25 The word "complaints" was not defined. This, I think, is a matter of significance as the interrogatory encompasses all "complaints" made to the council, whether orally or in writing. There would probably be no difficulty in respect of written complaints but evidence of these can be obtained by discovery or on subpoena. However, as it seems to me, so-called oral complaints are in a different class altogether and to interrogate the council upon them is, in my opinion, vexatious and oppressive. The reason for that is twofold, first it requires a responsible person answering on behalf of the council to have regard not only to his own knowledge but to inquire as to the knowledge of every servant of the Council, from the highest to the lowest, in respect of a two year period. Second, the inquiry would need to be as to communications made to each servant regarding New Year's Eve Gatherings in the period, and would require the exercise of a judgment as to which, if any, of such communications constituted a complaint. I regard such a requirement as oppressive and I would disallow the interrogatory. (As to the requirement to form an opinion being not the proper subject of an interrogatory, see American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) (1965 NSWR 193 at 199 per Myers J)
26 Interrogatory 4:
Mr Glascott objected to this interrogatory on two bases, namely that it is irrelevant because the accident referred to occurred in an area well away from that of the subject accident where different circumstances applied and because it required the formation of an opinion as to what action would lessen the risk. As to the latter point, I agree with Mr Joseph that only in a very technical sense does the interrogatory require the formation of an opinion. It may, I think, be construed as asking whether action was taken "designed" to lessen the risk.
27 However, Mr Glascott's first objection has, I think, greater force. It seems clear from the police report that the accident referred to occurred on the other side of the point, near the main Tathra beach. I think any answer to the interrogatory could have no relevance in these cases and I would disallow it. In doing so, I reject Mr Joseph's submission that it is relevant to show the extent to which the Council accepted responsibility for cliffs, generally, in its area, when considering what duty, if any, it had in the area where the Plaintiff allegedly fell.
28 Interrogatory 6:
Mr Glascott objected to this interrogatory on the grounds of relevance and oppressiveness. If the council were an individual I think the answer could have some relevance but as it is not, I think the interrogatory is caught by the principles stated by Street J in Lane Cove Council . Its imputed knowledge is to be drawn from evidence of objective facts. I would, accordingly, disallow the initial question and paragraphs (a) and (b) of the interrogatory.
29 Although not framed as such paragraph (c) could stand alone and I see no reason why it is not a proper interrogatory. It is a question which could be asked in evidence of an officer of the Council. Although Mr Glascott submitted that the phrase "anything to warn" required the formation of a judgment, I think, albeit with some misgiving, the question is sufficiently clear, as directing the Council's attention to the installation or presence of a physical warning or barrier.
30 Interrogatory 9:
In my opinion, this interrogatory is in such vague terms and encompasses such an indeterminate period that is clearly oppressive. Moreover, in my view, the answer "Yes" or "No" to the principal question would have no relevance to any issue raised by the pleadings.
31 Interrogatory 10:
I agree with Mr Glascott's submission that this interrogatory is objectionable because it requires the formation of an opinion and does not seek an admission as to a fact relevant to the proceedings. Moreover, the admission sought, while probably of itself self-evident, would not be relevant to a consideration of the legal duty of the Council in the circumstances.
32 Interrogatory 11:
This interrogatory, in my opinion, is objectionable for the same reasons as interrogatory 10 and I would similarly disallow it.
33 Interrogatory 13:
Consistently with my decision to follow what I understand to be the principle enunciated by Street J in Lane Cove Council , I would disallow this interrogatory. It seeks to ascertain the state of the Council's fictitious mind, something which can only be proved by inferences drawn from appropriate evidence.
34 Interrogatory 14:
Mr Glascott objected on the grounds of relevance, in so far as the interrogatory refers to New Year's Eve Gatherings prior to that of December 31, 1993. I would reject this submission, as applications made in the previous two years are, I think, sufficiently proximate to make them relevant. In my opinion the interrogatory should be allowed in part. I would disallow, however, sub- questions (a) (i) (A); (III) (1) (b), (c), (d), (e), (f), (g) and (h) and the whole of sub-question (a) (i)(iii)(2) in light of the principles expressed in Lane Cove Council and, in light of the oppressive nature of the multiple questions, most of which could, in my opinion, have no relevance to the case. Moreover, many of the sub-questions were vague and imprecise. For instance, it is quite unclear what is meant by use of the words "investigate" and "investigation" in the context of an application to the Council such as the one here referred to.
35 Interrogatory 15:
The interrogatory itself annexes a document indicating that the Council approved a temporary road closure at its meeting on 12 November 1991. Mr Glascott submitted that questions as to temporary road closures are irrelevant as not going to any issue in the case. He also relied on what was said by Street J in Lane Cove Council. Mr Joseph submitted that the relevance of road closures was that they would evidence the Council's expectations as to the number and condition of people likely to attend the New Year's Eve Gathering. By extension, so he submitted, it would also be an indication of the number of people likely to overflow into the Council's reserve. He submitted that it was apparent that an officer of the Council made the decisions regarding road closures and that such officer could be interrogated. As to that, it is by no means clear, on the evidence before me, that road closures were effected, otherwise than by a resolution of the Council. The principles of Lane Cove Council would apply. Moreover, I am not persuaded by Mr Joseph's submissions that any road closures within the period constitute evidence of any relevance to issues in this case. I would disallow this interrogatory.
36 Interrogatory 26:
This interrogatory, in my opinion, is objectionable in that it does not call for facts but rather for a speculative opinion. It also falls foul of what was said in Lane Cove Council . I disallow it.
37 Interrogatory 28:
This interrogatory, in my view, is irrelevant to any issue. The article referred to seems to relate to a problem with illegal campers.
38 Interrogatory 30:
I agree with the submission of Mr Glascott that the interrogatory should be disallowed because it is irrelevant, in that it relates to events in 1991 and also because it infringes the rule prohibiting questions as to the contents of an existing document - see Norton v Hoare (No2) (1913) 17 CLR 348. I do not accept Mr Joseph's submission that the letter is simply a reference to events about which the interrogator seeks to ask. On the contrary, in my view, the interrogatory seeks to question the Council, which was not the author of the letter, as to its meaning. Nor, in any event, do I accept Mr Joseph's submission that the Council's action or inaction during 1991 regarding the other activities mentioned in the interrogatory can be relevant to the Plaintiffs' causes of action. Questions regarding insurance were also, in my view, irrelevant.
39 Interrogatory 31:
Mr Glascott objected to this interrogatory on the ground of relevance. I think that part (a) (A) and (B) are irrelevant and should be disallowed. However, on balance, I think there is relevance in (C) and I would allow that part of the interrogatory.
40 Interrogatory 32:
In my opinion this interrogatory should be disallowed for reason given above in respect of similarly framed questions, eg. interrogatories 10 and 11.
41 Interrogatory 37:
Mr Glascott objected on the grounds of vexation and oppression. However, I think the interrogatory is directly relevant and its answer should provide no difficulty. I would allow it.