JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : SPARKS -v- VAN DEN HAM & ORS [2000] WADC 64

QUALITY BAKERS AUSTRALIA LTD t/as BUTTERCUP BAKERIES

Appeals against decisions of Deputy Registrar arising out of same action - Failure of first and second defendants to answer interrogatories administered by third party - Function and relevance of interrogatories - Whether certain interrogatories objectionable - Third party application for judgment against the second defendant on basis that it demonstrated contumelious refusal to comply with court order - Turns on own facts

First defendant required to answer some but not all remaining interrogatories - Second defendant not required to answer any interrogatories - Third party application for judgment against second defendant dismissed

Bridal Fashions Pty Ltd v Comptrollers-General of Customs (1997) 17 WAR 499

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

Austin v Austin [1905] VR 377

Commercial Developments Pty Ltd v Mercantile Mutual Insurance (Workers Compensation) Ltd (1991) 5 WAR 208

Delphin Holdings Pty Ltd v Thirkettle, unreported; SCt of WA; Library No 940147; 24 March 1994

Hennessy v Wright (1890) 24 QBD 445

Marriott v Chamberlain (1886) 17 QBD 154

McKinlay v Robinson (1883) 14 VLR 195

Potters Sulphide Ore Treatment Ltd v Sulphide Corp Ltd [1911] HCA 35; (1911) 13 CLR 101

Re Jokai Tea Holdings ltd [1993] 1 All ER 630

Re Strachan [1895] 1 Ch 439

Saunders v Jones [1877] 7 Ch D 435

Stanfield Properties Ltd v National Westminster Bank [1983] 2 All ER 249

West v Conway (1923) 23 SR (NSW) 344

1 A number of applications gave rise to the appeals by the third party in this matter. Those applications concerned firstly, an application by the third party for judgment against the second defendant dated 17 February 1999. This application was dismissed by a Deputy Registrar of this Court on 8 June 1999. Secondly, the third party made application for the first defendant to provide further and better answers to interrogatories issued by the third party dated 8 June 1999. In relation to the limited further and better answers in response to these interrogatories the first defendant filed and served an affidavit verifying those further and better answers on 7 October 1999. Finally, an appeal arises out of the third party's application for the second defendant to provide further and better answers to the third party's interrogatories dated 8 June 1999 which application was dismissed on that same date by a Deputy Registrar.

2 This matter has been complicated to a degree as a result of circumstances surrounding a springing order being made by the Court. In an affidavit sworn by counsel for the first and second defendants dated 8 June 1999 the history leading to the making of that order refers to certain matters. Both the first and second defendants were served with the third party's interrogatories on 30 October 1998. They each then were served with an application requiring them to provide answers to the interrogatories on 18 November 1998. The application contained no return details and unfortunately as a result neither the first nor the second defendant was represented on the return of that application before this Court on 2 December 1998.

3 Following that, on 16 December both the first and second defendants were served with the third party's application seeking a springing order in relation to answers to interrogatories, the answers to which remained outstanding at that time. That application came before a Deputy Registrar in chambers on 12 January 1999 and despite opposition by counsel for the first and second defendants, a springing order was made requiring answers to the interrogatories within 10 days. On 21 January 1999 the first and second defendants filed and served answers to the interrogatories upon the third party.

4 Unfortunately whilst the springing order provided that the first and second defendants had to provide answers to the interrogatories it did not include the words to the effect of "or proper objections". The first defendant had answered some but not all of the interrogatories and the second defendant had objected to answering any of the interrogatories. In the light of this, the third party sought to enter judgment against both the first and second defendants on the basis that as the springing order did not permit objection to be taken to answering the interrogatories, they had each failed to comply with that order. In response the first and second defendants filed and served an application seeking to vary the terms of the springing order to the extent that was necessary where interrogatories had been objected to.

5 Both the third party's application for judgment and the first and second defendants' application to vary the terms of the springing order came before a Deputy Registrar on 15 March 1999 where he made it plain that it had never been his intention to deprive either of the defendants of the opportunity to respond by way of a substantive answer to an interrogatory or by way of objection. To clarify the matter the wording of the springing order was varied so as to contain the words "statement in answer". The third party's application to enter judgment against the first and second defendants was adjourned for hearing at a special appointment.

6 Those matters are relevant to the first appeal that I have described in these reasons but for convenience and as a matter of logic I will not turn to the outcome of the hearing of that appeal until the matters the subject of the second and third appeals have been dealt with.

7 The first and second defendants served a third party statement of claim upon the third party, who in its defence claimed that the plaintiff was injured as a result of negligence on the part of the first defendant in that:

(i) there was a failure to warn the plaintiff that the first defendant was about to operate a relevant machine and so the plaintiff was not given the opportunity to stop work on the machine and leave the vicinity of the machine.

(ii) the first defendant caused the machine to begin operating while the plaintiff was still working on it and was in the immediate vicinity of it.

(iii) the first defendant failed, prior to the operation of the machine, to take reasonable steps to ascertain the presence of the plaintiff in the vicinity of the machine.

8 The function or use of interrogatories is to enable one party to obtain from another party particular information concerning facts material to the questions in dispute between the parties for the purpose of obtaining admissions as to those facts. Further, a party may interrogate about matters which go to support that party's case or which destroy or impeach the other party's case. Questions may be asked which might be asked on examination-in-chief of a witness at trial. Relevant to this a party may interrogate on its own pleading as to facts which tend to support that party's case. Questions which relate to matters in issue extend beyond facts directly in issue to other facts, the existence or non-existence of which, are relevant to the existence of those facts which are directly in issue between the parties, although a distinction between these two categories is often subtle and difficult to determine.

9 It is the case, however, that an interrogatory must relate to some definite and existing circumstances and it cannot be posed with a view to discovering material or information of a nature which may assist the party interrogating to make out its case. An interrogatory must be relevant, this being a concept tested with respect to the interrogatory itself and not any answer which may be given to it. The above observations reflect the general and useful commentary found in Chapter 5 of "Discovery and Interrogatories" Simpson, Bailey & Evans, Butterworths (1984).

10 As the third party has issued interrogatories to both the first and second defendants each of those interrogatories must be examined separately.

Interrogatories of the third party for answer by the first defendant

11 It is evident from an examination of the defence filed by the third party that a duty of care is said to have been owed by the first defendant to the plaintiff. This involved, among other things, an obligation on the part of the first defendant to ascertain the whereabouts of the plaintiff at the relevant time, to issue a warning to the plaintiff and also not to operate the machine whilst the plaintiff was in its vicinity. It is alleged that the first defendant failed in particular and specified ways to do any of those things.

12 In answers provided to interrogatories numbered 1 and 2 the first defendant acknowledged that he was at the factory prior to the plaintiff's accident. In interrogatory 3 the first defendant is asked whether he saw the plaintiff "shortly prior to the accident" and in answer 3(a) the first defendant says he saw the plaintiff "working in the workshop", about "one to two minutes prior to the accident". That same interrogatory in subparas (b) and (c) enquires as to what the first defendant saw the plaintiff doing in the workshop, whether he spoke to the plaintiff and, if so, what the substance of any such conversation was. It is to those subparagraphs of interrogatory 3 that the first defendant has declined to provide answers, based on a range of objections including an objection that the third party is seeking evidence.

13 Knowledge or the question of knowledge be it actual or imputed, to be attributed to a reasonable person in the position of the first defendant is central to the issue raised by the third party defence. Given this, and taking into consideration the particulars of the breach of duty alleged by the third party, I take the view that each of the questions posed in subparas 3(b) and (c) are relevant to the question of the knowledge that the first defendant had, or might have had (if a reasonable person in his position would have gained other knowledge) immediately prior to the first defendant starting up the machine. I do not consider that a question as to whether or not there was any conversation between the first defendant and the plaintiff shortly prior to the accident is directed at obtaining evidence. If, for example, the first defendant was told by the plaintiff that the plaintiff was going outside or going elsewhere within the workshop, that exchange or provision of information would be relevant as a material fact going to the question of knowledge on the part of the first defendant and so would go beyond a mere collection of evidence.

14 Interrogatory 7 asks whether immediately prior to the accident when starting the machine the first defendant made enquiry as to the plaintiff's whereabouts. In answer it is said that no enquiries were made as to the plaintiff's whereabouts "specifically" and objection to providing any further answer to the interrogatory is then made. Counsel for the first defendant argued that a proper answer had been made to the interrogatory and indeed, rather than giving the answer "no", the first defendant had attempted to make its position very clear. As the third party has pleaded that there was a failure to take steps to ascertain the whereabouts of the plaintiff at the relevant time, any question posed in regard to that matter must necessarily be answered as precisely as possible. I do not consider an answer that no such "specific" enquiries were made is satisfactory because it lacks precision. The interrogatory is therefore not objectionable and ought be answered.

15 As a result of the answer to interrogatory 7 being given in its current form, interrogatory 8 was answered "not applicable" because it is posed on the basis of the answer to interrogatory 7 being in the affirmative. In the light of my ruling as to interrogatory 7, it may or may not be the case that interrogatory 8 will require a different answer in due course.

16 Interrogatory 9 asks why enquiries were not made, if the answer to interrogatory 8 is in the negative. Again the answer to interrogatory 9 is "not applicable" and objection is further made to answering the question. I disallow this interrogatory as at least, on the face of it, it goes to the first defendant's objective state of mind rather than addressing a comparison between what the first defendant himself did and what a reasonable person in the position of the first defendant at the time would have done.

17 Interrogatory 12 invites the first defendant to look at a particular annexure "B" and state whether at the material time, "you were aware of the third party's contract safety agreement ('the Agreement')?" A lengthy response is provided to the interrogatory, followed by an objection on the part of the first defendant. I disallow that interrogatory as the question of such an agreement is not directly in issue and in any event when one considers the content of the document comprised in annexure "B" it is difficult to see how the third party could advance its case to any appreciable degree by having the first defendant acknowledge that he was aware that such a document existed. As a result of this ruling interrogatory 13 falls away, as does interrogatory 16, which was not in the event pursued by the third party. It was agreed that interrogatory 18 fell away and therefore it is unnecessary to consider that matter.

18 Interrogatory 19(a) goes to an assertion in the first defendant's defence to the plaintiff's amended statement of claim that on each occasion on the material date on which the first defendant endeavoured to reposition the machine, including the occasion when the incident occurred, he called out to all other persons working on or in the vicinity of the machine and ensured that they responded and that they were clear before attempting to reposition the machine.

19 Interrogatory 19(a) asks the first defendant to state "the exact words used on the occasion shortly before the accident to warn persons working in the vicinity of the machine to clear the area ('the warning')". In my view the interrogatory is permissible and should be allowed as it is not directed to gathering evidence but rather is enquiring as to the exact or precise words used and is material to an issue between the parties. The first defendant also objected to providing an answer to that interrogatory on the basis that the material sought was more properly the subject of a request for further and better particulars. The third party argued that it was not open to them to seek particulars of the first defendant's defence to the plaintiff's statement of claim and in the end result the first defendant took no issue with that assertion.

20 Interrogatory 20 directs the first defendant's attention to para 5(e) of their defence and asks the first defendant to state in relation to the occasion of the accident in subpara (a) of interrogatory 20 the exact location from which the first defendant visually checked the area where the plaintiff alleged the accident occurred and to use a diagram, if necessary, to answer the interrogatory.

21 Interrogatory 20(b) requests information as to precisely what the first defendant observed when making such a visual check. Clearly, in the light of my earlier observations, both those interrogatories are relevant and material to the issue, or issues, between the parties and ought to be answered.

22 Interrogatory 20(c), however, invites the first defendant to engage in speculation because it queries why he did not see, or was unable to see, the plaintiff in making such a check.

23 Interrogatory 21 directs the first defendant's attention to para 5(f) of their defence to the plaintiff's amended statement of claim and asks him to state what danger the first defendant says the tag represented "to persons at the premises". I do not accept that such an enquiry is more properly the subject of a request for further and better particulars by the third party. Paragraph 5(f) of the first defendant's defence claims that it removed the tag from the machine before attempting to reposition the machine as the first defendant was concerned to ensure that its string did not foul the emergency stop button and that the machine thereby did not possibly represent a danger to persons at the premises. Given this assertion or plea in the defence, in my view the question contained in interrogatory 21 is relevant and if asked ought be answered.

Interrogatories of the third party for answer by the second defendant

24 These interrogatories were administered on 30 October 1998 and required the second defendant, Vancor Enterprises Pty Ltd, to make enquiries of a Frederick Corlett as to any knowledge acquired by him in the course of his employment as a director, servant or agent of Vancor Enterprises Pty Ltd in relation to the matters raised in the interrogatories.

25 Counsel for the third party argued that the relevance of any such knowledge on Mr Corlett's part arose from an answer given by the plaintiff in an interrogatory to the effect that the plaintiff had spoken on the evening in question to a number of persons including a Fred Collett. Mr Collett it was said was one and the same as Mr Corlett and for such a discussion to have occurred, as a matter of logic Mr Corlett must have been present on the premises when the plaintiff was injured. After some argument it was conceded by counsel for the second defendant that Mr Corlett was a director of the second defendant and nothing further turned on that aspect of the matter. Furthermore, although a corporation is generally obliged to make enquiries of relevant employees and agents in order to answer interrogatories, and although a court can direct that a particular officer of a corporation swear answers to interrogatories on behalf of that entity if the officer apparently has a particular knowledge of the matter, this was not a case where an order of that type was sought. No evidentiary basis was made out or laid to support a form of this request. In addition, the third party did not refer to any authority to support this proposition or support a suggestion that the form of the requirement contained in the interrogatories was permissible in the circumstances. It is quite conceivable of course, that one could argue that any answers given by Mr Corlett would simply provide or indicate the evidence that he would be able to give at trial.

26 In the third party's outline of submissions of 1 November 1999 it is said in para 7 "the third party in preparing for trial of the third party proceedings is entitled to know whether Corlett's recollection of the alleged accident is consistent with that of the first defendant". This submission tends to support the above view. In the end counsel for the second defendant effectively conceded that if questions were relevant to matters in issue as between the parties then the interrogatories could be put. This, however, did not answer the question in its entirety because there remained the issue of relevance. It was agreed that a course be adopted whereby that issue be determined on the basis that any disputes as to particular interrogatories would be sorted out by the parties themselves.

27 The third party statement of claim served by the first and second defendants upon the third party alleges in para 6 that if the accident occurred then it was caused or contributed to by the negligence and/or breach of duty as occupier of the third party and its servants and agents. The negligence and breach of duty are particularised in that document and include allegations of failure to supervise, failure to adequately coordinate the activities of persons working at the premises, failure to devise a system of work, failure to implement and enforce a fail safe lock out and tag procedure for the relevant machine as well as failure to fit a fail safe device or lock. The third party in its defence denies both allegations of negligence and breach of duty.

28 The third party, however, does not allege that the accident was caused by negligence on the part of the second defendant and so there is no issue as to negligence on the part of the second defendant existing between it and the third party. In the light of this the third party agreed that pleading its case in the positive would have been of help and assistance. Despite this concession, counsel for the third party argued that the absence of any allegation of negligence did not prevent it from seeking answers to the interrogatories on the basis that any such answers were intended to damage allegations of negligence and breach of duty made against the third party by the second defendant. As particulars had been put forward in support of those allegations, it was said, they might properly be the subject of interrogatories.

29 In response the second defendant argued that any answers given would be irrelevant because at trial the third party would not be permitted to lead evidence of a positive case, given that it had made bare denials in relation to the particular allegations made.

30 It is not always entirely clear as to when a positive plea is required before evidence might be adduced or led. In Bridal Fashions Pty Ltd v Comptrollers-General of Customs (1997) 17 WAR 499 the Court observed in a joint judgment at 516; "without pleading the facts and circumstances of an affirmative case a defendant will not be able to tender positive exculpatory evidence". This observation lends support for adopting a strict approach to the question. Under cover of a general denial, it is the case, that a party may interrogate with the aim of showing or demonstrating that a positive assertion made by the other party in its pleading is untrue. In this case, however, I consider the interrogatories go beyond that and this includes those interrogatories that might arguably be said to be directed towards some particular assertion made by the second defendant in the third party statement of claim, such as interrogatories 6 to 9 inclusive.

31 With the exception of interrogatories 1 and 2 which refer to Mr Corlett's alleged attendance at the scene, the other interrogatories are concerned or directed towards the circumstances of the accident itself.

32 It is correct as submitted by the third party, that a party can interrogate as to secondary issues or facts, provided there is the necessary connection to facts which are directly in issue. In my view, it cannot properly be said that these other interrogatories fall within the ambit of that proposition. I do not consider that it can be said that these interrogatories attack either directly or indirectly, the assertions of negligence and breach of duty made against the third party, unless it is hoped in some way that the answers supplied might indicate the possibility of negligence on the part of the second defendant itself. There is no such issue raised in the pleadings. I therefore do not consider that the second defendant was or is obliged to answer interrogatories 3 to 13 inclusive administered to it by the third party.

Third party application for judgment against the second defendant

33 I have referred to this aspect of the matter in the earlier part of these reasons by way of giving some background concerning its history. As a result of the findings with respect to the appeals relating to the respective sets of interrogatories this application for judgment against the second defendant necessarily fails.

34 In addition, there was clearly a bona fide dispute as to the obligation of the second defendant to answer the interrogatories served upon it by the third party and in view of this I consider that it could not be argued that the course adopted by the second defendant in the circumstances, showed a contumelious refusal to comply with the order of the Court. Putting aside the result of the other two appeals, this particular appeal would therefore have failed in any event.