Vicki Vanessa Zappacosta v the Queanbeyan Bowling Club Limited [1993] ACTSC 83 (3 September 1993)

SUPREME COURT OF THE ACT

VICKI VANESSA ZAPPACOSTA v. THE QUEANBEYAN BOWLING CLUB LIMITED
No. SC473 of 1990
Number of pages - 8
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Practice and Procedure - Interrogatories - Purpose of questions - Based on discovered documents - Answers - Sufficient - Untrue - Further Answers - Viva voce examination.

Litchfield v Jones (1884) 54 LJ (Ch) 207

Lyell v Kennedy (1884) 27 Ch D 1

HEARING

CANBERRA, 4 June 1993
3:9:1993

Counsel for the Plaintiff: P. Sheils

Instructing Solicitors: Scott Sheils Glover

Counsel for the Defendant: R. L. Crowe

Instructing Solicitors: Vandenberg Reid

ORDER

THE COURT ORDERS THAT:
1. I direct the defendant to answer questions 3(f), 12 and 13.

2. I grant leave to the plaintiff to administer further
interrogatories relating to the subject matter dealt with in
questions 5, 7(a), 7(b), 10, 14 and 15, or otherwise based on the
statement by Mr Wyburn which forms part of item 1 of Part 1 of
Schedule 1 to the Affidavit as to Documents sworn by Mr Wyburn on
22 April 1992.
3. I order that the costs of and incidental to this application be
the plaintiff's costs in the cause.

DECISION

MASTER A. HOGAN This is an application pursuant to O.34 r 12 for an order requiring the defendant in an action to answer further to interrogatories administered to it by the plaintiff. The application also seeks that the further answers be given by viva voce examination, as the rule permits.

2. The rule does not indicate the circumstances in which answers should be given viva voce, instead of by affidavit. There is now no corresponding rule in Victoria. The annotations to the rule in England in the White Book, and in the New South Wales Supreme Court and the Federal Court, state that such an order will only rarely be made. It is clear that when it is made the examination would be limited to obtaining such answers as would suffice in an affidavit in answer to the interrogatories. The history of the rule, and an example of the type of case that might call for its exercise, are set out in Litchfield v Jones (1884) 54 LJ (Ch) 207.

3. There are no circumstances in this present case which persuade me that the defendant would give a better answer orally than it would give in an affidavit.

4. The action is a claim for compensation by a widow arising out of the death of her husband. The deceased was a greenkeeper employed by the defendant at its club premises in Queanbeyan. It is alleged that he intervened in a fight between two drunken guests at the club, and in so doing received injuries from which he later died.

5. Paragraph 3 of the amended Statement of Claim alleges that:

"3. On or about 18 December 1987 whilst at the Bowling Club and
in the course of his employment the deceased was directed by
Mr Ken Wyburn, Secretary/Manager of the Defendant to break
up a fight which was then taking place between two men on
the premises whereupon the deceased sustained injury
resulting in his being hospitalized at Royal Canberra
Hospital in the Australian Capital Territory."

6. The Defence filed admitted that the defendant employed the plaintiff, but denied the allegations in paragraph 3 of the Statement of Claim.

7. The affidavit verifying the defendant's answers to interrogatories was sworn on 18 May 1993 by Mr Wyburn, the Secretary/Manager of the defendant.

8. The questions to which further answers are sought were not identified in the Notice of Motion. Particulars of them, and of the defects complained of in the answers, were set out in a letter dated 19 May 1993 from the plaintiff's to the defendant's solicitors, as follows:

"5. In the documents provided to us in discovery, there was a
report which purports to have been prepared by Lee, Kelly and
Associates Pty Limited. It contains details of
investigations and statements. We draw your attention
especially to the statement of Mr Wyburn.
The answers to interrogatories contradict those statements
in some places and in others they give the distinct
indication that there is a lack of frankness when compared
to those statements.
We drew the interrogatories relying upon the truth of the
information provided by your client and we now give you
notice that if your client's sworn answers again contradict
the statements already provided we will:
(a) seek to have an order that the appropriate person be
examined orally;
(b) seek an order that we may interrogate again and that the
necessary costs so incurred be paid by your client.
In particular, as you suggested that you see no problems
with the answers, we point out the following specifically:
6. Answer 7(a) contradicts the statements in the report.
7. Answer 3(f) is evasive unless the statement in the report is
untruthful.
8. Answers 3(a), (b), (c), (d) and 5(a), (b), (c), (d), (e) and
(f) are evasive and untruthful unless the statement provided
to us is untruthful. It would follow that answer number 6
would also be untruthful.
9. Questions 7(a), (b) and 8 contradict the report provided by
your client and the statement of Mr Wyburn.
10. Answer 9(b) and 9(c) are evasive and do not comply with the
Rules of Court.
11. Answer 9(d)(iii) contradicts the documents provided and parts
(iv) and (vii) are evasive.
12. Answers 10, 12, 13, 14 and 15(b), (c) and (d) are evasive
when compared to the documents."

9. The relevant questions and answers, as sworn to by Mr Wyburn, are as follows:

"Q3 On the 18th day of December, 1987, did the duties of the
deceased within his employment by the Defendant include:
(a) Carrying out such tasks as he was directed to carry out from
time to time by Mr K Whyburn?
ANSWER: No. (The President and Greens Director, Mr J Pearson,
directed the deceased what to do.)
(b) Carrying out such tasks as he was directed to carry out from
time to time by the Secretary/Manager of the
Defendant?
ANSWER: No.
(c) Keeping order upon the premises?
ANSWER: No.
(d) Preventing people from fighting on the premises?
ANSWER: No.
(f) Keeping unauthorised persons off the greens at the
premises.
ANSWER: It is not understood what is meant by "unauthorised".
Suffice to say persons were not permitted on the
greens when same were not in use for bowling games.
Q5 On the 18th day of December, 1987, some time after 10.00 p.m.
did Mr K Whyburn give to the deceased any instruction or
direction concerning:
(a) A fight on the premises?
ANSWER: No.
(b) Two persons who were drunk at the premises?
ANSWER: No.
(c) Assisting Mr K Whyburn to control the premises.
ANSWER: No.
(d) Keeping any persons off the green which was just outside
the door of the clubhouse premises (which green is
hereinafter referred to as "the green")?
ANSWER: No.
(e) Assistance Mr K Whyburn considered he might need as a
result of an anticipated disturbance at the premises?
ANSWER: No.
(f) Accompanying Mr K Whyburn outside the clubhouse for any
purpose?
ANSWER: No.
Q7 On the 18th day of December, 1987, some time after 10.00 p.m.:
(a) Did two (2) men leave the clubhouse and walk through the
door to the outside and onto the green?
ANSWER: No, however at about 10.30 p.m. a group of six men left
the clubhouse. Two of these men proceeded onto the
green.
(b) Did Mr K Whyburn instruct the deceased to accompany him
outside the clubhouse for any, and if so what purpose
(explaining the purpose and the reason for such
instruction as fully and clearly as you are able)?
ANSWER: No.
Q9 On the 18th day of December, 1987 shortly after 10.00 p.m. did
Mr K Whyburn tell two men who were on the green to get off
the green? If "yes", then at the time he gave such
instruction:
(b) Did Mr Whyburn believe the two men were on the green for
the purpose of having a fight?
ANSWER: That it was possible.
(c) Did Mr Whyburn believe the two men were intending to act
violently?
ANSWER: That they might have to each other.
(d) Did the two men (or either and if so which of them)
appear to be:
(i) sober?
ANSWER: No.
(ii) under the influence of alcohol?
ANSWER: Yes.
(iii) drunk?
ANSWER: No.
(iv) intending to fight each other?
ANSWER: Possibly, but this did not eventuate.
(v) belligerent?
ANSWER: Yes.
(vi) angry?
ANSWER: Yes.
(vii) inclined to violence?
ANSWER: Possibly to each other.
Q10 On the 18th day of December, 1987, shortly after 10.00 p.m.
when Mr K Whyburn left the clubhouse in the company of the
deceased and spoke to two men who were upon the green:
(a) Did they then walk off the green and onto a concrete
verandah next to the clubhouse.
(b) Did Mr K Whyburn then speak to one of them (and if so,
which)?
(c) Did the deceased then speak to one of them (and if so
which)? If yes, then did Mr K Whyburn know the
deceased was speaking to one of them?
(d) Did Mr K Whyburn:
(i) know,
(ii) believe,
(iii) suspect,
that either or both (saying which) of the two men
might act violently?
ANSWER: (a) - (d)
I object to answering these interrogatories on the
ground that they assume a fact which is not admitted,
namely that Mr Whyburn left the clubhouse in the
company of the deceased.
Q12 Prior to 10.00 p.m. on the 18th day of December, 1987, did
the defendant, through any and if so what employee or agent
or servant, give to the deceased any instruction,
supervision, training or direction in:
(a) Controlling fights?
(b) Dealing with violence?
(c) Dealing with drunken people?
(d) Self defence?
(e) Coping with disturbances at the premises.
ANSWER: (a) - (e)
I object to answering this interrogatory on the ground
of relevance and on the ground that it rolls numerous
questions into one.
Q13 If "yes" to any part of interrogatory 12 hereof, then as to
such instruction, supervision, training or direction:
(a) Was it oral?
(b) Was it in writing?
(c) Was it implied?
(d) Was it be demonstration?
(e) Insofar as it was oral, set out as fully and clearly as
you are able each conversation constituting the same
and say when, where and between whom each such
conversation took place. Insofar as it was in
writing, identify the relevant documents and say in
whose possession you now believe them to be. Insofar
as it was implied, set out as fully and clearly as you
are able the implication and each act, fact and
circumstances from which the implication arose.
Insofar as it was by demonstration, describe such
demonstration as fully and clearly as you are able and
say when, where and by whom it was given and to whom
it was given.
ANSWER: (a) - (e)
Not applicable.
Q14 On the 18th day of December, 1987, when Mr K Whyburn
instructed the deceased to accompany him to the outside of
the clubhouse shortly after 10.00 p.m., did Mr K Whyburn
take any measures to protect the deceased:
(a) From injury?
(b) From violence?
(c) From being attacked?
(d) From any danger of injury by either of the two men who
were on the green?
ANSWER: (a) - (d)
I object to answering this interrogatory on the ground
that it assumes a fact which is not admitted, namely,
that Mr Whyburn instructed the deceased to accompany
him.
Q15 On the 18th day of December, 1987, some time after 10.00 p.m.
at the premises:
(b) Did one of two men who were on the green come off the
green and strike the deceased?
ANSWER: Possibly. After having made all due inquiries of the
servants and agents of the defendant, I am unable to
further answer from knowledge, information or belief.
(c) Did one of the two men who had been spoken to by Mr K
Whyburn whilst upon the green strike the deceased?
ANSWER: Perhaps. After having made all due inquiries of the
servants and agents of the defendant, I am unable to
further answer from knowledge, information or belief.
(d) Did the deceased fall to the concrete verandah and
strike his head on the concrete after having been
struck by an, and if so, what person?
ANSWER: The deceased struck his head on the concrete footpath
after having been hit either by one of two men who had
been on the green or by a third person whose identity
is not known. After having made all due inquiries of
the servants and agents of the defendant, I am unable
to further answer from knowledge, information or
belief."

10. By letter dated 2 June 1993 the defendant responded to the plaintiff's

complaints as follows:
"As to the specific matters raised in your letter we advise as
follows (reference being to interrogatory numbers):
3(a) to (d);
5(a) to (f);
6; 7(b); 8 We do not concede the allegations made by you. The
concepts "instruction" and "direction" in the
circumstances of this case carry a legal
connotation which ultimately is one of the issues
to be determined by the Court. Mr Wyburn does
not say anywhere that he instructed or directed
the deceased to accompany him and the defendant
does not admit that what occurred at that time
amounted to an instruction or direction let alone
one which was attributable to the course of
employment.
3(f) The answer to this is probably "yes" although it is not
entirely clear what is meant by "unauthorised
persons". The defendant admits that it was part
of the duties of the plaintiff's employment to
keep persons not engaged in bowls activities off
the greens. This did not extend to the use of
physical force by him.
7(a) The defendant stands by this answer.
9(b) and (c) These answers may appear confusing. The defendant
admits that when he told the man to get off the
green Mr Wyburn believed that they had left the
clubhouse for the purpose of continuing their
argument and that a physical fight was possible.
He did not believe at that stage that a fight was
probable. The defendant also admits that at that
time Mr Wyburn believed that the men may have
intended to act violently toward each other. He
did not believe that they intended violence
toward any other person.
9(d)(iii),
(iv) and (vii) The defendant stands by these answers.
10, 12 and 13 The problems with these interrogatories clearly lie
with the way in which they are drafted. Our
client is willing to consent to an order allowing
amended interrogatories as to these matters, even
though there is a strong argument against leave
to amend being granted in such circumstances:
see Goding v Queensland Newspapers Pty Ltd (1966)
QLDR 545.
15(b),
(c) and (d) The defendant stands by these answers."

11. Much of this argument is misconceived, as is made clear by the ancient authority of Lyell v Kennedy (1884) 27 Ch D 1. As Cotton LJ stated at 21, "What the Court has to consider is this simply, whether the answer is insufficient, not to go into the question of the truthfulness of the answer, but to see whether it is insufficient or not, and if it is insufficient, then only can it require a further answer".

12. He then went on to deal with the power of the Court to require further answers where a claim to legal professional privilege could be demonstrated to be unsustainable, but that discussion is not relevant to the general principle that applies in this case.

13. The common sense of such an approach is obvious when one considers the purpose of interrogatories and the use that may be made of the answers. The questions should be designed to obtain admissions of facts which will support the case of the interrogating party or destroy or damage the case of the party interrogated. The answers, or such answers or parts as tend to achieve that purpose, may then be tendered at the trial, where the judge has power to ensure that they are used fairly: O.34 r 26. The time and place for argument about whether an answer to an interrogatory is true or not is at the trial. All that matters at the interlocutory stage is whether the question is answered, or is answered sufficiently.

14. In the conduct of most litigation it is beneficial to go through the process of discovery of documents before finally deciding on the questions to be used in the interrogatories. In that way useful admissions may be forced upon the basis of documents discovered.

15. But it does not follow that it is useful then to conduct a hearing into the question whether the answers given to the interrogatories can be reconciled in any evidentiary sense with the contents of the discovered documents. Answers which do not sit well with the discovered documents may well be cause for delight in the cross examiner, but the cross examination must take place at the trial, not on an application for further oral answers to the interrogatories.

16. Nevertheless, the plaintiff does have two complaints which must be addressed.

17. The first is that the amplifications and explanations in the letter dated 2 June 1993 are just that, statements made in a solicitor's letter. They are not verified on affidavit. If they are properly needed in order to make the sworn answers sufficient then they should be sworn to, so that they may be used in the usual way as answers to interrogatories. There is force in that argument. I propose to consider how it applies to each of the answers in contention.

18. The second complaint relates to the fact that after the delivery of the interrogatories (and, in fact, after the argument on this motion), the defendant supplied to the plaintiff a statement signed by Mr Wyburn containing a description of the incident that led to the injury to the deceased. The document had been attached to the defendant's report of the injury to its workers compensation insurer. That report had been discovered. The statement by Mr Wyburn was referred to in the Report of Injury form as "see attached". It could well have been omitted from the copies of the documents supplied during discovery by inadvertence. That does not seem to me to matter for the purposes of this application. It seems clear to me that had it been included in the documents discovered the questions posed in the interrogatories could well have been more precise and fruitful.

19. Questions 3(a), 3(b), 3(c) and 3(d) are answered directly. The truthfulness of the answers is not an issue to be investigated at this stage of the proceedings.

20. Question 3(f) is not answered, as is made clear by the comment in the letter dated 2 June 1993. I direct the defendant to answer question 3(f).

21. The whole of questions 5 and 7(a) and 7(b) relate to the matter set out in the statement signed by Mr Wyburn to which I have referred. I grant leave to the plaintiff to administer further interrogatories relating to that subject matter.

22. Questions 9(b), 9(c), 9(d)(iii), 9(d)(iv) and 9(d)(vii) are sufficiently answered. The truthfulness of the answers is not in issue on this application.

23. Question 10 relates to the subject matter dealt with in Mr Wyburn's statement. I grant leave to the plaintiff to administer further interrogatories relating to that subject matter.

24. Questions 12 and 13 are objected to on the grounds of relevance. I assume that what is meant is that they do not relate to a matter in issue between the parties, which is not necessarily the same thing. Since the Amended Statement of Claim alleges negligence by the defendant as the employer of the deceased, and the particulars of negligence include "(d) unsafe system of work" and "(e) failing to warn the deceased of the dangers associated with his work", the questions obviously do relate to questions in issue. I order the defendant to answer questions 12 and 13.

25. Question 14 depends upon answers to the questions to be administered relating to the subject matter dealt with in Mr Wyburn's statement. I grant leave to the plaintiff to administer further interrogatories relating to the subject matter dealt with in question 14.

26. I can sympathise with the complaint of the defendant's advisers about the form of some of the questions. A number of simple direct questions are obviously preferable to one complex convoluted question, in a style that was already being criticised in the 19th Century (eg Lyell v Kennedy at 22). But it is not so oppressive as to be disallowed, when all that the defendant must do is to answer the substance of it without evasion.

27. Question 15 also relates to the subject matter contained in Mr Wyburn's statement. I grant leave to the plaintiff to administer further interrogatories relating to that subject matter.

28. I express the hope that the drafting style will be direct and simple.

29. On the question of costs I take into account that the principal basis of the plaintiff's attack on the answers was misconceived, and the offer of the defendant to submit to redrafted interrogatories. Nevertheless, that offer was made at a time when the plaintiff's advisers were not aware of the content of Mr Wyburn's statement, and the plaintiff has achieved substantial relief on the application. I think that the proper order is that the costs of the application be plaintiff's costs in the cause.

1. I direct the defendant to answer questions 3(f), 12 and 13.
2. I grant leave to the plaintiff to administer further
interrogatories relating to the subject matter dealt with in
questions 5, 7(a), 7(b), 10, 14 and 15, or otherwise based on the
statement by Mr Wyburn which forms part of item 1 of Part 1 of
Schedule 1 to the Affidavit as to Documents sworn by Mr Wyburn on
22 April 1992.
3. I order that the costs of and incidental to this application be
the plaintiff's costs in the cause.