IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION CORAM: FRENCH J. 1 DECEMBER 1986 we eww NOT INTENDED FOR DISTRIBUTION No. WAG 37 of 1986 BETWEEN: ALLWEST CLEARWATER PTY LIMITED and Applicant C.C. KENNY PTY LIMITED Respondent EX TEMPORE REASONS FOR JUDGMENT GENERAL This is a motion whereby the applicant seeks an order that the respondent within 14 days file and serve answers to certain of the applicant's interrogatories which were delivered on 9 September 1986. The statement of claim filed in the proceedings by the applicant discloses that 1t seeks damages against the respondent arising out of an alleged contravention of s.52 of the Trade Practices Act 1974 and a breach of a contract arising out of the purchase by the applicant from the respondent of certain vending machines. 2s In its statement of claim the applicant alleges that the respondent, in the course of negotiations in late April and early May 1983 and in order to induce the applicant to enter into a contract for the purchase of the machines, made certain oral representations to its sales manager, one Barry Kidd. Without setting the representations out in full 1t is sufficient to say that they related to the availability, the location = and installation, operating costs and quality guarantees attaching to the machines to be supplied. It is further alleged that another representative of the respondent, one P. Kenny, orally represented to the applicant that a machine had been installed by the respondent and was performing in accordance with the representations made in a previous advertisement and by Barry Kidd. The applicant contends that these representations were false in various particulars which have also been set out in the statement of claim. The respondent, by its defence, denies that Barry Kidd was employed by it as a sales manager as alleged or at all and denies that it made the representations alleged and says in any event that so far as the vending machines were concerned it had been willing and able to maintain them at all material times, any alleged lack of maintenance of the machines was caused or contributed to by the applicant's failure to deliver them to the respondent for maintenance, that if they broke down it was due to the applicant and other persons for whom the respondent was not responsible, failing to take any or any proper care of the 3. machines and using them or permitting them to be used in an improper manner. I have not endeavoured to canvass the pleadings in detail but sufficiently to indicate the general nature of the issues between the parties in this case. The respondent has received interrogatories from the applicant dated 9 September 1986 and among those interrogatories are the following:- "2. As to paragraph 8 of the Statement of Claim and defence: (h) Did the Respondent enter into a _ purchase agreement on or about the 8th August 1983 to supply two machines to Hans and Vera McKaay? (i) What other machines has the Respondent supplied? (j) Did the Respondent place all machines supply (sic) by it? (k) If the answer to (i) 1s yes where did it locate the machines? (1) Are any of the machines supplied by the Respondent still operating? (m) I£ the answer to (k) is yes: (i) by whom are they owned; (ii) where are they located; and {i1i) what percentage of the taking does the shop owner require;" The respondent has declined to answer each of those interrogatories objecting, in the case of 2(h) that the question 4. is not material to the proceedings and in the case of 2(i) to (m), that the questions are fishing interrogatories and are not material to the proceedings and are irrelevant and unnecessary. It can be said generally of these questions that they all relate to conduct of the respondent in connection with the supply of machines to persons other than the applicant and to _ the performance of those machines so supplied. There is nothing in the statement of claim which directly raises the question of supply of machines to other persons or their performance characteristics as an issue to be determined. There is no allegation, for example, that the respondent has made representations to the applicant generally concerning the performance of machines supplied to other persons apart from the limited representation pleaded in para.6 which appears to relate to one machine only. Nor are there alleged any representations which relate to the characteristics of all such machines dealt with by the respondent, their mode of manufacture or other matters which might be taken as a general reference to their performance apart from the performance represented as that which the applicant would enjoy upon the acquisition of those it would purchase. . I am not satisfied that the interrogatories 2(h) to 2(m) inclusive are material to the issues between the parties in these proceedings. In saying that I do not wish to be taken as making any ruling applicable to the substantive hearing of the 5. application as to the relevance of such evidence should such questions arise or evidence in relation to the supply of machines to other persons be sought to be adduced at the hearing. Suffice it to say that for present purposes I am not satisfied that these interrogatories are warranted and am not prepared to make the orders sought. In addition to interrogatories 2(h) to 2(m) inclusive, the applicant also sought an answer to interrogatory 6(a). This interrogatory read as follows:- "As to paragraph 21(a) on what date or dates did the applicant fail to deliver the machines to the respondent?" This refers to paragraph 21 of the defence filed by the respondent on 17 June and in particular sub-para. 21(a) which provides:- "As to the whole of the Applicant's claim the Respondent says that if the Applicant has suffered any loss or damage, which is denied, then such loss or damage was wholly caused by and/or contributed to by: (a) The Applicants failure to deliver the vending machines to the Respondent for maintenance. (b) The Applicants failure to take any or any proper care of the vending machines and or using he (sic) vending machines or permitting the same to be used in an improper manner. (c) The Applicants failure to adequately and/or properly supervise the day to day operations of its vending machines. (d) The Applicants failure to take any or _= any sufficient steps to mitigate its loss." 6. It may be said that the terms of the pleading in sub-para. (a) of para. 21 are not as clear as they could be in that they do not indicate whether the failure alleged is a failure to deliver the vending machines for maintenance on pre-arranged dates or whether it is a failure to deliver the vending machines on any occasion regardless of any arrangement or without any arrangement having been made. In the answer to interrogatory 6(a) the respondent said:- "On such date or dates on which the machines required repair; the respondent objects to providing further particulars on the grounds that the interrogatory is unreasonable, oppressive and embarrassing." This has about it the character of a response to a request for particulars and it is evidently the respondent's position that the dates on which the machines required repair is a matter within the knowledge of the applicant. Whatever one might say of the approach the respondent has taken to answering interrogatory 6(a), it seems to me that it is a matter which is better dealt with by way of particulars and clarification of the pleadings. I am not prepared to accept as a general proposition that interrogatories can simply be used to clarify the pleadings if there is some ambiguity in them. Accepting that there may well be some ambiguity in para.2l(a) the remedy for that is not by way of interrogatory; it is by way of a request for particulars, a Matter which could be dealt with readily prior to the hearing of 7. the application. In any event I am not prepared to make an order for any further answer to interrogatory 6(a). The second limb of the applicant's motion seeks further and better discovery from the respondent of documentation relating to the supply by it of the vending machines to persons or entities other than the applicant. For the reasons that I have already indicated I am not satisfied that that 1s an appropriate order and I am not prepared to make it. In the circumstances the motion will be dismissed, The orders will be:- l. The motion is dismissed; and 2. The applicant pay the respondent's costs of the motion in any event. I certify that this and the preceding six (6) pages are a true copy of the ex tempore reasons for judgment herein of his Honour Mr Justice French, Dated: I December 1986 Associate: COUNSEL . for the applicant - Mrs J. Withers instructed by Jackson McDonald. . for the respondent —- Mr A.H. Nichols instructed by Cocks MacNish & Co. Date of Hearing : 1 December 1986 - ' ' ihe me . '- ' Boo yt ' : Ree Sow ae TI - 4% . . : ge wa ' . ' Beste», ' Babee Fae ' . ' . Me Sk tt nm - 2 _ ' meee —- . aad . Tt ee ' é se 1 . Satie," ° hy a ake . eee § tad ft ae on : a 7 " a ' as 1