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Interrogatories and the requirement that they be 'necessary'

News Alert 30 May 2017

In the recent decision of El-Mouelhy v Reid [2017] NSWSC 623, the Court was required to determine the plaintiff’s application seeking an order for the defendant to answer various interrogatories.

The application arose in the context of a medical negligence claim arising out of alleged failure to obtain informed consent and negligence associated with the performance of two medical procedures. 

Adamson J referred to the relevant rule for interrogatories under Uniform Civil Procedure Rules (NSW) (UCPR) which provides:

22.1 Interrogatories 

  1. At any stage of the proceedings, the court may order any party to answer specific interrogatories.
  2. An application for such an order must be accompanies by a copy of the proposed interrogatories. 
  3. In the case of proceedings on:

(a) a claim for damages arising out of the death of, or bodily injury to, any person, or
(b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

  1. In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. 

The 84 interrogatories sought answers from the defendant about various matters including:

  1. Discussions between the plaintiff and the defendant about the procedures; 
  2. Production of particulars documents, including documents provided to the plaintiff during pre-surgical consultations;
  3. The knowledge and opinion of the defendant; 
  4. The defendant’s training, surgical experience and conduct; and 
  5. The defendant’s registration and disciplinary findings.  

Her Honour highlighted that the wording of UCPR 22.1(4) makes it clear that interrogatories are not to be ordered where other means could more readily be used, since they would not, in that event, be ‘necessary’. 

Her Honour noted that whilst interrogatories fulfil important forensic purposes, they are not to be substituted if other forensic procedures or ‘other means’ are available. In refusing to order particular interrogatories, Her Honour listed ‘other means’ which could more readily be used to obtain answers to the interrogatories, including:

  1. Issuing a Notice to Produce to the defendant requiring production of any brochure or other document provided to the plaintiff at pre-surgical consultations;
  2. Obtaining an expert report; 
  3. Making the relevant enquires of the defendant’s solicitors; and 
  4. Issuing a subpoena for production.  

Whilst the vast majority of the interrogatories were either deemed inappropriate, too broad, potentially irrelevant, oppressive or unnecessary, three interrogatories were permitted, including those going to the defendant’s training, surgical experience and conduct.

Although Her Honour did not expressly refer to specific authorities on the meaning of ‘necessary’, the decision consolidates the position in Boyle v Downs [1979] 1 NSWLR 192 which held that ‘necessary’ means ‘necessary for the disposing fairly of the case or matter’ and ‘necessary in the interest of a fair trial’. 

Therefore, in seeking an order for interrogatories, the interrogatories must relate to the issues in the trial and must not relate to matters which can be provided by other evidence or the utilisation of other forensic tools. 

Don Munro, Partner

Antonia Quinlivan, Solicitor

News Alert 30 May 2017
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