Horsnell by his tutor Horsnell v Allworth Constructions Pty Ltd [2016] NSWSC 844 | Case summary

Horsnell by his tutor Horsnell v Allworth Constructions Pty Ltd [2016] NSWSC 844 | Case summary | Zoe

Judgment Introduction

This is an application for review of the decisions of Registrar Bradford of 19 February 2016 and 23 February 2016. No argument was put before me in relation to the decision of 23 February 2016, which concerned orders in a directions hearing, and the oral and written submissions before me were both directed towards the substantive decision of 19 February 2016.
The review is brought pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules), which is as follows: Review of registrar's directions, certificates, orders, decisions and other acts If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
I shall turn to discuss the attributes of such a review shortly.
The decision of the Registrar deals with two topics. The first is whether the second defendant, Teswor Pty Ltd (Teswor) must provide particulars of its defence of 17 June 2015 to Mr Kenneth Horsnell (the plaintiff). The second is whether both Teswor and the first defendant, Allworth Constructions Pty Ltd (Allworth), must answer interrogatories proposed to be administered by the plaintiff.
There is an obligation to provide particulars in r 15.1 of the Rules, as set out below: 15.1 Pleadings must give all necessary particulars (1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. (2) Subrule (1) does not require a pleading to give particulars of any claim for interest up to judgment other than those required by rule 6.12 (7).
The Court also has the power to order a party to file particulars pursuant to r 15.10 of the Rules, as set out below: 15.10 Order for particulars (1) The court may order a party to file: (a) particulars of any claim, defence or other matter stated in the party's pleading or in any affidavit relevant to the proceedings, or (b) a statement of the nature of the case on which the party relies, or (c) if the party claims damages, particulars relating to general or other damages. (2) Without limiting subrule (1), if a pleading alleges that a person had knowledge or notice of some fact, matter or thing, the court may order that party to file: (a) if the pleading alleges knowledge, particulars of the facts on which that party relies, and (b) if the pleading alleges notice, particulars of the notice.
The relevant rule in relation to interrogatories is r 22.1 of the Rules, which is as follows: 22.1 Interrogatories (1) At any stage of the proceedings, the court may order any party to answer specified interrogatories. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. (3) In the case of proceedings on: (a) a claim for damages arising out of the death of, or bodily injury to, any person, or (b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order. (4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. (5) An order to answer interrogatories: (a) may require the answers to be given within a specified time, and (b) may require the answers, or any of them, to be verified by affidavit, and (c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.
The Registrar declined to order particulars or interrogatories. It is the plaintiff who applies, by way of a notice of motion filed on 18 March 2016, for a review of that decision.
I was told at the conclusion of the hearing of the matter (which came before me in the Duty List) that the next forensic step scheduled to take place with regard to the matter is a mediation listed on 23 June 2016. Accordingly, I shall be relatively brief. Background
On 2 September 2011, the plaintiff, then working as a crane operator, attended at a building site as an employee of Atlas Cranes Pty Ltd to deliver frames and trusses for use in construction. The first defendant was the building company engaged in the construction of the residential premises at the worksite. The second defendant was a company providing carpentry and building services at the worksite.
I understand there to be no dispute between the parties that on the second floor of the worksite there was a large void. Nor do I understand it to be disputed that, somehow, the plaintiff fell through that void, and suffered very grave injuries that have left him with permanent brain damage. The result of those injuries is that he is in no position to give evidence about how the fall occurred.
As one might expect, WorkCover officers attended the scene, and investigated whether or not any occupational health and safety offences had been committed by any person.
By way of an amended statement of claim of 5 June 2015, the plaintiff has sued the first defendant, alleging the tort of negligence and breach of s 8(2) of the Occupational Health & Safety Act 2000 (NSW). The plaintiff has also sued the second defendant, alleging the tort of negligence and relying on the same particulars as those pleaded against the first defendant. For the reasons that I have discussed, the amended statement of claim of the plaintiff does not plead in any detail the events that occurred in the minutes or seconds before the fall.
The second defendant filed a defence on 17 June 2015. It concisely pleads that it was not negligent as that concept is explained in the Civil Liability Act 2002 (NSW); that it did not have a duty to warn the plaintiff of the risk of falling through the void; that the risk was so obvious that there was a presumption that the plaintiff should have been aware of it; that the plaintiff's employer is a joint tortfeasor and the second defendant can rely upon s 151Z of the Workers Compensation Act 1987 (NSW) as a defence; and, finally, that the actions of the plaintiff demonstrate contributory negligence on his part.
The first defendant filed a defence on 9 September 2015. It concisely pleads that the plaintiff is precluded from a claim against the first defendant under the Occupational Health & Safety Act; that it did not have a duty to warn the plaintiff of the risk pleaded; that the plaintiff is presumed to have been aware of the risk of harm from the obviousness of the risk pleaded; that the plaintiff's loss was caused or contributed to by his employer, and the liability of the first defendant is therefore reduced pursuant to s 151Z of the Workers Compensation Act; and that the plaintiff's own negligence contributed to his injury.
Two evidentiary statements have been filed of Mr Ben Wormald and Mr Alfred Tesoriero, each of whom is a director of the second defendant. They provide versions of what occurred in the seconds before the fall. In a nutshell, they assert that Mr Tesoriero was having a conversation with the plaintiff on the second storey of the house. During the conversation, the plaintiff requested some of the leftover flooring for use in his own home, and it was agreed that he could take it home. The two directors were then discussing how to move the framing for the first floor, as it was quite heavy, and, as the directors walked towards the frame, the plaintiff asked if he could "give them a hand". Thereafter, he fell down the void as he walked past it and towards the two directors.
Each of those persons was prosecuted in the District Court of New South Wales by WorkCover. They pleaded guilty to offences brought pursuant to the Occupational Health & Safety Act. A statement of facts was prepared by the prosecutor and tendered against them in the proceedings on sentence. I was told that they neither objected to the tender of that document nor disputed any of its contents (a very common approach for a defendant to take in proceedings on sentence, especially when a plea of guilty has been entered).
It can be seen, however, that the document contains a markedly different version of events in the short period leading up to the accident. In particular, it states that the plaintiff was having a conversation on the second storey with the two directors and he requested surplus flooring material. It was agreed that he could take some flooring, and thereafter the plaintiff offered and commenced to assist the two directors in moving a timber and steel frame into position. It was while he was assisting them (as opposed to walking towards them) that he lost his footing and fell through the void.
On 25 June 2015, the solicitors for the plaintiff wrote to the solicitors for the second defendant seeking particulars of the defence of 17 June 2015. It is that letter that forms the basis of the dispute about particulars before me. A response was provided by way of a letter of 4 September 2015. The solicitor for the plaintiffs sent a further request on 24 September 2015, and the solicitor for the second defendant sent a substantive response in a letter dated 17 November 2015. The position of the plaintiff is that that response is quite unsatisfactory; the position of the second defendant is that its response is quite sufficient. The decision of the Registrar
On 23 November 2015, the plaintiff filed a notice of motion seeking an order of this Court that the two defendants answer the interrogatories contained in a document annexed to the affidavit of Mr Andrew Christopoulos of 23 November 2015. That was resisted by the two defendants, and a hearing took place before the Registrar. On 19 February 2016, the Registrar delivered his decision, dismissing the application for interrogatories with regard to the defendants, and the application for particulars with regard to the second defendant.
To summarise that decision very concisely, the Registrar first analysed the interrogatories in relation to each defendant. For the first defendant, he determined that it had already made a number of admissions in its defence that would mean that there was no benefit in answering specific interrogatories; that there was a longstanding system for certification of work and payment, and the position of the plaintiff did not prevent him from establishing that system in evidence; that the extensive investigations into the accident and the work practices of the first defendant would make certain matters easy to prove; that some of the interrogatories seek admissions of an expert nature and are therefore inappropriate; and, overall, that the plaintiff had neither established special reasons, nor shown that the interrogatories were necessary for a fair trial.
With regard to the second defendant, the Registrar determined that certain interrogatories referred to the first defendant and the second defendant should not be required to answer those; that some of the interrogatories required expression of an expert opinion; that one interrogatory was not relevant due to a statutory provision; that the second defendant had already made a number of admissions; that the plaintiff had material from WorkCover and the statements of the two directors available to him; that certain interrogatories related to matters not pleaded, and therefore there would be no utility in the second defendant providing an answer to them; and, overall, that the plaintiff had not satisfied the requirements of special reasons or necessity.
In relation to the application for particulars from the second defendant, the Registrar determined that certain requests referred to matters that were implicit and therefore not appropriate; that specific requests were an attempt to elicit evidence; that the plaintiff already had access to the statements and material provided by WorkCover; that the plaintiff never replied to the letter of the second defendant dated 17 November 2015 and the responses contained within it, or indicated that they were insufficient; and, overall, that the responses already provided were sufficient. Submissions of the plaintiff
On behalf of the plaintiff, Queen's Counsel submitted that, in accordance with r 22.1(4) of the Rules, the administration of interrogatories is "necessary" in the circumstances of this case. He pointed to authorities that have established that the concept of necessity in this context is speaking not of interrogatories as being some kind of essential precondition to the hearing of the case, but rather as being understood as being "reasonably necessary for the disposing fairly of the cause or matter": see Boyle v Downs (1979) 1 NSWLR 192 at 205. In the unusual circumstances of this case, he submitted, that test has been made out, in that, in order for the merits of the matter to be evaluated properly, interrogatories are necessary.
Secondly, he submitted that the matter is different from the vast majority of civil proceedings, in that the plaintiff is incapable of giving evidence of what occurred, and furthermore he has no witnesses within his "camp" who can give evidence in that regard. In short, he submitted that that alone would lead me to assess the matter as being special, in the relevant sense. Queen's Counsel invited my attention to the judgment of Garling J in El Hayek v Vasic [2010] NSWSC 1498, in which the following factors at [51] were said to be relevant to determining whether a case is special or not: [51] Typically, but not exclusively, what will take the matter "out of the ordinary" is: (a) an inability to obtain the requisite factual material without the exercise of the discretion; (b) that the applicant is in a position of some disability or disadvantage; (c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant; (d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.
Thirdly, he submitted that s 56 of the Civil Procedure Act 2005 (NSW) has an important role to play in the application, and in my discretion, to order interrogatories. He submitted that the proposed questions are neither vexatious in quantity nor in their inherent qualities. He disputed that there are other sources from which his client could obtain the evidence he seeks; even if that were the case to some degree, he submitted that s 56 militates firmly in favour of the evidence being clarified by way of interrogatories.
Fourthly, he submitted that the events in the minutes and seconds leading up to the fall are crucial, because of the need for identification of risk. If it be the case that, in truth, the plaintiff was indeed engaged in assisting the two directors of the second defendant to undertake a particular task, and fell into the void as a result, that would be central to the question of identification of risk for the purposes of the Civil Liability Act.
Fifthly, he submitted that it would quite conceivable that, at the trial, neither of the two directors whose evidentiary statements had been provided would be called in the case for the second defendant. Accordingly, it would be quite conceivable that the plaintiff would be unable to prove its case on the balance of probabilities unless I ordered interrogatories.
Sixthly, he submitted that the investigations of a WorkCover inspector would have a completely different conceptual and practical focus from the issues between the plaintiff and the two defendants in this civil trial.
Seventhly, he accepted that natural persons associated with the first defendant have no direct knowledge of what happened in the minutes and seconds leading up to the fall. But he submitted that that should not detract from the well-established responsibility of the first defendant to make reasonable inquiries in order to answer interrogatories, on the basis of information and belief.
Finally, in relation to the request for particulars from the second defendant, Queen's Counsel did not address the matter in any great depth. He simply submitted that this was not a case where the plaintiff was aware of what had occurred, and he therefore sought proper particulars to ensure that he could understand the defence of the second defendant, including in relation to contributory negligence. Submissions of the first defendant
Counsel for the first defendant submitted that interrogatories are not necessary, because there had been a WorkCover prosecution. He submitted that it would be quite open to the plaintiff to issue a subpoena to produce documents addressed to WorkCover, and thereby have access to a great deal of information about the site, and what investigators had been able to deduce about what had actually happened.
He emphasised that no person associated with his client was actually at the site when the fall occurred. The most that could be said is that one such person, Mr Ian Adamson (the site supervisor), had a conversation with the two directors of the second defendant following the incident. Accordingly, he called into question the utility of ordering any interrogatories against his client (and, by implication, those natural persons associated with it).
To the extent that Mr Adamson may have had a conversation with Mr Tesoriero and Mr Wormald, counsel for the first defendant accepted that the contents of what was said by those two men could go beyond being merely a prior consistent or inconsistent statement, and could also (pursuant to various exceptions to the rule against hearsay in the Evidence Act 1995 (NSW)) constitute evidence as to the truth of the contents of the statements made. But he submitted that, again, all of that material would be in the documents retained by WorkCover.
As for remedial measures taken after the accident by any person, he submitted that they were not particularly significant, especially bearing in mind s 5C of the Civil Liability Act. Whilst accepting that such matters are neither inadmissible nor irrelevant as a result of the operation of that section, he again emphasised that material pertaining to steps taken after that fall would be available to the plaintiff from other sources.
In short, he submitted that the test of necessity had not been made out by the plaintiff for the administration of interrogatories, especially bearing in mind the availability of other sources of evidence. As well as that, he submitted that no special reasons had been established by the plaintiff. Submissions of second defendant
Counsel for the second defendant emphasised that, although a review of a decision of a Registrar is not an error based appeal, nevertheless one should not regard the process as being completely de novo. He submitted that one should have regard to the reasons of the Registrar, especially when (as here) its author is extremely experienced in the field. Finally, he emphasised that I should be slow to intervene in a review with regard to a matter of practice and procedure, rather than determination of a substantive question.
He emphasised the finding of the Registrar that there was other factual material available to the plaintiff, rendering the interrogatories in the main unnecessary.
He submitted that, since the decision of the Registrar was handed down, things have developed even further against the administration of interrogatories, because the plaintiff now has the benefit of the evidential statements of the two directors of the second defendant.
He submitted that much of the amended statement of claim of the plaintiff is based upon an alleged unsafe system of work; that the attributes of that system have been in place for years; and that they therefore hardly require elucidation by interrogatories. Because of the focus in the pleadings on the system of work, he submitted that events in the seconds leading up to the fall are "an issue", but not "the critical issue as has been propounded by the plaintiff".
He submitted that, because of the breadth of s 38 of the Evidence Act (with regard to the ability of a party to cross-examine an unfavourable witness called by that party), it would be quite open to counsel for the plaintiff to call each of the two directors of the second defendant as witnesses in his case, and thereafter cross-examine them on any prior inconsistent statements that they may have made.
In short, he submitted that neither the test of necessity nor the test of special reasons had been established by the plaintiff.
As for the question of particulars, he submitted that those provided were appropriate, as was the defence filed on 17 June 2015. He submitted that any concision in the defence could be explained by the fact that a number of admissions are made with regard to the claim of the plaintiff. He submitted that (by way of example), the pleading with regard to contributory negligence is satisfactory, especially bearing in mind the fact that the plaintiff now has the benefit of the evidentiary statements of the two directors of the second defendant. Determination about interrogatories
Turning to my determination about the administration of interrogatories, I accept, in accordance with what was said in Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61; The Estate of Arthur Michael Falco; Falco v Lambert (No 3) [2015] NSWSC 1343; and Noble Earth Technologies Pty Ltd v Hampic Pty Ltd t/as Cyndan Chemicals [2012] NSWSC 935, that the following principles apply to the review of a decision of a Registrar by a judge of this Court.
First, a review is not an appeal in the strict sense of requiring identification of error on the part of the Registrar, or of the reviewing judge being limited to the evidence that was placed before the Registrar some time ago.
Secondly, having said that, the process is not entirely de novo.
Thirdly, I should have regard to the decision of the Registrar and reflect upon it carefully before disturbing it.
Fourthly, I would be slower to intervene where, as here, the decision of the Registrar was interlocutory rather than determinative.
Having applied those principles to this case, I am respectfully satisfied that the decision should be reviewed, and that the review should lead to an alteration of the orders made.
Dealing first with the question of interrogatories, it can be seen that a number of preconditions for the making of an order that they be administered must be established.
First, the interrogatories must be relevant to the issues between the parties as revealed by the pleadings. Having undertaken a review of the extant pleadings of all three parties, and reading the interrogatories in that context, I am satisfied that all of the interrogatories pertain to matters of fact that are relevant to the issues between the parties.
Secondly, pursuant to r 22.1(4) of the Rules, all interrogatories must be necessary. Here, no person other than two men closely associated with the second defendant is aware of what actually happened when the plaintiff fell through the void. Unusually, neither the plaintiff nor any work colleague, family member, friend, associate, acquaintance, or indeed any other witness unassociated with the parties, is in a position to say what happened. I accept the submission of Queen's Counsel for the plaintiff that determination of the course of objective events in the minutes leading up to the fall will play a significant role in determining questions of liability. I am well satisfied that the interrogatories foreshadowed that deal with that topic are necessary in the sense explored by the authorities.
Thirdly, as can be seen from r 22.1(3) of the Rules, in a case of proceedings for personal injury, special reasons must be established before interrogatories can be administered. When one bears in mind the unusual attribute of the plaintiff undoubtedly having been gravely injured at a workplace, but being unable to give evidence about it himself, combined with the fact that no unassociated person can do so either, I consider that that constitutes, without the need for deeper analysis, special reasons for the purposes of the rule.
Fourthly, focussing upon the decision of Garling J in El Hayek v Vasic, to my mind most, if not all, of the factors enumerated by his Honour have been established by the plaintiff in this case.
Fifthly, I do not accept the proposition that documents created for criminal proceedings can be expected to focus upon events that are crucial to civil proceedings. I also reject the proposition of the defendants that investigations undertaken by persons who arrived at the scene some time later, and were no doubt doing their best to reconstruct what had occurred, can be equated with the evidence of people that were present at the scene and saw with their own eyes what occurred.
Sixthly, I do not accept the proposition of counsel for the second defendant that Queen's Counsel for the plaintiff could be expected to call two directors of the company that the plaintiff is suing, no doubt for many millions of dollars, on the basis that they could thereafter be declared unfavourable witnesses and cross-examined by the plaintiff. As I remarked in discussion with counsel for the second defendant, only the boldest of counsel would adopt that highly counter-intuitive, almost certainly foolhardy, forensic approach, and I respectfully reject it as a reasonably practical alternative open to the plaintiff.
Seventhly, as for the fact that no natural person associated with the first defendant has direct knowledge of the events that occurred, so much may be accepted. But there is no doubt that a person associated with the first defendant had a conversation with the two directors of the second defendant shortly after the fall occurred. Statements made by those two men may themselves be important evidence. In any event, it is not uncommon for corporations to be called upon to answer interrogatories on the basis of their information and belief, and to use reasonable diligence in so answering. In the circumstances of this case, the fact that no natural person associated with the first defendant has direct knowledge of the central events is by no means determinative.
In short, I am satisfied that the answers to the interrogatories will be relevant to the facts in issue; that the administration of the interrogatories is necessary in order to permit justice to be done; that special reasons have been established by the plaintiff in these personal injury proceedings as to why they should be administered; and, finally, that no discretionary consideration should stand in the way of the order being made.
Finally, I have considered the various particular bases (quite apart from relevance, necessity and special reasons) upon which the Registrar rejected a number of the proposed interrogatories. To my mind, all of them are direct and closely framed questions directed towards pertinent events leading up to, closely preceding, and after the fall. Whether there may be some overlap with evidence able to be obtained from other sources is not determinative. Nor is the fact that remedial measures taken after the event may not be as probative as they were before the commencement of the Civil Liability Act. To my mind, an answer to each of the questions will serve the purposes of s 56 of the Civil Procedure Act, and I think that they should be provided.
As is clear from the above, I have respectfully come to a view different from that of the learned Registrar. I have reflected upon whether or not I should let the matter lie, but to my mind the merits of the case warrant intervention. Determination about provision of particulars
Turning to the question of particulars from the second defendant, the defence filed is admirably concise. But I also consider that it is cautious to the point of being Delphic. It tells one very little indeed about the factual bases upon which the claim of the plaintiff is being resisted. Using the allegation of contributory negligence against the plaintiff as an example, it is in its entirety as follows at para 9 of the defence: Alternatively to the allegations of negligence contained in the amended statement of claim, the second defendant says that if the plaintiff has suffered loss, injury and damage as alleged any such injury, loss and damage was occasioned by reason of the plaintiff's contributory negligence, particulars of which are as follows: (a) Failure to keep a proper lookout. (b) Failure to take care for his own safety.
That allegation is, in my opinion, ripe for illumination by way of further particulars. So is the rest of the defence of the second defendant.
Similarly concise - and Delphic - are the responses of the solicitors for the second defendant to the requests for particulars of the solicitors of the plaintiff.
The general function of particulars is "informing a party of the nature of the case he has to meet and of limiting the issues of fact to be investigated by the court": Bailey v Commissioner of Taxation (Cth) [1977] HCA 11; (1977) 136 CLR 214 at 219.
Speaking generally, the following propositions apply to a request for further particulars. First, a court will not order particulars which it is satisfied that a party cannot give; secondly, the court will generally not order particulars that would be harsh or oppressive, particularly in terms of extensive labour, expense or searching; thirdly, an order can require further particulars to be provided to the best ability of the party, and grant leave to amend them before the trial; fourthly, a court will generally not order particulars of evidence or names of witnesses; fifthly, a court will not order particulars of an admission; and, sixthly, only material allegations need to be particularised, which will be dependent on the circumstances of the case.
To my mind, the combined effect of: the pleadings of the second defendant; the response to the request for particulars; and the evidential statements provided is that the plaintiff knows very little of the defence (and, with regard to contributory negligence, the de facto cross-claim) that he has to meet. I accept that, in accordance with the principles that I have summarised above, it would be appropriate for particulars to be provided in far greater detail than has already occurred.
In accordance with r 15.1 of the Rules, the specified particulars can be provided by filing an amended pleading which contains the specified particulars within it. However, the order sought by counsel for the plaintiff is that I make an order in accordance with the power of this Court to give directions generally pursuant to s 61 of the Civil Procedure Act, and direct the second defendant to provide the information requested without the need to refile an amended pleading. I regard that procedural way forward as sound.
Again, it is true that the Registrar rejected the requests for particulars on a number of discrete bases; I have summarised them at [22]. But reading carefully the letter of the solicitors of the plaintiff of 25 June 2015, I respectfully do not see anything inappropriate in it. I read it as nothing more than a request to know the specific facts upon which the second defendant resists the claim of the plaintiff. That is especially so when one bears in mind the special circumstances of the plaintiff being undoubtedly injured at a worksite, but, ipso facto, having no idea how the injury occurred. Again, I think that the principles contained in s 56 of the Civil Procedure Act - informing as they do the whole of the Act and Rules - have an important role to play in this case.
I have exercised caution with regard to this topic as well, in light of the fact that I respectfully differ from the opinion of the Registrar. But, again, I consider that the merits of the case call for review of the decision previously made.
In short, I propose to make all of the orders sought in the notice of motion of the plaintiff of 18 March 2016. Costs
Queen's Counsel for the plaintiff did not press at the hearing a foreshadowed order that any costs payable by the defendants should be payable forthwith.
Counsel for the first defendant did not cavil with the proposition that costs should follow the determination of the motion.
Counsel for the second defendant invited my attention to correspondence between his instructing solicitors and the solicitors for the plaintiff. He submitted that I would take that correspondence into account when considering costs.
But it can be seen that, by way of their letter of 17 December 2015, the solicitors for the second defendant, whilst purporting to consent to the interrogatories sought, nevertheless reserved their right to object to the contents of any interrogatory. That argues against a variation from the usual approach. And, in any event, whatever the contents of prior correspondence, the fact is that there was a hard-fought hearing before me that involved the receipt of a great deal of evidence and extensive written and oral submissions. To my mind, it is appropriate for each of the defendants to pay the costs of the plaintiff of the motion.
Finally, it can be seen that my first order will set aside the orders made by the Registrar on 23 February 2016, including costs of the dispute before the Registrar in favour of the defendants. It is appropriate that that order be reversed by me, in light of the disposition of this review. Orders
I make the following orders: 1. Set aside the orders made by the Registrar on 19 February 2016 and 23 February 2016. 2. The second defendant must provide the information requested in questions 1 to 17 of the letter from the solicitor for the plaintiff to the solicitor for the defendants dated 25 June 2015, being the letter which is annexure A to the affidavit of Andrew Christopoulos sworn on 23 November 2015. 3. The first and second defendants must provide a verified Statement in Answer to the Interrogatories being the proposed interrogatories which are annexure G to the affidavit of Andrew Christopoulos sworn 23 November 2015. 4. The defendants must pay the plaintiff's costs of the proceedings on the motion filed 23 November 2015 and of this motion.

Horsnell by his tutor Horsnell v Allworth Constructions Pty Ltd

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