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Cybula v Nings Agencies Pty Ltd [1978] PGLawRp 527; [1978] PNGLR 166 (24 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 166 - John Cybula v Nings Agencies Pty Ltd�

[1978] PNGLR 166

N135

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN CYBULA

V

NINGS AGENCIES PTY LIMITED

Waigani

Pritchard J

11 April 1978

24 May 1978

PRACTICE AND PROCEDURE - Judgment by default - Failure to answer interrogatories within time ordered - Principles to be applied.

DISCOVERY AND INTERROGATORIES - Interrogatories - Answers - Sufficiency of - Pleadings and admissions made in proceedings may be looked at in considering sufficiency.

DISCOVERY AND INTERROGATORIES - Interrogatories - Upon what matters - Motor vehicle accident - Admission by defendant company that its vehicle involved in accident - Interrogatories directed to identity of defendant�s driver and terms of employment deemed proper.

In an action claiming damages for negligence arising out of a motor vehicle accident alleged to have been caused by the negligence of the defendant�s servant or agent, the defendant was ordered to answer interrogatories delivered by the plaintiff, within 7 days of 21st March, 1978. On 30th March, 1978 the plaintiff took out a summons asking that the defence to the action be struck out, and on 31st March, 1978 the defendant delivered its answers to interrogatories. On the hearing of the summons it was argued that if the court did not grant the orders sought in the summons it should order the defendant to furnish further and better answers to the interrogatories on the basis that the answers supplied were insufficient. The particular interrogatories were directed towards the identity of the defendant�s driver and his terms of employment.

Held

N1>(1)����� An application to strike out a defence on the ground of failure to deliver answers to interrogatories within time ordered, should only be granted where it seems clear that the party in default really intends not to comply with the order of the court.

Odgers� Principles of Pleading and Practice 20th ed. 1971 at p. 249 referred to.

N1>(2)����� In considering the sufficiency of answers to interrogatories the court may look at, not only the request for interrogatories, but also at the pleadings and all other documents filed in the action, or which have passed between the parties to the action, such as notices to admit facts and the answers supplied in relation thereto.

N1>(3)����� There being a specific admission made in answer to a notice to admit, that the defendant�s vehicle was involved in an accident with the plaintiff�s vehicle on the date etc. alleged, interrogatories directed towards ascertaining the identity of the driver of the defendant�s vehicle and the nature of his duties were not �fishing� interrogatories, and should be answered.

Sharpe v. Smail (1975) 49 A.L.JR 130 and Hooton v. Dalby [1907] UKLawRpKQB 63; [1907] 2 K.B. 18 referred to.

Summons

This was a summons taken out under the Rules of Court, by a plaintiff asking that a defence be struck out on the ground that answers to interrogatories had not been delivered within time ordered, and entry of interlocutory judgment for assessment of damages.

Counsel

I. R. Molloy, for the plaintiff/applicant.

G. B. Evans, for the defendant/respondent.

Cur. adv. vult.

23 May 1978

PRITCHARD J: In this matter on 21st March, 1978 by consent, I ordered that the defendant, in accordance with the Rules of Court, answer the plaintiff�s interrogatories delivered to it for its examination on the 28th October, 1977 within 7 days. This order was not obeyed and on 30th March the solicitors for the plaintiff took out a summons asking that the defence to the action be struck out and that interlocutory judgment for damages to be assessed be entered for the plaintiff. The interrogatories were in fact answered by the defendant in an affidavit by its managing director, on 31st March. The matter was argued before me on the basis that if I did not grant the orders sought in the summons I should order the defendant to furnish further and better answers to the interrogatories on the basis that the answers supplied were insufficient. The principles upon which the court will enter judgment in these circumstances is discussed in Odgers� Principles of Pleading and Practice (20th ed. 1971 at p. 249) where it is said that the court is reluctant to exercise its power to strike out a defence and will only do so when a party has at least once disobeyed a peremptory order insisting that he make discovery within a specified time. On the following page it is said: �These are highly penal provisions and will only be enforced in the last resort, where it seems clear that the party in default really intends not to comply with an order of the court.�

Before considering the merits of this matter I wish to restate something I have said before, namely that in considering the sufficiency of answers to interrogatories the court will look not only at the request for interrogatories but also at the pleadings and all other documents filed in the action or which have passed between the parties to the action, such as notices to admit facts and the answers supplied in relation thereto. In this particular case a notice to admit facts was given and answers supplied last year. I will refer to them later.

The action is one for damages for negligence arising out of a motor vehicle accident which the statement of claim alleges was caused by a servant or agent of the defendant company driving a motor vehicle belonging to the defendant in a negligent manner thereby colliding with the plaintiff�s vehicle and causing him injury. Such allegations are denied in the defence filed in the action.

The interrogatories on behalf of the plaintiff consist of some 30 questions. Questions 10-30 relate to details of the manner in which the accident occurred and the damage and injuries flowing from it. The answer to all these questions was as follows:

N2>�10-30.�������� After due enquiry of the servants agents or officers of the party named as defendant herein, I am unable of my own personal knowledge or from belief upon being duly informed able to answer any of these questions.�

This is an adequate answer. An officer of a company is bound to answer as to his own individual knowledge, and to get information from other servants or agents of the company who have personally conducted the transaction, or acquired the knowledge as such servants or agents (Southwark Water Co. v. Quick[cclxxviii]¹). It is his duty to make inquiry among the other officers and servants of the company (Bank of Russian Trade Ltd. v. British Screen Productions Ltd.[cclxxix]²).

N1>I will therefore concern myself only with interrogatories Nos. 1-9 which read as follows:

N2>�1.����� At the time of the collision between the plaintiff�s vehicle registered No. 75099 and the defendant�s vehicle registered No. 56331 on Ela Beach Road, Port Moresby on the 8th June, 1974:

(a)����� What was the name, address, occupation and description of the driver of the defendant�s vehicle;

(b)����� If the said driver was employed by the defendant, state the usual and regular occupation of the driver in the employ of the defendant;

(c)����� What were the usual and regular working hours of the driver;

(d)����� Did the said collision occur during the driver�s working hours on the 8th June, 1974;

(e)����� What instructions or directions, if any, had been given to the driver by the defendant, its officers, servants or agents with reference to the place where and/or the business or purposes for which the defendant�s vehicle was being driven by the said driver at the time of the said collision.

(f)����� If the answer to 1(e) is in the negative, state precisely how the driver came to be driving the defendant�s vehicle at the time of the collision.

N2>2.������ Without limiting the generality of the foregoing, was the defendant�s vehicle being driven at the time of the said collision with the permission of the defendant, its officers, servants or agents.

N2>3.������ At the time of the said collision, was Makopa Vadria, or a person of similar name employed by the defendant.

N2>4.������ If the answer to the last interrogatory is in the affirmative, state the full and correct name, address and occupation of the said person.

N2>5.������ If the answer to the interrogatory (3) is in the affirmative, what was the usual and regular occupation of that person in the employ of the defendant at the time of the said collision.

N2>6.������ State the usual purpose for which the defendant�s vehicle was used at the time of the said collision.

N2>7.������ State the persons who were permitted to use the defendant�s vehicle by the defendant at the time of the said collision.

N2>8.������ State the names of the persons who regularly used the defendant�s vehicle at the time of the said collision.

N2>9.������ State the names of the employees, if any, of the defendant, who had used the defendant�s vehicle in the twelve months preceding the date of the collision.�

The answers supplied to these specific questions were as follows:

N2>�1.

(a)����� This is a question of evidence and for the plaintiff to prove and is not a proper subject of Interrogatories.

(b)����� See (a) above.

(c)����� See (a) above.

(d)����� See (a) above.

(e)����� This question is directed towards obtaining the facts by which the parties may prove their respective cases rather than the case itself and is not a proper subject of Interrogatories.

(f)����� Not applicable.

N2>2.������ So far as due inquiry of the defendant�s servants agents or officers goes the defendant is unable to answer this question.

N2>3.������ Unless it is alleged in the Statement of Claim that the person named in this question is a party or was the driver of the defendant�s vehicle, which is not, this question is irrelevant.

N2>4.������ This question is irrelevant as to the issues.

N2>5.������ See answer Q. 3.

N2>6.������ Irrelevant.

N2>7.������ This question is onerous and oppressive and does not refer to some definite and existing identity of any person or persons relevant to the pleading.

N2>8.������ See 7 above.

N2>9.������ Irrelevant.�

Before considering whether or not these answers are sufficient I refer to the notice to admit facts and the admissions made pursuant to it which I have mentioned above. The admissions requested were as follows:

N2>�(1)��� That at all material times the plaintiff was the owner of a motor vehicle Colt Sedan registered No. 75099 (the plaintiff�s vehicle).

N2>(2)����� That at all material times the defendant was the owner of a motor vehicle Toyota Truck registered No. 56331 (the defendant�s vehicle).

N2>(3)����� That at approximately 10.00 a.m. on 8th June, 1974 a collision occurred on Ela Beach Road, Port Moresby between the plaintiff�s and the defendant�s vehicles.

N2>(4)����� That at the time of the alleged collision the plaintiff�s vehicle was being driven by the plaintiff himself.

N2>(5)����� That at the time of the alleged collision the defendant�s vehicle was being driven by one Makopa Vadria.

N2>(6)����� That the driver of the defendant�s vehicle at the time of the alleged collision was at the time a servant or agent of the defendant.

N2>(7)����� That the driver of the defendant�s vehicle was at the time of the alleged collision driving the said vehicle in the course of his employment with the defendant.

N2>(8)����� That immediately prior to the alleged collision the plaintiff�s vehicle was stationary.

N2>(9)����� That immediately prior to the alleged collision the defendant�s vehicle was travelling west on Ela Beach Road.

N2>(10)��� That in the alleged collision the place of impact on the defendant�s vehicle was its front.

N2>(11)��� That in the alleged collision the point of impact on the plaintiff�s vehicle was its rear.

N2>(12)��� That the plaintiff sustained personal injuries in the alleged collision.�

The replies were as follows:

N2>�1.����� Admitted.

N2>2.������ Admitted.

N2>3.������ Admitted.

N2>4.������ We are informed only of the plaintiff�s allegations and are not in a position to admit this fact.

N2>5.������ See 4 above.

N2>6.������ See 5 above.

N2>7.������ See 5 above.

N2>8.������ This is not admitted.

N2>9.������ Admitted.

N2>10.���� We are not instructed to admit this fact.

N2>11.���� We are not instructed to admit this fact.

N2>12.���� Denied.�

The first observation I would make is that in view of the admission made in answer 3 that a collision occurred on the date and at the time referred to between the plaintiff�s and the defendant�s motor vehicles I find it difficult to understand the answers to questions 5 and 6. However, there is not the same obligation upon a defendant to make admissions in reply to such a notice as there is to answer questions posed in interrogatories. I do not intend to go into detail on the principles relating to interrogatories and the many cases decided in relation to them, except to say that their purpose is twofold, firstly to obtain admissions to facilitate the proof of the party�s own case and secondly to ascertain as far as possible the case of his opponent. At one stage there seemed to be some doubt as to whether interrogatories should be allowed in running-down cases but this doubt was dispelled clearly in Griebart v. Morris[cclxxx]³. This case also refers to the principle stressed in so many other cases that the power of the court in relation to these matters is a discretionary one. A very thorough examination of the principles applicable to interrogatories generally and in particular instances is set out in WilliamsSupreme Court Practice (Victoria) 2nd ed., vol. 1 at pp. 1451-1479.

N1>Counsel for the plaintiff has put to me that the information sought in questions 1 and 3-9 inclusive relate to facts the existence or non-existence of which are relevant to facts directly in issue, namely the regular use of the defendant�s vehicle from which it could be inferred that on the day of the accident it was being used for the purposes of the defendant�s business. He referred me to the case of Sharpe v. Smail[cclxxxi]⁴. In that case Gibbs J discussed the extent to which a party must make inquiries in answering interrogatories and the question of sufficiency of the answers. Amongst other things his Honour held that an objection to answering certain of the questions posed was not well-founded as the interrogatories concerned were directed to facts relevant to some of the questions in issue in the case, even if not directed to matters themselves directly in issue.

N1>Counsel for the defendant relied on the principles set out in Hooton v. Dalby[cclxxxii]⁵�and in particular the judgment of Cozens-Hardy M.R. at p. 20. That case was an action for seduction of the plaintiff�s daughter when the defendant admitted carnal knowledge but denied that he was the father of the daughter�s child. An interrogatory asking whether it was alleged that any other male person had had carnal knowledge of the daughter was not allowed. At p. 20 Cozens-Hardy M.R. said:

�If A.�s carriage is damaged by a collision in the street, and B. is sued for damages as having caused the collision, B. may not care to traverse the fact of the collision or the damage done to A.�s carriage, these being facts which could not be controverted, and may simply traverse the allegation that his vehicle was the occasion of the damage. In such a case A. must establish that the vehicle, which ran into his carriage, was B.�s vehicle, and he ought not to be allowed to interrogate B. to say if it was not B.�s vehicle, whose vehicle it was. B. may at the trial prove his traverse by shewing that it was C.�s vehicle which did the damage. This is no part of the plaintiff�s case, nor does it tend to disprove the defendant�s case. In my view this is really a fishing interrogatory intended to ascertain the names of witnesses whom the defendant may desire to call in support of his defence, and, that being so, I think the learned judge was perfectly right in refusing to allow the interrogatory to be delivered.�

In my opinion that decision must be distinguished from the situation here. Interrogatories directed towards ascertaining the identity of the driver of the defendant�s vehicle are not �fishing� interrogatories where there is a specific admission already made in this matter that the defendant�s vehicle was involved in an accident with the plaintiff�s vehicle, on the date and at the time alleged by the plaintiff. Such an admission can only have been made after the truth of it has been ascertained by the defendant and the truth of it having been so ascertained there is placed fairly and squarely on the defendant an obligation to answer questions relating to the identity of its employee and the nature of his duties at the time of the accident.

Turning then to the interrogatories in this matter, I hold that the answers to question 1 are not sufficient and each one of the questions posed therein are to be answered. So far as question 2 is concerned the answer of the defendant is adequate. So far as question 3 is concerned, the fact that the person named is alleged to have been the driver has been made quite clear to the defendant in the notice to admit facts. It is of no consequence whatsover that he is not alleged to be the driver in the statement of claim and this question also is to be answered. The same applies to questions 4, 5 and 6. So far as questions 7, 8 and 9 are concerned, I do agree that on the state of the pleadings and in the light of the notice to admit facts these questions are too wide and should be disallowed.

Finally, I would stress that the principle of interrogatories is to enable the parties to limit the issues which are to be litigated in the action and to thereby save time and unnecessary expense. In this matter I am satisfied the defendant has deliberately evaded answering these questions and I issue the warning that if further instances of this kind occur this Court will be inclined to strike out the defence rather than give a defendant a second chance. In this instance however I will give the defendant a second chance and the answers are to be supplied within 24 hours in view of the fact that this matter is fixed for hearing in the near future. The defendant is to pay the plaintiff�s costs of this application.

Orders accordingly.

Solicitors for the plaintiff: Craig Kirke & Wright.

Solicitors for the defendant: Gadens.