4-Q4 "Not for Distribution" IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) QLD. G36 of 1983 BETWEEN: JEFFREY IAN WEBB AND MAUREEN VERE WEBB Applicants AND: YARRALUMLA INVESTMENT PTY. LIMITED First Respondent AND: R.B. FOSTER PTY. LTD. AND HARRY LONDY Second Respondents AND: YARRALUMLA INVESTMENTS PTY. LTD. Cross Applicant AND: JEFFREY IAN WEBB First Cross-Respondent AND: MAUREEN VERE WEBB Second Cross-Responden: AND: VERE PAULINE O'MALLEY Third Cross-Respondent N.S.W. G150 of 1984 BETWEEN: VERE PAULINE O'MALLEY Applicant AND: ADLEY INVESTMENTS PTY. LIMITED First Respondent AND: R.B. FOSTER PTY. LIMITED Second Respondent AND: HARRY LONDY Third Respondent AND: ADLEY INVESTMENTS PTY. LTD. Cross Claimant AND: VERE PAULINE 0'MALLEY Cross Respondent DATE OF HEARING: 4 September 1986 DATE JUDGMENT DELIVERED: 4 September 1986 COUNSEL : for the applicants Mr. R.G. Forster instructed by Bradfield & Co. . for the second and-third Mr. G.A. Thompson instructed by respondents Coe Cooper Grace & Ward J. A. LYONS ASSOCIATE TO PINCUS J. 4 September 1986 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISTON ) BETWEEN: JEFFREY IAN WEBB AND MAUREEN VERE WEBB AND: YARRALUMLA INVESTMENT PTY. LIMITED AND: R.B. FOSTER PTY. LTD. AND HARRY LONDY AND: YARRALUMLA INVESTMENTS PTY. LTD. AND: JEFFREY JAN WEBB AND: MAUREEN VERE WEBB AND: VERE PAULINE 0' MALLEY BETWEEN: VERE PAULINE O'MALLEY AND: ADLEY INVESTMENTS PTY. LIMITED AND: R.B. FOSTER PTY. LIMITED AND: HARRY LONDY AND: ADLEY INVESTMENTS PTY. LTD. AND: VERE PAULINE 0'MALLEY MINUTES OF ORDER QLD. G36 of 1983 Applicants First Respondent Second Respondents Cross Applicant First Cross-Respondent Second Cross-Respondent Third Cross-Respondent N.S.W. G150 OF 1984 Applicant First Respondent Second Respondent Third Respondent Cross Claimant Cross Respondent JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 4 SEPTEMBER 1986 WHERE MADE: SYDNEY In the matter of NSW G150/84, the court orders, with respect to the interrogatories contained in the notice to answer interrogatories filed on 6 march, 1986, that: l. Interrogatories numbered 1, 2(a), 3, 4(a), 23 and 24 be answered. 2. The remaining interrogatories contained in the said notice not be answered. 3. The costs be reserved to the trial judge with this intimation: That the applicant pay the costs of today's hearing whatever the outcome of the trial unless it emerges at the trial that the third respondent gives a version of events, so far as the conversations are concerned, substantially at variance with that which his counsel invited the Court to see as likely to be given. In the matter of Qld. G36/83, the Court orders, with respect to the interrogatories contained in the Notice to Answer Interrogatories filed on 14 March, 1986, that: 1. Interrogatories numbered 1, 2(a), 3, 4(a), 23, 24, 69(c), 69(e), 69(f) be answered. 2. The remaining interrogatories contained in the said notice not be answered. 3. The costs be reserved to the trial judge with this intimation: That the applicant pay the costs of today's hearing whatever the outcome of the trial unless it emerges at the trial that the third respondent gives a version of events, so far as the conversations are concerned, substantially at variance with that which his counsel invited the Court to see as likely to be given. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) QLD. G36 of 1983 BETWEEN: JEFFREY IAN WEBB AND MAUREEN VERE WEBB Applicants AND: YARRALUMLA INVESTMENT PTY. LIMITED First Respondent AND: R.B. FOSTER PTY. LTD. AND HARRY _LONDY Second Respondents AND: YARRALUMLA INVESTMENTS PTY. LTD. Cross Applicant AND: JEFFREY IAN WEBB First Cross-Respondent AND: MAUREEN VERE WEBB Second Cross-Respondent AND: VERE PAULINE O'MALLEY Third Cross-Respondent N.S.W. G150 of 1984 BETWEEN: VERE PAULINE O'MALLEY Applicant AND: ADLEY INVESTMENTS PTY. LIMITED First Respondent AND: R.B. FOSTER PTY. LIMITED Second Respondent AND: HARRY LONDY Third Respondent AND: ADLEY INVESTMENTS PTY. LTD. Cross Claimant AND: VERE PAULINE 0' MALLEY Cross Respondent PINCUS J. 4 September 1986 EX TEMPORE REASONS FOR JUDGMENT This is an application for further and better answers to interrogatories. In the course of discussion it has emerged that the respondents have no serious objection to answering interrogatories numbers 1, 2(a), 3 and 4(a) and there will be an order in favour of the application in respect of those interrogatories each of which was objected to. The next group of interrogatoires in issue is numbers 5 to ll. That group concerns the activities of a Mr. I.M. Hinton, who seems, on the applicant's case, to have had a conversation with the applicant about the purchase of Queensland property. There is no allegation that Mr. Hinton made any misstatement, but I am assured and accept that the applicant will lead evidence that a contact with Mr. Hinton was (so to speak) part of the background. Accepting that, it seems to me clear enough that Mr. Hinton's connection with the matter is not sufficiently significant to warrant forcing the answer of these interrogatories. The next group, interrogatories numbers 12, 13 and 14, concerns the means whereby the applicant came to travel to Maroochydore and whether her fare was paid and matters of that sort. It seems to me to fall with the Hinton interrogatories, as being not sufficiently close to the real question in the case, but merely peripheral, and I will not make any order about that. The next group with which I will deal at this stage is interrogatories 29 and 30, which concern the question whether the respondent made documents available to the applicant. There is nothing about this in the pleading and I am not told anything from the bar table to suggest that this is a significant issue in the case. I do not think I should order those interrogatories to be answered. The next group is numbers 31 to 34, which are concerned with the activities of a Mr. H.W. Baker, said to be a solicitor who acted in the matter. Mr. Baker does receive a mention in the pleading, at par.1l, but apart from the fact that he acted asa solicitor (it is said) for the applicant, seems to have had no role in the matter of a particularly relevant kind. In particular, it is not said that he made any misrepresentations or did anything directly relevant to any of the claims made against the respondents, and I will not order those interrogatories to be answered. The next group I deal with in this phase of the reasons 1s interrogatories numbers 57, 58, 59 and 60, which are in the same category as and fall with interrogatories 29 and 30. Interrogatories 61 to 64 are concerned with a Mr. Hickman, a solicitor, who also is mentioned in the pleading and said in par.21(a) to be a man who had had past connections with the respondent. The allegation is that the respondents should have told the applicant of Mr. Hickman's position. The case for requiring these interrogatories to be answered 1s stronger than that relating to Mr. Baker, because at least Mr. Baker figures as one of the actors in an allegation leading directly to liability. Examination of the interrogatories in question, however, convinces me that it would not be fair to require them to be answered. They ask about conversations with Mr. Hickman in considerable detail and the past connection of the applicant with Mr. Hickman in, also, some detail. I can see that, as to the latter point, the applicant might gain some legitimate advantage from the information about past connections, but par.21(a) in that respect does not really seem to lead anywhere. That is, it says that the respondent should have mentioned a past connection with Hickman, but does not say that Hickman did anything improper or failed to carry out his duty. The unpromising nature of the case made about him is a factor in influencing me to determine, as I do, that those interrogatories should not be answered either. The remaining interrogatories are numbers 15 to 28, 35 to 56 and 65 to 70. These all have in common that they ask about conversations of which the applicant complains or about the absence of conversations, of which absence the applicant complains. It has been argued by Mr. Forster for the applicant that, despite admissions made about these conversations in the pleading, the respondents, in particular the third respondent, is not sufficiently tied to a case and that the applicant might suffer some significant disadvantage at the trial for that reason. I can see the force of that contention and it has induced me to come to the view that interrogatories numbers 23 and 24, which are particularly pertinent, should be answered. I say they are particularly pertinent because the applicant alleges in par.10(d) of the statement of claim that it was said that all the units in the building in question, with the exception of the relevant one had been sold. That seems to me to be a falsifiable allegation; that is, it 1s a statement of fact and not of opinion, in contrast to much of what the applicant pleads. The bald denial of the subparagraph by the respondents appears to me to leave still some room to manoeuvre, which could unfairly prejudice the applicant. I have been considerably troubled by the question whether any further interrogatories about conversations should be answered. Mr. Forster has argued cogently that the applicant will gain a substantial advantage from having more detail as to what the respondent's case 1s about these conversations. He says that it may turn out at the trial that Mr. Londy admits having said something quite like the allegation. Whereas I can see the force of that, my view is that prima facie a case based upon misleading statements should not be conducted in such a way as to require the respondent to answer questions about alleged conversations in detail, if he has pleaded responsively, unless there are some special circumstances. Here I think I should apply that general principle against the applicant. I remain unconvinced that the case 1s one in which obtaining the further answers sought will significantly advance the plaintiff's case. In adopting that view I am, as I have mentioned during the course of argument, somewhat influenced by the (in general) rather puffing, speculative or argumentative nature of the alleged misrepresentations relied on, the sole exception to that description really being 10(d). Interrogatories 65 to 70 are in a special category, because they relate to an allegation in the statement of claim of failure to disclose information. It is true that in some circumstances the terms of s.52 of the Trade Practices Act may be held to catch such failures. I must say, however, that the implication in par.21 of the pleading that the respondent Harry Londy, who is not said to be a lawyer, had some obligation to advise the applicant about the law seems to me rather startling and unpromising. Mr. Thompson for the respondents says that the defence necessarily implies, as to par.21, that the matters said in the defence to be ones of which the respondents had no knowledge were also ones upon which no information was supplied. I am not quite convinced that that implication is necessarily to be made, but it seems clear enough that, if the respondents were to advance the case that (having no knowledge) they nevertheless purported to aunform the applicant about these matters, that would be a surprising outcome. It seems to me rather a pity that the matter has taken this course. A carefully drawn and bona fide collection of interrogatories has been delivered and in the result, for various reasons, I have held that very few of them are necessary. It would perhaps have been better 1f the very expensive process which has taken place could by some means have been avoided. However, I can only apply the view I have, which 1s that the interrogatories which should be answered are those mentioned in these reasons namely, 1, 2(a), 3, 4a), 23 and 24. The rest need not be answered. I have had some difficulty in determining what to do about costs. The most important reason for the applicant's failure as to most of the important interrogatories is what might be described as anticipation as to the course of events at the trial. It has to be admitted that if, contrary to any reasonable expectation, the third respondent turns out not really to have pleaded responsively or in such a way as to make the nature of his case clear, then the anticipations expressed by my reasons will turn out to be wrong. I am not sure how to guard against that possibility, but think that the way todo it is make no final order as to costs, but to record that in my view the applicant should pay the costs of today's hearing, whatever the outcome of the trial, unless it emerges at the trial that the third respondent gives a version of events, so far as the conversations are concerned, substantially at variance with that which his counsel invited me to see as likely to he given. That is, the formal order will be the costs will be reserved to the trial judge, but with the intimation I have mentioned. i certify that this end the 6 preceding nvtqgerhugeic, ob prcciers for puedes te cea of itis riopaur - " ~ 4 MA Justice Piicus Zalbat AOE ~ we D oa Associate Dated 4 Ac~ ee