lh IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN : AND: AND: AND: Ke Oe ted A JUDGMENT fc. G164 of 1982 G 85 of 1983 ) ) No. ) No. ) ) IN_THE MATTER of the TRADE PRACTICES ACT, 1974 BRYAN JOHN MILNER AND ORS. Applicants DELITA PTY. LIMITED ROGER McMILLAN GLASSON and MORRIS WALTER LEWIN Respondents and First Cross-Claimants ROBERT CHARLES GOOCH MORRISON and JOHN CHRISTOPHER BENNETT First Cross~-Respondents and Second Cross-Claimants ROGER McMILLAN GLASSON and MORRIS WALTER LEWIN Second Cross-Respondents REASONS FCk JUDGMENT LOCKHART J. This is the first dav lenathy matter which has' been of the trial of a complicated and the subiect of a large number of directions hearings extending over a period in excess of 12 months. 25 JUN AA AUSTRALIA PRINCIPAL REGISTRY \R This morning, counsel for the applicants informed me that the applicants' solicitors received last Friday the verified answers to interrogatories which had been administered to the cross respondents bv the applicants. The cross respondents obiect to answering certain of the interrogatories on various arounds, but principally on the around that thev do not relate to anv fact in issue between the applicants and the cross respondents. The applicants have moved this morning for an order. pursuant to 0.16 r.8, that the cross-respondents be reauired to make further answers to interroqatories. verified bv affidavit. on the around that the cross-respondents are not entitled to take this obiection: or, if they are entitled to do so. it should not succeed. I need not recite the history of the various applications for interrogatories, except to sav that orders have been made from time to time. by consent. by Judaes of this Court. as lona aqo as February and June ot last vear. It is, I think, sufficient for present purposes for me to sav that on 5 March this vear [ gave a number ot directions in the matters before the Court. includina directions numbered 7 and 8 in these terms: "(7) Direct that on or before 26 April 1984 all parties administer anv interroaatories which they seek to administer to anv other partv; (8) direct that on or before 21 Mav 1984 all parties answer on oath anv interroagatories which may have been administered pursuant to (7) above." 3. The directions were made. so far as presentlv relevant. bv consent and followed discussion between counsel and me prior to the taking of evidence on commission in Hawaii (which in fact was taken in June this vear): and one of the purposes of those directions was to crystallise all outstanding matters between the parties that could have a bearing on the formulation of issues and the taking of evidence in Hawaii. The applicants' assertion that the cross-respondents are barred from takina the around of obiection to which I have referred is founded essentially upon the provisions of 0.16 R.6(3)(a). T have been referred to various iudaments of single iudaes of the Supreme Court of New South Wales: but none of the iudaments touch the particular question which I have to decide. I accept for present purposes (but I still leave it as an open question) that this Court has power to permit an applicant to administer interrogatories to a cross-respondent, and has pwower to enforce that order by requiring the cross-respondent to answer those interrogatories. The question reallv. in mv view. is whether in this case, unless the cross-respondents are barred from taking the point which thev have taken. the Court, as a matter of discretion. should require that they answer the interrogatories in question. I need not refer in detail to the varic.is provisions of this Court's Rules to which [ have been referred. They mav be summarised by saving that under 0.16 R.Ll. a _ partv may serve a notice 4, interrogating another partv. as of right. within the times and subiect to the conditions specified in that rule. The Court has power to order anv partv to answer interrogatories whenever it wishes: 0.16 R.5. Iam firmly of the opinion that it was not intended by the Court or the parties. when the consent orders were made on 5 March this vear,that the interrogated party should be barred from obiectind to answerina interrogatories on the around in question here. Not onlv do I think that the circumstances surrounding the makina of those orders operate against that conclusion: but the orders themselves, upon their proper construction. denv the applicants' contention. I do not reaard 0.16 ra.6(3)(a) as pvpointing to a contrarv conclusion. That paragraph has in mind. at least verincipallv. though perhaps not exclusively, the case where the Vourt orders a party to answer a specific interroaatory which has then been formulated and which is before the Court and was then. or could have been. the subiect of debate. That is not this case. as no particular interroaatories were before the Court on 5 March 19324. on the question of discretion. [ was told from the Bar table that the applicants have themselves answered interrogatories which the cross respondents administered to them. The applicants submitted that. not to require the cross-respondents to do the same. 'vould be to vitiate the element of mutuality inherent in the orders of 5 March. Tf am not satisfied that this is so. Although the applicants answered the cross-respodents' interroaatories, it is common ground that the substance of those answers was covered by the applicants in their answers to the respondents' interrogatories. I do not see anv specific preiudice which the applicants miqht sustain if the obiection taken by the cross-respondents is upheld. Another around taken by the cross-respondents to answerina some interrogatories which the applicants seek to administer to them (for example. interroqatorv number 4) is that it is said to be oppressive. I am satisfied that this around of obiection fails. There are no issues on the pleadings between the applicants and the cross~-respondents. I think. in all the circumstances. that the proper course is to decline at this staqe to make the orders sought bv the applicants. [I will not. however, shut out' the applicants from renewing their application in the future if thev wish to do so in the liaht of changed circumstances. I refuse the application. ~3 arg-the seatrus conv cf the