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Whether leave should be granted to administer interrogatories to Civil Construction?

4. Ms Girvan divides the proposed interrogatories into three categories:

Category 1 Whether repairs were made following the structural damage recorded in an inspection audit report dated 29 October 2021?

Category 2 Whether there was an inspection of the pad roller under the terms of the hire agreement? Category 3 Whether Civil Construction attended the site between 29 October 2021 and 3 February 2022?

5. Ms Girvan submits Category 1 is relevant because the structural damage was to the door which is the subject of the injury. Category 2 is relevant because it clarifies inspection practices, so that it can be determined whether Civil Construction was, or ought to have been, aware of damage to the door. Category 3 is relevant because it may dispose of the claim against them if, for example, Civil Construction did not see any damage. The answers to the proposed interrogatories may thus assist in narrowing the issues in the proceedings and in saving costs.

6. Civil Construction objects to the proposed interrogatories, both in terms of their necessity and as to the form of the questions. The interrogatories are unnecessary, oppressive or otherwise improper because: (a) For Category 1, Civil Construction denies it was aware of any damage. The pleaded case is specifically concerned with damage to the door, or to the hinge of the door, and questions directed to structural damage more generally are irrelevant. (b) For Category 2, an inspection audit report has already been disclosed and there is no explanation why an inspection, which is not an audit, is of relevance. As framed, “inspect” is potentially inclusive of any time an agent or officer of Civil Construction saw the door. Furthermore, the report produced says the machine was “ready for hire”, indicating any other damage present did not prevent its use. (c) For Category 3, there is no relevance in identifying each occasion Civil Construction attended the site because, without a limiting purpose, every site attendance could be caught. Furthermore, Civil Construction has admitted to making no repairs between 29 October 2022 and the date of the injury.

7. In Cotton v Spiro [2025] ACTSC 398 at [13]-[18], I set out the general principles applying to an application for leave to administer interrogatories pursuant to r 630 of the Rules. Unlike other jurisdictions, there are no separate criteria applying to an application for leave to administer interrogatories such as “special reasons” considerations. The mandatory considerations relevant to the granting of leave are those contained in r 632 of the Rules.

8. With reference to the criteria in r 632, the contentions to be addressed in this case are whether the proposed interrogatories are reasonable and necessary for disposing of the proceedings or for saving costs, and also their likely relevance and significance based on the issues joined by the pleadings. In applying the criteria in the Rules it remains relevant to reflect upon the object of interrogation. It was described by Griffiths CJ in Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; 13 CLR 101 in the following terms: The object of interrogatories, I suppose, 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.

9. McWilliam AsJ, as her honour then was, provided a helpful summary of relevant principles in Piscioneri v Brisciani [2017] ACTSC 237 at [35]-[36]: 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] VR 77 at 79. The general intention is that interrogatories be administered if necessary and if they serve a useful purpose: Ryan v Federal Capital Press (1990) 101 FLR 396. These principles were cited by Gray J in Bateman & Primary Healthcare v Nationwide News Pty Limited [2002] ACTSC 73 at [3]. Importantly for the circumstances of this case, interrogatories are not to elicit evidence, nor to serve as a means of cross-examination: Kalgeracos v Bomba [2009] NSWSC 1271 (Kalgeracos), citing (per Brereton J at [1]) Dunbar v Perc [1956] VLR 583 at 591; Lyell v Kennedy (1883) 8 App Cas 217 at 234; Spedley Securities Ltd (in liq) v Yuill (No4) (1991) 5 ACSR 758 at 762; Johns v James (1879) 13 Ch D 370; Tiver v Tiver [1969] SASR 40; Kennedy v Dodson [1895] 1 Ch 334 at 341; Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703.

10. In considering that which is reasonable and necessary, Civil Construction presses the importance of ensuring “necessary” is given work to do. In that regard reliance is placed upon the observations of the majority in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30]-[31]. The court was there considering the use of the word necessary in an entirely different context. They had cause to reflect on the meaning of the word as it was used in s 50 of the Federal Court of Australia Act 1976 (Cth) which has now been repealed. In that context they described necessary as a strong word dealing with something more than trivialities. BUSB v R [2011] NSWCCA 39; 80 NSWLR 170 at [25]-[33] was concerned with the power of the district court to make a screening order. The court observed a test of necessity “cannot be stretched to encompass what is merely desirable or useful”. The point to be taken from those decisions is that context is important. In the sense in which the word is used in r 632 of the Rules, it is that the proposed interrogatory must be not only reasonable, but necessary for fairly disposing of the proceeding in whole or in part or for saving costs. A reasonable interrogatory that achieves one or more of those purposes meets the threshold.

11. Returning to the three categories of interrogatory identified by Ms Girvan. Category 1

12. Unhelpfully the parties elected not to place the subject inspection audit report in evidence before me. It is apparent from their respective submissions on the issue the report discloses some structural damage to the pad roller, but not particularly to the defective door asserted to be causative of Ms Girvan’s injury. In any event Civil Construction says the pad roller was, following that inspection, cleared as “ready for hire”. Enquiries directed to the timing of any repairs to the pad roller after the completion of the October 2021 report may well be reasonable notwithstanding the identified damage was not proximate to the door. That is because they may demonstrate an opportunity for closer inspection of the vehicle at a time after Ms Girvan had commenced to complain about the problems with the door. To establish whether the line of enquiry is necessary regard must still be had to the nature of the case pleaded against Civil Construction. Ms Girvan does not plead a failure to identify the broken hinge on the pad roller door in the context of any repairs performed on the vehicle subsequent to the October 2021 inspection audit report. She also does not plead specifically a failure to inspect the pad roller in the relevant period. She does assert in breach of s 17 of the Work Health and Safety Act 2011 (Cth) (the WHS Act) a failure to minimise risks to her health and safety at the site. She also asserts in breach of s 19 of the WHS Act a failure to ensure the provision and maintenance of safe plant including the pad roller at the site. By its defence Civil Construction makes the following relevant as assertions: (a) there was no damage to either of the hinges of the door as at 29 October 2021 when the inspection audit report (IAR) was undertaken (14.3); (b) the IAR recorded the pad roller as ready for hire (14.4); and (c) the alleged damage to the side door hinge documented as at 14 January 2022 was not reported to it at any time prior to Ms Girvan’s accident on 3 February 2022 (23.4).

13. Other than pleading that it was not on notice of any damage to the hinges of the door prior to the plaintiff’s injury, and that it did not have management and control of the pad roller, Civil Construction does not specifically address the assertion, at 5.2.2.5, as to ensuring the safe provision and maintenance of the pad roller at the site (2.7, 125 and 130 of the defence).

14. In the absence of a specifically pleaded allegation of a failure to inspect the pad roller in the relevant period I am not satisfied that a broad pleading directed at the failure to ensure the provision and maintenance of safe plant is sufficient to render necessary the “category 1” interrogation now sought. Civil Construction admits it instigated no relevant inspection of the pad roller during the period between the October 2021 IAR and the date of Ms Girvan’s injury. It contends it was not on notice of the damage to the hinge. Evidence concerning the timing of any repairs otherwise authorised in respect of the pad roller is in those circumstances unlikely to be of any utility in narrowing issues between the parties. As a consequence, I do not consider it appropriate to give leave for the line of interrogation comprising category one. Category 2

15. The reasoning set out above is also apposite to this category. It is reinforced by the nature of the questions proposed and the breadth of possible interpretations to answers concerning the conduct of an inspection. As Civil Construction identifies the lack of specificity of the proposed questions in terms of the type of inspection that may have been undertaken, the purpose for which it was undertaken and by whom it was undertaken renders the proposed questions of little utility. I therefore do not consider it appropriate to give leave for the line of interrogation comprising category 2. Category 3

16. This category is concerned with attendances at the site in the relevant period. The absence of any specificity as to person or purpose renders the category of questioning one which is of little assistance. Civil Construction admits there was no IAR undertaken between 29 October 2021 and the date of Ms Girvan’s injury. It contends it was unaware of the damage to the door hinge of the pad roller. I am unable to see how any admissions made concerning attendances at the site during the relevant period would, without more, assist in fairly disposing of part of the proceeding or in saving costs.

17. The question for Ms Girvan is whether, in light of the concession by Civil Construction that it undertook no relevant inspection of the vehicle during the period in question, and the acknowledgement that it was as a consequence of the absence of inspection and the lack of report from any third party, unaware of the damage to the vehicle, and in circumstances where Ms Girvan had prior to her injury made a number of reports to her employer about the damage, she is able to establish a breach of the duty of care owed to her by Civil Construction as the hirer of the equipment, or a breach of their obligations under the WHS Act in that capacity. In light of the concessions made in the defence, in concert with the discovered audit report, I do not consider the proposed categories of interrogatories to be likely to advance Ms Girvan’s case in the way required by r 632 of the Rules. Whether leave should be granted to administer interrogatories to Huon?

18. The categories sought for interrogatories in respect of Huon are: Category 1 After admitting the Plaintiff was a worker under the Work, Health and Safety Act 2021 (the WHS Act), whether the Second Defendant inspected the plant at the site, or supervised the Plaintiff?

Category 2 Whether the Second Defendant took any action to repair the pad roller between the dates the Plaintiff recorded damage to the pad roller in the various operator Daily Check lists?

Category 3 Whether the Second Defendant conducted any took box talks in October-November 2021?

19. Ms Girvan submits category 1 seeks to clarify the nature and extent of Huon’s duty of care in light of the concession that Ms Girvan was a worker for the purposes of the WHS Act. Ms Girvan says where the WHS Act is enlivened there are particular obligations arising in the nature of requirements for inspection of plant and ensuring safety of workers on the site, being a site occupied by Huon as head contractor.

20. Category 2 seeks to understand whether Huon was aware of any damage to the pad roller. Category 3 seeks to clarify the existence of toolbox talks because in Huon’s defence, they do not admit paragraph 6.2 in the statement of claim. There, a toolbox meeting is pleaded as having occurred in about October-November 2021.

21. Huon submits category 1 is unreasonable because the interrogatories: (a) Assume a legal duty has been established that is a subject of dispute. (b) Seeks to establish “awareness” - a concept not relevant to negligence and likely to broaden the issues in dispute rather than narrow them. (c) Ms Girvan does not plead in her statement of claim that Huon had a particular duty of care in the terms contemplated by the interrogatories.

22. As for category 2, Huon objects to particular interrogatories either because they are unnecessary in light of other interrogatories or incorrectly refer to an admission Huon has made in its defence.

23. As for category 3, Huon has already disclosed documents relating to tool box talks during the discovery process and therefore asserts there is no utility in the proposed interrogatories. Category 1

24. The relevant pleading is at paragraph 1.1.4 of the amended statement of claim, where Ms Girvan asserts she was a worker at the site within the meaning of s 7 of the WHS Act. That paragraph is admitted at 1.1a of Huon’s defence. In her submissions Ms Girvan is not specific about the particular provisions of the WHS Act or the regulations relied upon as warranting interrogatories directed to inspecting plant at the site and supervising the plaintiff. Later, at paragraphs 1.3.5 – 1.3.8 of the statement of claim Ms Girvan contends Huon, “had influence and control over the plaintiff as a duty holder to the plaintiff under s 16 of the WHS Act”. Those assertions are not admitted by Huon in specific terms, although a duty of care of some kind is admitted to be owed to Ms Girvan (1.3(d) of its defence). The defence as pleaded does not accord with Huon’s obligations pursuant to rr 441 and 443 of the Rules. Rule 441 makes clear that a denial must be given with specificity so as to deal with the point of substance in an allegation. In personal injury claims every material allegation of fact must be specifically admitted or denied and if the defendant wishes to prove a different allegation of fact the defendant must plead that version. The difficulty here is Ms Girvan has pleaded with some specificity obligations she asserts were imposed on Huon relative to the supervision of her work activity, and more generally the management of the site, to which no responsive pleading is made other than acknowledgement of a non-specific duty. In the circumstances there is a proper basis for interrogation with a view to securing greater clarity as to the scope of the duty Huon admits. Huon submits as an alternative to permitting interrogatories an order could be made requiring further particularisation of the defence. It seems to me in response to any orders I make giving leave to interrogate the option of filing an amended defence in more specific terms may well obviate the need for interrogation. Whether the defendant elects to provide such a defence in response to any orders is a matter for them. In the meantime I am satisfied Ms Girvan has established interrogatories directed to seeking clarity as to the level of supervision provided by Huon on-site relative to the plaintiff within the meaning of ss 16 and 17 of the WHS Act, and interrogatories directed to steps taken by Huon to ensure the provision and maintenance of safe plant at the site within the meaning of s 19 of the WHS Act are reasonable and necessary such that leave to administer them should be granted.

Category 2

25. For the reasons given above I am satisfied it is appropriate to grant leave to administer interrogatories in the nature of the second category. I emphasise the giving of leave is not an endorsement of the form of the questions. I do not propose to deal with the draft interrogatories on a question by question basis. Suffice it to say if interrogatories are administered with questions in the form of the draft attached to Mr Farooq’s affidavit I expect a number of them will be vulnerable to objection. The purpose of the questions in this category should be directed specifically to clarification of the scope of supervision of Ms Girvan’s activities exercised by Huon, and the steps taken by them to ensure plant located on the site, including the pad roller, was properly maintained and in a condition where it did not cause undue risk to the health and safety of workers on the site including the plaintiff.

Category 3

26. The opposition raised by Huon to this category is their past provision of discovered documents identifying records of toolbox talks conducted in the relevant period. Consistent with Ms Girvan’s assertion of a failure to exercise appropriate supervision of the work conducted at the site, and in view of the discovery of documents confirming the conduct of toolbox talks in the relevant period, questions in the form of interrogatories directed to identification of the organisations on-site represented at the toolbox talk meetings, and directed to the substance of matters communicated at those meetings, constitute a reasonable line of enquiry. The residual question is whether the interrogatories are reasonable and necessary. As against Huon, Ms Girvan specifically pleads a failure to ensure plant on-site was safe and adequately maintained, and a failure generally to ensure the safety of Ms Girvan while working on the site. The particular allegations concerning breaches of the WHS Act and regulations are not admitted by Huon. To the extent they contain allegations of fact it is arguable pursuant to r 443(3) that the allegations are taken to be admitted for the purpose of the proceedings. Those allegations are on any view not met with a clearly articulated position on behalf of Huon. I am therefore satisfied leave to administer interrogatories in this category is also appropriate.

27. As to costs Ms Girvan has had mixed success in her application. Civil Construction has had some success in resisting her application. Their position as articulated in the pleaded defence and submissions appears to be one of denial of any relevant duty and in turn denial of any liability to Ms Girvan for her injuries. Ms Girvan has had some success against Huon. In those circumstances I propose to order that Huon is to pay Ms Girvan’s costs of the application insofar as they relate to it and the costs of Civil Construction are their own costs in the cause. Where alternate orders are sought, I give each of the parties until close of business on 27 August 2026 to provide any written submissions in relation to costs limited to 2 pages.

Orders

28. I make the following orders: (1) The plaintiff is to administer interrogatories for the examination of the Second Defendant within 14 days, limited to the issues of: (a) Whether the Second Defendant inspected the plant at the site, or supervised the Plaintiff, and the steps taken to ensure the provision and maintenance of safe plant at the site. (b) Whether the Second Defendant took any action to repair the pad roller between the dates the Plaintiff recorded damage to the pad roller in the various operator Daily Check lists and the date of her injury, and the scope of supervision of the plaintiff’s activities in that period. (c) Whether the Second Defendant conducted any took box talks in October-November 2021, identification of organisations on-site represented at toolbox talk meetings, and the substance of the matters communicated at any meetings in that period. (2) The Second Defendant is to give written answers to interrogatories within a further period of 28 days. (3) Any application seeking to set aside any interrogatories is to be filed within the period identified in order 2. (4) The Plaintiff’s application lodged on 19 June 2026, as it relates to the First Defendant, is dismissed. (5) Subject to order 6: (a) The Second Defendant is to pay the Plaintiff’s costs of the application insofar as the application relates to the second defendant. (b) The First Defendant’s costs are its own costs in the cause. (6) Where alternate costs orders are sought the parties have until close of business on 27 August 2026 to file written submissions limited to two pages.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: Date: