Citation : GIRGIS -v- POLIWKA [2015] WASC 446

Application for leave to appeal from decision refusing leave to issue interrogatories - Leave to appeal refused

Dodds v Kennedy [2011] WASCA 32

Girgis v Poliwka [2015] WASC 446

Pearce v International Technologies Ltd [2009] WASCA 239

Platinum Systems Resourcing Pty Ltd v NRW Holdings [2013] WASCA 276

Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

(This judgment was delivered extemporaneously on 12 August 2016 and has been edited from the transcript).

1 This is an application for leave to appeal from a decision of the judge managing these proceedings in the commercial and managed cases list in which he refused leave to issue interrogatories to the appellants, who are the plaintiffs in the proceedings. It is well established that before leave will be granted to appeal from an interlocutory decision the applicant for leave will generally need to show that the decision appealed against is wrong or at least arguably attended with sufficient doubt to support the grant of leave to appeal, and also that a substantial injustice would be done if leave to appeal was not granted and the interlocutory decision was not reversed[1]. It is also well established by decisions of the highest authority that a tight rein must be kept upon interference with the orders of judges at first instance, exercising discretions with respect to points of practice or procedure[2]. In this court it is also established that there is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the commercial and managed cases list. The reasons for that restraint are explained by the court in Pearce v International Mining Technologies Ltd in these terms[3]:

A judge who has a continuing involvement in the management of a case in the CMC List is likely to have a much better overall perspective of the litigation, and to be in a much better position to determine what particular procedural steps are appropriate, than this court. The advantage that such a judge will generally have from his or her familiarity with the case is not lightly to be put aside. While this court must be prepared to intervene where questions of legal principle arise or the interests of justice otherwise require it, restraint is necessary to avoid the appellate process becoming an obstacle to the proper and effective management of cases in the CMC List.

2 In this case, after referring to the forensic purposes which might properly be served by interrogatories and the contemporary approach to the grant of leave to administer interrogatories in terms which cannot in my view be faulted, the judge at first instance observed[4]:

The minute of interrogatories proposed by the plaintiffs does appear something like a relic from last century. It is 68 pages long and contains

121 questions with many sub-questions. It has 150 pages of annexures and is said by the defendant to contain 528 questions in total.

I am not satisfied that granting leave to administer those interrogatories will produce any saving in time and expense in these proceedings. In fact, the contrary seems to be clear from the bulk of the request. Even accepting, for the purposes of argument, that there is nothing inadmissible about any individual interrogatory, in cumulation it seems to me to be disproportionate to the matters in issue to require each of those questions to be answered. Many of the questions relate to matters within the plaintiffs' knowledge - for example, when a document was shown by the first defendant to the first plaintiff.

3 I respectfully agree with those views, although it seems to me that the minute of interrogatories proposed is more reminiscent of procedures utilised in the 19th century than in the 20th.

4 It is clear from the transcript of the proceedings before the judge at first instance that he left it open for the plaintiffs, who are the applicants for leave to appeal, to seek leave to administer a reduced minute of interrogatories confined only to issues in respect of which substantial forensic prejudice could be suffered if leave was not granted because, for example, the question related to matters which were entirely within the knowledge of the defendants and which were not capable of proof by the plaintiffs otherwise than by the administration of interrogatories.

5 In my view, none of the proposed grounds of appeal or the argument advanced in support of those grounds gives rise to an arguable case to the effect that the decision of the judge at first instance is attended with any doubt, let alone sufficient doubt to justify the grant of leave. Nor have the applicants for leave established that the refusal of leave to appeal would occasion substantial injustice, especially given that the judge at first decision has left it open to the applicants to bring a further application for leave to administer interrogatories which conform to contemporary standards of practice. For those reasons I would refuse leave to appeal.

[1] Wilson v Metaxas [1989] WAR 285, 294 (Malcolm CJ, Brinsden & Smith JJ agreeing); Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 56 - 57 (Malcolm CJ, Rowland & Walsh JJ agreeing); Platinum Systems Resourcing Pty Ltd v NRW Holdings [2013] WASCA 276 [10] (Pullin JA).

[2] Dodds v Kennedy [2011] WASCA 32 [5] (Murphy JA & Mazza J).

[3] Pearce v International Technologies Ltd [2009] WASCA 239 [26] (Pullin & Newnes JJA).

[4] Girgis v Poliwka [2015] WASC 446 [4] - [5] (Mitchell J).