Respondent (Defendant) : Mr G T W Tannin & Ms H V M Cogan

Boyle v Downs [1979] 1 NSWLR 192

Bropho v Western Australia, unreported; SCt of WA; Library No 8452; 31 August 1990

Dalecoast Pty Ltd v Monisse [1999] WASCA 103

Derham v AMEV Life Insurance Co Ltd (1978) 20 ACTR 23

Det Danske Hedeselskabet v KDM International plc [1994] 2 Lloyds LR 534

Enever v R [1906] HCA 3; (1906) 3 CLR 969

Esther Investments v Markalinga (1989) 2 WAR 196

Green v Green (1912) 13 SR (NSW) 126

Hall v Federal Capital Press of Australia Ltd (1990) 101 FLR 396

Hall v Sevalco Ltd [1996] TLR 183

Kadlunga v Electricity Trust of South Australia (1987) 43 SASR 313

Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70

Middleton v Western Australia [1992] 8 WAR 256

Ryan v Federal Capital Press of Australia Ltd (1990) 101 FLR 396

State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 141 ALR 353

Watson v Western Australia [1999] WAR 248

Welsbach Incandescent Gas Lighting Company v New Sunlight Incandescent Company [1900] 2 Ch 1

Wilson v Metaxas [1989] WAR 285

Wisniewski v Tolley (1967) FLR 157

1 TEMPLEMAN J: The applicant is the father of the late Colin Irvine who died on 9 January 1991 when he was shot and killed by a police officer. In 1996 the applicant commenced proceedings against the respondent, the State of Western Australia. The applicant claims damages pursuant to the Fatal Accidents Act 1959 on behalf of himself and an illegitimate child of the deceased who is now 11 years old.

2 In his amended statement of claim, which was filed on 19 August 1997, the applicant alleges that shortly before 3.45 am on 9 January 1991, police officers of the Western Australian Police Service, who were members of the Tactical Response Group, broke and entered the premises then occupied by the deceased, without notice to him. It is said that one of the police officers then intentionally discharged a single barrel of a shotgun which was directed at the deceased's head, thereby causing injuries from which the deceased died shortly afterwards.

3 The applicant alleges that at the material times, the police officers concerned were servants and/or agents of the respondent and were acting under the respondent's direction and control in the performance or purported performance of the their duties as members of the Police Service.

4 The applicant alleges that the deceased's death was caused by the wrongful acts of the respondent, its servants and agents. Particulars of the wrongful acts include an allegation of unlawful entry into the premises; and an allegation that the police officer who discharged the firearm shot and killed the deceased with the intention of causing his death or causing him grievous bodily harm.

5 Further, or alternatively, it is alleged that the deceased's death was caused by the neglect or default of the respondent, its servants and agents. Particulars are given in which it alleged that there was a failure by the police officers to attempt to negotiate with the occupants of the premises prior to forcible entry; and a failure to ensure that the entry was carried out in a safe and proper manner. It is then said that the respondent itself failed to ensure that police officers were adequately trained in relation to matters including their legal duties and responsibilities, the entry to residential premises and the safe use of firearms.

6 The applicant relies also on the principle of res ipsa locquitur.

7 The applicant claims damages and aggravated damages resulting from the conduct of the police officers concerned, which is said to have resulted in the applicant sustaining loss under a number of heads. That aspect of the applicant's claim is not material to the present application.

8 In its amended defence dated 1 September 1997, the respondent admits very little. It admits that on 9 January 1991, police officers who were members of the Tactical Response Group entered the relevant premises. However, the respondent denies that the police officers were its servants or agents. The respondent contends that the police officers were members of the Police Force, appointed pursuant to the Police Act 1892 and:

"... were exercising discretion as a peace officer or exercising an independent duty or an independent authority".

9 The respondent goes on to contend that it is not responsible or vicariously liable for the conduct of the police officers or any one or more of them; and that there was no relationship between the police officers and the respondent which would render it liable for any of their acts or omissions.

10 The respondent denies the factual allegations concerning the death of the deceased. It pleads that in any event the killing of the deceased was justified or excused by law. By way of particulars it is alleged that the shooting of the deceased was an act of self-defence against an unprovoked assault. It is said that the conduct of the deceased was such as to cause a reasonable apprehension of death or grievous bodily harm and that the police officer concerned believed on reasonable grounds that he could not otherwise protect himself from death or grievous bodily harm in that:

* the deceased refused to lower the handgun from the high port position despite repeated directions to do so by a Tactical Response Group officer;

* the deceased then lowered the handgun and aimed it directly at the police officer concerned;

* the deceased had a history of violent criminal offences;

* the deceased was being sought by police of suspicion of wilful murder committed some days earlier; and

* the deceased had previously made threats to kill a police officer.

11 The respondent contends that the doctrine of res ipsa loquitur is inapplicable.

12 Issue is joined in relation to the various claims for damages.

13 On 19 September 1997 the applicant filed a reply to the amended defence. The pleadings in the action were thus closed.

14 Between October 1997 and 4 February 1999 the applicant pursued a request for further and better particulars of the defence and further discovery.

15 After the respondent had declined to provide further and better particulars voluntarily, the applicant sought an order from the court. His application was dismissed on 5 March 1998: and on 10 March he instituted an appeal.

16 It appears that the applicant's solicitor failed to enter the appeal within the prescribed time. The solicitor accordingly applied for an extension of time. However, at a special appointment on 9 September 1998, when the application was due to be heard, the Master drew to the attention of the applicant's solicitor an authority to the effect that an extension of time could not be granted on an application made out of time.

17 As a consequence, the applicant applied for an extension of time in which to lodge a fresh appeal. This application was made on 5 October 1998. It was dismissed on 4 February 1999.

18 Having been unsuccessful in his attempt to obtain particulars of the defence, the applicant then turned his attention to interrogatories. On 2 March 1999, the applicant's solicitor gave a rough draft of proposed interrogatories to the respondent's solicitors. Clearly, the respondent declined to provide answers to these interrogatories.

19 On 13 July 1999 an order was made that the matter be entered for trial. However, on 23 July 1999 the entry for trial was vacated, apparently by order of a Case Management Registrar. It was ordered further that any application for leave to file interrogatories was to be made by 7 October 1999.

20 On that date, an application was made for leave to file and serve interrogatories. The application was heard by a Master who, on 12 November 1999, delivered a reserved decision in which he declined to grant leave.

21 It is from that decision that the applicant now seeks leave to appeal.

22 The learned Master set out concisely his reasons for declining leave. He pointed out, quite correctly, that the application was late. He noted that the applicant's first solicitor had been a sole practitioner who, in early 1999, had said that she did not have the resources necessary to continue to support the case until trial. The plaintiff had thereafter been represented by Law Access, a community legal service. The Master noted that since March 1999, Law Access had attempted to persuade various firms of solicitors to take on the action without success and had decided to conduct the action itself. Although no notice of change of solicitor had been filed until September 1999, the draft interrogatories supplied to the respondent in March 1999 had apparently been prepared by Law Access.

23 Having set out the history of the matter, the Master went on to say that the affidavits which had been filed in support of the application had explained the delay between March and October 1999, but not the delay between mid-1997 and March 1999. He said:

"These interrogatories are very late. The bringing of the application at this stage does not contribute to the speedy determination of interlocutory procedures."

24 The Master then went on to note that in exercising the discretion to grant leave to administer interrogatories, the court will have regard to the system of positive case flow management. The Master said he considered the interrogatories were very late; that the explanations offered for the lateness did not justify the length of the delay: and that leave should be refused.

25 The Master went on to refer to the merits of the interrogatories, in case he was wrong in relation to the delay point. As to the merits, the Master said that he considered the questions asked were oppressive. He noted that they covered just over nine typed pages and ran to 167 questions which were directed to those paragraphs of the amended defence in which the respondent had denied liability for the actions of the police officers concerned and had raised the issue of self-defence. The Master said:

"I consider the questions asked are oppressive. They are too many and they are too discursive. I consider they are largely or perhaps entirely unnecessary."

26 The Master said the interrogatories were unnecessary because there had been two inquests into the death of the deceased in which evidence had been taken on oath from numerous police witnesses and non-police witnesses present at the material time. The Master said he considered the pleading of the defence to be reasonably satisfactory because it informed the applicant of the respondent's defence.

27 The applicant now seeks leave to appeal against the learned Master's decision on a number of grounds which may be regarded as falling into two categories. The first relates to the delay: the second is directed to the merits.

28 As to delay: it is submitted that the learned Master erred in failing to identify any delay attributable to the applicants (one of whom is said to be an infant, and both of whom are said to be impecunious) rather than to their legal advisers. It is said also that the learned Master failed to identify any prejudice to the respondent which would result from the grant of the application.

29 It is, of course, inappropriate to refer to the applicants (plural) when there is only one applicant. Although the applicant asserts that he has brought the proceedings on behalf of the deceased's child, that child is not formally a party to the proceedings.

30 The respondent contends that in the absence of explanation as to the most significant delay, between mid-1997 and March 1999, the learned Master was entitled to draw the adverse inference that the delay was caused by the applicant. In any event, the respondent submits, even if the delay was attributable solely to the applicant's legal advisers, it was still proper for the learned Master to refuse leave on the basis of that delay. The respondent refers to an unreported decision of Master Adams, Makin v Troy, unreported; SCt of WA (Master Adams); Library No 240256; 18 May 1994. There, due to general over-work, solicitors had delayed by two months in administering interrogatories. That was a significant factor in the dismissal of the application.

31 Further, in Edwards and Nosworthy (1997) 90 A Crim R 571, Heenan J held that the applicants' impecuniosity, which had caused their solicitors to delay in pursuing an application for judicial review, was no good reason for the delay. His Honour held that a solicitor who had commenced proceedings for a client was obliged to take reasonable steps to pursue them expeditiously.

32 The extent to which delay should be taken into account in the exercise of a discretion to grant interlocutory relief is a difficult question. The difficulty is compounded on an application for leave to appeal, because the applicant must satisfy the court not only that the decision from which it is sought to appeal is wrong, or is at least attended with sufficient doubt to justify the grant of leave. The applicant must also show that substantial injustice would be done by leaving the decision unreversed: Western Australia v Bond Corp Holdings Ltd (1991) 5 WAR 40, per Malcolm CJ at 54.

33 With respect to the Master, he was, I think, wrong to this extent: he referred to the delay between mid-1997 and March 1999 which, he said, had not been explained. In fact, the period of delay could not have commenced until 19 September 1997, when, as I have noted above, the pleadings closed. Further, it seems to me that the subsequent delay is not unexplained. It is explained by the fact that the applicant was pursuing his request for further and better particulars of the defence. It is true that that application was itself subject to delay because the applicant's solicitor was out of time in entering the appeal against the decision not to order the respondent to provide particulars.

34 However, this is an unusual situation in which I think it would be wrong to hold the applicant responsible for the omissions of his legal representatives. That omission did not contribute significantly to the delay, which is otherwise justified.

35 There is also the fact that the delay does not appear to have caused any undue prejudice to the respondent.

36 The respondent contends that it would suffer prejudice if required to answer oppressive interrogatories. However, that raises a different point: it is not prejudice occasioned by delay.

37 For these reasons, I consider that there was a mis-exercise by the Master of his discretion to refuse leave to administer interrogatories on the grounds of delay. I therefore turn to the merits of the application.

38 In his outline of submissions, counsel for the applicant stated that the object of the interrogatories is to place before the court the factual background to the events surrounding the death of the deceased. It is submitted that these facts are all "within the control of [the respondent] to admit" and that most have been dealt with exhaustively in coronial inquests. Without the answers, it is submitted, the applicant will be required to establish again the events which have been investigated twice in coronial proceedings. It is submitted that there should be no substantial dispute about the facts.

39 There is, of course, a substantial dispute about the crucial fact: whether the deceased was killed as a result of an unlawful action on the part of the police officer concerned, or whether that officer acted in self-defence. Setting that issue to one side, it is not common ground that the relevant facts are, as counsel puts it, within the control of the respondent to admit. The applicant has not sued the police officers concerned on 9 January 1991. Nor has he sued the Commissioner of Police. He has sued only the respondent, which denies liability for the acts or omissions of the relevant police officers.

40 That being so, the respondent relies on the decision of Cole J in the Supreme Court of New South Wales in Spedley Securities Ltd v B R Yuill (No 4) (1991) 5 ACSR 758. There, it was sought to have interrogatories answered by a corporation. Objection was taken by the company to answer interrogatories based on information acquired by an employee or former employee for whose actions the company admitted no responsibility. The objection was based on the proposition that:

"An interrogatory which is permissible only if the plaintiff wins the case must be oppressive because it pre-supposes a matter which has not yet been established."

To the contrary, it was submitted that the interrogatories should be answered on the assumption that liability would be established. Cole J said (at 764):

"I have found this a difficult question. It is not possible to determine the correct answer in any instance without having regard to the precise factual materials, information or knowledge being considered in relation to an actual interrogatory. However, as a matter of principle it seems to me that it is correct to say that a company should not be obliged to answer an interrogatory based upon information acquired from an employee or former employee unless it be first established (perhaps by the answer to an earlier interrogatory) that the information was so acquired by that employee in that capacity."

41 I respectfully adopt that principle. It seems to me to be entirely applicable to the present case insofar as it is sought by the interrogatories to obtain admissions as to the actual events of 9 January 1991.

42 This, I think, provides the answer to the applicant's reliance on Dunbar v Perc [1956] VicLawRp 90; [1956] VLR 583 where Sholl J held in the Supreme Court of Victoria that even where depositions taken at a coronial inquest were available to a plaintiff, he was entitled to interrogate the defendant if it was "reasonably possible" that he might more effectively make a case by obtaining admissions on oath from the answers to interrogatories.

43 Apart from the inappropriateness of seeking admissions when liability is in issue, I do not think it "reasonably possible" that the applicant would obtain admissions on behalf of the police officers concerned which would support the applicant's case.

44 Furthermore, the applicant's need to administer interrogatories in order to make out his case appears to be open to considerable doubt given that there was a non-police eye-witness to the relevant events.

45 Although the learned Master did not refer to the decision in Spedley Securities Ltd v Yuill (supra) which was apparently not drawn to his attention, that case provides further support for his conclusion that the interrogatories, which sought admissions about the events of 9 January 1991, were oppressive. Furthermore, it is true to say, as the Master observed, that in many respects, the interrogatories were too discursive.

46 Interrogatories may, of course, be directed to other objectives than obtaining admissions. They may be used to obtain further and better particulars of a particular allegation so as to enable the interrogating party to know what case he has to meet: see generally Seaman on Civil Procedure, par [27.1.6].

47 In relation to the deceased's death, there is no doubt about the case the applicant has to meet. It is a case based on self-defence, of which full particulars have been given. Those are the matters set out in par 7 of the amended defence.

48 However, in relation to par 2 of the amended defence, the applicant is, I think, on stronger ground. This is the paragraph in which it is alleged that at the material time the police officers were exercising the discretion of a peace officer or exercising an independent duty or an independent authority.

49 In my view, the effect or substance of those allegations is by no means clear.

50 Those matters are explored in interrogatory 3. There, questions are asked which are directed to the exercise of discretion as a peace officer, the exercise of an independent duty and the exercise of an independent authority. The questions seek to identify the police officer or officers concerned, and to obtain a description of the character of the discretion, duty or authority relied on by the respondent.

51 The respondent is asked also to describe the actions taken by the relevant police officer or officers as a consequence of the exercise of the discretion, duty or authority and the consequences of those actions.

52 Given that there is a positive assertion by the respondent that the police officers concerned were exercising the discretion, duty or authority referred to, I think the applicant is entitled to have those matters identified. I consider also that the applicant is entitled to know what actions were taken by the police officers at the material time. I do not think it appropriate to require the respondent to describe the consequences of those actions. That may well be a matter of opinion. In any event, it seems to me to be an unnecessary question because the applicant is in no doubt about the consequences of the actions of which he complains.

53 It is well established that if interrogatories are disallowed on the grounds that they are prolix, oppressive or unnecessary, the court will not consider whether any individual interrogatory might be appropriate: American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd [1965] NSWR 193; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-726.

54 However, where, as here, the interrogatories fall into two categories, it is, I think, appropriate to test them by reference to different criteria.

55 In my view, in not differentiating between interrogatories directed to obtaining admission of facts and those directed to the clarification of the respondent's case on authority, the learned Master fell into error. Furthermore, I consider that a substantial injustice would be done by leaving that part of the decision unreversed. There is a substantial injustice to the applicant in being required to go to trial in ignorance of one of the fundamental elements of the respondent's case.

56 For these reasons, I would grant the applicant leave to appeal: and allow the appeal to the extent of requiring the respondent to answer interrogatory 3.1 (except 3.1.5), 3.2 (except 3.2.5) and 3.3 (except 3.3.5).

57 McKECHNIE J: I agree with the reasons given by Justice Templeman.