14 Because the proposed interrogatories seek the names of person who are going to be witnesses for the defendant; they appear to be a "fishing expedition", and that there is no evidence to satisfy the Court that an order is necessary at the present time, the application fails to clear the "threshold" question of necessity and so the discretion vested in the Court will not be activated. The application therefore fails."
15 The plaintiff submitted that the Registrar fell into error when he stated that the plaintiff is confusing the role and onus of proof at trial and that the plaintiff will be attempting to disprove the defendant's claim. This may have come about because the plaintiff's solicitor deposed that [aff McKean 18/8/04]:
"…it is my understanding and belief that an allegation will be made that an employee and/or employees of the defendant ceased to serve alcohol to the third party who caused the plaintiff injury prior to the injury in question.
In order to adequately prepare these allegation this will need to be tested. …"
16 Much of the learned Registrar's reasoning centres around the interrogatories that request the supply of witnesses' names. Leaving that issue to one side, there are other interrogatories that do not.
17 Turning back to the test for interrogatories, are they necessary at this stage? I have viewed the videos [Exs A & B], which show Mr Straney (the one in shorts) accompanying Mr Barry Cavanagh past the reception desk and then down the staircase. The staircase leads to the exit of the Club. They passed through a door which led to the staircase. In the stairwell, Mr Cavanagh appeared to be confused as to the direction of the stairs. Once Mr Cavanagh identified the staircase, he commenced descending the stairs. After successfully negotiating a few stairs, he stumbled against the wall. By this time the plaintiff was holding Mr Cavanagh's hand and the video shows Mr Cavanagh falling down the stairs followed by the plaintiff also falling down the stairs to the base of the staircase near the exit door. Two employees of the Club, a male and female (who were seen at the reception earlier on the video) are among the first people to go to the aid of Mr Cavanagh and the plaintiff.
18 In order for the plaintiff to prove his case, he needs to prove that the Club supplied Mr Cavanagh with alcohol, that Mr Cavanagh was heavily intoxicated and that the defendant knew, or should have known, that Mr Cavanagh was in such a condition. Further, the plaintiff will need to satisfy the court that, in these circumstances, the Club had a duty to escort Mr Cavanagh from the Club and that responsibility should not have been placed upon a third party, namely the plaintiff, who was also a patron of the Club.
19 The plaintiff's counsel submitted that it should be assumed that Mr Cavanagh, if he has any recollection of the events when giving evidence at trial, will be the subject of strenuous attacks upon his credibility based upon his alcohol consumption at the time. The plaintiff's counsel also submitted that the interrogatories are required to prove his case and it is likely that the defendant will not call any evidence on liability at trial. The issues to which the interrogatories are directed are matters for which the defendant through its employees would have knowledge. The plaintiff has not deposed as to his state of knowledge in relation to Mr Cavanagh's drinking and the other relevant events referred to in the interrogatories. Nor has his solicitor deposed as to whether Mr Cavanagh has provided a statement and if so, what was the state of his [Mr Cavanagh's] knowledge. It is not known whether the plaintiff was Mr Cavanagh's drinking partner at the Club for part or the whole of the time. If the plaintiff was present with Mr Cavanagh, he [the plaintiff] may have knowledge of what Mr Cavanagh drank, what behaviour he exhibited and whether the Club refused to serve Mr Cavanagh with more alcohol.
20 Certainly, to have independent corroboration of the events by the defendant's employees would assist the plaintiff's case, but I do not think that it is necessary at this stage. For the defendant to answer these interrogatories would involve the defendant's solicitor interviewing the staff of the Club that were on duty on the day and night in question and seek their answers and compile them. This process would take time and involve expense. It is not fair for the plaintiff to put the defendant to this expense and inconvenience when he has not put on any evidence on these issues but has rather made assumptions. If there is evidence to show that the plaintiff or Mr Cavanagh do not have any recollection of events, or that there are large gaps in their recollections, interrogatories may be necessary. At this stage, it is my view that it cannot be said that these interrogatories are necessary for the fair disposal of the case.
21 The result is that I agree with the decision of the Registrar. I affirm his decision. The notice of motion is dismissed.
22 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.