Edwards v Hornsby Shire Council

Supreme Court of NSW|2014-05-15|Before: Schmidt J

Judgment 1The plaintiff, Ms Edwards, seeks an order under Rule 22.1 of the Uniform Civil Procedure Rules 2005 granting her leave to administer interrogatories to the second defendant, Roads and Maritime Services. The order is opposed. 2Ms Edwards claims damages for personal injuries and so must establish that "special reasons exist that justify the making of the order: (Rule 22.1(3). She relies on the affidavit sworn by Mr Stiles, her solicitor, to establish those reasons. 3Ms Edwards' claim is that she was injured on 20 May 2010 when driving her children to school along Old Northern Road, Forest Glen, when a dead tree fell onto her car. The defendants, Hornsby Shire Council and Roads and Maritime Services are each sued as a relevant road authority under the Roads Act 1993 (NSW) and/or the Local Government Act 1993 (NSW) for Old Northern Road and on the basis that each had at common law, the care, control and management of the road. 4Both defendants deny liability. There is an issue as to which of them had responsibility for the safety of the road and undertaking the work of inspecting, evaluating and giving attention to trees which could endanger traffic on the road. The question of their liability is listed for hearing in July. 5Roads and Maritime Services have produced a number of documents on subpoena. The interrogatories seek various explanations and admissions as to matters not within Ms Edwards' knowledge as to matters dealt with in the documents or arising from them, as to Roads and Maritime Services management of trees and vegetation on the road both before and after the accident. 6The parties explored the informal resolution of these matters by discussion at a meeting, or through written question and answers, but no agreement to such a process was reached. 7The contents of the documents in question raise difficulties to which Mr Stiles deposed, including as to the meaning of number codes which appear there and what is contained in the documents, including those brought into existence as the result of inspections undertaken of trees and vegetation. 8Shortly before the motion was heard, Roads and Maritime Services revealed that it would not be in a position to comply with the Registrar's orders as to service of its evidence. Additional documents had also recently been served in answer to the subpoena. The result was the suggestion at the hearing that there be another informal attempt at resolving the issues lying between the parties. That was discussed during a short adjournment, but not agreed. 9It emerged that regrettably, and contrary to the obligation imposed on parties by s 56(3) of the Civil Procedure Act 2005 (NSW), even though there had been unsuccessful attempts to resolve the questions raised by the interrogatories prior to the service of the motion, the nature of the Roads and Maritime Services objections to the individual interrogatories posed were not advised, as they ought to have been, prior to the hearing of the motion. Had that occurred, agreements as to matters then identified not to be in issue, or recasting of interrogatories to address ambiguity in wording and other form problems, readily conceded once raised, could have been dealt with by agreement between the parties, rather than by determination at the hearing of the motion. 10Now the issues lying between the parties must be approached in light of the overriding purpose established by s 56 of the Civil Procedure Act the just, quick and cheap resolution of the real issues in the proceedings and the requirements of s 57, which provides: "57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties." 11The Court must seek to act in accordance with the dictates of justice and must have regard, amongst other specified matters to "(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction" (see s 58(2))b). Proportionality of costs must also be borne in mind (s 60).

Special reasons 12On the evidence, there can, in my view, be no question that the necessary special reasons have been established, given what is in issue as to liability and what is sought to be pursued by way of interrogatory. 13It is settled that interrogatories in relation to documents which require explanation before they can be properly understood may be administered, explaining the concession for Roads and Maritime Services that Ms Edwards: "... is entitled in some manner to an explanation of some of the codings that are recorded in spreadsheets that have been produced in response to subpoenas issued by the plaintiff and by the Council, those spreadsheets being a printout from an electronic database maintained by Roads and Maritime Services for the purposes of recording details relating to the maintenance of roads" 14No more was conceded, but it is evident from the nature of the accident out of which the proceedings have arisen; the issue as to liability which must be resolved; the documents to which the interrogatories are directed; and the questions, admissions and information pursued, that the necessary special reasons have been shown to exist.

Is it necessary to order the interrogatories? 15Whether it was necessary to order the interrogatories was also in issue. I am satisfied that necessity has been established. 16The question of necessity must be approached as meaning "reasonably necessary for the disposing fairly of the cause or matter" or "necessary in the interests of a fair trial" (see Boyle v Downs [1979] NSWLR 192 at 205 per Cross J and Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 at 292 per Rath J). 17Further, as discussed by Ward J in In the matter of Gerard Cassegrain & Co Pty Ltd - Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 at [27] and [31]: "27 Where the interrogatories seek information "within the knowledge of the defendants", it might be expected that the test of necessity will be readily satisfied (as it was, for example, in Keating v South East Sydney Illawarra Area Health Service). ... 31 In Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758 Cole J said, of the principles applicable regarding interrogatories, (at [762]): 1. The object of interrogatories is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it": Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 111; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 at 518. 2. Generally speaking, a party may interrogate his opponent as to every relevant matter on which he could examine him, if he thought fit to call him as a witness at the trial: Lyell v Kennedy (1883) 8 App Cas 217 at 234; Hawkes v Schubach [1953] VLR 468 at 471; Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 at 709." 18It is no answer to a proposed interrogatory that a document produced on subpoena deals with the topic or that a specific question is answered by the content of the document. Answers which are sought by the interrogating party must be material in the sense that they may enable that party to maintain its case and may be pursued, even if they destroy the opponent's case. A party is also entitled to seek admissions. As Ward J also discussed at [26]: "It is recognised that 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 (Attorney-General v Gaskill (1882) LR 20 Ch D 519 at 527 per Jessel MR, applied in Taylor v Santos Ltd [2000] SASC 305 and Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 2) [2008] WASC 204)." 19There is no question that the interrogatories go to matters in issue in the proceedings, which include the management of trees and vegetation on the road and who had responsibility for the tree which struck Ms Edwards car. They are not matters within Ms Edwards' knowledge. 20Interrogatories must be framed in clear terms and ought to compel answers consistent with an admission of advantage or to obtain particulars of material facts relevant to the proceedings. Certain difficulties of that kind were addressed and resolved at the hearing. 21Concessions were made which will be reflected in an agreed statement of facts and issues which the parties have been directed to prepare. They no longer need to be pressed. It was also agreed that other interrogatories will be recast, to address suggested ambiguities and other problems identified with the form of the interrogatory - numbers 2, 4, 22, 26, 27(b). 22In some cases, the interrogatories raise questions of law which may not be the subject of such interrogation and so may not be pursued - numbers 27(b) (iii), (iv) and (v) and 28(a). 23The other interrogatories seek information and admissions as to matters such as the system of inspection of roads for which Roads and Maritime Services had responsibility, the operation of that system and the actual inspection of the road and tree in question, by reference to the various documents produced in answer to the subpoenas. 24That the proposed interrogatories go to matters which could readily be proved by a witness likely to be called at the trial, is not apparent, even though it was submitted that: "There are various questions that are asked about what staff we had who had expertise in arboreal science, what we did by way of inspection of trees, if any, and what we did in relation to defects in trees that were detected by such inspections if any as were carried on. There will be evidence about that and about the scope of what RMS did or didn't do and why it did or didn't do various things which ought to take care of a large proportion of the questions that have been asked." 25The interrogation process will ensure that questions about matters entirely within Roads and Maritime Services' knowledge, are answered by a person after making reasonable enquiries. 26Such explanation of the documents will assist the efficient conduct of these proceedings. Attending to that prior to the hearing, rather than at the hearing through a process of cross-examination of a person who may not even have the relevant information, will assist in both the identification and the efficient resolution of the real issues in the proceedings. In this case it appears that the interrogatory process is also likely to shorten the hearing and reduce the cost of the proceedings, perhaps significantly. 27There was also an objection to interrogatories concerning Wisemans Ferry Road, relating to documents not sought on subpoena, but which it was accepted could have been and that could not have been objected to. Nevertheless, necessity was in issue. 28Given that it appears that these interrogatories go to the operation of the systems in question, that necessity has been established.

Other objections 29The basis for objection to interrogatories is as specified in Rule 22.2: "(a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order, (b) the interrogatory is vexatious or oppressive, (c) the answer to the interrogatory could disclose privileged information." 30It was submitted that there was a difficulty with the wording of interrogatory 23, because of the ambiguity of the word "inspection". This was explained by reference to the system operated in relation to inspecting the roadway, the hardware within the road reserve, that is the bitumen, associated guide posts and culverts and "what have you" that form effectively the travelled way on which the vehicles drive and what was then done in relation to vegetation, which forms part of the inspection and hazards that might be presented by particular trees. 31That submission revealed that there was no difficulty with the form of this interrogatory and to the contrary, that it was framed in clear terms, compelling an answer consistent with an admission of advantage to Ms Edwards, or at least providing particulars of material facts relevant to the proceedings. 32The interrogatory might be improved by the addition of the words suggested at 23(a) '"to determine whether it posed a hazard to traffic", but is not deficient without them.

Orders 33The interrogatories should be amended to reflect the concessions and agreements made at the hearing, as well as the conclusion I have reached at [22]. If necessary, the parties should approach so that a formal order can be made in relation to that document, which should be provided in agreed terms. 34The usual order as to costs is that they follow the event. In this case it would be an order that Roads and Maritime Services pay Ms Edwards' costs of the motion. Unless the parties approach to be heard within 7 days, that will be the costs order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2014

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