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[2023] QSC 130
This case addressed whether, on the proper interpretation, it is permissible to interrogate a non-party under r 299(1)(b) UCPR in order to help determine whether a defendant is, or another person would be, an appropriate party to a current proceeding. After considering the draft proposed interrogatories, Williams J concluded that it was appropriate that leave be granted to the plaintiff to deliver them, noting that the course which it proposed would be likely to facilitate the just and expeditious resolution of the real issue in the proceeding at a minimum of expense.
Williams J
19 June 2023
The facts of the matter were straightforward. The plaintiff paid compensation to a deceased worker for mesothelioma. [9]. It subsequently sought to recover the compensation paid, from the defendant, in accordance with s 207B(8) Workers’ Compensation and Rehabilitation Act 2003. [10]. The defendant was the principal contractor for the refurbishment works undertaken during the late 1980s, which the deceased worker claimed caused/contributed to her condition. [10], [13], [15]. The non-party was a former director of the defendant. Whilst he had been amenable to providing a statement to the defendant, he was not prepared to speak with the plaintiff. [34].
The critical issue arising at the forthcoming trial is the timing as to when the defendant was the principal contractor and whether it undertook, directed or was responsible for works that exposed the deceased worker to asbestos dust. [16]. The defendant denied responsibility for the relevant works that exposed the deceased worker to the asbestos dust resulting in her death. [18]. The plaintiff sought answers to interrogatories from both the defendant and the non-party as to the key issues of who directed or was responsible for the works and when the defendant was engaged as the principal contractor in respect of the works done at the building at the relevant time to “help to decide whether a person is an appropriate party to the proceeding or would be an appropriate party to a proposed proceeding”. (There was also an application for leave to adjourn the application in respect of delivery to the defendant until after the answers to the interrogatories were provided by the non-party).
Should leave be granted to deliver interrogatories to the non-party?
The non-party was the defendant’s project manager for the refurbishment works and accordingly was identified as someone who would have relevant knowledge of the scope of those works and other relevant matters. [34]. The plaintiff wished to deliver the Revised Draft Interrogatories to him, seeking answers concerning who was engaged to do certain works, what they included and when they were done, with a view to identifying the appropriate parties to the claim. [43], [45]. The defendant and the non-party resisted that course, on the grounds that r 229(1)(b) does not contemplate the delivery of interrogatories for such a purpose. [46], [47]. Essentially, they argued that whilst it is allowable in a proceeding between A and B to ask C whether C or D is an appropriate party, it is not permissible to ask C (or D) whether the existing party, B, is an appropriate party. [fn 4, p 9 of the judgment].
In relation to the parties’ respective positions, the Court held:
1.Rule 229(1)(b) is an investigatory power to interrogate and is “novel” in that regard. It can be contrasted with r 229(1)(a) which provides for the usual means of delivering interrogatories to the other party to a proceeding. [48]. In the current matter, it was necessary to construe rr 229(1)(b) and 230 having regard to the general principles of statutory construction and then to address how the rules applied in respect of the Non-Party Application. [50].
2.On the proper construction of r 229(1)(b), and when reading it in the context of and in harmony with other interrelated rules, 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. [57], [62].
Citing Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] QSC 63, her Honour noted that it was apparent that the application’s primary purpose was to assist the plaintiff in determining whether and how to proceed with the litigation and whether any non-parties should be added to the action: “a course designed to facilitate the just and expeditious resolution of the real issue in this proceeding at a minimum of expense”. [61]. Those matters favoured the exercise of the discretion.
As to whether leave should be granted to the plaintiff, relevant considerations included:
1.Notice had been provided to both the defendant and the non-party.
2.Whilst r 230(1)(b) provides that the Court is to consider 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 by interrogatory” that is not necessarily mandatory.
3.The non-party refused to communicate with the plaintiff.
4.Whilst the plaintiff had perused the statement which the non-party provided to the defendant, inconsistencies and ambiguities with the defence remained.
5.The inclusion of the words “subject to an order of the court” enable the discretion and permit the Court to allow interrogatories where there is likely to be another reasonably simple and inexpensive way of proving the matter the subject of the interrogatory.
6.Whilst it would be possible to call the non-party at trial to provide evidence that course was not one that would promote the just and expeditious resolution of the real issues in these proceedings at a minimum of expense in accordance with r 5(1) UCPR.
7.Perusal of the draft proposed interrogatories was desirable. [63]–[64].
Her Honour stated:
“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. 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”. [67]–[68].
Disposition
Leave was granted to the plaintiff to deliver interrogatories to the non-party.
A Jarro