Corderoy v State of Queensland [1999] QDC 267

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Plaint No 2386 of 1998 BETWEEN: JOHN MARSHALL CORDEROY Plaintiff AND: STATE OF QUEENSLAND Defendant REASONS FOR JUDGMENT – O’SULLIVAN D.C.J. Delivered the 29th day of October 1999 This is an Application by the Defendant for an Order that the Plaintiff answer Interrogatories posted to the Plaintiff’s Solicitors on 23 June 1999. Under the District Court Rules the Plaintiff was required to answer by 4 July 1999. The commencement of the Uniform Civil Procedure Rules was 1 July 1999. There are no transitional provisions. Accordingly, as at 1 July 1999 the Plaintiff was not under an obligation to answer the Interrogatories pursuant to the District Court Rules. Thus, the factual situation is not likely to commonly arise. Counsel for the Applicant referred me to Hoare v Spork (Unreported – 641 of 1994 – Wilson J – delivered 28.7.99), which in turn took me to section 20 (1)(c) Acts Interpretation Acts (1954); and to Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 229 and Esber v The Commonwealth (1991-2) 174 CLR 430. In Yrttiaho (supra) at 235 Menzies J. considered that the language in SCR Order 90 r 9 “is not apt to cover the taking of steps in an action. The words I have cited [s.20(1)(c)] are not appropriate to cover, for instance, the delivery of a statement of claim, the obtaining of an order for interrogatories or the setting down of an action for trial”. -- 1 of 3 -- 2 Section 135 of the Supreme Court of Queensland Act 1991 states: “On the commencement of the Uniform Civil Procedure Rules, those rules apply to the next step or application in a proceeding pending in the…District Court… that can reasonably be taken in compliance with those rules”. “Step” is not defined in the Uniform Civil Procedure Rules. In considering what is a “step” I have obtained assistance from: Words and Phrases Legally Defined Vol 4 p. 223 Stroud’s Judicial Dictionary 5th ed. Vol 5 p. 2495 Chappell v North (1891) 2 QB 252 Ives v Barker (1894) 2 Ch. 478 Turner v McConnell (1985) 23 All E R 34 Zalinoff v Hammond (1898) 2 Ch 92 Some assistance in construing s.135 can be gained by reference to the authorities which have considered what is a “proceeding”, commonly in the context of R.S.C. O.90 r.9. In Citicorp Australia Limited v Metropolitan Public Abattoir Board (1992) Qd. R 592, the Full Court said that to constitute a “proceeding” the act or activity must have the characteristic of carrying the cause of action forward. It cited Spencer v Watts (1889) 23 Ch.D. 350,358: “one which suggests something in the nature of a formal step in the prosecution of an action”. It held that the production of documents for inspection was a proceeding. In Kaats v Caelers (1966) Qd R 482, the Court said “some step taken toward the judgment or relief sought in the action”. In Bain Dawes (Qld) Pty Ltd v Maurice George Hill (Unreported – Supreme Court 4499 of 1980 – delivered 27 June 1986), Senior Master Lee QC found that a request by letter for the supply of copies of large numbers of discovered documents was a “step” or a “proceeding” within O 90 r. 9. He extensively reviewed the authorities, including: Russell v Mihaljevic and S.G.I.O. (Qld.) (Unreported -W. 59 of 1973, Full Court, delivered 24.6.82) (the holding of a compulsory conference under the then Rules) “proceeding” was construed as “a formal proceeding contemplated by the rules and a step necessary to advance the matter to its ultimate resolution”; Williams v Brisbane -- 2 of 3 -- 3 City Council (Unreported – W 93 of 1980 – Shepherdson J – delivered 11 July 1985) “prosecution of the action, being a step required by the rules”; Re: Burns v Korff (1985) 8 Q.L. 208 – “an activity recognised by the rules as an activity which positively advances the cause and its conduct towards ultimate judgment”; Josefski v The Minister for Education of Queensland and ors. (Unreported – W 30 of 1978 - – 3.8.83) Demack J. held that the giving of Particulars in letter form was a proceeding. Senior Master Lee Q.C. noted that the formulation which has been applied in the great majority of cases was: “something in the nature of a formal step, at least a step taken by the litigant in the prosecution of the action, being a step required by the rules”, and pointed out that it is not limited to procedures formally laid down in the rules but to steps taken in the prosecution in the sense that it is the result rather than the means by which it has been brought about. It is a step contemplated by the rules as a necessary step along the path of an action towards ultimate judgment. In Hardy v Australia Meat Holdings Pty Ltd (Unreported – Wall DCJ – 31.8.99) it was held that the issuing of subpoenas was a step designed to move the action forward and thus so far as section 135 is concerned a step in the proceeding. Having considered the authorities, I consider that the delivery of Answers to Interrogatories is a “step” and therefore the Uniform Civil Procedure Rules apply. If an Application had been made pursuant to UCPR Rule 230, I would not have granted leave. Having considered the Interrogatories, I am not 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 the interrogatories. Nor am I satisfied they are reasonably necessary as required by R 230 (b). With reference to the submission in paragraph 12 of the Outline of Counsel for the Applicant, I point to the important differences between Particulars, Statement of Loss and Damage (including continuing obligations) and Interrogatories. I dismiss the Application. I make an Order under Rule 234 that the Plaintiff is not required to answer the Interrogatories. There is no Order as to costs. -- 3 of 3 --