ALAN PIPER, ACTING CHIEF EXECUTIVE OFFICER, MINISTRY OF JUSTICE

Procedure - Discovery and interrogatories - Appeal against refusal of leave to administer interrogatories - Appellant in custody and held in "separate confinement" - Allegations of malicious assault occasioning injury, loss and damage - Right to interrogate extends to any facts directly in issue and material to support a party's case - Exchanged witness statements no substitute for answers to interrogatories - Interrogatories relevant to both liability and damages

Prisons Act 1981, s 43 s 35

Respondent to pay costs of application for leave to appeal, appeal and of application before Master

American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193

Dunbar v Perc [1956] VicLawRp 90; [1956] VLR 583

Frater v Ward, unreported; SCt of WA; Library No 980211; 23 April 1998

Konings v Naylor [1964] Qd R 235

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

Makin v Troy, unreported; SCt of WA; Library No 940256; 18 May 1994

Norton v Hoare (No 2) [1913] HCA 58; (1913) 17 CLR 348

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

Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390

The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Verdell Pty Ltd v F & G Nominees Pty Ltd [2000] WASC 143

1 JUDGMENT OF THE COURT: On 23 November 2001 this Court allowed an appeal against the decision of a Master of this Court who had refused leave to the appellant to deliver interrogatories. The appeal having been allowed, the appellant was given leave to deliver the interrogatories numbered 6 to 22 inclusive, 26, 31 and 32. The Court further ordered that the respondents pay the costs of the application for leave to appeal, the appeal and the costs of the application before the Master. Our reasons for agreeing with the abovementioned orders are as follows.

2 The appellant (plaintiff) had applied for leave to administer interrogatories and had annexed a draft of the interrogatories which he sought leave to administer. The defendants opposed the grant of leave, arguing that in the context of this case interrogatories were unnecessary.

3 The appellant was at all material times a prisoner in Casuarina Prison or Canning Vale Prison. On Christmas Day 1998 a riot occurred at the Casuarina Prison. The learned Master said it was common ground that the appellant had taken no part in the riot.

4 In his amended statement of claim the appellant alleged that on 26 December 1998 he was assaulted at Casuarina Prison by prison officers employed by the State of Western Australia. He alleged that the assaults were malicious and without reasonable cause and that, as a consequence of them, he had suffered injury, loss and damage.

5 The appellant alleged that immediately following the assault he was transferred from Casuarina Prison to Canning Vale Prison where he was held in what he referred to as "separate confinement". The Master said in his reasons that this allegedly amounted to the appellant being held in isolation in the punishment block for 23 hours per day.

6 It is alleged by the appellant that holding him in separate confinement was not authorised by s 43 of the Prisons Act 1981 and was unlawful. Furthermore, it is alleged that the alleged treatment of the appellant was for an ulterior purpose and was not bona fide. As an alternative plea it was alleged that the holding of the appellant in separate confinement and a withdrawal of his privileges amounted to torture within r 2K of the Rules made pursuant to s 35 of the Prisons Act. There are further alternative pleas in negligence, breach of statutory duty and for wrongful imprisonment. The appellant claims aggravated and exemplary damages.

7 The learned Master referred to the reasons of Owen J in Dalecoast Pty Ltd v Monisse [1999] WASCA 103 at 5-6 where Owen J said:

"It is often the case that the benefit to be obtained from delivering interrogatories is far outweighed by the inconvenience and expense to the other party in having to answer them. As a mechanism for understanding the case which a party has to meet they have, at least to some extent, been replaced by the pre-trial exchange of witness statements which is ordered in most cases. The standard form of pre-trial documents orders means that a party will seldom go to trial not knowing what documents it has to prove strictly. These are developments that have occurred in recent times and the present regulatory framework for interrogatories has to be seen against that background. In the 1996 amendments to the Rules of the Supreme Court there was a significant change to the regime for interrogatories. It is now necessary to obtain leave before any interrogatories are administered.... The leave regime is administered with case management principles in mind. Considerable thought needs to be given to whether it is really necessary to administer interrogatories consistent with the principles enshrined in O 1 r 4V. If they are considered necessary great thought must go into the framing of them so that they achieve the object for which they are designed without putting the other party to unnecessary trouble and expense...."

8 It should be noted that in that passage Owen J was not suggesting that leave should not be given where the interrogatories were necessary to assist a plaintiff to prove his case.

9 The learned Master said that the grant of leave to administer interrogatories does not necessarily mean that the interrogatories administered pursuant to the leave must be answered. There is a two-stage process. Nonetheless he said, the grant of leave cannot be considered in isolation. A consideration of the draft interrogatories should establish what forensic purpose the party seeking the leave is attempting to achieve.

10 The learned Master said that interrogatories 6 to 15 and 22 all dealt with documents and that none of the questions were framed in precisely the same way. Having referred to question 6 and some of the questions within that question, the learned Master said:

"The question is whether the information sought in paragraph 6(a) and paragraph 6(b) is necessary and whether it is likely that such information will emerge from witness statements exchanged in due course."

"(a) What is the name of the person who authorised the transfer?

(b) What is the name of the information officer who signed the transfer and what office does he hold?"

12 The learned Master said that, as he understood the appellant's case, the reason for his transfer from the Casuarina Prison to the Canning Vale Prison was not an issue between the parties. The appellant says he was assaulted at Casuarina Prison and then, when he was transferred to Canning Vale Prison, he was treated inappropriately. The allegation that he was inappropriately held at Canning Vale Prison had nothing to do with the transfer itself. In those circumstances, it was difficult to see what would be achieved by requiring the respondents to answer questions 6(a) and 6(b). While answering the questions would not be oppressive, it would not serve any forensic purpose. The same reasoning applied in relation to all of the documents in this category.

13 It was contended on appeal by the appellant that the relevant interrogatory 6 was directed to the question of malice which was required to be proved in the action. It was contended that it was clear that the answers to the relevant questions could provide that evidence. It was said that the same applied to the other documents to which the learned Master had referred and that the interrogatories were all directed to eliciting information as to the way in which the appellant had been dealt with, in order to establish malice.

14 The documents concerned with interrogatory 6 both gave as reasons for the transfer "management problem". The interrogatory asked questions concerning the reason for the transfer and what was meant by "management problem". It also asked who authorised the transfer, who signed the document for the transfer and what office that person held.

15 Interrogatory 7 asked similar questions. Interrogatory 8 referred to another document concerned with the transfer of the appellant which document, amongst other things, recited that the appellant was "suspected of involvement in yesterday's riot" and requested that the prisoners concerned be held separately "under section 36(3)". That sub-section authorises the superintendent of the prison to "issue such orders to officers and to prisoners as are necessary for the good government, good order, and security of the prison of which he is superintendent." It was contended for the appellant that the sub-section does not authorise a superintendent at one prison to issue orders with respect to another prison.

16 Interrogatory 8 asks questions concerning by whose authority the appellant was so separately confined and what the reasons were for his separate confinement at Canning Vale Prison. It also asked what offices various persons mentioned in the document held.

17 Interrogatory 9 referred to entries in a document which alleged that the appellant had refused to obey an order from an officer and related that he had been "rubbed down". Questions were asked concerning the order from an officer which the appellant had refused to obey and when each incident recorded in the document concerning the appellant occurred. The other questions concerning the other various documents were of a similar nature.

18 The right to interrogate is not confined to facts directly in issue but extends to any facts, the existence or non-existence of which is relevant to the existence or non-existence of facts directly in issue - Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd [1911] HCA 35; (1911) 13 CLR 101 at 112. Interrogatories do not relate to a matter in question unless they can fairly be said to be material to support a party's case or to destroy that of his opponent. Hennessy v Wright [1890] 24 QBD 445 at 447.

19 In this case, although it was contended that witness statements would eventually be supplied to the appellant (plaintiff) pursuant to the Rules of the Court, it is necessary that a plaintiff be in a position to prove his case before he or she proceeds with it. This Court was informed that statements of witnesses are not supplied to parties to an action until sometimes fairly close to the hearing date. It is a consideration in the granting of leave to administer interrogatories that witness statements may not provide the evidence which a plaintiff needs and which he could obtain by answers to interrogatories.

20 The next relevant interrogatory was interrogatory 26 which was:

"Did any person request to visit the plaintiff at Canning Vale Prison during the period from 26 December 1998 until 22 January 1999? If so, was each such request granted? If not, why not?"

22 The appellant contended the question was directed to establishing whether the appellant was unlawfully refused visits and that it went directly to the question of malice which it would be necessary for him to prove to succeed in his action. The question was directed to whether the appellant had been refused visitors who had tried to see him. The answers could be relevant to the question of how the appellant had been treated after his transfer. In our view, such a question was relevant to both liability and any subsequent damages.

23 The next relevant interrogatory was interrogatory 31. It was concerned with a draft operational manual and asked questions such as:

"Was anybody bound to follow the procedures in the draft operational manual and if so, who was bound to follow such procedures and whether or not they were followed at the time of or subsequent to the riot at Casuarina Prison on 25 December 1998 and if so, why not?"

24 The learned Master commented that question 31 dealt with the contents of documents and presumably that related back to his reasons for refusing leave to administer interrogatories concerning the other documents.

25 It must be relevant to both liability and damages in this case whether the officers followed the proper procedures laid down in dealing with the appellant. The appellant wanted to know whether the provisions of the draft operational manual were required to be followed and, if so, whether they were followed. That was clearly relevant to his case.

26 The final interrogatory was interrogatory 32 which is:

"On what date and at what time was the plaintiff first seen by a medical practitioner on or after 26 December 1998? What is the name of the medical practitioner?"

27 The learned Master held that that was a fishing interrogatory and did not relate to any matter in issue between the parties. The appellant contended that it was directed to the appellant's welfare in respect to the provision of medical services and so to malice.

28 It must be relevant to the appellant's case if he could establish that he was assaulted and whether or not the authorities took steps to have him examined by a doctor and what any doctor found, if he was examined. The respondents contended that the appellant had been seen by a nurse on the day he was transferred. The appellant wished to establish when he was first seen by a doctor.

29 In our view, the appellant should have been given leave to deliver that interrogatory and it could not be described as "fishing".

30 It was for the above reasons that we concurred in the Court's order that the appellant be granted leave to deliver the interrogatories numbered 6 to 22 inclusive, 26, 31 and 32 for answer on oath by the respondents. The other orders followed from the fact that the appeal was successful.