Supreme Court New South Wales

• Medium Neutral Citation: Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2012] NSWSC 1392
• Hearing dates: 7 November 2012
• Decision date: 21 November 2012
• Jurisdiction: Common Law
• Before: Davies J

Decision

(1) The order of the Registrar made on 27 September 2012 is varied as follows:

(a) Interrogatories 2 and 4 are allowed limited to procedural steps in the approval process;

(b) Interrogatories 9 to 18 are allowed limited to inspection of the car park;

(c) Interrogatories 19, 20, 21 (a) and (b) are disallowed;

(d) Interrogatory 21(c), (d) and (e) are allowed limited to the year 2006.

(2) No order as to costs.

• Catchwords: PROCEDURE - Interrogatories - proceedings for damages for personal injury and death - review of Registrar's order - whether "special reasons" shown - whether interrogatories "necessary" - whether justified by pleading of Statement of Claim.
• Legislation Cited: Compensation to Relatives Act 1897; Legal Profession Act 2004; Uniform Civil Procedure Rules
• Cases Cited: Ahmed El Hayek v Josslyn Vasic [2010] NSWSC 1498; Boyle v Downs [1979] I NSWLR 192; Cavric v Cooper and Lybrand (ACT) Ltd (2002) NSWSC 538; Chong v Nguyen [2005] NSWSC 588; Haywood v Collaroy Services Beach Club [2005] NSWSC 1203; O'Brien v Little [2007] NSWSC 64; Priest v State of NSW [2006] NSWSC 12; Tonka v Palasty (No. 2) [2007] NSWCA 369; Wentworth v Graham [2002] NSWCA 397; (2002) 55 NSWLR 638; Tooth & Co Ltd Lane Cove Municipal Council (No 4) [1968] 2 NSWR 17; Yamazaki v Mustaca [1999] NSWSC 1083
• Category: Interlocutory applications
• Parties: Michelle Lee (Plaintiff); Carlton Crest Hotel (Sydney) Pty Ltd (First Defendant); Tai Ping Trading Pty Ltd (Second Defendant); Everingham Platt and Anthony Pty Ltd (Third Defendant); City of Sydney Council (Fourth Defendant)
• Representation: Counsel: A Bowen (Plaintiff); K McMenamin (First Defendant); D Miller SC (Fourth Defendant); Solicitors: Beswick Lynch Lawyers (Plaintiff); Thompson Cooper Lawyers (First Defendant); Moray & Agnew (Fourth Defendant)
• File Number(s): 2009/297394

Judgment

1 The Applicant, who is the Fourth Defendant in the proceedings commenced by the Respondent, the Plaintiff, seeks a review pursuant to rule 49.19 UCPR of a decision of the Registrar given on 27 September 2012 concerning the provision of interrogatories.

2 The Plaintiff had sought by Notice of Motion filed 5 June 2012 leave to file and serve interrogatories in the form annexed to the Notice of Motion. There were 21 such interrogatories with a few internal questions.

3 The proceedings concern the death of the Plaintiff's husband at a car park in Thomas Street, Sydney within the local government bounds of the Fourth Defendant, the Council. The Plaintiff's husband was driving his motor vehicle within the car park which was operated by the First Defendant. It is alleged that in the course of parking in a designated parking space the vehicle passed through a precast concrete wheel stop, through a steel barrier fence and fell from the second floor of the car park. The Plaintiff witnessed the accident. She claims damages for nervous shock pursuant to the Compensation to Relatives Act 1897.

4 The claim against the Council rests on the basis that it is the statutory authority responsible for approving the building of the parking station, for inspecting it during the time it was being built and for issuing the licence to the First Defendant to operate the car park.

5 The substantive proceedings raise in part the difficult and possibly unresolved question of the responsibilities of a local council when assessing and approving development applications.

6 Discovery has previously been given to the Plaintiff by the Council.

7 The Registrar determined that it was appropriate that leave should be given to ask all of the interrogatories sought by the Plaintiff. He did so after examining the defence that had been filed by the Council and came to a view about the issues that were to be determined at the final hearing.

8 The Registrar was conscious of the fact that in cases involving claims for personal injury it is necessary for the Applicant to demonstrate that special reasons exist justifying the order: r 22.1(3)(b). The Registrar also had regard to the need for the Court to be satisfied that an order for interrogatories was necessary at the time it was made: r 22.1(4).

9 In considering whether there were "special reasons" the Registrar had regard to what was said by Harrison AsJ in Cavric v Cooper and Lybrand (ACT) Ltd (2002) NSWSC 538 and Priest v State of NSW [2006] NSWSC 12.

10 In considering the issue of whether the interrogatories were necessary the Registrar made reference to Boyle v Downs [1979] I NSWLR 192.

The issues

11 The Council submitted on the present application that the interrogatories allowed by the Registrar go much further than addressing the pleaded matters in dispute. The Council's written submissions identify the issues as follows:

a. The plaintiff points to certain acts that she says the Council ought to have taken as part of its various approvals processes, but did not take, as it is said is evidenced (so the plaintiff says) by the presence of the alleged deficiencies in the design and/or construction of the car park wheel stops and barrier.

b. The plaintiff supports those allegations through the evidence of its expert engineer, Mr Alden.

c. The defendant denies that it was lawfully obliged to carry out, or undertake, the steps or acts that the plaintiff contends should have been undertaken, and denies that in approving the works and inspecting those works (either during the course of construction, or afterwards) it was obliged to investigate and identify the defects that are now alleged. It says that it had no such obligation to shadow or check / verify the detailed design, or construction, of the wheel stop or the barrier by reason of any legislation, or ordinances, or the Australian standards that are identified by the plaintiff in her statement of claim, or under the common law.

12 The Council says further that discovery of all available documents has been given. It says that the events concerned happened 26 years ago and the relevant persons are no longer with the Council. It says that no claim has been made for misfeasance in relation to the way the Council assessed the development application. Rather, what is alleged is nonfeasance in not having had regard to the problems with design and/or construction.

13 On 23 May 2011 the Council filed a document entitled Statement of Issues. Relevantly to the present application, the Statement of Issues included these:

The approval and/or licensing process

1. Whether the material submitted to the council during the DA and BA process was sufficiently detailed that it would have been apparent to the council that:

(a) The design of the outer barrier of the car park might be inadequate;

(b) The fixing method of the wheel stops might be inadequate;

(c) The construction methods to be adopted in fixing the outer barrier to the concrete slab would be inadequate;

(d) That aspects of the proposed design and construction might not satisfy the requirements of relevant Australian Standards.

2. Whether the council officers responsible for the approval of the proposed construction included engineers or other personnel qualified to interpret proposals submitted by those constructing the car park to the extent necessary to identify deficiencies in the proposed design and construction insofar as the structural integrity and adequacy of the wheel stops and outer barrier of the car park were concerned.

3. Whether the council approved plans which were inadequate or defective at the time of their approval and if so the extent of the inadequacies or defects in the plans.

4. Whether the conditions imposed by the council on those constructing the car park included requirements that the car park satisfy the requirements of:

(a) ordinance 34B;

(b) ordinance 70;

(c) the SAA Loading Code or AS1170.1 1981;

(d) other relevant construction standards.

...

8. Whether in approving the plans the council took into account the retarding force that might be applied to vehicles by wheel stops in assessing the adequacy of the outer barrier of the car park in terms of its ability to retard moving vehicles.

9. Whether during the approval and/or construction process an amended design was submitted which provided for a change in the outer barrier of the car park, and if so, whether the amended design failed to comply with the SAA Loading Code or AS1170.1 1981.

10. Whether, if an amended design for the outer barrier was submitted, it was apparent from the face of documents submitted to the council that the new design would be non-compliant with the relevant standards.

11. Whether at the time of the approval of plans by the council there was a practice amongst either building surveyors or councils of making allowances for the vehicle retardation imposed by wheel stops in assessing the adequacy of other vehicular barriers in car parks.

12. Whether the processes followed by the council in the approval of the car park's construction accorded with the processes commonly followed by councils at the time in dealing with such approvals.

13. Whether the processes followed or methods adopted by professionals in the council's employ, and in particular building surveyors and/or engineers, accorded with a manner of acting that was then widely accepted as competent professional practice.

14. Whether, at the time of any approvals given by the council, the note to AS1170.1 1981, which indicated that "special consideration should be given to the design of kerbings and guard rails to alleviate possible vehicular impact on the structure and it should be noted that the impact forces from runaway vehicles on ramps can considerably exceed the loads specified above" was commonly interpreted by building surveyors, engineers and/or councils to mean that wheel stops and other like devices could be utilised to decrease the impact resistance required of other structures.

15. Whether the car park was inspected during construction by council officers, and if so:

(a) when;

(b) by whom;

(c) with what level of expertise or qualifications;

(d) at what stage of construction;

(e) for what purpose/s;

(f) what matters about the construction were likely to be capable of observation during any such inspection;

(g) were any or all of the alleged defects in construction methodology or design capable of being discovered during such an inspection by a person of the type/experience conducting the inspection on the council's behalf.

16. Whether the car park was inspected by council officers after construction was completed, and if so:

(a) when;

(b) by whom;

(c) with what level of expertise or qualifications;

(d) for what purpose/s;

(e) were any or all of the alleged defects in construction or design capable of being discovered during such an inspection by a person of the type/experience conducting the inspection on the council's behalf;

(f) was the identification of such defects an element of the inspection being carried out at the time.

17. Whether the car park was inspected between the time of construction and the date of the accident by officers of the council for the purposes of issuing permits to the

operators of the car park and if so:

(a) when;

(b) by whom;

(c) with what level of expertise or qualifications;

(d) for what reason/s;

(e) were any or all of the alleged defects in construction or design patent of capable of being discovered during such an inspection by a person of the type/experience conducting the inspection on the council's behalf;

(f) was the identification of such defects an element of the inspection being carried out at the time.

...

ISSUES OF LAW

24. The extent of any duty of care owed by the first defendant and whether, having regard to ss5B and 5C of the Civil Liability Act 2002 any such duty was breached.

....

26. The extent of any duty of care owed by the Council and whether, having regard to ss5B and 5C of the Civil Liability Act 2002 ('CLA') any such duty was breached.

27. Whether, at the time of approving the construction of the car park, it was foreseeable to the Council that:

(a) conditions imposed by the Council and/or by legislation and ordinances might not be met in the design and construction process; and

(b) the wheel stops in the car park might be installed in a defective fashion; and

(c) the engineers designing the car park might fail to comply with the requirements of AS1170.1 1981 and/or good and proper engineering practice; and

(d) the construction of the outer barrier of the car park might fail to meet the requirements of relevant Australian Standards and/or good construction and engineering practice; and

(e) the methods of fixing the outer barrier to the concrete slab might not comply with sound construction or engineering practice; and

(f) the condition of the wheel stops might deteriorate further over time such that around 20 years later a quantity of the wheel stops in the car park might no longer be securely attached to the concrete floor slab; and

(g) that notwithstanding deterioration of the wheel stops over time successive owners and managers of the car park might fail to conduct any maintenance, inspection and/or repairs of the wheel stops; and

(h) that a driver might at some point in the distant future accelerate a vehicle during a parking exercise so harshly that the vehicle might drive over or through a failed wheel stop and then through the outer barrier of the car park leading to injury, loss and damage being suffered.

28. Whether the scope of Ordinance 34B was such that it required the Council to take into consideration the content of AS 1170.1 1981.

29. Whether an obligation, if it existed, to take AS1170.1 1981 into consideration, imposed a duty on the Council to ensure that the design and/or construction of the car park complied with the standard in every respect.

30. Whether Ordinance 70 imposed a duty on the Council to have regard to the content of AS1170.1 1981 when approving the development or building of the car park.

31. If Ordinance 70 did impose a duty to have regard to AS1170.1 1981, whether that duty obliged the Council to ensure that the design and/or construction of the car park complied with the standard in every respect.

32. Whether Ordinance 34B or Ordinance 70 imposed a duty upon the Council and if so, the nature and scope of that duty.

33. Whether, if Ordinance 34B imposed a duty upon the Council to take certain matters into consideration, Council was obliged to do anything more than consider those matters to discharge its duty under the Ordinance.

34. Whether, if any duty was imposed on the Council by either Ordinance 34B or Ordinance 70, the Council could discharge that duty by imposing upon those constructing the car park an obligation to comply with the ordinances in question.

35. Whether the powers provided to the Council pursuant to the Local Government Act 1919 were such that the Council was obliged to exercise its powers in any particular way when approving the development and construction of the car park or when licensing the use of the car park.

36. Whether the powers provided to the Council pursuant to Ordinance 34B (if any) were such that the Council was obliged to exercise its powers in any particular way when approving the development and construction of the car park or when licensing the use of the car park .

37. Whether the powers provided to the Council pursuant to Ordinance 70 (if any) were such that the Council was obliged to exercise its powers in any particular way when approving the development and construction of the car park or when licensing the use of the car park.

38. Whether the Council was entitled to have regard, in exercising or not exercising its powers in relation to the development and/or construction approval, to the obligations imposed upon those constructing the car park by Ordinance 34B, Ordinance 70 and/or AS1170.1 1981.

39. Whether the extent of any duty imposed upon the Council by virtue of either its statutory powers or its decision to exercise them, included a duty to carry out inspections of the car park directed towards identifying construction defects and/or design defects.

40. The impact of s42 of the CLA in the assessment of the scope of the Council's duty of care (if any).

41. The impact of s43 of the CLA upon allegations that the Council breached a statutory duty.

42. The impact of and application of s43A of the CLA and whether or not, judged by the standard required by s43A, the Council's acts or omissions were so unreasonable that no authority having the same powers could have considered the acts or omissions reasonable in the circumstances.

43. The impact of s44 of the CLA in relation to any allegations of a failure on the part of the Council to regulate activities associated with the design, construction and operation of the car park.

44. The impact of s46 of the CLA in the assessment of the scope of the Council's duty of care (if any).

Consideration

14 The review of the Registrar's decision is not an appeal and is not subject to the restrictions that apply to an appeal: Tonka v Palasty (No. 2) [2007] NSWCA 369 at [6], [10], [50] and [52]. Although in that sense an Applicant does not have to demonstrate there has been a material error of fact or law an application for a review does not involve a complete hearing de novo. The fact of the Registrar's decision, especially where it relates to a matter of practice and procedure (as here), is inevitably a relevant consideration in the exercise of the review power: Wentworth v Graham [2002] NSWCA 397; (2002) 55 NSWLR 638 at 640-1. Accordingly, it is appropriate for restraint to be exercised when conducting the review.

"Special reasons"

15 In Haywood v Collaroy Services Beach Club [2005] NSWSC 1203 Rothman J considered the need for interrogatories in a case where the Plaintiff sued for damages for personal injury from a fall down a staircase. The staircase was initially being constructed by a builder who went into bankruptcy during construction. The staircase was completed by another party. The Plaintiff sued the owner or occupier of the property. Rothman J noted that there were issues concerning the relationship between the Defendant and those who completed the construction - see at [3].

16 When his Honour came to consider the issue of special reasons Rothman J said this:

[15] The issues, upon which questions are sought, like the earlier interrogatories:

a Are concerned with subjects that, as between the parties, are largely or peculiarly within the knowledge of the defendant;

b Involve complex questions going to the relationship (legal and otherwise) between the defendant and third parties;

c Would, for the plaintiff, otherwise be very difficult or impossible to prove or would be such that probative evidence on such issues would be difficult or impossible to obtain.

17 In Ahmed El Hayek v Josslyn Vasic [2010] NSWSC 1498 Garling J said:

[49] The requirement for special reasons to be established is a restrictive one. It is intended to act as a limitation on the circumstances in which an order will be made.

[50] Whilst it is clear that "special reasons", as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006 unreported) at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126]-[128] per Johnson J; Keating at [24]; Boscolo at [18] per French J (as his Honour then was).

[51] Typically, but not exclusively, what will take the matter "out of the ordinary" is:

(a) an inability to obtain the requisite factual material without the exercise of the discretion;

(b) that the applicant is in a position of some disability or disadvantage;

(c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.

18 The Council submitted that the issue of "special reasons" could not be determined separately from a consideration of the precise interrogatories sought. In my opinion that is true in only a most general sense. It is certainly necessary to see what is the general area of enquiry to satisfy (a) and possibly (b) in the considerations suggested by Garling J. However, when that is established, whether or not special reasons exist can be determined as a matter of principle before descending to the minutiae of the particular interrogatories sought.

19 I am satisfied that special reasons are shown in the present case. The knowledge of the matters sought to be asked is largely or wholly that of the Council: Haywood [15(a)]; in that sense the present applicant is in a position of disadvantage: El Hayek [51(b)]; and there would be an inability to obtain the material without the exercise of the discretion: El Hayek [51(a)]; Haywood [15(c)]. In addition, in the present case there is the issue of the responsibility as between the Council and the First Defendant in terms of the license issued and responsibility for the safety of the parking station: Haywood [15(b)].

20 In reaching that conclusion I have had regard to the general areas of enquiry raised by the interrogatories sought.

"Necessary"

21 As far as the interrogatories being "necessary" are concerned, Rothman J said in Chong v Nguyen [2005] NSWSC 588:

[16] The word "necessary" when used in relation to a requirement on the exercise of a power granted to a court should generally and does here mean "reasonably required or legally ancillary" to the achievement of the goal, in this case, of a fair trial. I refer to the joint judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 which, while determining whether there was a valid basis for contempt proceedings, examined the power of the District Court to issue injunctive relief. They said:

The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker (1849) 3 Ex 242, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Division 4 of Part 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness' (State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 477 at 452). (my emphasis)

22 He noted also at [14] that the overwhelming authoritative view is that the Court must be satisfied that the order is "necessary in the interests of a fair trial".

23 I turn now to the individual interrogatories. These can be grouped, largely as the Registrar grouped them.

Interrogatories 1 - 4

24 Some of the matters raised in objection to these interrogatories are relevant to later groups of interrogatories. I will consider the objections for this group with the result that a determination of the objection for this group will apply also to the later groups.

25 Interrogatories 1 to 4 are concerned with the officers of the Council who considered the development application, including modifications of the development application, and seeks their qualifications, role and functions within the Council. They also ask what steps these officers took "in considering or dealing with" the development application.

26 The Council points to what was said by Street J (as he then was) in Tooth & Co Ltd Lane Cove Municipal Council (No 4) [1968] 2 NSWR 17 at 19 and followed by Patten AJ in O'Brien v Little [2007] NSWSC 64 at [20] as follows:

Interrogatory 19 is in the following terms: "What factors did the defendant take into account in defining the local area in respect of which the said local rate was paid and levied?" This interrogatory proceeds from the allegations in the statement of claim upon which issue is taken in the statement of defence, charging that the defendant took into account inadmissible considerations and failed to take into account relevant considerations in connexion with the passing of the resolution mentioned in para 5 of the statement of claim.

I am of the view that the interrogatory should not be allowed. It is directed in its terms to ascertaining what may have been a particular mental process on the part of the defendant. The defendant, being a municipal corporation, has itself no mind. There are, of course, many occasions on which it is necessary to attribute to a municipal corporation attitudes of mind such as purpose, opinion, intention, and the like. These attitudes of mind are, however, fictional, in that they proceed upon the assumption, which is made in each instance that a municipal corporation has a mind. Where a suit raises as a relevant issue the state of mind of an individual, then a properly framed interrogatory directed to the ascertainment of ingredients in that state of mind would no doubt be allowed. Where, however, the suit concerns the act of a municipal corporation it appears to me to be unreal to direct to that corporation an interrogatory upon what matters were present to its mind in relation to a particular event. The inferences drawn and conclusions reached by courts upon purpose, intention or opinion on the part of municipal corporations are drawn and reached as a result of evidence of objective facts. But the fact that in those cases decisions are made that a municipal corporation had a particular mental state does not travel to the extent of raising the fiction that the corporation has in truth a mind, the processes of which can be examined through medium of interrogatories, as is the case with a personal party.

... In the present case it does not seem to me that it is admissible to ask of the defendant corporation what factors it took into account upon the assumption that some servant or officer of the defendant applied his mind to the taking into account of factors so as to render his mental process vicariously the mental process of the defendant.

... An interrogatory directed to the company and aimed at ascertaining the purposes of the directors seems to me to stand on a very different footing from an interrogatory such as is propounded in No 19. The interrogatory before me is aimed at the defendant corporation in respect of something which is to be assumed to have taken place in the mind of the corporation itself. This is not a case in which some subordinate officer of the corporation, acting within the scope of the duties of his office, formed an intention or took matters into account so as to render his mind vicariously the mind of the corporation. Nor is it a case such as the Duke of Sutherland's Case, supra, where it was the state of mind of the individual directors themselves which was the relevant matter for dispute.

27 Mr Bowen of Counsel for the Plaintiff said that what was sought by interrogatories 2 and 4 was not the mental processes of the Council officers who dealt with the application but rather the procedural steps adopted by Council in assessing the application. The words "considering or dealing with" intended no more than that.

28 Bearing in mind paragraph 2 of the Council's Statement of Issues, the identity, responsibilities and qualifications of the Council officers responsible for the approval of the development consent appear to be highly relevant. Similarly the procedural steps taken which may include who was asked to review the application appear to be relevant to that issue.

29 The Council's submission that there is no allegation in the Statement of Claim about misfeasance on the Council's part in relation to the approval, and in particular no alleged deficiencies in the way particular officers carried out the task, is not to the point. When the Plaintiff is in the position of not knowing what the Council did in this regard it would not be consistent with her solicitor's responsibilities under ss 344 - 349 Legal Profession Act 2004 for such particular allegations to have been made. That does not turn the request for interrogatories into a fishing expedition. The allegation is made that the Council had responsibilities in relation to the assessment and approval of the application. The Plaintiff does not know precisely how that was carried out. That is what the interlocutory processes of the Court are designed to assess. In a case such as the present this is a proper use of those processes: Yamazaki v Mustaca [1999] NSWSC 1083 at [13] (5).

30 The Council submitted further that the Plaintiff had maintained that there was a defined regulated process for the assessing of development applications. It was said that no such thing was pleaded and that there was not an issue between the parties in that regard. Further, if that was the case, expert evidence could be obtained about what should have been done. In that way there was no need for interrogatories about what the Council did in the absence of specific allegations of misfeasance.

31 There are some problems with that submission. The first, concerning the absence of allegations of misfeasance, has been dealt with above. Secondly, the expert report of Alden Associates prepared for the Plaintiff highlights the difficulty and disadvantage the Plaintiff is under without the answers to these particular interrogatories. The position is well set out in section 5.7 of the report:

5.7 Council Approvals

5.7.1 have been asked to respond to the following:

4. In relation to approval and inspection of the car park, are you able to identify what the Council should have done and did it do it?

General:

5.7.2 cannot comment on Council's legal obligations. I can only state my recollection of what constituted typical practice by Councils, and Sydney City Council, in the mid to late 1980s.

5.7.3 My recollection is that councils required a Building Application (BA) to be submitted, with supporting documentation which included architectural and structural drawings.

5.7.4 Consistent with this, the Witness Statement of Robert Carr refers to Building Application 45-84-0104.

5.7.5 Some councils also required structural calculations to be submitted in support of the Building Application.

...

5.7.7 Councils would typically review the BA and supporting documentation for compliance with the relevant regulations and requirements, including Council's planning policies and the various Ordinances (including Ordinance 70).

5.7.8 The extent to which the structural design was reviewed varied between councils. My recollection is that Sydney City Council had structural engineers on staff, and carried out some review of the structural design.

5.7.9 It was also common for a council to require that the structural design engineer certify that the design of the building structure complied with the relevant Australian Standards.

5.7.10 I have seen a Council document which is consistent with this requirement (LEE.002.011.0046), but do not know the date of the document.

5.7.11 Once a Building Application was approved, the approved drawings (architectural and structural) were stamped by Council. A normal condition of approval was that the construction had to comply with the stamped approved drawings.

5.7.12 During construction of a building, my recollection is that it was normal practice for the Council's building surveyors to carry out periodic inspections in order to confirm that the building was being constructed in accordance with the approved documents.

5.7.13 In some cases the building approval nominated the minimum inspections to be carried out by Council, and the notice to be provided by the builder to enable such inspections to be carried out.

5.7.14 In some cases inspection and certification by the structural design engineer (such as inspections of reinforcement) were permitted in lieu of some (but not all) of the inspections by Council.

5.7.15 On completion of the works, Council would typically carry out a final inspection to satisfy itself that the works had been completed to its satisfaction, before issuing an Occupation Certificate.

In this case:

5.7.16 I have not sighted sufficient documents to be able to form a concluded opinion about what Council did and did not do.

5.7.17 However, the Witness Statement of Robert Carr states that the file for BA 45-84-0104 was marked off as completed to approval on 17 August 1989.

5.7.18 I assume therefore that a Building Application was submitted along with supporting documentation and approved by Council, that the approved drawings were stamped as such by Council, that inspections were carried out by Council, and that an Occupation Certificate was issued by Council on completion of the project.

...

32 As the report makes clear different councils did different things in the course of the assessment and approval process. For the expert's opinion on the issue to have a sound basis he needs to know what in fact the Council did in terms of its procedural steps in the process. This is information peculiarly within the knowledge of the Council.

33 The Council submitted further that it was vexatious and oppressive to require Council to answer these and others of the interrogatories in circumstances where the relevant events took place some 26 years ago and it is said that there is no-one still employed by the Council who handled the file. In this regard Mr Howarth, the Council's solicitor, was cross-examined with particular regard to paragraph 13 of his affidavit where he said:

I am instructed and verily believe, that no person who personally had involvement in assessing (between 1983 and 1987) any development application documents concerning the subject car park remains in the employ of Council.

34 Mr Howarth agreed that he did not enquire about persons who were employed at the relevant time and are still employed who may be able to give evidence of the practices and procedures of the Council concerning the assessment of development applications. Rather his enquiries were directed to those persons who were concerned with the particular file, the subject of the present proceedings.

35 It may be that the appropriate enquiries which Council must make to satisfy its obligations in answering interrogatories will not produce fruit. However, I do not consider that the length of time makes the need to enquire vexatious or oppressive. It may be accepted that there are difficulties for a Council or some other body when faced with a claim arising out of incidents that occurred very many years ago. Nevertheless, where a case is brought within time, or within an extended limitation period, such a defendant will be faced with those difficulties in defending the case even if interlocutory procedures such as Discovery and interrogatories are neither availed of nor sought. The Council's obligations as a litigant with regard to providing Discovery and answering interrogatories are not unlimited. The length of time does not make the requirement vexatious or oppressive.

36 The Council further objects that the proceedings concern only the car park and not the whole building complex. It is said, accordingly, that, if these interrogatories are allowed, they should concern only the approval of the car park. I do not agree. The Plaintiff is entitled to have the interrogatories answered with respect to the procedural steps in the approval process. There is a high probability that those steps should all be seen in the full context of the approval process. This may be compared to the position with inspection where different considerations apply as will appear later in the judgment.

37 These interrogatories should be allowed but 2 and 4 should be restricted to the procedural steps in the process and should not seek information concerning the state of mind of those involved in the process.

Interrogatories 5 - 8

38 These interrogatories concern the approval of the plans and structural drawings. Objection is taken particularly to interrogatory 5 which asked if the plans and drawings were before the Council on the assessment and approval process. The objection was put on the basis that the Plaintiff could only have received these documents from the Council's discovery. However, I was informed that plans and documents have been obtained by the Plaintiff from a number of sources. As a matter of fairness to the Defendant I should have thought that it should be given the opportunity of saying which of the documents was considered by it during the process.

39 Paragraphs 3, 4, and 8-14 of the Council's Statement of Issues serve to highlight the relevance of these documents. The Plaintiff has no knowledge of the approval process. Procedures might not be identified on documents discovered. The Council may not be able to advance the matter further because relevant personnel are no longer available. However, the Council has knowledge, which the Plaintiff does not, of systems and procedures which operated at the time for dealing with applications and the submission of plans.

40 These interrogatories should be allowed.

Interrogatories 9 - 18

41 These interrogatories concern inspections carried out by Council. Objection was taken to them by reason of the pleading concerning inspections. The Amended Statement of Claim refers to inspection in three places only. First, paragraph 48C pleads:

48C Upon completion of construction of the car park the Fourth Defendant inspected the construction work and issued an occupation certificate or like authority permitting the car park to be used by members of the public for the purpose of car parking in circumstances where the design and construction of the car park was defective and/or negligent:

42 Paragraph 49A then pleads:

In the exercise of its power relating to the approval of the development application, inspection of the works during their construction and authorising the use of the premises as a car park open to the public, the Fourth Defendant owed users of the car park a duty of care recognised by the law of negligence to exercise reasonable care for their personal safety extending to the risk of mental harm.

43 Finally, in the particulars of negligence and breach of duty under paragraph 50 a number of failures are alleged concerning the inspection "upon completion", that is, the inspection referred to in paragraph 48C.

44 The pleading concerning inspections is quite unsatisfactory. The usual practice is for councils to inspect construction works at specified stages. That appears to be the assumption contained in paragraph 49A. In my opinion the Plaintiff needs to give some attention to the pleading concerning inspections.

45 Nevertheless, the Council's Statement of Issues include issues 15, 16 and 17 which accept that inspections (if any) other than the final inspection are also relevant to the claim and its defence.

46 The Council also objects on the basis that the car park was only one part of the building being constructed. It is said that these interrogatories are oppressive because inquiries about inspections for other parts of the building would be time-consuming and unnecessary. They cannot be relevant, it is said, to the issue concerning the alleged negligent construction of part of the car park.

47 In my opinion, and despite the unsatisfactory pleading, the interrogatories concerning inspections should be permitted. The Council has accepted that they are an issue in the proceedings. However, the questions must be confined to inspections of the car park only. It may be that inspections were carried out of the whole building at the same time. There is a reasonable chance that inspections of the car park were conducted separately because the building was likely to have been built in stages. It would be oppressive, in those circumstances, for the Council to be obliged to answer these interrogatories other than in respect of the car park.

Interrogatories 19 - 21

48 These interrogatories concern Ordinance 34B of the Local Government Ordinances. That Ordinance is concerned with parking stations and the issue of licences to operate them.

49 The case the Plaintiff seeks to bring based on this Ordinance appears to concern only clause 3(3)(b)(vi) which provides:

(3) The Council before determining any application made to it under this Ordinance shall -

...

(b) take into consideration -

...

(vi) any other requirement by or under this Ordinance

and any requirement relating to fitness of the premises for the purpose of a parking station.

That provision appears to inform the pleading in paragraphs 42, 46 and 47 of the Amended Statement of Claim together with particulars (g), (h), (i) (j) (l) and (r) under paragraph 50.

50 The suggestion appears to be that before issuing the licence the Council ought to have inspected the car park, perhaps in addition to the final inspection "upon completion", to ensure that the problems now identified in the particulars referred to above were not present. When Clause 3(3)(b)(vi) is read in the context of the whole Ordinance it seems unlikely that the reference to "fitness" is concerned with matters of construction. However, that is the way the Plaintiff puts that part of its case.

51 The Council denies specifically in paragraphs 5.2 and 18.4 of the Defence that the Ordinance imposed the obligations alleged. In addition, paragraphs 32, 33, 34, 36 and 38 of the Council's issues identified the same dispute between the parties.

52 Except for one crucial matter the denials and consequential issues raised s seem to me to justify interrogatory 21(c), (d) and (e). However, given the terms of the Ordinance and the allegation in paragraph 2B of the Amended Statement of Claim that the First Defendant operated the car park at the relevant time it is not clear what point there is to interrogatories 19, 20 or 21 (a) and (b). Those interrogatories are disallowed.

53 The one matter is this. I was informed by Counsel for the Plaintiff that the licences were issued on an annual basis up to 1995 but thereafter the system changed, I was told. This change was not explained. However, I understood that there may have been a licence issued in the relevant year.

54 In those circumstances, the procedures of the Council and the terms and conditions of the licences for years prior to 2006 (the year of the accident) cannot be relevant. I will, therefore, allow interrogatory 21 (c), (d) and (e) but only for the 2006 year.

Conclusion

55 In my opinion, the Plaintiff needs to give a close consideration to the pleading contained in the Amended Statement of Claim. A number of the criticisms made by the Council appear to me to be justified. Were it not for the Council's Statement of Issues the poor pleading of the Statement of Claim may have a justified a different result on some aspects of this review application. The Council is to be commended, however, in its preparation of the Statement of Issues in attempting to see past that poor pleading to understand what really is in dispute in the proceedings.

56 The Council has been successful, but only partly successful in challenging the Registrar's order. In those circumstances I consider it appropriate that there be no order as to costs with the intent that each party should bear its own costs.

57 I make the following orders:

(1) The order of the Registrar made on 27 September 2012 is varied as follows:

(a) Interrogatories 2 and 4 are allowed limited to procedural steps in the approval process;

(b) Interrogatories 9 to 18 are allowed limited to inspection of the car park;

(c) Interrogatories 19, 20, 21 (a) and (b) are disallowed;

(d) Interrogatory 21(c), (d) and (e) are allowed limited to the year 2006.

(2) There will be no order as to costs.

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Decision last updated: 21 November 2012