Darren O'Brien v Robert Francis Little and ors; Stephen James Walsh v Robert Francis Little and ors [2007] NSWSC 64

New South Wales Supreme Court

CITATION : Darren O'Brien v Robert Francis Little and ors; Stephen James Walsh v Robert Francis Little and ors [2007] NSWSC 64 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 11/12/06 12/12/06

JUDGMENT DATE : 14 February 2007

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 70

LEGISLATION CITED : Uniform Civil Procedure Rules

Coal Cliff Collieries Pty Ltd v C E Health Insurance Broking ( Australia) Pty Ltd (1986) 5 NSWLR 703 Spedley Securities Ltd (In Liq) v Yuill and Ors 5 ACSR 758 Tooth & Co Ltd v Lane Cove Municipal Council (No4) (1968) 2 NSWLR 17 CASES CITED : Pyrenees Shire Council v Day (1998) 72 ALJR 152 Norton v Hoare (No 2) (1913) 17 CLR 348 Kelly and Anor v Raymor (Illawarra) Pty Ltd (1981) 1 NSWLR 720 American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) (1965) NSWR 193 Langley v The Age Co Ltd (2001) VSC 370

Darren Andrew O'Brien - Plaintiff PARTIES : Stephen James Walsh - Plaintiff Robert Francis Little & ors - Defendants

FILE NUMBER(S) : SC 20308 of 2001; 20302 of 2001

COUNSEL : M Joseph SC with W Walsh- Plaintiffs S Glascott - Defendant - The Bega Valley Shire Council

SOLICITORS : Carmody Cramptom - Plaintiffs Shaw McDonald Pty Ltd - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patten AJ

14 February 2007

No: 20308 of 2001 No: 20302 of 2001

Darren Andrew O'Brien – Plaintiff v Robert Francis Little and ors - Defendants Stephen James Walsh - Plaintiff v Robert Francis Little and ors – Defendants

JUDGMENT 1 Each of the Plaintiffs in these actions alleges that on the night of 31 December 1993/ 1 January 1994, he suffered personal injuries when he fell down a cliff in a public reserve at Tathra on the south coast of NSW. The reserve was in the vicinity of the Tathra Hotel/Motel where a New Years Eve party was held. 2 The actions were commenced by Mr Walsh on 6 April 2001 and by Mr O'Brien on 9 April 2001 by Statements of Claim, each, so far at least as liability was concerned, being in similar terms and each naming some ten defendants. 3 The Statements of Claim have been amended on several occasions and some parties have been changed. The proceedings before me concern interrogatories administered to Bega Valley Shire Council (the Council), which was originally the tenth defendant but now, in the current pleading, the Fourth Further Amended Statement of Claim (to which for convenience I will hereafter simply refer as the Statement of Claim), appears to be the ninth defendant. 4 Those paragraphs of the Statement of Claim which appear to be relevant to the cause of action against the Council, some rather inelegantly expressed, are: "2. From 1986 until at least 1 January 1994 the first and second defendants were owners and occupiers of Lot 30 in deposited plan 606559 and Lot 31 in deposited plan 600836 (herein after referred to as "the Land") in the coastal town of Tathra, NSW. The Tathra Hotel Motel (herein after referred to as "the Hotel") was situated on that Land. 10. Between the land and the Pacific Ocean there is a section of land reserved for public recreation i.e. Pt R. 64333 (herein after referred to as "the Reserve") which had been under the trusteeship of (the Council) since 1934. Prior to and on the 1 January 1994, the Reserve had a bank of tea trees on its seaward side, which ran along the cliff edge and obscured the cliff edge from the Land. 11. (The Council) had the day to day care, control and management of the Reserve. 12. Prior to 31 December 1993 the lessees and/or the eight defendant or their staff and/or agents had promoted and advertised a New Year's Eve party to be held at the Hotel on the evening of 31 December 1993 and the early morning of 1 January 1994. This New Year's Eve party had been approved by (the Council) under Chapter 7 Part 1 Local Government Act 1993 (NSW) and was managed and organised by the lessees and/or the tenth (sic) defendant or their staff and/or agents.

Particulars of Negligence: a) failed to advise the plaintiff that there was a cliff on the Reserve; b) failed to rope off, or fence off, the cliff from persons on the Land; c) failed to erect warning signs advising of the cliff to persons entering the Reserve from the Land: d) failed to illuminate the Land and/or the Reserve so people who entered the Reserve from the land would be aware that there was a cliff and/or warning signs; e) failed to erect or create a fence or barrier between the Land and the Reserve to prevent persons entering the Reserve from the Land. f) failed to prevent access from the Land to the area near the cliff on the Reserve; 15. Further (the Council) (by its servants and/or agents) was in breach of its statutory duty and its duty of care in that it: (a) approving or allowing the Hotel to promote, manage and control the New Year's Eve party on the Land without specifying the following conditions: i) failed to require that the owners and' /or lessees and/or licensee advise visitors to the Land and patron of the Hotel, who were entering the Reserve from the Land that there was a cliff on the Reserve; ii) failed to require that the owners and/or lessees and/or licensee to rope off or fence off the cliff edge on the Reserve prior to commencing the New Year's Eve celebrations; iii) failed to require that the owners and/or lessees and/or licensee to erect warning signs advising of the cliff edge for visitors to the Land and patrons of the Hotel, who were entering the Reserve from the Land; iv) failed to require that the owners and/or lessees and/or licensee to illuminate the Reserve so people who entered the Reserve from the Land would be aware that there was a cliff edge and or a warning sign; v) failed to require that the owners and/or lessees and/or licensee to erect a fence or barrier between the Land or the Reserve; vi) failed to require that the owners and/or lessees and/or licensee to prevent people affected by alcohol from entering the Reserve from the Land without supervision; vii) failed to require that the owners and/or lessees and/or licensee to prevent people affected by alcohol from entering the Reserve from the Land; viii) failed to require that the owners and/or lessees and/or licensee to provide sufficient toilet facilities to persons on the Land so they do not go off the Land onto the Reserve to urinate; and ix) failed to require that the owners and/or lessees and/or licensee to prevent people from camping on the Land and/or the Reserve. b) failed to properly assess and ensure sufficient requirements so as to prevent injury to the plaintiff from falling down the cliff on the Reserve; c) alternatively negligently approved the holding of the New Year's Eve party at the Hotel. d) failed to erect warning signs on the Reserve advising of the cliff edge when (the Council) knew or ought to have known that people would more likely than not enter the Reserve from the Land affected by alcohol; e) failed to illuminate the Reserve around the Land so people who entered the Reserve from the Land would be aware that there was a cliff edge and or a warning sign advising of the same; f) failed to fence the Reserve from the Land; g) in the alternative failed to create a temporary barrier between the Land and the Reserve when (the Council) knew or ought to have known that people would more likely than not enter the Reserve from the Land affected by alcohol; h) allowed the cliff on the Reserve to be hidden by tea trees; i) failed to order and enforce such an order that the owners and/or lessees and/or licensee of the Land to fence off the Land from the Reserve under order 7 of section 124 of the Local Government Act 1993 (NSW); j) failed to order and enforce such an order that the owners and/or lessees and/or licensee of the Land to not promote, conduct or carry out the New Year's Eve celebrations until specific safety measures had been taken under order 15 of Section 124 of the Local Government Act 1993 (NSW) including but not limited to either and or all of the following (i) to fence off the Land from the Reserve; (ii) the illumination of the Reserve at the seaward side of the Land and (iii) warning visitors to the Land and/or patrons of the Hotel of the cliff on the Reserve; k) failed to order and enforce such an order that the owners and/or lessees and/or licensee of the Land to prevent camping on the land until specific safety measures had been taken under order 15 of Section 124 of the Local Government Act 1993 (NSW) including but not limited to either and or all of the following (i) to fence off the Land from the Reserve; (ii) the illumination of the Reserve and (iii) warning visitors to the Land and/or patrons of the Hotel of the cliff on the Reserve: l) failed to order and enforce such an order that the owners and/or lessees and/or licensee of the Land to not promote, conduct or carry out the new year's eve entertainment within the Tathra Hotel until specific safety measures had been taken under order 5 of Section 124 of the Local Government Act 1993 (NSW) including but not limited to either and or all of the following (i) to fence off the Land from the Reserve; (ii) the illumination of the Reserve and (iii) warning visitors to the Land and/or patrons of the Hotel of the cliff on the Reserve; m) failed to prevent people camping on the Reserve and/or the Land; and n) failed to provide toilet facilities on the Reserve.

5 Apart from admitting formal matters, the Council, for the most part, put in issue the matters alleged against it. It included as paragraph 11 of its defence: 11. Further and in answer to the whole of the Further Amended Statement of Claim (the Council) says it did not owe a duty of care or alternatively, did not breach any duty of care to the Plaintiff by reason of the following circumstances: a. the presence of a cliff edge at the Tathra headland was obvious to entrants upon the Reserve exercising reasonable care for themselves; b. the presence of a cliff edge at the Tathra headland presented no danger to entrants upon the Reserve exercising reasonable care for themselves; c. the degree of the Plaintiff 's intoxication was such a departure from the standard of care of a reasonable man exercising care for himself that no duty was owed to the Plaintiff by (the Council) in the circumstances. 6 The Council also pleaded defences based upon the Limitation Act and contributory negligence. 7 Mr Joseph SC, who appeared with Mr Walsh for the Applicants/Plaintiffs, moved on identical Amended Notices of Motion filed on 8 June 2006 wherein the principal relief sought was: 1. An order that (the Council's) defence be struck out. 2. An order that (the Council) provide further verified answer to the Plaintiff's interrogatories (a copy of the interrogatories, addendum to interrogatories, answers to the interrogatories and answers to the addendum to interrogatories are annexed to the Notice of Motion already filed and are marked A, B, C and D respectively within 14 days. The plaintiff seeks further and verified answers to the following interrogatories as the answers that have been provided are objected to: 1; 3; 4(d); 6; 9; 10; 11; 13; 14; 15(b)(C)-(G), 15(b)(H)(2) – (4); 26; 28(c); 30(b)(i)(A), 30(b)(i)(B), 30(g), 30(h); 31; 32; 37(b); 38; 39; 40; 41(b); 42(b); 44(f), 44(h) – (p); 45(b) – (g); 46(e)(i)(B), 46(g) – (j), 46(k)(ii), 46(l); 47(b) – (i); 48(b) – (c), 48(e) – (h), 48(j); 49(b), 49(g) – (i), 49(L) – (p); 50(d); 51(c)(i)(D); 52; 53; 54; 59(b) – (e); 62; 63; 71 & 72. 3. In the alternative to order 2 above, (the Council) be ordered to provide verified answers to the Plaintiff's amended interrogatories (a copy of the amended interrogatories is annexed and marked E) within 14 days. 4. Such further or other orders as the Court deems necessary. 5. (The Council) pay the plaintiff's costs of this application. 8 Part 22 of the Uniform Civil Procedure Rules (UCPR) relevantly provides: r 22.1 1. At any stage of the proceedings, the court may order any party to answer specified interrogatories. 2. An application for such an order must be accompanied 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. 4. 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. 5. ………………………………………… r 22.2 A party may not object to being ordered to answer an interrogatory except on the following grounds: (a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order, (b) the interrogatory is vexatious or oppressive, (c) the answer to the interrogatory could disclose privileged information. 9 In each case, on 8 July 2004, orders were made by consent for administration of interrogatories by the Plaintiffs and the Plaintiffs' solicitors administered such interrogatories on or about 5 August 2004. 10 The Council provided answers to some of the interrogatories in March 2005 but objected to others. The Plaintiffs, being dissatisfied with the Council's response, filed the motions which, in their amended form, are now before me. Each annexes, what are described as amended interrogatories and are the subject of order 3. 11 At the outset of the hearing, it was submitted on behalf of the Council that the Plaintiffs are not entitled, as of right, to the relief they seek, in light of the provisions of UCPR Pt 22.1 (3). To this contention the Plaintiffs responded that the court has already, by consent, ordered interrogatories and the Council should not now be entitled to retreat from its attitude expressed by such consent. 12 Moreover, as to the merits of the Plaintiffs' position, Mr Joseph read the affidavits of their solicitor, Mr K. P. Carmody, sworn 18 October 2005. The affidavits annexed a considerable quantity of documentation, including medical reports as to the Plaintiffs' condition; police reports regarding the accidents; correspondence and reports regarding the trading hours of the hotel; the alleged unruly and drunken behaviour of some of its patrons; previous accidents in the area where the Plaintiffs allegedly fell; the conduct of New Year's Eve functions at the hotel; the use of public reserves in the area for camping; alleged breaches of the liquor licensing responsibilities of the licensee of the hotel; the involvement of the Council in addressing community concerns; the establishment of alcohol free zones etc. 13 After annexing such documents, each of Mr Camody's affidavits proceeded: 50. Various questions arise from the information contained in annexures KC-1-4 to KC-1-46 as to the extent of the defendants' knowledge as to the foreseeability of the risk of injury to patrons attending a New Year's Eve function from 31 December 1993 to 1 January 1994 at the Tathra Hotel, consuming alcohol and then camping on the Reserve or on the Hotel grounds. 51. As the plaintiff had never been to a New Year's Eve function at the Tathra Hotel before nor has he been since and has no memory of the function that he did attend. The plaintiff has no knowledge as to: i. what barriers if any were in place between the Hotel and the Reserve; ii. what lighting or illumination was in place over the Reserve; iii. what warning signs if any were in place warnings as to the proximity of the cliff and the dangers of the Reserve; iv what warning signs if any were in place warnings as to the proximity of the cliff and the dangers of the Reserve; v what steps the defendant took to minimise the risk of someone entering the Reserve when there was a hidden danger that was known to the defendant; vi the number of people on the Reserve; vii access to the Hotel to the Reserve;

viii access from the Hotel to the Reserve; ix the number of people at the Hotel; x the number of people on the grounds outside the Hotel grounds; xi where the toilet facilities were and the number; xii what entertainment was provided; xii what entertainment was provided; xiv what steps the defendant took to monitor whether the Hotel was complying with its entertainment licence xv whether people parked their cars on the Hotel grounds and if so how many; xvi whether people parked their cars on the Reserve and if so how many; xiv (sic) whether the defendant or their agents attempted to stop people parking their cars on the Reserve; xv (sic) whether people were camping on the Hotel grounds and if so how many; xvi (sic) whether people were camping on the Reserve and if so how many; xvii whether the defendant or their agents attempted to stop the camping on the Hotel grounds and/or the Reserve; ixx whether other people had been injured; xx what security patrols or crowd monitoring was provided by the defendant; xxi when such security patrols and crowd monitoring ceased. 52. Further there are no witnesses to the plaintiff's fall. 53. It is necessary that the plaintiff ask the interrogatories and addendum to interrogatories appended to the notice of motion for the fair disposal of this matter. 54. The particular circumstances of this case, combined with the fact that the brain injuries suffered by the plaintiff has destroyed any memory he had of events leading up to his injuries are sufficient and "special" reasons for why the defendant should be ordered to provide further verified answers to the plaintiff's interrogatories. 55. It is likely that if such an order was made it would result in saving time at the hearing of this matter. 14 In light of Mr Carmody's affidavits, as I ruled during argument, the cases of the Plaintiffs against the Council would seem to warrant, in the interests of justice, the exercise of the discretion to order interrogatories under rules 22.1(3) and 22.1 (4) of UCPR. 15 Although some argument was directed as to whether the interrogatories annexed to the Amended Notices of Motion are fresh interrogatories or, in truth, as they purport to be, amendments to the previous interrogatories, I did not think any purpose would be served by formally resolving that question. 16 On any basis, the interrogatories annexed to the Amended Motions cover broadly the same ground as the original interrogatories. It seemed convenient, therefore, to consider the matter on the basis that the Plaintiffs have established an entitlement to further interrogate the Council, the only question being whether any, and if so which, of the interrogatories annexed to the Amended Notice of Motion should be allowed. 17 Thus I come to consider the interrogatories which (excluding documents referred to) are annexed to this judgment (excluding documents referred to) seriatim. I observe that they are numbered 1 to 72 and most are subdivided into multiple questions, a fact, which itself, as Clarke J observed in Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 renders them "vulnerable to disallowance". That there are breaks in the numerical sequence reflects the fact that the Plaintiffs have not repeated interrogatories delivered in August 2004 which have been satisfactorily answered or which it no longer presses. 18 Interrogatory 1 The expression "risk management assessment study" was defined in the interrogatories to mean: "a study to review the areas of public land where the New Year's Eve Gathering was to be held to determine what areas of the public land there were unacceptable levels of risk of injury to people who attend such a function and what steps could be taken to lessen that risk of injury."

Mr Glascott objected to the interrogatory on grounds of relevance, vexatiousness and oppression. Mr Joseph submitted that it was relevant on the issue of foreseeability. Cole J, in Spedley Securities Ltd (In Liq) v Yuill and Ors 5 ACSR 758, stated some principles which I regard as relevant to this case: "The object of interrogatories is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it": Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 111; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 at 518.

2. Generally speaking, a party may interrogate his opponent as to every relevant matter on which he could examine him, if he thought fit to call him as a witness at the trial: Lyell v Kennedy (1883) 8 App Cas 217 at 234; Hawkes v Schubach [1953] VLR 468 at 471; Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 at 709.

3. Where a company is interrogated, a responsible person must answer on behalf of the company as the alter ego of the company. In so answering, the officer of the company is obliged to have regard to his own knowledge as well as knowledge gained from inquiry of "other servants of the company who personally conducted the transaction or acquired the necessary knowledge in their capacity as such servants, but he is not bound to give information which has come to his or their knowledge outside the course of their employment": Smith Kline at 519. 19 In my opinion, the interrogatory is objectionable for a number of reasons and should be disallowed. In the first place, the expression, "risk management assessment study", I consider to be too vague and imprecise to be capable of being understood by the Council. In the second place, the indeterminate period prior to 31 December 1993 stipulated, and the contemplation of multiple studies is both vexatious and oppressive. Furthermore, I am of the view that the interrogatory is irrelevant. The answer "No" would not constitute an admission of any fact relevant to this case. The answer "Yes" would be equally irrelevant given the impreciseness of the definition. There is machinery more appropriate than interrogatories for obtaining documents i.e. discovery and the service of subpoenas.

20 There is a further principle which, in my opinion, is relevant to interrogatory 1. It is also relevant to a number of other interrogatories and flows from what Street J said in Tooth & Co Ltd v Lane Cove Municipal Council (No 4) (1968) 2 NSWLR 17 at page 19: "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.

Mr Mahoney has argued that in some circumstance a party can be regarded as vicariously having the mind of one of its servants. He points out that in such cases it is immaterial whether the party whose servant's mind is of relevance is a corporate party or an individual party. He has referred for example to the words of Denning L J in H.L Boton (Engineering) Co. Ltd. V T J Graham & Sons, Ltd., [1957] 1 QB 159 at pp 172-3. There is of course, no question but that where an agent of a party, be that party corporate or personal, within the scope of that agency does some act for the principal associated with a particular state of mind, then the agent's state of mind will be vicariously regarded as the state of mind of the principal. This is the concept to which Denning, L J refers at the pages mentioned. 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. Mr Mahoney also refers me to the company approach exemplified in the decision in Duke of Sutherland v British Dominions Land Settlement Corpn. Ltd., [1926] 1 CH.746. In that case interrogatories were directed to a company in respect of the state of mind of directors of the company in declining to register a transfer of shares. I see a real distinction between a case of that nature and an interrogatory such as is presently before me. The issue in the Duke of Sutherland's Case involved an article which gave power to the directors to decline to register a transfer. 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.

21 The decision of Street J has been much referred to in subsequent cases, not always with approval, see for instance the decision of Gillard J in Langley v The Age Co Ltd (2001) VSC 370. However, McLelland J explained the ambit of Lane Cove Council in Kelly and Anor v Raymor (Illawarra) Pty Ltd (1981) NSWLR 720 in a ways which I find compelling: "There is one other matter referred to in Parkes Management Ltd v Perpetual Trustee Co (Master Cohen, 22 March, 1979 unreported) to which it is desirable to advert. The Master refers to the decision of Street J in Tooth & Co v Lane Cove Municipal Council (No 4) [1968] 2 NSWR 17, where it was held that interrogatories could not be directed to a corporation in terms inquiring as to the state of mind of the corporation because a corporation does not have a mind which can be investigated, notwithstanding that, by a legal fiction, attitudes of mind can be imputed to it. So much may be accepted, but it does not follow that an interrogatory may not be directed to a corporation in terms inquiring as to the actual state of mind of individuals, such as directors when they participated in a corporate act such as the adoption of a resolution, where the state of mind of those individuals is relevant to the validity of the corporate act, in proceedings where the validity of the corporate act is in issue and the state of mind of the individuals concerned is relevant to that issue. Indeed, I think the grounds on which Street J in Tooth & Co v Lane Cove Municipal Council (No 4) [1968] 2 NSWR 17, at p 20 distinguished the decision in Duke of Sutherland v British Dominions Land Settlement Corporation Ltd [1926] Ch 746 and the grounds of decision of both the last-mentioned case itself, and Berry v Tottenham Hotspur Football and Athletic Co Ltd [1935] Ch 718 (in each case based on specific provisions in the articles of association of the respective companies involved), provide indirect support for the view I have just expressed." 22 In considering this interrogatory and other similar interrogatories, I would propose to follow, what seems to me to be, the principle enunciated by Street J. 23 This interrogatory is not an attempt to ascertain the state of mind of identified individuals but rather the state of mind of the "Council". For that reason alone, the interrogatory in respect of sub-questions (a) (iii) (B) and (b) should be disallowed.

24 Interrogatory 3: "The period " was defined to mean the period from 31 December 1991 to 1 January 1994 and "New Year's Eve Gathering" to mean "a gathering of people at the Tathra Hotel and the area surrounding the Tathra Hotel on the last day of a year i.e. 31 December, to celebrate the start of a new year and extending into the first day of the new year i.e. 1 January".

25 The word "complaints" was not defined. This, I think, is a matter of significance as the interrogatory encompasses all "complaints" made to the council, whether orally or in writing. There would probably be no difficulty in respect of written complaints but evidence of these can be obtained by discovery or on subpoena. However, as it seems to me, so-called oral complaints are in a different class altogether and to interrogate the council upon them is, in my opinion, vexatious and oppressive. The reason for that is twofold, first it requires a responsible person answering on behalf of the council to have regard not only to his own knowledge but to inquire as to the knowledge of every servant of the Council, from the highest to the lowest, in respect of a two year period. Second, the inquiry would need to be as to communications made to each servant regarding New Year's Eve Gatherings in the period, and would require the exercise of a judgment as to which, if any, of such communications constituted a complaint. I regard such a requirement as oppressive and I would disallow the interrogatory. (As to the requirement to form an opinion being not the proper subject of an interrogatory, see American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) (1965 NSWR 193 at 199 per Myers J) 26 Interrogatory 4: Mr Glascott objected to this interrogatory on two bases, namely that it is irrelevant because the accident referred to occurred in an area well away from that of the subject accident where different circumstances applied and because it required the formation of an opinion as to what action would lessen the risk. As to the latter point, I agree with Mr Joseph that only in a very technical sense does the interrogatory require the formation of an opinion. It may, I think, be construed as asking whether action was taken "designed" to lessen the risk. 27 However, Mr Glascott's first objection has, I think, greater force. It seems clear from the police report that the accident referred to occurred on the other side of the point, near the main Tathra beach. I think any answer to the interrogatory could have no relevance in these cases and I would disallow it. In doing so, I reject Mr Joseph's submission that it is relevant to show the extent to which the Council accepted responsibility for cliffs, generally, in its area, when considering what duty, if any, it had in the area where the Plaintiff allegedly fell. 28 Interrogatory 6: Mr Glascott objected to this interrogatory on the grounds of relevance and oppressiveness. If the council were an individual I think the answer could have some relevance but as it is not, I think the interrogatory is caught by the principles stated by Street J in Lane Cove Council . Its imputed knowledge is to be drawn from evidence of objective facts. I would, accordingly, disallow the initial question and paragraphs (a) and (b) of the interrogatory. 29 Although not framed as such paragraph (c) could stand alone and I see no reason why it is not a proper interrogatory. It is a question which could be asked in evidence of an officer of the Council. Although Mr Glascott submitted that the phrase "anything to warn" required the formation of a judgment, I think, albeit with some misgiving, the question is sufficiently clear, as directing the Council's attention to the installation or presence of a physical warning or barrier. 30 Interrogatory 9: In my opinion, this interrogatory is in such vague terms and encompasses such an indeterminate period that is clearly oppressive. Moreover, in my view, the answer "Yes" or "No" to the principal question would have no relevance to any issue raised by the pleadings. 31 Interrogatory 10: I agree with Mr Glascott's submission that this interrogatory is objectionable because it requires the formation of an opinion and does not seek an admission as to a fact relevant to the proceedings. Moreover, the admission sought, while probably of itself self-evident, would not be relevant to a consideration of the legal duty of the Council in the circumstances. 32 Interrogatory 11: This interrogatory, in my opinion, is objectionable for the same reasons as interrogatory 10 and I would similarly disallow it. 33 Interrogatory 13: Consistently with my decision to follow what I understand to be the principle enunciated by Street J in Lane Cove Council , I would disallow this interrogatory. It seeks to ascertain the state of the Council's fictitious mind, something which can only be proved by inferences drawn from appropriate evidence. 34 Interrogatory 14: Mr Glascott objected on the grounds of relevance, in so far as the interrogatory refers to New Year's Eve Gatherings prior to that of December 31, 1993. I would reject this submission, as applications made in the previous two years are, I think, sufficiently proximate to make them relevant. In my opinion the interrogatory should be allowed in part. I would disallow, however, sub- questions (a) (i) (A); (III) (1) (b), (c), (d), (e), (f), (g) and (h) and the whole of sub-question (a) (i)(iii)(2) in light of the principles expressed in Lane Cove Council and, in light of the oppressive nature of the multiple questions, most of which could, in my opinion, have no relevance to the case. Moreover, many of the sub-questions were vague and imprecise. For instance, it is quite unclear what is meant by use of the words "investigate" and "investigation" in the context of an application to the Council such as the one here referred to. 35 Interrogatory 15: The interrogatory itself annexes a document indicating that the Council approved a temporary road closure at its meeting on 12 November 1991. Mr Glascott submitted that questions as to temporary road closures are irrelevant as not going to any issue in the case. He also relied on what was said by Street J in Lane Cove Council. Mr Joseph submitted that the relevance of road closures was that they would evidence the Council's expectations as to the number and condition of people likely to attend the New Year's Eve Gathering. By extension, so he submitted, it would also be an indication of the number of people likely to overflow into the Council's reserve. He submitted that it was apparent that an officer of the Council made the decisions regarding road closures and that such officer could be interrogated. As to that, it is by no means clear, on the evidence before me, that road closures were effected, otherwise than by a resolution of the Council. The principles of Lane Cove Council would apply. Moreover, I am not persuaded by Mr Joseph's submissions that any road closures within the period constitute evidence of any relevance to issues in this case. I would disallow this interrogatory. 36 Interrogatory 26: This interrogatory, in my opinion, is objectionable in that it does not call for facts but rather for a speculative opinion. It also falls foul of what was said in Lane Cove Council . I disallow it. 37 Interrogatory 28: This interrogatory, in my view, is irrelevant to any issue. The article referred to seems to relate to a problem with illegal campers. 38 Interrogatory 30: I agree with the submission of Mr Glascott that the interrogatory should be disallowed because it is irrelevant, in that it relates to events in 1991 and also because it infringes the rule prohibiting questions as to the contents of an existing document - see Norton v Hoare (No2) (1913) 17 CLR 348. I do not accept Mr Joseph's submission that the letter is simply a reference to events about which the interrogator seeks to ask. On the contrary, in my view, the interrogatory seeks to question the Council, which was not the author of the letter, as to its meaning. Nor, in any event, do I accept Mr Joseph's submission that the Council's action or inaction during 1991 regarding the other activities mentioned in the interrogatory can be relevant to the Plaintiffs' causes of action. Questions regarding insurance were also, in my view, irrelevant. 39 Interrogatory 31: Mr Glascott objected to this interrogatory on the ground of relevance. I think that part (a) (A) and (B) are irrelevant and should be disallowed. However, on balance, I think there is relevance in (C) and I would allow that part of the interrogatory. 40 Interrogatory 32: In my opinion this interrogatory should be disallowed for reason given above in respect of similarly framed questions, eg. interrogatories 10 and 11. 41 Interrogatory 37: Mr Glascott objected on the grounds of vexation and oppression. However, I think the interrogatory is directly relevant and its answer should provide no difficulty. I would allow it.

42 Interrogatory 38: I think this interrogatory is relevant and I would allow it. 43 Interrogatory 39: This seems to go to the state of the Council's mind and is objectionable on that ground. Moreover the interrogatory seems irrelevant, having regard to the fact that it relates to 31 December 1991. 44 Interrogatory 40: This interrogatory, in my opinion, is vexatious and oppressive. It is also irrelevant in its scope and seeks to question the state of the Council's mind. It should be disallowed. 45 Interrogatory 41: This questions the state of the Council's mind and, in light of what I have said above should be disallowed. 46 Interrogatory 42: This should be disallowed for the same reason as 41. 47 Interrogatory 44: In my view, this interrogatory is plainly oppressive and should be disallowed. Despite Mr Joseph's submission to the contrary, I think it is oppressive on its face, in that it requires the representatives of the Council, one of whom was probably not a servant, to recall what was said at a meeting held more than 15 years ago. Paragraph (d) is also objectionable as it seeks to question the state of the Council's mind. 48 Interrogatory 45: This interrogatory, in my view, is oppressive and vexatious, in that it seeks answers to questions of law, rather than fact. I disagree with Mr Joseph's submission that the questions are part law and part fact. Even if I be wrong in that regard, as it seems to me, such open-ended questions are oppressive. I disallow the interrogatory. 49 Interrogatory 46: In my opinion this interrogatory should be disallowed. The letter referred to, which appears to be undated but was apparently received by the Council prior to April 1992, is written by Mr Childs on behalf of the Tathra Residents Group and makes application for an "alcohol free zone", under section 512 K of the Local Government Act. The reason for the application is stated as: "This application is necessitated on account of repeated complaints to police by residents and visitors to the area. These complaints relate to excessive public drinking and offensive behaviour in public places, including: -underage drinking -destruction of public and private property -intimidation of tourists disturbance of the peace assault." 50 The matters raised in the letter seem to me to have no direct relevance to any fact in issue in this case. The interrogatory also seems to enquire in a number of respects as to the state of the council's mind thus infringing Lane Cove Council and to question the council upon someone else's letter, as to which I take the same view as I expressed in relation to interrogatory 39 above. 51 Interrogatory 47: The letter referred to dated 6 May 1992 complains of "rowdy behaviour late at night" by the patrons of the hotel; the "loitering" of alcohol affected persons in the vicinity of homes on the headland; the destruction of, and damage to property; and illegal camping. The letter has evidentiary value in the sense that it put the council on notice, if further notice be necessary, of a number of undesirable activities occurring on the headland in the vicinity of the hotel. 52 However, nothing complained of by Mr Steel seems to me to be directly relevant to any issue in the case and I would regard as oppressive the very wide ranging and, in some cases, open-ended questions asked of the Council. Again, it must be borne in mind that the letter speaks of conduct, which allegedly occurred some 15 years ago. I would disallow the interrogatory. 53 Interrogatory 48: Mr Meadham's letter dated 19 May 1992 supports the declaration of an "alcohol free zone". It makes reference to lack of toilet facilities and suggests more diligent enforcement of "No Camping" regulations. The letter has evidentiary value for the same reason as the letter referred to in interrogatory 47. Again, however, in my opinion, the breadth and open-ended nature of many of the sub-questions when coupled with their marginal relevance renders the interrogatory oppressive. Moreover, some parts are objectionable on the basis that they required the Council to form an opinion eg. 48 (a) and other parts enquired as to the state of the Council's mind eg. 48 (b) (ii). I would disallow the interrogatory. 54 Interrogatory 49: Annexure L comprises a letter from the secretary of the Liquor Administration Board to the Hotel dated 8 May 1992 with an attached position paper compiled by board member, Mr P. G. Harvey. The position paper comprises some 7 pages. Towards the end of it is a section headed "Desired Action" under which appears: "It is desirable that the following matters be fully considered before the complaint is finally resolved at the next conference. 1. Whether or not there is to be an alcohol-free zone surrounding the hotel. 2. The residents are to notify the licensee of every alleged disturbance that arises in the interim, and the licensee is to respond effectively. 3. The licensee should extend the security patrols to include the whole of the neighbourhood defined above. 4. The licensee should consider the employment of a noise consultant to determine the extent of disturbance, if any, arising from entertainment noise from the premises themselves. Mr Meadham is to co-operate with tests being carried out from his property. 5. The police should provide a further report prior to the conference. The position of security officers should be clarified." 55 In my opinion, this interrogatory is objectionable on the ground of relevance. However, it is also oppressive and objectionable for other reasons. It seeks to be informed, in some respects, as to the state of mind of the Council eg. 49 (a), and it requires the formation of opinions eg. 49 (b). Other parts of the interrogatory are oppressive by their width and uncertainty of meaning eg. 49 (f). 56 Interrogatory 50: The letter referred to concerns the declaration of "alcohol free zones". In my opinion, Mr Glascott correctly submitted that the interrogatory is irrelevant and should be disallowed for that reason. I do not accept Mr Joseph's submission that it is relevant to consider why the alcohol free zone was not extended to the area where the Plaintiff fell. Moreover, it also, impermissibly, seems to enquire as to the state of the Council's mind. 57 Interrogatory 51: The fate of an application for an alcohol free zone shortly before 31 December 1993 may, I think, be a relevant matter going to foreseeability and I would allow this interrogatory. 58 Interrogatory 52: Mr Joseph submitted that the answers to this interrogatory are relevant to the Plaintiff's case in light of what the High Court said on the subject of reliance in Pyrenees Shire Council v Day (1998) 72 ALJR 152. 59 Mr Glascott, on the other hand submitted that the interrogatory is oppressive on its face, in that is seeks details of all notices to fence land anywhere in the Shire for the whole 2 year period. Although, as Mr Joseph pointed out, there was no evidence as to what that involved, in my opinion, on its face the interrogatory goes well beyond anything reasonably relevant to the issues in the case. I would disallow the interrogatory. 60 Interrogatory 53: In my opinion this interrogatory is oppressive in that it relates to all licensed premises within the council area during the 2 year period. It is true that there is no evidence as to the number of orders or directions given but even without such evidence, I am of the view that the interrogatory, by seeking facts which can have no relevance, is oppressive. I would disallow it. 61 Interrogatory 54: In my opinion this interrogatory should be disallowed for the same reason interrogatory 53 was disallowed. As it seems to me Pyrenees Council requires a focus upon the particular circumstances of the case in considering whether the Council had a duty to exercise the powers conferred upon it. That task is not assisted by a consideration of what the Council did or did not do in different circumstances. 62 Interrogatory 59: This interrogatory is, in my view, objectionable on two grounds, namely, it enquires as to the state of the Council's mind and it requires it to form an opinion as opposed to stating a fact. I would disallow it. 63 Interrogatory 62: In my opinion this interrogatory should be disallowed on the Lane Cove Council principle. It is also oppressive in form. For instance, I have difficulty in understanding how the Council could be expected to answer 62 (a) (i) (A) (B) and (C) while (D) seems to assume a duty to warn. 64 Interrogatory 63: This interrogatory should be disallowed in accordance with what was said in Lane Cove Council. It is also, in my view, patently oppressive in form. 65 Interrogatory 71: Mr Glascott submitted the interrogatory relates to an irrelevant matter. There is force in that submission but on balance the existence and contents of a management plan may be relevant and I would allow the introductory part and (a). 66 Interrogatory 71 (b) should be disallowed in that (i) questions the state of mind of the Council and (ii) is imprecise in meaning. 67 Interrogatory 72: In my opinion this interrogatory is irrelevant and I disallow it. 68 In the result, the Plaintiffs have had limited success in that I propose to order the Council to provide verified answers to those interrogatories identified above, which I regard as proper. My provisional view is that there should be an order for the payment by the Plaintiffs of most of the Defendants' costs. However, as this matter has not been argued, I will reserve costs and invite the parties, if they cannot agree upon costs, to seek from my Associate an appropriate time for a costs argument. 69 I make these order: 1. Defendant to provide within 21 days verified answers to interrogatories 6 (c); 14 - other than 14 (a) (i) (A) (iii) (1) (b) (c) (d) (e) (f) (g) and (h); and other than 14 (a) (i) (iii) (2); 31(C); 37; 38; 51 and 71 other than sub-question (b). 2. Otherwise Notice of Motion dismissed. 3. Costs reserved. oOo

INTERROGATORIES: Definitions New Years Eve Gathering: A gathering of people at the Tathra Hotel and the area surrounding the Tathra Hotel on the last day of a year ie. 31 December, to celebrate the start of a new year and extending into the first day of the new year ie. 1 January. 70 The Period: 31 December 1991 to 1 January 1994 71 Hotel grounds: the Tathra Hotel. 72 The Reserve: the land between the Hotel grounds and the cliff edge being part of reserve R64333 and identified in paragraph 10 of the Second Further Amended Statement of Claim. 73 The cliff edge: the cliff edge along the Reserve immediately behind the Tathra Headland. 74 The Council is the Bega Valley Shire Council and its servants and agents. 75 Risk management assessment study: a study to review the areas of public land where the New Years Eve Gathering was to be held to determine what areas of the of the public land there were unacceptable levels of risk of injury to people who attend such a function and what steps could be taken to lessen that risk of injury. Interrogatories 1. Had a risk management assessment study of the Reserve been undertaken prior to the 31 December 1993? (a) I yes:

For each risk management assessment study that had been undertaken: (i) When was this risk management assessment study undertaken? (ii) Who carried out the risk management assessment study? (iii) Was this risk management assessment study documented? (A) If yes, identify the risk management assessment study document? (B) If no, why did you not consider it appropriate that a risk assessment study be documented? (b) If no, why not? 3. Had you received any complaints about the New Years Eve Gathering over the Period? (a) If yes to the last interrogatory, (i) What year or years of the Period did you receive complaints? For each year you received complaints: (A) How many complaints did you receive? For each complaint made: (I) Was the complaint made orally or in writing? (1) If written, could you please identify the document;

(2) If oral, (a) Who made the complaint? (b) On what day was the complaint made? (c) Who on you behalf received the complaint?

(II) What was the substance of the complaint? (III) Were steps taken by you to prevent the recurrence of the event the subject of the complaint?

(1) If yes:

(1) What? (2) When? (3) By whom? (2) If no, why were no steps taken to prevent the recurrence of the events the subject of the complaint?

4. Annexed and marked "A" is a police report dated 31 December 1989 headed "Gullick – Falls off cliff at Tathra". Annexed and marked "BHP" is a copy of the front page of the Bega District New dated Tuesday 2 January 1990. (a) Did you do anything as a result of this accident to undertake any action which would lessen the risk of someone else falling off the cliff around the Headland or the cliff edge?

(i) If yes,

(A) What did you do? (B) When did you do it? (C) Why did you do it?

(ii) If not, why not?

6. Were you aware during the Period that patrons of the Tathra Hotel would leave the Hotel grounds at the rear of the Tathra Hotel and enter the Reserve? (a) If yes:

(i) when did you first become so aware (ii) how did you become aware (b) were you aware that such persons could be affected by alcohol when they entered the Reserve?

(i) if yes, how did you become so aware? (c) was there anything to warn those patrons or visitors of the Tathra Hotel who would enter the Reserve from the rear of the Tathra Hotel and approach the cliff edge of the danger of falling from the cliff edge? (i) if yes:

(A) when was it installed? (B) how were patrons so warned of the cliff edge?

9. Did Council at any time prior to January of 1994 consider the erecting of fencing on or adjacent to the Reserve near the cliff edge?

(a) If yes, (i) When? (ii) By whom? (iii) Was this recommendation documented? If yes, please identify the document. (iii) (sic) Who made, if any, a decision not to proceed with the erection of such fencing on the Reserve near or next to the cliff edge?

(b) If no, why not?

10. Do you admit that a fence or barrier on or adjacent to the Reserve near the cliff edge would have lessened the risk of patrons or visitors to the Tathra Hotel entering the Reserve from the Hotel grounds and thereby lessen the risk of them falling from the cliff edge?

11. Do you admit that a warning sign identifying the fact of the proximity of a cliff edge near or next to the cliff edge would have lessened the risk of patrons or visitors to the Tathra Hotel falling off the cliff who entered the Reserve from the Hotel grounds?

13. In respect of the New Years Eve Gathering in 1993 (ie 31 December 1993 and 1 January 1994) did you first know prior to that event that a New Years Eve Gathering was to be held?

(a) If yes:

(i) On what day did you become aware of this? (ii) How did you become aware of this? (iii) Did you do anything as a result of this knowledge? (A) If yes, (I) What? (II) When? (III) By whom?

(B) If no, why not?

(b) If no, why?

14. Over the Period were any applications made to Council to enable a New Years Eve Gathering to be held in or near the Tathra Hotel including on the Hotel grounds and on the public land near to and surrounding the Hotel grounds ie on the public car park across the road from the Tathra Hotel, on the headland and on the Reserve and on the public roads surrounding the Hotel grounds?

(a) If yes,

(i) What years of the period were such applications made to Council? (A) For each year identified in answer to the last interrogatory was the application made orally or in writing? (l) If the application was made in writing please identify the author of the application; (ll) If the application was made orally

(1) Who made the application?

(2) When was the application made? (lll) Was the application approved by Council? (1) If yes to last interrogatory, (a) What day was this application approved by Council? (b) Who approved the application?

(c) What matters did you consider in approving the application?

(d) How did you investigate whether such an application should be approved?

(e) Who investigated?

(f) When was the investigation carried out?

(g) Was the Tathra Hotel and its surrounding grounds inspected by your prior to the application being approved? (i) If yes: (A) When? (B) By whom?

(C) Why?

(D) Was a report prepared in relation to the inspection?

(E) If yes, identify the document? (G) (sic) If no, why not? (ii) If no, why not? (h) Were conditions placed on the approval? (a) If yes: (i) What were the conditions? (ii) How were they to be enforced? (iii) By whom?

(b) If not why not? (2) If no: (a) What day was this application not approved by Council? (b) Who refused the application?

(c) What matters did you consider in refusing the application?

(d) How did you investigate whether such an application should not be approved?

(e) Who investigated?

(f) When was the investigation carried out?

(g) Was the Tathra Hotel and its surrounding grounds inspected by you prior to the application being refused? (i) If yes: (A) When? (B) By whom?

(C) Why?

(D) Was a report prepared in relation to the inspection?

(E) If yes, identify the document? (G) (sic) If no, why not? (ii) If no, why not? 15. Over the Period but prior to 1993 was any application made to you to close off the road outside the Tathra Hotel on the New Years Eve Gathering?

For each application approved:

(a) What matters did Council consider in approving the application?

(b) How did Council investigate whether such an application should be approved?

(c) Who investigated whether such an application should be approved?

(d) When was the investigation carried out?

(e) Was the Tathra Hotel and its surrounding grounds inspected by Council prior to the application being approved? (i) If yes: (1) When? (2) By whom?

(3) Why?

(4) Was a report prepared in relation to the inspection?

(5) If yes, identify the document?

(6) If not, why not? (ii) If no, why not? (f) Who determined what conditions, if any, should be placed on the approval? (g) If any conditions were placed on the approval how were they to be enforced?

(h) By whom?

(i) Was an inspection carried out on the evening of the New Years Eve Gathering relevant to the approved application that the Hotel was compiling with the conditions imposed by Council? (i) If yes: (1) When?

(2) By whom?

(3) Was a report prepared in relation to the inspection?

(4) If yes, identify the document?

(5) If not, why not? (ii) If no, why was no inspection confirming that the applicant had complied with the conditions imposed by Council?

26. As at Friday, 31 December 1993, what if any, was your expectation as to the number of persons who were likely to attend the New Years Eve Gathering?

(i) What was that number? (ii) Given those expected numbers did you do anything specifically concerning the event? (iii) If you did, what did you do?

(iv) When did you do it?

(v) Why did you do it?

28. Annexed and marked "D" is an article titled 'new Year's Eve at Tathra raises Councillors' ire from the Bega District News dated Friday, 15 February 1991. Read this annexure. (a) What steps if any were taken by you after this Council meeting to "control … illegal campers" in and around the Hotel grounds including the Reserve and the Headland?

(b) When were these steps taken?

(c) Who took these steps on your behalf?

30. Annexed and marked "E" is letter from Steve Ryan, manager Tathra Hotel dated 31 October 1991 and received by you on 5 November 1991. Annexed and marked "F" is a response by you to Tathra Hotel dated 2 December 1991and page 7 and 8 of the report by the Chief Health Surveyor to the meeting of Council on 12 November 1991. Read both these annexures and answer the following interrogatories.

(Mr Ryan in annexure E refers to "events which took place between council and ourselves earlier this year in relation to New Years Eve at Tathra Hotel/Motel")

(a) (i) What events took place between Council and the proprietor of the Tathra Hotel/Motel in early 1991 in relation to the New Years Eve Gathering over the period.

(ii) For each event identified in (i) above, when did the event take place? (iii) For each event identified in (i) above who on behalf of Council attended those "events"

(Look at condition 3 in letter of 2 December 1991 (Annexure 'F'))

(b) Did Council take any action to make the properties of the Tathra Hotel/Motel totally responsible for all cleaning works including cleaning of council land in close proximity in respect of the New Years Eve Gathering on 31 December 1991.

(i) If yes,

(A) what areas were "in close proximity"

(B) did this include the reserve? (C) did this include the Headland? (D) did this include the Council land surrounding the Tathra Hotel/Motel grounds but excluding the Reserve on the seaward side of the Hotel grounds. (F)(sic) identify by marking the annexure attached hereto and marked "Q30(g)(i)(F)", which is a map of the Tathra Hotel and the surrounding district, where the 'Council land in the close proximity' was. (In respect of condition 4 in letter of 2 December 1991 (Annexure 'F') (c) (i) Did Council require the proprietors and/or manager of Tathra Hotel to take out a public liability insurance policy to the value of 5 million dollars ($5M)?

(ii) What cause Council to require that such a policy be taken out? (iii) Did this policy cover patrons of the Tathra Hotel affected by alcohol leaving the rear of the Tathra Hotel grounds and entering the Reserve and falling over the cliff edge?

(iv) Did the policy cover injuries caused by negligence of the Bega Council?

31. (Look at a report by Chief Health Surveyor submitted to council on 12 November 1991 which is annexed to annexure 'F') (a) Did the Chief Health and Building Surveyor or his agent have discussions with the proprietors of the Tathra Hotel in respect of the proposed road closure on New Years Eve 31 December 1991 prior to 12 November 1991.

(i) If yes, (A) identify all discussions that took place between Chief Health and Building Surveyor of his agent and the proprietors of the Tathra Hotel. (B) When did each of these discussions take place? (C) Did Chief Health and Building Surveyor or his agent discuss with the proprietors of the Hotel the placement of the flood lighting to assist with security?

(l) If yes (1) What areas were to be floodlit? (2) Did this include the Reserve?

(3) Did this include the Headland?

(4) Did this include the area around the Hotel grounds excluding the Reserve?

(5) Identify by marking the annexure attached hereto and marked "Q31(a)(i)(C)(l)(5)" which is a map of the Tathra Hotel and the surrounding district, that you expected flood lights to be situated and the areas that they intended to illuminate.

32 Do you admit that flood lighting upon the Reserve and/or the cliff edge would have lessened the risk to persons near the cliff edge from falling over the cliff edge on the night of 31 December 1993?

37 As at 31 December 1993 did Council have any policy requirement for portable toilets to be installed at large gatherings on public lands in the Bega District? If yes, identify the policy document containing this requirement.

38. Did council require the installation of any portable toilets at the Tathra Hotel during the New Years Eve Gathering on 31 December 1991?

39. How did Council determine the number of portable toilets that were to be installed on the Tathra Hotel grounds when it made the installation of portable toilets on the Hotel grounds a requirement for approval of the application by the Tathra Hotel to close the road in front of the Tathra Hotel during the New Years Eve Gathering on 31 December 1991?

40. Did you at any stage during the Period assess whether or not there was sufficient portable toilets provided by the Tathra Hotel for the likely number of people attending the New Years Eve Gatherings over the period

(a) If yes, (i) How did Council establish this?

(ii) When did Council establish this? (iii) Who establish this?

(b) When determining the Tathra Hotel's entertainment license was it a requirement that the Tathra Hotel have sufficient toilet facilities for the numbers of people allowed into the entertainment area? (j) If so, how was the requirement for toilet facilities determined and quantified?

41. Given that you did not provide any portable toilets on Tathra Headland why did you not provide any portable toilets to be used at the Tathra Headland during the New Years Eve Celebrations in 1993 (ie. December 1993 and 1 January 1994)?

42. Given that you did not provide any portable toilets on the Reserve why did you not provide any portable toilets to be used at the Reserve during the New Years Eve Celebrations in 1993 (ie. 31 December 1993 and 1 January 1994)?

44. (Annexed and marked "H" is a document titled 'Revised from original summary compiled and distributed on 13/12/91' which is a summary of a meeting held at Moruya Court House on 9 December 1991. Look at this annexure.

(a) Identify the contents of each oral and/or written submissions made by each of those persons acting on behalf of Council at the meeting at Moruya Court House on 9 December 1991? (b) Did any of Council's representatives at the meeting at Moruya Court House on 9 December 1991 create any documents, including notes and/or reports about the meeting: (i) If yes, identify the documents created.

(c) Did Mr Harvey, magistrate, say anything specifically about the responsibilities of the Council at that meeting? (i) If so, what did he say?

(d) Prior to 31 December 1993 did Council ever accept that the responsibilities as identified by Mr Harvey were in fact the responsibilities of the Council?

(e) If so, what did Council do to ensure that these responsibilities as identified by Mr Harvey and identified in (d) above were carried out by Council at the subsequent New Years Eve gatherings up until January 1994.

(f) Who carried out these responsibilities on behalf of Council during the Period?

45. Look at the section of annexure H titled "Responsibilities of Bega Valley Shire Council" (on page 3 of that annexure) which council received on 6 February 1992. (a) As at 31 December 1993, was Council in part responsible for the supervision of all licensed premises in Tathra?

(b) As at 31 December 1993, was Council in part responsible for sanitation for persons attending all licensed premises in Tathra?

(c) As at 31 December 1993, was Council in part responsible for the camping ordinances in Tathra?

(d) how did council carry out each of the "responsibilities" as identified in annexure H in respect of the New Years Eve gatherings for 1993.

46. Annexed and Marked "l" is a letter from Mr Philip Childs to Council dated 25 March 1992, with two attachments (i) proposed alcohol free zone and (ii) an application for an alcohol free zone. Look at this annexure and its attachments:

(a) Did council on receiving this document investigate the "complaints which related to excessive public drinking and offensive behaviour in public places" after a New Years Eve Gathering? (i) If yes,

(A) When were those investigations undertaken?

(B) Who undertook those investigations?

(C) What was established as a result of those investigations?

(ii) If no, why were these complaints not investigated?

(b) identify by marking the annexure attached hereto and marked "Q46(h)(iii), which is a map of the Tathra Hotel and the surrounding district that the Council understands is the 'public places" that Mr Child's letter referred to.

(c) Insofar as there was reference in annexure l to "destruction of public property"

(i) where did Council understand this to have taken place?

(ii) when did Council understand this to have taken place? (ii)(sic) did Council understand this letter referred to conduct of people who had attended the New Years Eve gathering at the Hotel?

(d) Insofar as annexure l also has annexed a map which sought an alcohol free zone over an area which included "the Reserve" and "the Headland", did Council understand that the complaints concerning excessive public drinking and offensive behaviour took place in the Reserve and/or the Headland?

(e) If yes, was council aware that alcohol was being consumed in those areas that had been gazetted as being "alcohol free zones" prior to those same areas being gazetted?

47. Annexed and marked "J' is a letter from Mr Chris Steel dated 6 May 1992 and received by Bega Valley Shire Council on 8 May 1992. look at this annexure: (a) Was anything done by Council after receipt of this document to 'control the frequent illegal camping that occurs on the [Tathra] headland during the 1993 New Years Eve Gathering?

(i) If yes:

(A) What?

(B) When?

(C) By whom? (D) What was the result of the action? (ii) If no, why was nothing done to control the frequent illegal camping that was occurring on the Tathra Headland?

(b) Do you agree that Council knew as at June 1992 that the Hotel Management at Tathra Hotel were unable to abide by the licence agreement?

(c) Did you investigate the complaint in annexure J that the Tathra Hotel was "unable to abide by the licence agreement'?

(i) If yes:

(A) How?

(B) When?

(C) By whom? (E) What was the result of the investigation? (ii) If no, why not?

(D) Did you forward the complaint in annexure J to the liquor License Police or Liquor Administration Board to investigate?

(i) If yes:

(A) When

(B) Who did you forward the complaint to?

(ii) If no, why not?

48. Annexed and marked "K" is a letter from Mr Chris Meadham dated 19 May 1992 to Bega Valley Shire Council. Look at this annexure and answer the following: (a) Were steps taken by Council after receipt of annexure K to 'diligently enforce the no camping regulations' at the 1993 New Years Eve Gathering (ie. 31 December 1993) in relation to the Reserve at the rear of the Tathra Hotel?

(i) If yes:

(A) How?

(B) What?

(C) When

(D) By whom?

(ii) If no, why not?

(b) Did Council do anything to enforce the alcohol free zone at the 1993 New Years Eve Gathering in relation to the Reserve at the rear of the Tathra Hotel? (ie.31December1993)?

(i) If yes:

(A) How?

(B) What?

(C) By whom? (D) Identify by marking the annexure attached hereto and marked "Q48(d)(i)(C)", which is a map of the Tathra Hotel and the surrounding district, what areas of the alcohol free zones were enforced at the 1993 New Years Eve Gathering (ie. 31 December 1993)?

(ii) If not, why not? (c) Was action taken by Council after receipt of annexure K to control 'problems created by large number of people in the public areas around the [Tathra] hotel'?

(i) If yes:

(A) What?

(B) When

(C) By whom? (D) identify by marking the annexure attached hereto and marked "Q48(g)(i)(D)", which is a map of the Tathra Hotel and the surrounding district what public areas around the Tathra Hotel were these actions taken?

(ii) If no, why not?

49. Annexed and marked "L" is a letter from Liquor Administration Board dated 8 May 1992 to Bega Valley Shire Council with a position paper attached. Look at this annexure especially page 5 of the position paper. (a) Prior to 31 December 1993 did Council know that 'approximately 2,500 persons' congregated in the area of the Tathra Headland and the Reserve during the 1991 New Years Eve Gathering ie. Tuesday 31 December 1991 and Wednesday, 1 January 1992?

(i) If yes,

(A) How did you know this?

(B) When did you first know this?

(b) Were any steps taken by Council after receipt of annexure 'L' to 'control the activities at or around the [Tathra] hotel on the New Year's Eve?

(i) If yes:

(A) What

(B) When

(C) By whom

(c) Were you aware prior to 31 December 1993 that a large number of the people had congregate in the area near the Tathra Hotel during the 1991 New Years Eve Gathering and had brought their own liquor?

(i) If yes,

(A) How did you know this? (B) When did you first know this?

(d) Were you aware prior to 31 December 1993 that a large number of the people who had congregated in the area near the Tathra Hotel during the 1991 New Years Eve Gathering and who have brought their own liquor did not go near the Tathra Hotel?

(i) If yes,

(A) How did you know that? (B) When did you first know this?

(e) Were steps taken by Council after receipt of annexure 'L' to prevent camping on the Tathra Hotel grounds at the 1993 New Years Eve Gathering (ie. 31 December 1993)?

(i) If yes:

(A) How? (B) What? (C) When?

(D) By whom? (ii) If no, why not?

(f) Were steps taken by Council after receipt of annexure 'L' to enforce the conditions attached to the certificate of approval for areas of the Tathra Hotel to be used as an entertainment area by limiting the number of persons in the entertainment area of the Tathra Hotel at the 1993 New Years Eve Gathering (ie. 31 December 1993)? (i) If yes;

(A) How? (B) What?

(B)sic When (C) By whom

(ii) If not , why not?

50. Annexed and marked "M" is a letter from NSW Drug Awareness Council to the Bega Valley Shire Council dated 31 July 1992. Look at this annexure. (a) Did Council consider "extensions or additions" to the alcohol free zones around the Tathra Hotel before 17 August 1993?

(i) If yes,

(A) When? (B) Who considered these "extensions or additions" to the alcohol free zones around the Tathra Hotel? (C) Identify and describe the area(s) that was to extend or be add to the already existing alcohol free zones? (ii) If no, why was the alcohol free zones not extended or added to?

51. Annexed and marked "N" is an application for Alcohol Free Zone from Mr Phillip Childs to the Bega Valley Shire Council dated 12 November 1993. (a) Were there any Alcohol Free Zones approved, as sought in this application, by 31 December 1993?

(b) If so, identify the zones approved?

52. Over the period did you issue any orders to fence land either under the Local Government Act 1919 or the Local Government Act 1993 in the Bega Valley Shire?

(a) If yes:

(i) How many orders did you issue?

(ii) To whom?

(iii) Identify the date each order was made by Council?

(b) If no, why not?

53. Over the period did you issue any orders or directions to an owner of a licensed premises within the Bega Valley Shire either under the Local Government Act 1919 or the Local Government Act 1993:

(a) To carry out work on that licensed premises?

(i) If yes:

(A) To whom was the order issued?

(B) What was the work that had to be carried out? (C) Why was it issued? (b) Carry out work on the grounds of the licensed premises?

(i) If yes:

(A) To whom was the order issued? (B) What was the work that had to be carried out? (C) Why was it issued?

(c) To cease carrying out activities on the licensed premises?

(i) If yes:

(A) To whom was the order issued?

(B) What was the work that had to be carried out?

(C) Why was it issued?

(ii) If not, why not?

54 Over the period did you issue any orders or directions to a lessee of a licensed premises within the Bega Valley Shire either under the Local Government Act 1919 or the Local Government Act 1993 :

(a) To carry out work on the licenses premises?

(i) If yes:

(A) To whom was the order or direction issued? (B) What was the work that had to be carried out? (C) Why was it issued? (ii) If no, why not?

(b) To carry out work on the grounds of the licensed premises?

(i) If yes:

(A) To whom was the order or direction issued? (B) What was the work that had to be carried out? (c) Why was it issued?

(ii) If no, why not?

(c) To cease carrying out activities on the licensed premises?

(i) If yes:

(A) To whom was the order issued? (B) What was the work that had to be carried out?

(C) Why was it issued? (ii) If no, why not?

59. Annexed and marked "O" is a letter from the manager of the Tathra Hotel, Mr Steve Ryan, dated 24 May 1992 to you with its two annexures. Look at annexure 'O':

(a) Do you consider the area behind the Hotel and which is part of the Reserve "relatively inaccessible" to patrons or visitors to the Tathra Hotel?

62. Prior to the 1993 New Years Eve Gathering (ie. 31 December 1993 and 1 January 1994):

(a) Were you aware that trees growing close to the cliff edge obscured the view to persons close to the cliff edge of the cliff edge itself?

(i) If yes: (A) How were you aware of this? (B) When did yo first become aware of this?

(C) Were inspections carried out by Council of this area near the cliff edge? (1) If yes, (a) When were the inspections carried out? (b) Who carried out the inspections on behalf of Council? (D) What steps did you take to alert members of the public who entered the Reserve and/or patrons or visitors of the Tathra Hotel who entered the Reserve from the grounds of the Tathra Hotel of the dangers posed by the cliff edge on the Reserve at the rear of the Tathra Hotel?

(l) If yes:

(1) Who authorised this? (2) When was it authorised? (3) How were members of the public and patrons of the Tathra Hotel alerted to the dangers posed by this cliff edge on the Reserve at the rear of the Tathra Hotel? (ll) If no, why not? (ii) If not, why not?

63. At any time prior to 1 January 1994 did you consider that there existed a danger to persons posed by the combination of the New Years Eve celebrations, the Tathra Hotel, the Reserve the cliff edge, alcohol and camping on the Hotel grounds?

(a) If yes, (i) When did you consider this?

(ii) Were these considerations in writing or oral? (A) If it was in writing identify the document? (B) If it was oral: (l) Who did you speak to?

(ll) When?

(lll) What was the substance of these considerations? (iii) Describe the steps that you took to lessen the risk of this danger eventuating? (b) If no, why not?

71. Was there a plan of management applying to the Reserve under section35 of Local Government Act 1993 as at 1 January 1004?(sic)

(a) If yes:

(i) Is the plan of management documented?

(ii) If yes, identify the document?

(b) If no,

(i) Why not? (ii) What was the nature and use of the Reserve as at 1 January 1994?

72. Is there now a plan of management applying to the Reserve under section 35 of Local Government Act 1993?

(a) If yes:

(i) When did it commence?

(ii) Is the plan of management documented?

(iii) If yes, identify that document?

(c) If no, (i) Why not?

16/02/2007 - File Number amended - Paragraph(s) 0

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