"AZ" v "DQ" as Legal Personal Representative of the Estate of the late "PC" deceased & Anor [2003] NSWSC 1108

"AZ" v "DQ" as Legal Personal Representative of the Estate of the late "PC" deceased & Anor [2003] NSWSC 1108

The court dismissed the Notice of Motion because the plaintiff had not satisfied the Pt 24 r 5(2) threshold that the interrogatory order was necessary at the time it was sought. The plaintiff did not yet have a maintainable cause of action because the limitation period had not been extended, the pleadings were not closed and issues were not joined, and the proposed interrogatories were sought to trawl for evidence to support an extension application. In any event, the interrogatories were oppressive because they would require extensive inquiries of teachers and employees over a period of about six years some 35 years after the last alleged assault, and other avenues of inquiry were...

Jurisdiction
Australia
Judgment Date
28 November 2003
Procedural Posture
Notice of Motion Seeking an Order Requiring the Second Defendant to Answer Interrogatories in Civil Damages Proceedings / Review of Assistant Registrar Howe's Dismissal of the Notice of Motion, Alternatively a Fresh Application on Narrowed Interrogatories
Outcome
The Notice of Motion is dismissed.
Legal Topics
['interrogatories' "review of Registrar's Decision" 'extension of Limitation Period' 'necessity Threshold' 'fishing Expedition' 'oppressiveness']
['civil Procedure' 'limitation of Actions' 'tort Law'] ['interrogatories' "review of Registrar's Decision" 'extension of Limitation Period' 'necessity Threshold' 'fishing Expedition' 'oppressiveness']

Case Brief

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Procedural Posture

Notice of Motion Seeking an Order Requiring the Second Defendant to Answer Interrogatories in Civil Damages Proceedings / Review of Assistant Registrar Howe's Dismissal of the Notice of Motion, Alternatively a Fresh Application on Narrowed Interrogatories

Legal Issues

  1. 1 ["Whether the court should set aside the Assistant Registrar's order dismissing the plaintiff's Notice of Motion concerning interrogatories." 'Whether the proposed interrogatories, narrowed to the period from 1962 to 1968, were necessary at the time of the application under Supreme Court Rules 1970 Pt 24 r 5.' 'Whether the proposed interrogatories were premature, oppressive or amounted to a fishing expedition.' 'Whether interrogatories should be ordered to obtain evidence for a future extension of limitation period application.']

Ratio Decidendi

The court dismissed the Notice of Motion because the plaintiff had not satisfied the Pt 24 r 5(2) threshold that the interrogatory order was necessary at the time it was sought. The plaintiff did not yet have a maintainable cause of action because the limitation period had not been extended, the pleadings were not closed and issues were not joined, and the proposed interrogatories were sought to trawl for evidence to support an extension application. In any event, the interrogatories were oppressive because they would require extensive inquiries of teachers and employees over a period of about six years some 35 years after the last alleged assault, and other avenues of inquiry were...

Court Disposition

The Notice of Motion is dismissed.

Orders

  • ['The Notice of Motion is dismissed.' 'The plaintiff is to pay the costs of the Notice of Motion.']