[29]...the law is not unsympathetic to the position of plaintiffs in personal injury cases who, through no fault of their own, cannot ascertain the precise mechanism or cause of their injuries. ... an example ... is the situation of a patient who was anaesthetised while undergoing surgery which is alleged to have been negligently conducted.

[30] Interrogatories enable and facilitate the obtaining of admissions and the proof of negligence at trial. They are apt to overcome the initial disadvantage suffered by plaintiffs who cannot, by reason of injuries sustained in the accident the subject of proceedings, give their own version of what occurred. Although the question whether a wrong has been done (in the context of a breach of duty of care) is a question for trial, it is important that the requirement that answers to interrogatories be sufficient be enforced lest a defendant be permitted to take advantage of its own breach. It would not be in the interests of justice to put the plaintiff in a position where he has to resort to cobbling together a narrative from the various, and in some respects inconsistent versions given by [a] defendant, and seek to tender them, or parts of them, as admissions in his case in chief in order to establish a case to answer. The better course is to insist that the answers to interrogatories be sufficient.

33. Accepting that the present case may differ from the example given by her Honour above, in that the plaintiff's intoxication was voluntary, she nevertheless sustained injuries which may have contributed to her lack of knowledge about what happened and is thus in a position of disadvantage. The plaintiff is also under a disadvantage because it was disclosed during the hearing that to date the defendants have refused to allow the plaintiff access to view the site of the accident and answer for herself many of the questions that she has had to ask through interrogatories. However, there was a sensible change of approach to this litigation indicated by counsel for the defendants at the hearing, and it is hoped that access has either now been provided or will be in the near future.

34. A separate principle or rule of practice arising when there is a dispute about sufficiency of an answer is that where a party interrogated does not object to answering, but gives an inadequate answer, the party waives any right to object later: Adams v Dickeson at 83; Bayliss v Cassidy (Unreported, Supreme Court of Queensland, Helman J, 19 December 1997).

35. Here, it was not submitted by either party that the opponent had made a binding election in answering certain interrogatories. However, in response to complaints of insufficiency of answer, the defendants' written submissions at times argued first that the answers were adequate, but put a second submission in the alternative that the interrogatory was objectionable on specified grounds. During the hearing I also indicated that some of the interrogatories where sufficiency of an answer was in dispute did not appear to me to be relevant in the first place and I would not be inclined to order a party to provide a further and better answer to the interrogatory in those circumstances.

36. The above rule of practice would appear to require a different approach, so that where an interrogatory has been answered, the Court should consider the sufficiency of that answer (being the issue before the Court), even if the interrogatory may have been defective in the first place.

37. The parties disagree about the scope of the obligation to enquire - what constitutes knowledge, information and belief when the party is an individual, and how far the principle extends.

38. It is first necessary to understand the principle. A party answering interrogatories must state that proper enquiries have been made by him/her and that the answers are given to the best of the party's knowledge, information and belief. That principle was explained in Sharpe v Smail per Gibbs J at 379 (emphasis added, for reasons discussed below):

The answer given to these interrogatories is insufficient. It does not state that proper - or indeed any - inquiries have been made and it is quite consistent with the answer given that if the defendant had made inquiries he could have obtained further information which he might have believed to be true. It is well established that a party interrogated must answer to the best of his knowledge, information and belief (unless he objects to answer) and that to use the words of Bankes LJ, in Douglas v. Morning Post Ltd (1923) 39 TLR 402 at 403, if he affirms as to one of these elements he must affirm as to all three. It is not enough to say that he has no knowledge, because he is bound also to answer according to information acquired from servants or agents who have gained it in that capacity, and where appropriate his answer must show that he has made all proper inquiries and that having made them he has no information enabling him to answer further: cf Bank of Russian Trade Ltd v. British Screen Productions Ltd [1930] 2KB 90; Ormond v. Gunnersen [1920] VicLawRp 82; [1920] VLR 402.

39. Consistent with Sharpe v Smail, Blackburn CJ stated in Derham v Amev Life Insurance Co Ltd (1978) 20 ACTR 23 (Derham) at 27 that a party must make all reasonable inquiries from its officers, servants and agents, including former officers, servants and agents who were at the material time employees or agents, and who are likely to have knowledge regarding the matter the subject of the interrogatories.

40. The principle might be traced back to Lyell v Kennedy (No 2) (1883) 9 App Cas 81 where Lord Blackburn discussed the right of a party to interrogate his opponent at 85 (emphasis added):

... he is entitled to discovery of all that is in the knowledge of the other side ... and ... he is entitled ... to ask him not merely as to what he may himself have seen, or may himself know, but as to all the facts which he has and all the information which he has for forming a knowledge and belief, derived from his agent.

41. Although there was some discussion during the hearing as to whether the principle applies to individuals as well as companies, it is clear on the authorities that it does. This can be seen from the facts of Sharpe v Smail, where the party required to answer interrogatories (Mr Smail) was the trustee in bankruptcy, standing in the shoes of an individual bankrupt, a stockbroker who had employed a clerk. Gibbs J considered that the trustee in bankruptcy ought answer the interrogatory after making inquiries of the clerk, being the former agent of the bankrupt.

42. Similarly, an individual has been required to make enquiries of his solicitor where a core issue in relation to whether a limitation period ought be extended was the party's awareness resulting from advice given by a solicitor: Abreu v Thomas Peacock & Sons Pty Ltd [No 2] [2012] WADC 10, relying on Foakes v Webb (1884) 28 Ch D 287 at 289.

43. The real question is whether an individual must inquire further than a servant or agent; to seek documents from or ask other persons who are likely to have knowledge of the matter the subject of the interrogatories.

44. I do not consider that the authorities support such an extension of the principle. As Slesser LJ stated in Rofe v Kevorkian at 1338:

I think a distinction must be made - it has often been made before - between information to be derived from an agent or servant which is or ought to be within the knowledge of the principal, and information to be derived from other persons altogether.

45. It can be seen from the passages emphasised in the authorities above that the scope of the obligation is tied to servants or agents, not other potential sources with whom a party has no legal relationship of control.

46. Brey v Official Trustee In Bankruptcy (As Trustee Of The Bankrupt Estate Of Brian Stewart Winzor), Diane Winzor, Westpac Savings Bank Ltd And Eugence McGee (Unreported, Supreme Court of South Australia, Duggan J, 10 May 1991) is consistent with that position, where Duggan J stated (emphasis added):

Most of the cases dealing with these principles are concerned with the duty of the person interrogated to go beyond the limits of his own knowledge as to a matter and make proper enquiries of his servants or agents so as to enable him to answer in the light of any information he might receive from these sources or to say that he has made proper enquiries and yet holds no belief.

However, belief need not arise solely from facts and circumstances gleaned in the course of enquiries from servants or agents. A belief may be formed as a result of inference from the circumstances surrounding the transaction under consideration.

47. In this jurisdiction, r 634 of the Rules confirms that conclusion. It provides (emphasis added):

(1) This rule applies if a party mentioned in rule 633 does not have knowledge of the fact or matter raised by an interrogatory and must answer the interrogatory from any belief the party has about the fact or matter.

(2) The party is taken not to have a belief about the fact or matter if the party -

(a) does not have information relating to the fact or matter on which to form a belief; or

(b) has the information, but the party has reasonable grounds for not believing that the information is true.

(3) The party must answer from any belief the party has about the fact or matter irrespective of the source of the information on which the belief is formed.

(4) However, the party is not required to answer from the party's belief about the fact or matter if the belief is formed on information that was given to the party in a communication or document that is privileged under the Evidence Act, part 3.10 (Privileges).

(5) To help the party form a belief about the fact or matter, the party must make all reasonable inquiries to find out -

(a) whether a person who is or has been the party's employee or agent has knowledge of the fact or matter that was acquired by the person as the party's employee or agent; and

(b) if a person has the knowledge - what the knowledge is.

(6) To remove any doubt, the party must make the inquiries mentioned in subrule (5) even if at the time the party is required to answer the interrogatory a person having the relevant knowledge has stopped being the party's employee or agent.

48. Prior to the introduction of the present Rules concerning interrogatories, Higgins J in Arnold Mann v The Board Of Health Of The Australian Capital Territory And Ors (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 9 July 1997) held that the requirement to answer from knowledge, information and belief did not require reference to records in the possession or control of another unless the party answering may lawfully require or obtain access to those records without undue difficulty or search.

49. That statement is consistent with limiting the principle to an obligation to make inquiries of those in a position of present or past agency or employment, because a party could only lawfully require (or compel) access to documents if the party exercised some form of legal control or authority over the person in possession of the documents.

50. The foregoing reasoning is specifically directed to any positive obligation to inquire and should be distinguished from any information that a party might already have when answering interrogatories. In Adams v Dickeson at 82, the Court used an example of a motor vehicle accident where one driver gave the other driver details of a registration number. In the event that the driver who received the information was later interrogated as a party to litigation, such information would form part of the driver's knowledge, information and belief, notwithstanding that it was not supplied by an employee or agent of the party.

51. With these principles in mind, consideration may now be given to the specific interrogatories in dispute.

52. Interrogatories 10 and 11 are in dispute. Interrogatory 10 asks whether the plaintiff was taking any medication as at 19 July 2014. The answer is as follows:

I object to answering this interrogatory on the grounds that it is irrelevant to any matter in issue between the parties and is of a 'fishing' nature and is otherwise unnecessary.

53. Interrogatory 11 then asks, if the answer to interrogatory 10 was yes, what medication the plaintiff was taking. The plaintiff responded that she is not required to answer the interrogatory.

54. Contributory n negligence is squarely pleaded in the Defence. One of the particulars of the conduct alleged is that the plaintiff 'voluntarily and wilfully consumed a quantity of alcohol sufficient to impair the plaintiff's judgment, capacity for sensible decision making, perceptions, reactions, anticipation and ability to take care for the plaintiff's own safety.'

55. The plaintiff admits to having consumed intoxicating liquor. If the plaintiff was taking medication, the nature of the medication may have impacted upon the quantity of alcohol consumed that would have been sufficient to impair the plaintiff's judgment.

56. Applying the principles above, whether the plaintiff had taken medication, and what kind of medication was taken, is a fact relevant to a matter already in issue. It is not in the nature of fishing and the plaintiff ought answer interrogatories 10 and 11.

57. The further interrogatories of 21 July 2017 are directed to seeking better particulars of the same issue concerning medication. They are targeted in time to whether the plaintiff had taken medication from the time the plaintiff attended the Tavern to when the plaintiff fell.

58. The defendants retrospectively sought leave to issue those further interrogatories during the hearing when the issue was raised, or alternatively sought to dispense with the requirement for leave under the Rules. The further interrogatories arise from any affirmative answer given to interrogatory 10 and are reasonable and necessary (see r 632(3)(a) of the Rules) for disposing of that part of the proceeding concerning contributory negligence, by clarifying the position as to what the plaintiff consumed and when.

59. It was clear that any objections to the content of the further interrogatories were able to be dealt with as part of the plaintiff's existing objections as to relevance and fishing during the hearing and in written submissions, and accordingly there was no prejudice to the plaintiff in dealing with the further interrogatories.

60. Having regard to the obligation on the Court under s 5A(3) of the Court Procedures Act 2004 to apply the Rules with a view to promoting the just resolution of disputes as quickly, inexpensively and efficiently as possible, it is appropriate to grant leave to issue the further interrogatories now pursuant to r 630(4) of the Rules, rather than to await the plaintiff's answer to interrogatory 10 and then have the parties return to court to deal with the question of leave and any objections that follow.

As at 20 July 2014, was there a balustrade extending along the veranda referred to in paragraph 3 of the plaintiff's Statement of Claim, guarding a drop of more than 2 metres from the veranda to a concrete driveway at the entrance of the garages referred to in paragraph 2 thereof and, if so, then say further ...

62. The answer given to this part of the interrogatory is:

There was a balustrade extending along the veranda referred to in paragraph 3 of the plaintiff's Amended Statement of Claim as at 20 July 2014.

63. The defendants then provide further answers to additional interrogatories following that answer.

64. The plaintiff complains that the answer is insufficient because it does not state in the answer whether the balustrade was guarding a drop of more than two metres, so that it is embarrassing and evasive.

65. As the defendants have answered the interrogatory, consideration must be given to whether the answer given is sufficient, not whether part of the interrogatory is objectionable.

66. I find that the interrogatory has been answered in substance. It accepts there was a balustrade. It refers to paragraph 3 of the Amended Statement of Claim (Claim). When one reads paragraph 3 of the Claim, it describes the balustrade along the veranda as spanning across 3 garages, and the allegation cross-references paragraph 2 of the Claim, which alleges the garages as being constructed below the floor level of the residence.

67. The fact that the answer does not restate the entirety of the question falls into the category of dotting the i's and crossing the t's. To the extent the plaintiff is unclear as to the meaning of the answer (and thus is embarrassed as submitted), it is because of the rolled-up drafting of the interrogatory, not because of the answer given.

68. The plaintiff is not prevented from seeking leave to issue further interrogatories, however it would not be appropriate at this stage to grant leave to issue further interrogatories generally on a topic. The better course is for the plaintiff to draft any further interrogatory to clarify an answer and the Court may give informed consideration to whether it is appropriate to grant leave.

69. Noting that the Court does not redraft interrogatories, there seems to be an issue between the parties over the word 'guard' and whether the drop from the verandah above the garages to the concrete driveway below was guarded or unguarded. It seems to me that the parties are getting distracted by semantics and the better course is to simply agree on the features of the building, including where items such as planter boxes were placed on the night in question, and then to deal with the case on that basis.

70. Questions of negligence at trial will focus on whether the measures in place were a reasonable response to a risk. They will not depend on the opinion of either party as to whether the drop was either 'guarded' or 'unguarded'.

71. Interrogatory 2(a) is an example of the parties' distraction. It asks:

As at 20 July 2014, was there an unguarded drop of approximately 2.3 metres to the left of the path referred to in paragraph 3 of the plaintiff's [Claim] at about the point where the path terminated at the base of the two stairs referred to but located to the left of the path and the stairs, the distance of not more than 2 metres measured from the far left hand edge of the path when observed from the veranda of the building facing [the street]?

I object to this interrogatory on the ground that it is oppressive.

The interrogatory is oppressive because it requires me to draw a conclusion or form an opinion as to the existence of what is defined to be an unguarded drop (which itself is a conclusion) in paragraph 6 of the [Claim].

73. Contrary to the plaintiff's submission that the answer proffered is 'simply a nonsense', I accept that the question seeks an opinion about whether the drop was 'unguarded'.

74. The plaintiff asserts that the matter of fact enquired after is the distance from the area to the left of the path to the concrete driveway below.

75. The expressed intention of the interrogatory suggests that the interrogatory is ill-drawn. While rephrasing would no doubt render the interrogatory unobjectionable, it is not for the Court to undertake that task. As drafted, the interrogatory requires the forming of an opinion and, in accordance with the authorities set out above, ought be set aside.

76. Again, had the defendants permitted the plaintiff to access the property to view the location of the fall, such interrogation would be unnecessary.

77. It is unnecessary to set out interrogatory 3. It is premised on a negative answer given to interrogatory 2. The same objection has been made by the defendants. As interrogatory 2 has been set aside, interrogatory 3 must also be set aside.

Look at paragraph 7 of the [Claim] and paragraph 4 of your Defence and say, as at 20 July 2014:

(a) ...

(b) What was the taxonomy of each such bush or shrub within a 5 metre distance of the stairs measured from the edge of the veranda along the border of the path on the edge adjacent to the driveway (herein after referred to as "the distance")?

79. Paragraph 7 of the Claim alleges there were a number of low but insubstantial bushes or shrubs growing along the border of the path adjacent to the 'unguarded drop', which had the effect of hiding or disguising the existence of the 'unguarded drop' to anyone not familiar with the property and the building.

80. The answer given by each defendant was 'this is not within my knowledge'.

81. The plaintiff submits first, that what the defendants are asked to do is to describe in precise terms the nature of each bush or shrub. A second submission is that in circumstances where the defendants did not plant the bushes or shrubs the answer 'I do not know' might be acceptable. The plaintiff further submits it is within common human experience and requires no expert advice nor necessarily the forming of any specialist opinion to answer by way of example 'rose bushes' or 'oleander bushes'.

82. These submissions appear to be at odds. On the one hand, the plaintiff is seeking precision; on the other the plaintiff is seeking a general lay description. It is precisely the type of reading between the lines that Blackburn CJ in Kupresak considers to be impermissible. However, considering the sufficiency of the answer only and not whether the interrogatory was itself objectionable, if all that were required was for the defendants to answer from their own knowledge, then I would have found that the defendants had substantively answered the question. They do not know.

83. However, applying Sharpe v Smail as extracted above (in particular the first emphasised passage), the complete answer is insufficient. It ought to have included the defendants' information and belief.

84. The defendants therefore should provide further and better answers to this interrogatory. It may be that the plaintiff withdraws the interrogatory after accessing the premises and recording the relevant information about the classification of the plants for herself (whatever questionable relevance it has to the proceedings), but that is a separate matter.

Did the bushes or shrubs constitute or present a solid continuum of branches and foliage over the distance?

86. The interrogatory has been objected to on the basis that it requires the defendants to form an opinion or a conclusion.

87. The objection is sound. Whether a series of plants presents as a solid continuum of branches and foliage is a question of fact and degree and requires the formation of a subjective opinion. The defendants' belief or opinion about that matter not being in any way an issue in these proceedings, the interrogatory is set aside.

At what distance from each other was each such bush or shrub planted over the distance?

This is not within my knowledge; however, I estimate the shrubs and bushes would have been approximately 200mm away from each other.

90. There is a lack of precision in the failure to use language to the best of the defendants' knowledge, information and belief. However, in this instance, I find that the interrogatory has been substantively answered to that effect. I do not consider the use of the word 'estimate' instead of 'belief' to require the reader to infer what the defendants truly meant, and it is not reasonably necessary for the disposal of the issues in the proceedings for a further and better answer to be provided.

Was there any impediment to a human walking between any of the bushes or shrubs at any place along the distance and, if so, say what that impediment and where along the distance it was located?

Yes. There were hedged shrubs and bushes as well as low stacked timber.

93. The answer is insufficient because the defendants have not indicated where the low stacked timber was located. The defendants ought provide a further and better answer.

On 20 July 2014, did the plaintiff suffer injury in a fall on the property and if so, then say:

(a) Where on the property the plaintiff fell.

(b) How the plaintiff fell.

(c) Onto what surface the plaintiff fell.

(d) Over what distance the plaintiff fell.

(e) Why the plaintiff fell.

(f) What injury or injuries the plaintiff then suffered.

95. The defendants have expressly answered each part of the interrogatory from within their immediate contemporaneous knowledge only. Notwithstanding what the plaintiff's counsel perceived at the hearing to be a strong resistance to the submission as a whole, I find that - applying the principles in Sharpe v Smail and Derham above - the answers are insufficient, as the defendants ought to have answered to the best of their knowledge, information and belief. Further and better answers should therefore be provided.

96. However, applying r 634 of the Rules and the principles as to what inquiries ought be made for this purpose set out above, I reject the specific submission that there is any obligation on the defendants to gather information from those who were present at the residential premises, such as other guests, and to then answer the interrogatory on the basis of what those persons witnessed as the defendants' belief. On no view are such persons agents or employees of the defendants.

97. The plaintiff submitted that if there was a drinks waiter paid to serve drinks at the residential premises, then inquiries ought be made of that person. To my mind, that is not the sense in which 'servant' is used, particularly having regard to the nature of the interrogatory here. However, as there is nothing before the Court suggesting the existence of any such persons in the present case, the submission is based on a hypothetical and it is unnecessary to consider it further.

98. The defendants submitted that the information sought is peculiarly within the plaintiff's knowledge and perhaps that of any direct witness. In this regard, Justice Adamson's comments in Horsnell at [29]-[30] (set out above) are worth recalling. It is no answer to say that the plaintiff is in a better position to know the detail asked of the defendant.

99. The true state of the plaintiff's disadvantage, in terms of her knowledge of the events leading to the accident and the accident itself, is unknown. Whether an interrogatory might be answered by another source or means is not to the point, particularly having regard to one of the purposes of interrogatories being to save the parties the expense of proving the fact by other means.

100. This reasoning applies equally to the answers given to interrogatory 6, which follow.

101. There is a dispute about three parts of Interrogatory 6, which relevantly asks:

On 19 or 20 July 2014, saying which, did the plaintiff travel by bus from the [Tavern] to the property and, if so, then say:

...

(g) At what time did the plaintiff arrive at the property by bus?

(h) What did the plaintiff do after arrival at the property by bus?

(i) For how long was the plaintiff at the property?

(g) I do not know. This is a matter within the knowledge of the plaintiff. I was not present when the bus arrived at the property.

(h) This is a matter within the knowledge of the plaintiff. This is not within my knowledge.

(i) This is not within my knowledge. I was not present when the plaintiff arrived at the property.

103. Answers having been given, I have put to one side (as the defendants do in their submissions) any objections that may have been made to the interrogatory.

104. The plaintiff submits that the answers ought be given not just from knowledge, but from information and belief. On the above authorities, I accept that submission and will require the defendants to provide further and better answers to this interrogatory.

105. However, again, the plaintiff's submission as to the proper scope of inquiry on these individuals in order to answer from belief is misconceived. Compliance with r 634(5) of the Rules is all that is required.

106. Interrogatory 7 (insofar as it is disputed) asks:

Look at paragraph 11 of the [Claim] and paragraph 8 of your Defence and say:

(a) Was alcohol consumed at the continued 40th birthday party (hereinafter referred to as the "continuation")?

(b) Was the alcohol supplied by you?

(c) If that alcohol was not supplied by you, who then supplied it?

(d) How many people attended the continuation?

(i) Did the plaintiff consume alcohol at the continuation?

(j) Did you limit in any and, if so, what way, the plaintiff's consumption of alcohol at the continuation?

(k) Did you monitor in any and if so, what way the plaintiff's consumption of alcohol at the continuation?

(l) Were alcoholic beverages of any kind, describing them, made available by you for consumption by party guests who attended the continuation if so, in what quantity?

(m) Apart from the provision of alcoholic beverages for consumption by guests attending the continuation at the property, what other provision, if any, did you make for the entertainment or refreshment of guests attending the continuation?

107. Paragraph 11 of the Claim alleges that at the defendants' residence the party continued and the plaintiff consumed more intoxicating liquor supplied to her by the defendants or others acting as agents of the defendants.

108. Paragraph 8 of the Defence admits that the party continued, denies the balance of the allegation and says that if the plaintiff consumed intoxicating liquor, the defendants do not know the type, quantity or amount of any intoxicating liquor consumed by the plaintiff.

109. The defendants answer interrogatory 7(a) by saying they do not know whether the plaintiff consumed more liquor at the property. Such an answer draws an inference that the interrogatory is specifically referring to the plaintiff as opposed to a general consumption of alcohol by any guest. This is an example of the defendants answering by reading between the lines in an attempt to attribute relevance to the interrogatory, which is ill-drawn in its ambiguity.

110. However, the plaintiff's complaint about the insufficiency of the answer is that the defendants must answer from their knowledge, information and belief.

111. Although the defendants do not appear to have done this, because the interrogatory is not sufficiently clear, answering it in a more complete manner is neither reasonable nor necessary to fairly dispose of any part of the proceedings.

112. A similar difficulty applies to interrogatories 7(b) and 7(c) above, which have been objected to on the basis that it assumes the plaintiff consumed more liquor. There can be no such assumption arising from 7(a) because that interrogatory is not limited to the plaintiff's consumption. However, I will nevertheless set aside those interrogatories as they have not been answered and in light of the fundamental ambiguity identified, I will not order that they be answered.

113. As for interrogatory 7(d), the defendants have answered as follows:

At my residence in the early morning of 20 July 2014 to the best of my recollection there were around 10 to 15 family and friends staying at the property, as they had travelled interstate for the 40th birthday party.

114. The plaintiff complains that the answer is insufficient, in that it is evasive because it refers to 'family and friends staying at the property'. The plaintiff says that this might not include all guests who attended the property, as opposed to those who stayed there.

115. Given that an answer has been supplied, I will not set aside the interrogatory. However, having regard to the mandatory considerations under the Rules, I will not require any further answer to be given to it, because whether or not there was 1 or 50 people at the defendants' premises is not a fact either directly or indirectly relevant to the issues in dispute in the substantive proceedings.

116. Interrogatory 7(i) has been answered 'I do not know'. It is unclear by that response whether the defendants have answered from their knowledge, information and belief. Given that this interrogatory does not suffer from the same ambiguity as that in interrogatory 7(a), it is appropriate that the defendants be required to clearly answer from their knowledge, information and belief.

117. Turning to interrogatories 7(j) and 7(k), the defendants object on the basis that they each contain an assumption that the plaintiff consumed alcohol at the continuation. I uphold the objections in that the assumption in the questions appears to operate unfairly against the defendants. The interrogatories should be set aside.

118. Interrogatory 7(l) has been answered as follows:

Beer, wine and mixed spirit drinks were available to guests who attended the continuation. Two fridges on the property, one in the kitchen upstairs and one downstairs, contained these drinks. I cannot otherwise remember or recall with precision what quantity of alcoholic drinks were available to the guests.

119. In my view, this answer is sufficient. It describes the alcoholic beverages available and the quantity to the best of the defendants' recollection. The plaintiff has not persuaded me that any further answer is either reasonable or necessary in order to dispose of any issue in the proceedings.

120. Interrogatory 7(m) has been answered as follows:

Food was available for consumption by the guests attending the continuation, including leftover Turkish food served at the birthday party at the [Tavern] that evening, which was brought from the [Tavern] to the property at the conclusion of the birthday party at the [Tavern].

121. The plaintiff submits this answer is evasive in that it fails to address the provision of 'entertainment'. The interrogatory is itself ambiguous in what is meant by entertainment. As stated above, it is not for the defendants to imply or guess at the intention of the interrogatory, although it is clear that they have attempted to do so by reference to the phrase 'entertainment or refreshment'.

122. I decline to require the defendants to provide any further answer to an ambiguous interrogatory, and I am not persuaded that it is either directly or indirectly relevant to any matter that might reasonably dispose of any issue in the proceedings.

On or prior to 20 July 2014, what steps, if any, did you take, describing each step with precision to:

(a) Warn any person coming onto the property that there was a drop of approximately 2.3 metres from the area to the right of the path as one approached the stairs referred to in paragraph 3 of the plaintiff's [Claim] onto a concrete driveway below (hereinafter referred to as the "drop").

(b) Prevent any person from inadvertently walking over the drop.

(c) In relation to any warning or step referred to by you in answer to interrogatory 8(a) or (b) above, say:

• (i) When you gave that warning or took that step, describing the warning or the step taken with precision.
• (ii) Why you gave that warning or took that step.

124. The defendants object to the interrogatory, because it assumes there was a drop of approximately 2.3 metres. That distance is not referred to in paragraph 3 of the plaintiff's Claim and the defendants have not previously accepted any assumption.

125. Accepting that the mere fact there may be an assumption in a question is not sufficient to raise a proper objection, here the assumption does work unfairly against the defendants. The plaintiff is asking about a failure to warn of an assumed set of facts which are contested.

126. The plaintiff refers to answers given to other interrogatories, submitting that it is clear the defendants acknowledge the existence of a drop of approximately 2.6 metres. However, the authorities are clear that precision is required. The interrogatory that elicited that answer from the defendants is different to the assumption contained in interrogatory 8.

On or prior to 20 July 2014, did you know or suspect, saying which, that birthday party guests or some of them attending the continuation at the property would consume alcohol to such an extent as to be incapable of:

(a) Normal perambulation.

(b) Walking without stumbling.

(c) Walking without falling over.

(d) Exercising reasonable care for their own safety.

(e) Exercising reasonable judgment.

(f) Making reasonable observations or perceptions.

(g) Demonstrating reasonable reactions.

129. The defendants object to answering the interrogatory on the basis that it calls for speculation as to what some or all birthday party guests would do. I uphold the objection.

130. The plaintiff submitted that it is legitimate to enquire after the defendants' state of knowledge or belief, relying upon Rofe v Kevorkian. However that decision does not support the legitimacy of interrogatory 9 in the factual context of this case.

131. Slesser LJ in Rofe v Kevorkian simply states (at 1338) that a man may be asked by interrogatory for his own belief. The statement was made by way of distinguishing an executor's belief from that of the deceased. The proceedings there concerned what the deceased knew about whether certain goods that he had sold at auction were genuine. Slesser LJ was contrasting the executor's own belief as part of a finding that an executor could not be asked what a deceased man believed, unless the person was shown to be in some such relation that he was bound to have information as to the deceased person's belief.

132. The plaintiff cannot extrapolate from one sentence, in a previous decision in an entirely different context, a principle that it is legitimate in this case to interrogate the defendants in the manner for which she contends. The present proceedings in no way concern the defendants' knowledge or suspicion about the behaviour of various guests. Any question in negligence as to reasonable foreseeability will be determined by reference to the objective reasonable person, not whether or not the defendants subjectively knew or suspected about the future conduct of guests attending the residential premises. The interrogatory is not reasonable or necessary for fairly disposing of any issue in the proceeding and accordingly should be set aside.

133. Interrogatory 10 concerns paragraph 17 of the Defence, which alleges contributory negligence by way of, among other things, failure to keep a proper look out.

134. There are a number of sub-interrogatories concerning the manner in which the plaintiff was reckless, the danger about which the plaintiff was reckless, the risk which the plaintiff failed to detect or observe and how the plaintiff left the footpath.

135. Again, the defendants have answered the interrogatories. In summary, the defendants answer that the reckless behaviour alleged against the plaintiff was the consumption of intoxicating liquor to the point where the plaintiff was well affected by alcohol and unsteady on her feet.

136. The defendants further answer that by the plaintiff putting herself in that intoxicated state, she exposed herself to the danger of being unsteady on her feet, to an impaired capacity to exercise appropriate care and skill and in those circumstances, and exposed herself to a risk of injury.

137. The risk of injury is further specified as a risk that she may fall and injure herself while walking along the path described in paragraph 3 of the Claim, including failing to observe the course and edges of the path.

138. The dispute is as to the sufficiency of the answers. The plaintiff's complaint is that the answers are self-evidently argumentative and evasive. Having read the precise language of the answers summarised above, save as to one matter, I consider that they substantively and sufficiently answer the interrogatories with the necessary precision of language required by the authorities referred to above.

139. Interrogatory 10(f) asks 'how, and in precisely what manner, did the plaintiff leave the footpath'?

140. The defendants have answered that interrogatory as follows:

I have no immediate contemporaneous personal knowledge of the plaintiff leaving the footpath.

141. Again, applying Sharpe v Smail and Derham, the defendants ought answer to the best of their knowledge, information and belief. Accordingly, the defendants will be ordered to provide a further and better answer to interrogatory 10(f).

142. Interrogatories 11 and 12 relate to the timing of the plaintiff's injuries and the circumstances in which the plaintiff came to be injured.

143. It is unnecessary to set out the interrogatories and the answers to them in detail as the same arguments have been made by the parties, namely that the defendants must answer to the best of their knowledge, information and belief.

144. It is clear from the answers given to interrogatory 11 that the defendants have answered from within their 'contemporaneous personal knowledge' only, and accordingly, they ought provide further answers to these interrogatories for the reasons already stated.

145. The substance of the answer may not change, but given the purpose of interrogatories, the plaintiff is entitled to a verified answer that fully complies with the defendants' obligations on the authorities set out above.

146. The parties have each had a measure of success in relation to their applications. It is true that the defendants ultimately achieved complete success in relation to their application, but such was only arrived at by an indulgence of the Court in granting leave to issue the further interrogatories, which should have been sought. In these circumstances, and given that each of the applications in the proceedings was heard together, I decline to make any order as to costs of these applications, to the intent that each party bear their own.

1. Pursuant to r 630(4) of the Court Procedures Rules 2006, leave is granted to the defendants to issue the further interrogatories delivered on 21 July 2017.

2. Within seven (7) days of these orders, the plaintiff is to provide verified answers to the interrogatories numbered 10 and 11 delivered by the defendants on 16 May 2017 and the additional interrogatories delivered by the defendants on 21 July 2017.

3. Interrogatories 2, 3, 4(d), 7(b), 7(c), 7(j), 7(k), 8 and 9 of the interrogatories delivered by the plaintiff on 17 February 2017 (plaintiff's interrogatories) are set aside.

4. Within seven (7) days of these orders, the defendants are to provide further verified answers to the interrogatories numbered 4(b), 4(f), 5, 6(g), 6(h), 6(i), 7(i), 10(f), 11, and 12 of the plaintiff's interrogatories.

I certify that the preceding one hundred and forty-seven [147] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.