Haywood v Collaroy Services Beach Club

Uniform Civil Procedure Rules LEGISLATION CITED : Uniform Civil Procedure Act

Boyle v Downs [1979] 1 NSWLR 192 Schutt v Queenan [2000] NSWCA 341 CASES CITED : Chong v Nguyen [2005] NSWSC 588 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Plaintiff - Anthony Neville HAYWOOD PARTIES : Defendant - Collaroy Services Beach Club

P - Mr Gormly SC COUNSEL : D - Mr Maconachie SC

P - T D Kelly & Co SOLICITORS : D - Hunt & Hunt Lawyers

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ANTHONY NEVILLE HAYWOOD v COLLAROY SERVICES BEACH CLUB LIMITED 20252/2001

JUDGMENT 1 ROTHMAN J: This is a motion on notice relating to interrogatories that have been served on the defendants and, save for what follows, were answered by them. Those interrogatories were served pursuant to an order of this Court, the order for which was the subject of a judgment and reasons therefor, given ex tempore on 8 August 2005. The plaintiff now seeks further and better answers to some of the interrogatories and to serve further interrogatories. 2 I do not here repeat the principles to be applied in the Court determining whether to order a party to answer interrogatories but adopt the principles expressed by me in that earlier judgment and in particular the analysis of the principles adumbrated by this Court in Boyle v Downs [1979] 1 NSWLR 192 and by the Court of Appeal in Schutt v Queenan [2000] NSWCA 341. I also refer to my judgment in Chong v Nguyen [2005] NSWSC 588 in which judgment I more fully deal with Boyle v Downs and the meaning of the word "necessary" in the context of orders for interrogatories (see paragraphs [12] to [16] of Chong). 3 As recorded in previous judgments, this case concerns significant damage occasioned when the plaintiff fell over a staircase on the premises of the defendant. The construction of the defendant's staircase was complicated by the bankruptcy of the builder during construction. There are issues concerning the relationship between the defendant and those that completed the construction. The cause of action alleges, amongst other things, negligence associated with the design and construction of the staircase. 4 The issues as to interrogatories fall into two quite distinct groups. The first deals with answers already given to interrogatories already served. The second group consists of further questions that the plaintiff seeks to serve. In the latter group I include the application to amend interrogatory 35 and serve a new interrogatory dealing generally with the same or a similar subject matter.

Answers Already Given 5 The answers to interrogatories that fall into the first group are answers to interrogatories 3, 4, 5, 6 and 9. In relation to 9, the defendant has stated that the only "alteration" was painting and relied upon that concession to argue oppressiveness of any further requirement. In reliance on the statement ("concession" as they described it), the plaintiff does not pursue the claim in relation to interrogatory 9. 6 The complaint in relation to each of the other answers to interrogatories is that the answers are necessarily incomplete because, amongst other things, the answers to the interrogatories, both those in dispute and others, give rise to inferences that more information is available and has not been disclosed, as it should have been. 7 The answers in dispute, in one form or another, claim that the defendant does not know the answer (either in whole or part). The answers also assert that enquires have been made of "present and former directors, officers, servants and agents who might have knowledge". In essence, the plaintiff disputes that proper enquiry has been made and/or that all agents have been the subject of enquiry. 8 The solicitor for the defendant in the proceedings has signed the document containing the answers to interrogatories and a director of the defendant company who is the president of the Club verifies the answers. 9 Where there is a dispute as to the answer to any interrogatory there are, essentially, two remedies. One remedy is that sought by the plaintiff, the second remedy is to seek to examine the appropriate person as to the answers (Rule 22.4 of the Uniform Civil Procedure Rules). 10 Where, as here, an answer has been given, which answer has been verified, and objection is taken premised on a different view of the entities or persons who fall within the category of agent and/or whether the answer is an accurate reflection of the belief of the defendant, the proper course is, at least initially, the cross-examination of the proper officer who has verified the answers. 11 If answers to interrogatories are verified and the answers are incorrect, the consequences may be extremely serious. If persons or entities who or which are agents have not been subject to enquiry and a person has sworn that persons in that category have been the subject of enquiry, then the consequences may include the striking out of the defence (Rule 22.5(1)(b) of the Uniform Civil Procedure Rules), contempt of court and/or perjury. For this reason and others, including legal practitioners' duties to the Court, parties generally err on the side of making enquiries that may not strictly be required thereby ensuring that compliance occurs. This is an approach that the Court encourages. 12 However, where the answer is verified and that verification includes a statement, as these answers do, that all appropriate persons have been the subject of enquiry, then, generally, the proper course is to seek to examine the deponent orally on those answers. An order requiring a further answer may elicit only the same answer as before. 13 In the circumstances, I refuse the order, as sought, in relation to answers already given to interrogatories 3, 4, 5 and 6. I grant leave to the plaintiff to the extent so advised, to file a notice of motion seeking to examine orally the appropriate person. At the moment a request for a further answer to a question already asked is premature.

Further Questions 14 I next deal with that part of the motion that seeks an order for further interrogatories. For that order to be made, in a case, such as this, for damages arising out of bodily injury, the court must be satisfied that special reasons exist that justify the making of the order (Rule 22.1(3) of the Uniform Civil Procedure Rules) and that the order is necessary (Rule 22.1(4) of the Uniform Civil Procedure Rules). If each of those requirements is met, the Court must consider the issue associated with the fact that this is a subsequent application for interrogatories, an order having already been made and, subject to the comments earlier outlined in these reasons, with which there has been compliance. 15 The issues, upon which questions are sought, like the earlier interrogatories: a Are concerned with subjects that, as between the parties, are largely or peculiarly within the knowledge of the defendant; b Involve complex questions going to the relationship (legal and otherwise) between the defendant and third parties; c Would, for the plaintiff, otherwise be very difficult or impossible to prove or would be such that probative evidence on such issues would be difficult or impossible to obtain. 16 I apply the test in Chong, supra, as to whether the questions are necessary and I find that they are and that there are, for the above reasons, special reasons that justify the administering of the interrogatories.

17 As to the additional issues associated with the fact that these are questions that could have been asked in the first set of interrogatories, I approach the question in the following way.

18 The Uniform Civil Procedure, both Act and Rules, are designed, as modern litigation should be, to ensure that trials are conducted fairly and efficiently (s.56 of the Uniform Civil Procedure Act). I have used the words "efficiently" as a synonym for "quick and cheap" and "fairly" for "just". When balancing the two requirements, fairness and efficiency, in other than exceptional circumstances, fairness must predominate. "Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim." (Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154)

19 The issue of fairness, in a procedural sense, means fairness to both sides. In this case, the proceedings have not been set down for hearing and the major detriment to the defendant is cost and inconvenience. Cost and inconvenience are related. Ordinarily, a second set of interrogatories, if required to be answered, will involve further conferences and documents that otherwise may not have been occasioned. To the extent that delay is caused, that is disadvantage. And to the extent that files may need to be searched or enquiries made that may have been able to be completed on the first occasion, that, too, is a significant cost and inconvenience.

20 Nevertheless, given the nature of the proceedings; the stage the proceedings are at; the importance of facts of which enquiry is being made; the likelihood that this may be the only way, or the most efficient way, in which the true issues and real merits, factual and legal, can be litigated; that the "fault", if any, for not requesting these interrogatories initially is at the feet of legal representation and not the plaintiff; and the capacity to remedy, at least in part, the injustice to the defendant by an appropriate costs order; I am of the view that an order for the further interrogatories is appropriate and I include new interrogatory 35. I will hear the parties on the time required to answer and on the question of costs.

21 Subject to any further submission, I propose the following orders: a The defendant answer interrogatories annexed hereto; b Otherwise the notice of motion of the plaintiff be dismissed. c Leave is granted for the plaintiff to file and serve a notice of motion, returnable before me, seeking the oral examination of Robert Bell. d The plaintiff shall pay the costs of the notice of motion, as taxed or agreed, together with any additional costs, over and above that which would have been incurred if all interrogatories had been served in one document, of answering these further interrogatories, such costs to be as taxed or agreed.

When did the management of the club first receive notice that the builder with whom the Club had originally contracted would be unable to continue with the construction work?

In what form was that notice received and to whom?

What decision or decisions were made by the management of the Club concerning the continuation or replacement of that builder?

Was the person who completed the building work after the original building company ceased constructions work" (a) under contract; (b) in an employment relationship with the Club; (c) in some other relationship (and if so, what)?

What were the terms of any agreement, contract or employment between the Club and the person who carried out the completion of the relevant building works?

Was the agreement, contract or arrangement with the person that completed the building words reduced to writing and if so: (a) please provide a copy; (b) identify the person.

Please look at copy pages annexed hereto and marked 'AA1' and 'AA2' to the interrogatories ordered to be answered on 8 august 2005. (a) As at 9 February 2001 the documents and associated system by which persons were signed into the defendant's club as temporary members. (b) As at 9 February 2001 were documents in the form of AA1 and AA2 physically connected at the time of signing in? (c) When a temporary member signed in to the defendant's club was a document in the form of AA1 or AA1 detached and held by the person who had signed in as a temporary member and if so which of the documents in the form of AA1 or AA2 was detached and retained by the person who has signed in? (d) If the plaintiff signed in to the defendant's club as a temporary member on 9 February 2001 and did so in accordance with the defendant's usual system for signing in temporary members would the plaintiff have retailed: (i) a document in the form of one of the singing places on AA1; (ii) a document in the form of AA2? - 1 -

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