» " ry Dt fey Apert coe ee. S77- IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ) QLD G119 of 1984 BETWEEN: KEEN MAR CORPORATION PTY. LTD. AND: LABRADOR PARK SHOPPING CENTRE PTY. LTD. First Respondent Cross-Claimant AND: HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. Second Respondent AND: ALAN KEEN Second Cross-Respondent AND: TRUDY KEEN Third Cross-kespondens QLD G144 of BETWEEN: TREVOR McDOUGALEL COOMBER, GREGORY DESMOND KEILY and Applicant First Cross-Respondent CAMERON GREGORY GOODEN AND: LABRADOR PARK SHOPPING CENTRE PTY. LTD. First Respondent AND: HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. Second Respondent AND: LABRADOR PARK SHOPPING CENTRE PTY. LTD. AND: TREVOR McDOUGALL COOMBER, CAMERON GREGORY GODDEN \ Applicants . Crgs}-Respondents QLD G145 of 1984 BETWEEN: COLIN JAMES PALLESON and BETTY RUTH PALLESON Applicants AND: LABRADOR PARK SHOPPING CENTRE PTY. LTD. First Respondent AND: HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. Second Respondent AND: LABRADOR PARK SHOPPING CENTRE PTY. LTD. Cross-Claimant AND: COLLIN JAMES PALLESON and BETTY RUTH PALLESON Cross-Respondents MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 25 NOVEMBER 198€ WHERE MADE: BRISBANE IN_THE MATTER OF G145 OF 1294, THE COURT ORDERS THAT: 1. The respondents make further and better answers to interrogatories 43(c), 45(j) and 126 on or before 10 December 1986. 2. The costs of and incidental to the notice of motion be the applicants' costs in the proceedngs. IN THE MATTERS OF G119, AND G144 OF 1984, THE COURT ORDERS IN RESPECT OF EACH MATTER THAT: 1. The costs of the notice of motion be the applicants' costs in the proceedings. 2. The notice of motion be otherwise adjourned to a date to be fixed by the Registrar. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ) QLD G119 of 1984 BETWEEN: KEEN MAR CORPORATION PTY. LTD. AND: AND: BETWEEN: AND: AND: Applicant First Cross-Respondent LABRADOR PARK SHOPPING CENTRE PTY. LTD. First Respondent Cross-Claimant HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. Second Respondent ALAN KEEN Second Cross -kespondent Third Cross-kespondent QLD G144 of 1984 TREVOR McDOUGALL COOMBER, GREGORY DESMOND KETLY and CAMERON GREGORY GOODEN Applicants LABRADOR PARK SHOPPING CENTRE PTY. LTD. First Respondent HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. Second Respondent LABRADOR PARK SHOPPING CENTRE PTY. LTD. Cross-Claimant TREVOR McDOUGALL COOMBER, GREGORY DESMOND KEILY and CAMERON GREGORY GODDEN Cross-Respondents QLD G145 of 1984 BETWEEN: COLIN JAMES PALLESON and BETTY RUTH PALLESON Applicants AND: LABRADOR PARK SHOPPING CENTRE PTY. LTD. First Respondent AND: HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. Second Respondent AND: LABRADOR PARK SHOPPING CENTRE PTY. LTD. Cross-Claimant AND: COLLIN JAMES PALLESON and BETTY RUTH PALLESON Cross -Respondents PINCUS J. 25 NOVEMBER 1986 EX TEMPORE REASONS FOR JUDGMENT These headings were heard together; however, the only one of them which was subject to cetailed discussion was the application in No. G145 of 1984, and it was to the aocuments in that matter that counsels' submissions were addressed. The history of the matter 1s, broadly, as follows. The dispute concerns a fairly long and complex set of interrogatories delivered on 31 January 1986, in pursuance of leave granted, relating to a case in which there are allegations of misleading conduct. Under the leave which was granted on 23 January 19396, the interrogatories should have been answered by 14 February 1986. 3. However, in view of their nature, it was not surprising that they were not then answered and an order was made that they be answered by 16 April 1986. The order I have just mentioned was made by Spender J. on 2 April 1986. The order was complied with, in the sense that a set of answers to interrogatories was delivered on the due date. Subsequently, in response to complaints made by the solicitors for the applicants, further answers were filed on 28 August 1986. The notice of motion presently before me seeks still further answers and some further answers were in fact fiied in court when the matter was heard. The question which has to be determinec at tne outset, which was argued by counsei, was the general propriety cf the forms of answers finally given. It 15 sufficient to illustrate the form of answer by mentioning the first specific answer which 1s No. 3. It 18 preceded by a general onjection to wnich 1 18 not necessary to refer. Answer No. 3 of the most recent set of interrogatories is as follows: "Without prejudice to my general objection, I object to further answering interrogatory No. 4(b) on the grounds that it does not relate to any matter of question between the Applicant and the Respondents and it is vexatious and oppressive in that proof of the matters enquired into are not difficult and would not result in a saving of costs, the Interrogatory is fishing; it could readily be proved by a witness upon the trial of the action; the difficulty in seeking further Answers would exceed any benefit which might be gained therefrom; it would require one person to spend two weeks searching the records of the Respondents 1n an endeavour to answer the Interrogatory; it is unlikely that any records exist as to who added Shops 24, 25 and 26 to Document 'A' and as to who prepared Document 'EE'. I have no personal knowledge of those matters and notwithstanding all Proper enquiry, I have no knowledge, information or belief derived from the Respondent's servants or agents." Putting it broadly, the answers are in much the same form. The principal point at which one finds variations 1s in the sentence, "It 1s unlikely that any records exist" etc. For example, answer No. 4 says, "It is unlikely that any record exists as for use to which document E was put" because interrogatory No. 4 relates to a document of that description. It was argued by counsel 'fcr the arp ,licarts, Mr. Macklir, that the answers do not comply with the rules. The argument is, 1n my view, correzt at least from one point of view. If anything is clear from 0.16, r.6, it 15 that these rules did not intend that answers should be given in this argumentative and repetitive form. That that 1s so appears froma reading ox the rules themselves. Sub-rule 2 of r.6 says: "A statement in answer to interrogatories shall deal with each interrogatory specifically either - (a) by answering the substance of the interrogatory without evasion; or (b) by objecting to answer the interrogatory on one or more of the grounds mentioned in sub-rule (3) and briefly stating the facts on which the objection is based. 5. (3) Subject to sub-rule (4), a party may object to answering any interrogatory on the following grounds but no other: (a} where the answering is not required by an order, that the interrogatory does not relate to any matter in question between him and the party requiring the answer; (b) that the interrogatory is vexatious or oppressive; and (c) pravileged." - In my view the rules are intended to have the precise effect which a literal construction wouid suggest, namely, that rather than stating general objections not mentioned in the rules, the only general objections which may be stated are those set out in paragraphs (a), (pb) anc (c) of sub-r.3 aS appropriate, and the other materials to be ancluded in the objection are facts upon which tre objection 1s based. With all respect to the draftsman of the answers, tney clearly do not comply with the rules. For example, the statement, "The interrogatory 1s fishing", plainly does not fall within the description of being one of the objections listed in sub-r.3, nor is it a fact upon which objections are based. It 1s merely an argumentative statement. I therefore accede to the submission which has been made by Mr. Macklin, that the answers do not comply with the rules. It should also be mentioned that, although the contrary was strenuously argued by Mr. Myers for the respondent, it seems clear that the objection set out in para.3(a) of r.6 was not available. 6. The answer in this case was required by an order of Spender J., which I have already mentioned. The order specifically required that the interrogatories which had then been delivered be answered. It was said, in effect, by Mr. Myers that his Honour could not have intended to override the right to take an objection on ground 3(a). His intention, in my view, can only be derived from what he said and 16 was that the interrogatories be answered. I agree with Mr. Macklin's submission that the objection which 1s taken routinely in these answers is wrong. Looking at the matter more broadly, one could not but look on answers of this sort with disfavour; not only do they not comply with the rules, but they are routine answers, that 1s inthe sense that the objections which are taken are formally the same and maue formally the same without any regard to the question whetner they suit the facts of the case. A simple example to which reference was made by counsel is that the interrogatories sought information about tne company records. Interrogatory No. 126 was as follows: "Have the first or second respondents at any material time passed any resolution, either in general meeting or at a meeting of the directors of the company, relating to any of the matters in question in these actions or any of the matters referred to in these Interrogatories?" That has been answered in what might accurately he described as the standard form by answer No. 28 including the assertion that it would require one person two weeks to search the records to endeavour to answer the interrogatory, an assertion which, if I might say so, with respect, is plainly false. The course which has been taken 1s, in my view, not such a course as the court would encourage. The rules have simply been ignored, the answers are not proper answers and Mr. Macklin was right to object to them. - Mr. Myers argued that, as to the questions which are in a practical sense in issue, the court has an overriding discretion to require further answers or not to require them. I had some aifficulty with that submission and have been unable to find any authority for or against it; none was referred to. The scheme of 0.16 appears 'to me, briefly, to Ee az follows: if oa party 15 required under r.l TO) 060answer wD interrcgatories then, pefore or after the requirement is made, th court is given power, on application by the party which is & ie] answer, to order that answers not be required to particular questions or classes of questions. The purpose of that function under r.3 seems plainly enough to be intended to be performed, not after the interrogatories have been answered, but before. That is, I do not read r.3 as giving me any power to order that particular interrogatories not be answered, when they have in fact been answered. If the court's jurisdiction under r.3 is not invoked, then the only course open to the answerer is to take objections under r.6; that is the course which has in a sense been taken here, although, as I have been obliged to point out, it has 8. been done ina way which completely ignores the requirements of the rules. Mr. Myers argued that the court, on general principles, nevertheless must have control of its own process, and must have the power to decide whether or not in respect of each particular interrogatory an answer 15 necessary or desirable. I had not been able to reach a confident conclusion as to the correctness of Mr. Myers' submission, but on the whole it seems tc me to be probably right; that 1s, although the rules have been broken, I think the court probably does have power to consider each of the interrogatories and determine whether a further answer should he made, and I have come to the conclusion that J should act on the basis that Mr. Myers' contention is correct. I should add that other aspects of the operation of the rules were discussed py counsel. It does nct seem ta me necessary, however, fo avert to them or to decide the quest:ons which were raised other than as I have alreacy done. turn then to the interrogatories which are in question in the case. The submission which was persistently pressed upon me by Mr. Myers, was that I cannot go behind the answers, which are in substance that the answerer does not know and cannot find out. While I concede the general principle, it seems to me not to suit the facts of this particular case well, and that is so for the reason that the history of the matter shows that the problem which the answerer has had is in determining how far to go; that is, in determining to what extent it is necessary for time and money to be spent on ascertaining answers. Another reason is that the answer to interrogatory No. 126 shows that a degree of lack of care has been demonstrated in assertions which have been made as to the practical difficulty of answering. In exercising, as I have said I think I should do, an overriding discretion, I take a broad view of the matter and use what might loosely be described as common sense in determining whether an answer is appropriate and useful. The first batch of questions which arise for consideration are 4(b), 5(d), and 5(e). These relate to identified documents forming part of a collection which are said not to be able to be identified, or rather, the authorship cannot be adentified. Having considered everything which Mr. Myers and Mr. Macklin have said about it, I do not propose to order any further answers witn respect to those matters. The next ainterrogatory 1s No. 6, which asxs, to put 1t briefly, whether there are other brochures, plans, or similar documents relating to the property in question. It seems to me that there 1s an objection to that interrogatory, which is that it really challenges the proprietary of the discovery which has been made, and I do not propose to order a further answer for that reason. The next interrogatory is No. 43(c) which asks about the mathematical calculations concerning outgoings. I have an assurance from Mr. Macklin that the point is an important one. The oath on the other side that it is really going to take a long 10. time to answer, I find, in the circumstances, difficult to take too seriously. It seems to me that I should order, and I propose to order, that a further answer be given to 43(c). I do so partly because I agree with Mr. Macklin's submission that on the face of 1t, it seems improbable that the answerer could not readily enough ascertain whether such documents existed without a two-week search. At the very worst, the answerer could surely say that he has looked in all the appropriate places and cannot find any. The next interrogatory which is in issue 1s 45(j)), which 1s, in substance, directed to obtaining an admission about one of the representations made. The answer, again, 1s that 1b will take two weeks study to find an answer. I cannot accept that that 15s right; as I thought Mr. Myers went close to concecing, 1t would be possiple to maxe® a more responsive answer to questions of that sort, for example, by saying that the inquiries wnich had been made of the person supposed to have made the representation are inconclusive, or show that he does not recall having made 1t, or matters of that sort. Simply to say that it will take two weeks to find out 15, 1t seems to me, unsatisfactory. The next batch of interrogatories is 55(b), (c), (d), and (e), relating to applications for a particular food shop. I have given consideration to that batch and it does not seem to me that there is anything inherently probable in the answer which has been given, and I do not propose to order any further answers. The next batch is quite a large one and it runs from No. 104 to No. 117(c). The subject matter is a Certificate of ll. Classification, the relevance of which was lucidly explained by Mr. Macklin. Having heard his explanation, however, and being, I must confess, dubious of the literal exactitude of some of the answers which have been given, it seems to me that the subject-matter of these ainterrogatories is of marginal relevance. The principal use which Mr. Macklin suggested the answers might be put to 1s as bearing upon the interpretation of the Certificate of Classification. I find it difficult to see how the answers could have any but a peripheral relevance to that subject-matter, and I do not propose to order any further answers in respect of 104 to 117(c). The next subject-matter for interrogatories is bullding work defect notices, Which are asked about in ainterrogatory No. 120, and interrogatory Na 125. These seem to me to be marginal, and I had at one stage formed a view that further answers snoul ff be required. I have in the end come to the conclusion that there 1s no such inherent improbability in the answers which have been given as to justify that course. The last interrogatory, and being the third one on which I propose to exercise my discretion in favour of the applicant, 1s No. 126. It is, in fact, arguably open to the objection which was argued by Mr. Myers, that it is really a challenge to discovery. However it goes, it seems to me, wider than that, and in exercising the discretion I think I have at this stage I should take into account that, with all respect to those who might think otherwise, the answer is patently false. It could not possibly take two weeks to find out from the minutes of the company whether 13. In G145 of 1984 on the notice of motion of the applicant, the orders will be that the respondents make further and better answers to interrogatories 43(c), 45(j), and 126 on or before 10 December 1986 and that the costs of and incidental to the notice of motion be the applicants' costs in the proceedings. 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