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WorkCover Queensland v J Hutchinson Pty Ltd[2023] QSC 130

Reported at (2023) 15 QR 121

WorkCover Queensland v J Hutchinson Pty Ltd[2023] QSC 130

Reported at (2023) 15 QR 121

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v J. Hutchinson Pty Ltd (ACN 009 778 330) [2023] QSC 130

PARTIES:

WORKCOVER QUEENSLAND

(plaintiff)

v

J. HUTCHINSON PTY LTD (ACN 009 778 330)

(defendant)

FILE NO/S:

BS No 4152 of 21

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2023

JUDGE:

Williams J

ORDER:

  1. The plaintiff be granted leave to deliver interrogatories to Mr David Row in the form of Annexure A to the plaintiff’s submissions filed on 17 March 2023, amended to provide 21 days for the answers.
  2. The plaintiff’s application is otherwise adjourned to a date to be fixed.
  3. Costs be reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – INTERROGATORIES – WHO MAY BE INTERROGATED – where the plaintiff sought leave to deliver interrogatories pursuant to r 230 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to the defendant, by its director, and a non-party – where the non- party is a former employee of the defendant and is a person who would have relevant knowledge – where the plaintiff sought to adjourn the application in respect of the defendant until after the answers to the interrogatories where provided by the non-party – whether it is open for a non-party to be interrogated under r 299(1)(b) UCPR to help decide whether a defendant is, or another person would be, an appropriate party to a current proceeding – whether leave should be granted to deliver the interrogatories to the non-party

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – INTERROGATORIES – GENERALLY – where the plaintiff sought leave to deliver interrogatories pursuant to r 230 of the Uniform Civil Procedure Rules 1999 (Qld) to the defendant, by its director, and a non-party – where the non-party is a former employee of the defendant and is a person who would have relevant knowledge – where the plaintiff sought to adjourn the application in respect of the defendant until after the answers to the interrogatories where provided by the non-party – whether adjourning the application in respect of the defendant is consistent with the objective of the efficient administration of justice

Court Procedure Rules 2006 (ACT) r 21

Uniform Civil Procedure Rules 1999 (Qld) r 5, r 62, r 208C, r 208D, 209, rr 210-227, 228, r 229, r 230, 231, r 232, r 233, r 234, r 235, r 236, r 237, r 238, r 239, r 240, r 241, rr 242-249

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 207B(8)

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221

Cross v Queensland Rugby Football Union Ltd [2001] QSC 173

Denis, Denis & Ladgaul Pty Ltd v R McMahon & Anor [1990] QSC 226

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd & Anor [2004] QSC 63

Ranger v Suncorp General Insurance Ltd [1999] 2 Qd R 433

Wilkinson v Wilkinson [2009] QSC 191

COUNSEL:

H Berghofer for the plaintiff

K F Holyoak for the defendant

SOLICITORS:

BTLawyers for the plaintiff

Mills Oakley for the defendant

  1. [1]
    The plaintiff’s application seeks leave to deliver interrogatories pursuant to r 230 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to:
    1. (a)
      The defendant, by its director Scott Hutchinson; and
    2. (b)
      A non-party, David Row.
  1. [2]
    The application was originally listed before me in January 2023 and was part heard. The application was then further reviewed on 3 February 2023. Further submissions were filed and served in March and April 2023, together with revised draft interrogatories proposed by the plaintiff in respect of Mr Row.
  1. [3]
    At the further hearing of the application on 5 April 2023, the plaintiff sought:
    1. (a)
      Leave to deliver interrogatories to the non-party, David Row (Non-Party Application) in the form of the revised draft interrogatories at Annexure A to the plaintiff’s submissions filed 17 March 2023 (Revised Draft Interrogatories); and
    2. (b)
      An adjournment of the application in relation to the defendant until after the answers to the interrogatories were provided by the non-party (Adjournment Application).
  1. [4]
    Mr Row did not appear at the hearing of the application but was served with the initial material and the revised material.
  1. [5]
    The defendant appeared at the hearing and made submissions in respect of:
    1. (a)
      The application for leave to deliver interrogatories to the defendant (Defendant Application); and
    2. (b)
      The Non-Party Application, to the extent that it impacted on the interests of the defendant, and also general principles.
  1. [6]
    The solicitors acting on behalf of the defendant wrote to the solicitors acting on behalf of the plaintiff identifying objections to the proposed interrogatories. Mr Row, through his lawyer, adopted the objections as set out in the letter from Mills Oakley to BTLawyers dated 17 February 2023 (Objections Letter).
  1. [7]
    The defendant opposes the Adjournment Application and seeks an order that the Defendant Application be dismissed with costs.

Background to proceeding

  1. [8]
    The plaintiff, WorkCover Queensland, is the statutory insurer for workers compensation in Queensland pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).
  1. [9]
    Janice Heather Francis applied to WorkCover for compensation for mesothelioma, an asbestos-related disease caused by exposure to asbestos in her employment in Queensland. Ms Francis is now deceased (Deceased Worker). WorkCover accepted Ms Francis’ claim and paid compensation of $761,627 on or about 21 September 2016.
  1. [10]
    Subsequently, WorkCover has commenced these proceedings seeking to recover from the defendant the compensation paid in accordance with s 207B(8) of the WCR Act on the basis that:
    1. (a)
      The defendant’s negligence caused the mesothelioma; and
    2. (b)
      If sued by the Deceased Worker, the defendant would have been liable to pay the Deceased Worker damages.
  1. [11]
    Pleadings have been filed and served in the proceeding and a number of issues are in dispute between the plaintiff and the defendant. The relevant factual background is summarised below.
  1. [12]
    In or about 1989 the MMI Building at 344 Queen Street, Brisbane (MMI Building) was refurbished.
  1. [13]
    The Deceased Worker was working in the MMI Building during the period 1 October 1985 to 30 September 1989.
  1. [14]
    Relevantly, it is alleged that works were carried out at the MMI Building between in or around 30 March 1989 to 30 September 1989 and these works exposed the Deceased Worker to asbestos dust and fibres, causing mesothelioma to develop and resulting in her death.
  1. [15]
    The plaintiff pleads and the defendant admits that the defendant was the principal contractor for the refurbishment works.
  1. [16]
    The issue arises as to when the defendant was the principal contractor and whether the defendant undertook, directed or was responsible for works that exposed the Deceased Worker to asbestos dust.
  1. [17]
    The plaintiff alleges that the defendant was engaged as the principal contractor of the refurbishment works from in or about May 1989 and therefore that the defendant was responsible for all works that occurred from that date including during the time the Deceased Worker worked in the MMI Building and was exposed to asbestos dust.
  1. [18]
    The defendant denies that it was responsible for the refurbishment works that exposed the deceased worker to the asbestos dust that resulted in her death for a number of reasons including that:
    1. (a)
      The defendant was not engaged to do certain works and a “heavy demolition contractor” was separately engaged by the owners of the MMI Building, Uxwood Pty Ltd, to complete the demolition works; and/or
    1. (b)
      The refurbishment works undertaken by the defendant occurred after the Deceased Worker had left the MMI Building and accordingly the defendant could not have caused the exposure to asbestos.[1]

Relevant principles in respect of interrogatories

  1. [19]
    Chapter 7 of the UCPR deals with disclosure and the rules in respect of interrogatories are contained in this chapter.
  1. [20]
    Part 1 governs Preliminary Disclosure and only applies in the Supreme Court. Part 1 was introduced in 2021 and the balance of the Chapter was renumbered.
    1. (a)
      Rule 208C UCPR provides for orders to ascertain the identity and whereabouts of a prospective defendant. The scope of the power extends to ordering a person to give evidence or produce a document or thing relating to the identity or whereabouts of a prospective defendant. This rule addresses the jurisdiction of the Court recognised in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.
    1. (b)
      Rule 208D UCPR provides for orders for preliminary disclosure. The scope of the power includes an order requiring a prospective defendant to disclose to the applicant or produce to the court a document which would assist the applicant to make the decision to start the proceeding.
  1. [21]
    Part 2 deals with disclosure generally. Division 1 is headed Preliminary and contains r 209. Pursuant to r 209 UCPR the part applies to a proceeding started by claim, a proceeding ordered to continue as if started by a claim and if the court directs, a proceeding started by application.
  1. [22]
    Division 2 is headed Disclosure by Parties and is further divided into subdivisions:
    1. (a)
      Subdivision 1 – Disclosure and inspection of documents. Rules 210 to 227 UCPR require a party to identify the directly relevant documents in its possession and permit the other party or parties to inspect and copy those documents, subject to valid claims of privilege.
    2. (b)
      Subdivision 2 – Interrogatories. Rules 228 to 238 UCPR provide for a party applying for leave to ask questions which are required to be answered on oath. These are the provisions under which the current application is made.
    3. (c)
      Subdivision 3 – General.
  1. [23]
    Division 3 is headed Non-Party Disclosure and rr 242 to 249 UCPR provide a process whereby a non-party to a proceeding can be required to provide relevant documents in its/their possession.
  1. [24]
    This overview of the Chapter is relevant as the rules dealing with interrogatories are to be interpreted in their context, which includes the Chapter, Part and division in which they appear.
  1. [25]
    Rule 228 UCPR states:

“Entitlement to deliver interrogatories

A party may deliver an interrogatory only under this division.”

  1. [26]
    Rule 229 UCPR provides:

“ Delivery of interrogatories

  1. (1)
    With the court’s leave, a person may, at any time, deliver interrogatories—
    1. to a party to a proceeding, including a third party under chapter 6, part 6; or
    2. to help decide whether a person is an appropriate party to the proceeding or would be an appropriate party to a proposed proceeding—to a person who is not a party.
  1. (2)
    The number of interrogatories may be more than 30 only if the court directs a greater number may be delivered.
  2. (3)
    For this rule, each distinct question is 1 interrogatory.”
  1. [27]
    Rule 230 states:

“Granting of leave to deliver interrogatories

  1. (1)
    Subject to an order of the court, the court may give leave to deliver interrogatories—
    1. on application without notice to another person; and
    2. only if the court is satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory.
  2. (2)
    The application must be accompanied by a draft of the interrogatories intended to be delivered, unless the court otherwise directs.
  3. (3)
    ….”
  1. [28]
    Rule 231 UCPR provides that a person to whom interrogatories are delivered is required to answer them. Pursuant to r 232 UCPR the answer to interrogatories must answer the substance of each interrogatory or object to answering each interrogatory, including the grounds and facts relied upon.
  1. [29]
    The available grounds for objection to answering an interrogatory are set out in r 233 UCPR, including:
    1. (a)
      An interrogatory does not relate to a matter in question, or likely to be in question, between the person and the interrogating party.
    2. (b)
      The interrogatory is not reasonably necessary to enable the court to decide the matters in question between the parties.
    3. (c)
      There is likely to be available to the interrogating party at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory.
    4. (d)
      The interrogatory is vexatious or oppressive.
  1. [30]
    On application, a court may order that a person is not required to answer an interrogatory pursuant to r 234 UCPR.
  1. [31]
    Rule 235 UCPR identifies the individual by whom the verifying affidavit is to be made. Where the person is a company, a body of persons or the State or Commonwealth, the court may order the specific individual to make the affidavit or specify the individuals from whom the interrogating party may choose the individual to make the affidavit.
  1. [32]
    In respect of non-compliance:
    1. (a)
      Rule 236 UCPR provides that the court may order an answer or further answer be given, order the person to attend to be orally examined or order a qualified individual to attend to be orally examined (if the first person is not qualified to make the affidavit).
    2. (b)
      Rule 237 UCPR provides that if there is non-compliance with an order under r 236(2)(a) for an answer or further answer to be given, an application may be made to dismiss or stay all or part of the proceeding, for judgment or other order or that the verified answers be provided by a specified time. This rule does not limit the court’s power in respect of contempt of court.
  1. [33]
    Rule 238 UCPR provides that a party may tender as evidence the answer, or part of an answer, of another party without tendering all of the answers or answer.

Non-party Application – should leave be granted to deliver interrogatories to Mr Row?

  1. [34]
    Mr Row is a former employee of the defendant. He was the defendant’s Project Manager for the refurbishment works and has been identified as a person who would have relevant knowledge of the refurbishment works. Mr Row earlier provided a statement to the defendant but declined to speak to the plaintiff on the basis that a statement had already been provided to the defendant.
  1. [35]
    Given the length of time since the refurbishment works occurred, the defendant does not have a copy of the relevant construction contract.
  1. [36]
    The plaintiff has requested further and better particulars from the defendant and the defendant has provided further and better particulars in respect of the matters pleaded in the second further amended defence to the extent it says it is able to do so.
  1. [37]
    The Non-Party Application was originally made without the benefit of the plaintiff seeing Mr Row’s statement. After the initial hearing and before the final hearing of the Non-Party Application the defendant provided a copy of Mr Row’s statement to the plaintiff.[2] The statement from Mr Row is relevant to who was doing what work and when at the MMI Building.
  1. [38]
    Mr Row’s statement includes the following relevant evidence:
    1. (a)
      The defendant engaged a specialist demolition contractor for the refurbishment of the MMI Building.
    2. (b)
      The demolition contractor engaged by the defendant undertook demolition that was required in the plant rooms of the building, and any services that needed to be removed within the scope of the defendant’s contract.
    3. (c)
      He does not recall the defendant’s demolition contractor demolishing any of the internal fit outs on each floor of the MMI Building such as office partitions, ceilings and carpets or flooring.
    1. (d)
      He does not recall the name of the defendant’s demolition contactor but does recall that the demolition contractor had been used by the defendant on a few projects around that time.
    2. (e)
      The “specialist demolition contractor” is separate and distinct from the “heavy demolition contractor”.[3]
  1. [39]
    The supporting material in respect of the Non-Party Application includes other enquiries made by the plaintiff in respect of the key issues of:
    1. (a)
      Who undertook the work for the MMI Building.
    2. (b)
      What were the works that occurred at the MMI Building.
    3. (c)
      When were those works undertaken at the MMI Building.
  1. [40]
    It appears that there were potentially three types of demolition work being carried out at the MMI Building by three separate persons, namely:
    1. (a)
      Heavy demolition contractor – allegedly engaged by the building owner to do heavy demolition works.
    2. (b)
      Specialist demolition contractor – allegedly engaged by the defendant to do specialist demolition works.
    3. (c)
      The defendant – engaged to do light demolition works.
  1. [41]
    The scope of the works within each of the “heavy demolition works”, “specialist demolition works” and “light demolition works” is uncertain (and contradictory in some respects) on the currently available evidence.
  1. [42]
    Depending on the particular contractual arrangement and the scope of the works the defendant or unknown third parties may be responsible for the works which caused the Deceased Worker to be exposed to asbestos dust.
  1. [43]
    By the Non-Party Application the plaintiff seeks leave to deliver the Revised Draft Interrogatories to Mr Row to obtain answers in relation to the key issues of who was engaged to do particular works, what the works included and when the works were done.
  1. [44]
    The Revised Draft Interrogatories include seeking clarification as to the matters addressed in Mr Row’s statement to the defendant as well as other relevant information.
  1. [45]
    The Non-Party Application is brought under r 229(1)(b) UCPR on the basis that:
    1. (a)
      Mr Row is a non-party to the proceeding. While he is a former employee of the defendant, he is separate from the corporate defendant and is properly characterised as a non-party.
    2. (b)
      The answers as to who, what and when in respect of the works done at the MMI Building at the relevant time will “help to decide whether a person is an appropriate party to the proceeding or would be an appropriate party to a proposed proceeding”.
  1. [46]
    The defendant’s position in response to the Non-Party Application is summarised in the Objections Letter and is addressed in more detail in the defendant’s filed submissions. In summary:
    1. (a)
      The defendant objects to [1], [2(a)] to [2(d)], [3], [4(a)] to [4(e)] and [7] of the Revised Draft Interrogatories on the basis that r 229(1)(b) UCPR does not allow the plaintiff to deliver interrogatories which seek to determine whether the defendant is an “appropriate party” to the proceeding.[4]
    2. (b)
      The defendant does not object to the balance of the Revised Draft Interrogatories, subject to the plaintiff meeting the requirements of rr 229 and 230 UCPR and satisfying the court that it is appropriate to grant leave.
  1. [47]
    Mr Row has adopted the defendant’s response.
  1. [48]
    Rule 229(1)(b) UCPR is an investigatory power to interrogate and is “novel” in that regard.[5] Rule 229(1)(a) UCPR, in contrast, is the traditional procedure to prove matters in dispute by way of answers provided by the other party to a proceeding.
  1. [49]
    Rule 229(1)(b) UCPR has not been extensively considered. Justice Douglas considered the rule in two cases: more substantively in Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd & Anor [2004] QSC 63, and also in Wilkinson v Wilkinson [2009] QSC 191.
  1. [50]
    It is necessary to construe rr 229(1)(b) and 230 UCPR in accordance with the general principles of statutory construction and then to consider how the rule applies in respect of the Non-Party Application.
  1. [51]
    Rule 5 UCPR relevantly states:

“(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

  1. (2)
      Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.”
  1. [52]
    The High Court in AON Risk Services Australia Limited v Australian National University[6] considered, in the context of an application to amend, a similar rule, namely r 21(2) of the Court Procedures Rules 2006 (ACT). Rule 21(1) identified the purpose of the rules as being “to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense”. Further, r 21(2) stated:

“Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving—

  1. (a)
    The just resolution of the real issues in the proceedings; and
  2. (b)
    The timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.”
  1. [53]
    The joint reasons of Gummow, Hayne, Crennan, Kiefel[7] and Bell JJ observed:

“The overriding purpose of r 21, to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense, is stated in the rules of other courts in Australia, although those purposes and the obligations cast upon the court and the parties may be stated in somewhat different terms.

…

The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process.

…

Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants …”.[8] (footnotes omitted)

  1. [54]
    Further, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:

“The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. …

Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings …”.[9]

  1. [55]
    Here, r 5(2) UCPR expressly incorporates the r 5 objective into the construction and application of the UCPR. Accordingly, r 229(1)(b) and r 230 UCPR are to be construed and applied in accordance with the purpose.
  1. [56]
    The rules are also to be construed in the context of Chapter 7, Part 2 UCPR. Rule 209 UCPR provides that the Part applies to proceedings already started. The language used in this context is important.
  1. [57]
    Considering the various components of r 229(1)(b) UCPR:
    1. (a)
      “at any time” – in the context of r 209 UCPR, properly interpreted this must mean an application can be brought any time after the proceedings have been commenced.[10]
    2. (b)
      “to a person who is not a party” – in respect of a proceeding commenced by claim,[11] the parties are the plaintiff(s) and the defendant(s).[12] In the context of r 209, subsection (1)(b) applies to someone who is not a named plaintiff or defendant in a current proceeding.
    3. (c)
      “to help decide whether a person is an appropriate party to the proceeding”[13] – in the context of r 209 UCPR, the reference to the proceeding must be the current proceeding. The reference to “a person” would include a party, and a non-party.
      1. This interpretation is consistent with the use of “a person” in the chapeau to r 229(1) UCPR: the person able to bring an application in respect of sub-rules (a) and (b) would include any party to the existing proceeding.[14]
      2. The use of the term “a party” in the rules, for example in r 229(1)(a) and r 238 UCPR, is consistent with there being a distinction between the narrower class of person being “a party” to the proceeding and the wider class of “a person”.
      3. The language used is consistent with the rule applying where interrogatories are delivered to a non-party to determine whether a person who is an existing party is an appropriate party and equally whether the particular non-party and/or other non-parties are appropriate parties.
      4. This interpretation is also consistent with the objective and purpose in r 5 UCPR: that is, to facilitate the just and expeditious resolution of the real issues in dispute.
      5. This is also consistent with the language used in r 62 UCPR dealing with necessary parties.
  1. (d)
    “to help decide whether a person …. would be an appropriate party to a proposed proceeding”[15] – the wording of the second component of r 229(1)(b) UCPR introduces a “proposed proceeding”. This rule predates Part 1 dealing with preliminary disclosure and r 209 UCPR requires a proceeding to be already commenced.
    1. “A person”, here, would include an existing party or a non-party.
    2. The use of “proposed proceeding” suggests a different claim to that in the existing proceeding. It could include proceedings such as counterclaims, third party claims and notices of contribution and indemnity.
  1. [58]
    The decision in Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd & Anor [2004] QSC 63 is also consistent with this construction.[16] In that case the applicationfor leave to deliver interrogatories to a non-party arose in the following context:
    1. (a)
      The plaintiff had commenced proceedings against the defendant alleging breach of contract in respect of the design, management and supervision of the supply, installation and completion of an irrigation system on a farm run by the plaintiff.
    2. (b)
      The defendant denied liability by alleging that Mr Gillies (the non-party and also a former employee of a company related to the plaintiff) gave instructions to the defendant’s employees about the design of the system.
    3. (c)
      The effect of the defendant’s pleading was that it raised whether it was an appropriate party to the proceeding.
    4. (d)
      Mr Gillies, the non-party, would not speak with the plaintiff.
    5. (e)
      The plaintiff applied for leave to deliver interrogatories to the non-party which directly or indirectly were relevant to whether the defendant was an appropriate party to the proceeding.
    6. (f)
      Leave was granted to deliver the interrogatories.
  1. [59]
    The plaintiff contends that the Non-Party Application in the current case is substantially the same. Here:
    1. (a)
      The defendant has sought to exculpate itself from liability by raising that someone else undertook the work (who) and also raising issues as to what works were undertaken (what) and the timing of the works undertaken (when).
    2. (b)
      These matters are not within the knowledge of the plaintiff, being an insurer.
    3. (c)
      These matters cannot be ascertained or verified from documents as any documents are no longer in the possession of the defendant due to the length of time since the works were undertaken.
  1. (d)
    The current pleadings and available material leave the issues of who, what and when ambiguous and uncertain.
  2. (e)
    There appear to be arguably some inconsistencies between the statement of Mr Row and the defendant’s defence.
  3. (f)
    Consistent with the purpose and objective in r 5 UCPR, the identification of the real issues in dispute is facilitated by the delivery of interrogatories addressing the issues of who, what and when to a non-party who is likely to have knowledge of the information sought.
  4. (g)
    Answers to the Revised Draft Interrogatories will help to determine whether the defendant is, or another person would be, an appropriate party to the proceeding.
  5. (h)
    This includes identifying the person, or persons, responsible for the relevant works, whether by actually performing the works or by supervising the works.
  1. [60]
    Justice Douglas in Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd & Anor [2004] QSC 63 stated at [23]:

“While the interrogatories are directed to issues relevant to the existing pleadings, which is important in encouraging me to exercise my discretion to allow them, their greater importance is not as a means of proof of those issues at any trial. The answers would not normally be admissible against the existing defendants unless Mr Gillies [the non-party] were called as a witness. Their real importance is in helping the plaintiff to decide whether and how to proceed with the litigation and whether Mr Gillies should be made a party to it. To permit them for that purpose seems to me to be a course designed to facilitate the just and expeditious resolution of the real issue in this case at a minimum of expense. It is an example of a proper case to permit their delivery in spite of the existence of r 230(1)(b).”

  1. [61]
    His Honour’s comments equally apply to the current application. Here the real importance is in helping the plaintiff to decide whether and how to proceed with the litigation and whether any non-parties should be made a party to it. Equally, this is a course designed to facilitate the just and expeditious resolution of the real issue in this proceeding at a minimum of expense.
  1. [62]
    On the proper construction of r 229(1)(b) UCPR, it is open for a non-party to be interrogated to help decide whether a defendant is, or another person would be, an appropriate party to a current proceeding.
  1. [63]
    It is then necessary to consider whether leave should be granted pursuant to r 230 UCPR. Relevant matters include:
    1. (a)
      The application may be brought without notice but here notice has been given and the defendant and the non-party have been given an opportunity to be heard (although Mr Row did not appear at the hearing).
    2. (b)
      The court is to consider pursuant to r 230(1)(b) UCPR whether there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited. But this is not necessarily mandatory (see discussion below).
  1. (c)
    The plaintiff could speak with Mr Row but he has refused to speak with the plaintiff. The plaintiff has now been provided with the defendant’s statement of Mr Row but there remain inconsistencies with the defence and also ambiguities in light of other enquiries.
  2. (d)
    The words “subject to an order of the court” enlarge the discretion that may otherwise have been limited by r 230(1)(b) UCPR. Therefore, the court may allow interrogatories where there is likely to be another reasonably simple and inexpensive way of proving the matter the subject of the interrogatory.[17]
  3. (e)
    While Mr Row could be called to give evidence at trial, that is not a course designed to facilitate the just and expeditious resolution of the real issues in these proceedings at a minimum of expense in accordance with r 5(1) UCPR.
  1. [64]
    Further to the requirements contained in r 230(1) UCPR, it is also necessary to consider the Revised Draft Interrogatories. Annexure A to the Reply Submissions of the Plaintiff filed 30 March 2023 helpfully sets out a table which identifies the issue on the pleading the interrogatory is relevant to, the defendant’s (and Mr Row’s) objections and the plaintiff’s response.
  1. [65]
    Given my construction of r 229(1)(b) UCPR many of the complaints raised fall away.
  1. [66]
    Addressing a number of the matters that remain:
    1. (a)
      The defendant contends that given the plaintiff now has the signed statement of Mr Row, some of the interrogatories are futile and inutile. I disagree. There remains considerable ambiguity and uncertainty that may be resolved by the interrogatories. This is particularly so where Mr Row refuses to speak with the plaintiff.
    2. (b)
      Where the defendant identifies that the question could be rephrased, I do not consider that is necessary. The suggested rephrasing does not assist or advance the issue beyond what is in the Revised Draft Interrogatories.
    3. (c)
      Where the defendant objects to statements included in the Revised Draft Interrogatories which are not interrogatories, I do not accept that objection. The statements provide information to Mr Row for the purpose of the following question. Such objections are not consistent with the obligation in r 5 UCPR.
  1. [67]
    The Revised Draft Interrogatories are appropriate and focussed on the real issues of who, what and when that arise in respect of the works that were done at the MMI Building at the relevant time.
  1. [68]
    I am satisfied that it is appropriate to grant leave to the plaintiff to deliver interrogatories to Mr David Row in the form of the Revised Draft Interrogatories, subject to one amendment.
  1. [69]
    It is also necessary for the order to specify the time within which the answers are to be provided. The Revised Draft Interrogatories provide that the answers are to be provided within 14 days. Given the nature and scope of the interrogatories the time for provision of the answers is amended to 21 days from the date of the order.

Defendant Application – should the application be adjourned or dismissed with costs?

  1. [70]
    In respect of the Defendant Application the plaintiff seeks an adjournment and the defendant seeks the dismissal of the application with costs.
  1. [71]
    At the first hearing in January 2023 the Defendant Application concerned draft interrogatories that were the same in respect of both the defendant and the non-party. Following some submissions and preliminary comments, the plaintiff was given the opportunity to revise the draft interrogatories and to focus them in light of the objections, submissions and preliminary comments.
  1. [72]
    The Revised Draft Interrogatories for the further hearing on 5 April 2023 only addressed the interrogatories proposed to be delivered to the non-party, Mr Row. The plaintiff made the Adjournment Application for a time after Mr Row’s answers are provided and then further draft interrogatories proposed to be delivered to the defendant can be prepared.
  1. [73]
    The defendant’s opposition to this course relies on the substantive submissions made by the defendant in two written submissions as well as orally. These submissions include:
    1. (a)
      The proper interpretation of r 229(1)(a) UCPR.
    2. (b)
      The Defendant Application is not for a purpose within the scope of r 229(1)(a) UCPR.
    3. (c)
      Rule 230(1)(b) UCPR is not met in circumstances where:
      1. Statements and disclosure can be more simply and appropriately obtained from others in respect of the matters proposed to be the subject of interrogatories to be delivered to the defendant.
      2. The defendant has already provided further and better particulars in response to requests from the plaintiff.
      3. Utilising interrogatories to verify or obtain particulars is not appropriate when existing answers provide the best particulars available and it is unlikely any further particulars could or should be provided.[18]
      4. The plaintiff knows that the defendant does not have a copy of the contract with Uxwood Pty Ltd, the owner of the MMI Building.
    4. (d)
      The general objections in r 233(1) UCPR are also relevant to the grant of leave, including:
      1. The proposed interrogatories are fishing in nature, which is vexatious.
  1. (ii)
    Seeking to interrogate beyond the scope of the particulars provided by the defendant is inutile when there is no suggestion that further information is available. This is also vexatious and oppressive.
  2. (iii)
    The length of time since the events also makes the proposed interrogatories vexatious and oppressive.
  1. [74]
    In response the plaintiff submits that it is appropriate to adjourn the Defendant Application until after the interrogatories to be delivered to Mr Row are answered. The reasons relied upon in support of this include:
    1. (a)
      The answers given by Mr Row may reduce the scope of the interrogatories proposed in respect of the defendant.
    2. (b)
      The answers given by Mr Row are very likely to focus the scope of enquiries, if any, that may be relevantly directed to the defendant.
    3. (c)
      The answers given by Mr Row may reveal further avenues of enquiry to be made of the defendant or others. This could necessitate a further application for leave to deliver interrogatories to the defendant and could lead to further and disproportionate costs be incurred by all parties.
    4. (d)
      The interests of justice, the efficient use of the court’s resources and the interests of minimising costs of all parties support the adjournment of the Defendant Application until the interrogatories to be delivered to Mr Row are finalised.
  1. [75]
    The defendant in part seeks to have the Defendant Application dismissed at this stage so that any further application by the plaintiff to interrogate the defendant would face the higher hurdle of being the second application for leave to interrogate the defendant. That outcome however does not appear to have any basis in the UCPR. While that may have been the case previously, the UCPR provides no basis to import such a requirement.
  1. [76]
    Balancing the various considerations, I have reached the conclusion that the Defendant Application should be adjourned to a date to be fixed.
  1. [77]
    This outcome is consistent with the objective of identifying the real issues in dispute and the just and expeditious resolution of the real issues at a minimum of expense.
  1. [78]
    The interests of the efficient administration of justice are consistent with identifying if all relevant parties are joined, and also narrowing the issues to be litigated at this stage of the proceeding. This is most effectively done by obtaining the answers to the Revised Draft Interrogatories from Mr Row and then further considering how this proceeding progresses, including whether the Defendant Application is pressed in its current or a revised form, or not at all.

Costs

  1. [79]
    In the circumstances, I also consider costs should be reserved. This will enable the parties to make full submissions at an appropriate time to deal with all relevant issues which may impact on the court’s discretion in respect of costs.

Orders

  1. [80]
    Accordingly, the court orders that:
  1. The plaintiff be granted leave to deliver interrogatories to Mr David Row in the form of Annexure A to the plaintiff’s submissions filed on 17 March 2023, amended to provide 21 days for the answers.
  2. The plaintiff’s application is otherwise adjourned to a date to be fixed.
  3. Costs be reserved.

Footnotes

[1] See paragraph 3(c)(i) and 4(a)(ii)(1) of the second further amended defence dated 11 November 2022.

[2]  Affidavit of Angela Truce dated 1 February 2023 at pages 108-110.

[3]  The defendant alleges that the building owner, Uxwood Pty Ltd, engaged a heavy demolition contractor directly.

[4]  The defendant submits that it is permissible in a proceeding between A and B to ask C whether C or D is an appropriate party, but it is not permissible to ask C (or D) whether the existing party, B, is an appropriate party.

[5]Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd & Anor [2004] QSC 63 at [2] per Douglas J.

[6]  (2009) 239 CLR 175.

[7]   As the Chief Justice then was.

[8]  At 210-211, [90]-[93].

[9]  At 213, [97]-[98].

[10]  This is in contrast to Part 1 which deals with a pre-proceeding procedure and uses language consistent with that including “prospective defendant”, being “a person against whom the applicant intends to start a proceeding”.

[11]   Or ordered to continue by claim. If an order is made in relation to an application, this reasoning would apply to a named applicant and respondent.

[12]  The parties may also include third parties on proceedings involving claims against third parties.

[13]  Emphasis added.

[14]   For the purposes of this application, I do not consider whether it would extend to a non-party bringing an application. However, the decision of Wilkinson v Wilkinson [2009] QSC 191 appears to provide for pre-litigation interrogatories. There the information was needed to determine whether to commence proceedings. This case was before the introduction of Part 1 Preliminary Disclosure that was introduced in 2021 and may now govern applications of that nature.

[15]   Emphasis added.

[16]   Although in that case the non-party himself may have been a prospective defendant, which does not arise here. There was also the possibility of joining two representatives of the defendant to the proceeding.

[17] Cross v Queensland Rugby Football Union Ltd [2001] QSC 173 at [17] per Chesterman J. See also Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd & Anor [2004] QSC 63 at [11] and [12].

[18] Denis, Denis & Ladgaul Pty Ltd v R McMahon & Anor [1990] QSC 226 at 5-6; Ranger v Suncorp General Insurance Ltd [1999] 2 Qd R 433 at 434; Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221 at 222.

Close

Editorial Notes

  • Published Case Name:

    WorkCover Queensland v J. Hutchinson Pty Ltd (ACN 009 778 330)

  • Shortened Case Name:

    WorkCover Queensland v J Hutchinson Pty Ltd

  • Reported Citation:

    (2023) 15 QR 121

  • MNC:

    [2023] QSC 130

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    19 Jun 2023

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Conde v 2KW Broadcasters Pty Ltd [1982] 2 NSWLR 221
2 citations
Jump To
Cite 1 - [1982] 2 NSWLR 221
Cite 2 - [1982] 2 NSWLR 221
Cross v Queensland Rugby Football Union Ltd [2001] QSC 173
2 citations
Jump To
Cite 1 - [2001] QSC 173
Cite 2 - [2001] QSC 173
Denis v R McMahon & Associates [1990] QSC 226
2 citations
Jump To
Cite 1 - [1990] QSC 226
Cite 2 - [1990] QSC 226
Norwich Pharmacal Co v Customs and Excise Commissioners (1974) AC 133
2 citations
Jump To
Cite 1 - (1974) AC 133
Cite 2 - (1974) AC 133
Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd[2004] 2 Qd R 422; [2004] QSC 63
6 citations
Jump To
Cite 1 - [2004] QSC 63
Cite 2 - [2004] QSC 63
Cite 3 - [2004] QSC 63
Cite 4 - [2004] QSC 63
Cite 5 - [2004] QSC 63
Cite 6 - [2004] QSC 63
Ranger v Suncorp General Insurance Ltd [1999] 2 Qd R 433
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 433
Cite 2 - [1999] 2 Qd R 433
Wilkinson v Wilkinson [2009] QSC 191
3 citations
Jump To
Cite 1 - [2009] QSC 191
Cite 2 - [2009] QSC 191
Cite 3 - [2009] QSC 191

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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