CATCHWORDS PRACTICE - Interrogatories - need for answers to be approached responsibly - available objections - meaning of 'vexatious' and 'oppressive' ~ effect of typographical error. , Federal Court Rules Ord.16 r.9 POON, ; ASPAR AUTOBARN CO-OPERATIVE SOCIETY AND OTHERS v DOVALA PTY LTD AND OTHERS No. VG 295 of 1986 wee ee Woodward J. 11 June 1987 Melbourne emery con PRT EYP RE IR PO A ALTE TS a RA IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 295 of 1986 GENERAL DIVISION BETWEEN: Sew ASPAR AUTOBARN CO-OPERATIVE SOCIETY AND OTHERS Applicants and DOVALA PTY LTD AND OTHERS Respondents MINUTES OF ORDER COURT: Woodward J. DATE: 11 June 1987 PLACE: Melbourne THE COURT ORDERS THAT: 1. Within 21 days the second, third and fourth respondents file and serve further and better answers to the interrogatories numbered 18 to 25 inclusive, and 27, specified in the applicants' notice dated 4 February 1987. The second, third and fourth respondents pay the applicants taxed costs of this notice of motion. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules). cee ones pe IN THE FEDERAL COURT OF AUSTRALIA ! VICTORIA DISTRICT REGISTRY ) No. VG 295 of 1986 | ) GENERAL DIVISION ) | BETWEEN: ASPAR AUTOBARN CO-OPERATIVE SOCIETY AND OTHERS Applicants and DOVALA PTY LTD AND OTHERS Respondents COURT: Woodward J. DATE: 11 June 1987 PLACE: Melbourne REASONS FOR JUDGMENT This is a notice of motion by the applicants challenging objections by several respondents to answer certain interrogatories. The applicants seek to establish by their action that the first respondent company has contravened s.52 of the Trade Practices Act 1974 ('the Act'), and that three individual respondents have been involved in that contravention within the meaning of s.75B of the Act. The decision of the High Court in Yorke v Lucas (1985) 61 ALR 307, makes it clear that for individual respondents to be liable under s.75B and Part VI of the Act generally, the applicants must establish that they participated in the conduct concerned with knowledge of the essential elements of the contravention. Paid amie te sate said ohdhtmabdteant halla tteaaiel er on Pe rrr ae ee atone wea woos The state of knowledge of the relevant respondents at the time when they participated (or may have participated) in certain alleged conduct is therefore an important question to be determined at the trial and a relevant matter for interrogation at this 'stage of proceedings. Before turning to deal with the particular interrogatories and the objections to them, it is convenient to say something about interrogatories generally. There can be no doubt that, in certain types of case, interrogatories administered with care and discretion and answered responsibly can play a very useful part in preparing a case for trial. It makes for a fairer and more efficient hearing if the parties know the outlines of each other's cases before they come to court. The statement of claim goes some way towards stating the applicant's case, but will often range wider, and be expressed in more general terms, than the basic allegations of the applicant require. The defence often discloses nothing of the respondent's real case and, in my view, serves little purpose in most litigation in this Court. Except where it is necessary to identify the issues with particular precision (as, for example, where statutes of limitation may be involved), there is much to be said for cases going to trial on the basis of affidavits rather than pleadings. If the affidavits are carefully and responsibly prepared there should be no need for interrogation. But where pleadings are used, they will often need to be supplemented by interrogatories in order to identify and narrow the areas of factual dispute or, as in the present case, to enable applicants to establish facts which are beyond their knowledge but well known to the respondents. Re TE Se te . <wee PRR roe i Gee sReOOrI aR | | If the use of interrogatories is to be effective, the task must be approached responsibly on both sides. It should not be seen as a battle of wits, or indeed as any form of contest. It is ah opportunity to assist the parties and the Court to have the matter prepared for trial as quickly and as cheaply as possible. The chief obligations on the interrogator are to ask questions as clearly and concisely as possible, and to ask only those questions which really require an answer in the particular case — by way of providing information not already known or making a relevant and required admission ~— in order to advance the interrogator's case or help to meet the opposition's case. Excessive reliance on precedents and the word processor provides the most common cause of unnecessary and badly-framed interrogatories. So far as persons interrogated are concerned, it is my view that they also have a responsibility, to the Court and to their opponents, to do their best to answer interrogatories in an open and helpful way, not in a clever or grudging way. Thus I believe they and their advisers should not avoid answering a question which is relevant but contains an obvious typing error. If the intention is clear enough, it should be answered - with an appropriate reference to the error. If the nature of the error is not reasonably clear, then of course the interrogatory cannot be answered. Where an interrogatory is largely unobjectionable, but goes too far in some aspect, so as to make that portion of it oppressive or irrelevant, then I believe the reply should answer FUSE ETRE TQET PT SEREEEET 7 SEFTON Eee rere ne = the unobjectionable part (provided it is reasonably severable) and object to going further - not object to answering the whole interrogatory. My attention was drawn to the decision of Hood J in Cayron v Crevelli (1896) 18 ALT 83, where his Honour held that there was no obligation on a person to whom interrogatories had been delivered which were clearly too wide, and thus irrelevant, to pick out and answer the portions which were relevant. That was an action for slander and the interrogatories in question asked, in effect, if the defendant had ever used the words complained of or anything like them. The defendant was not required - until the plaintiff had paid his costs and the Court had specifically ordered it ~ to give answers relating to the occasions of which particulars had been supplied by the plaintiff. But that was a case where the interrogatories as a whole were highly objectionable and the valid element not easily severable by the defendant. The result should, in my view, be different in a case where the recent takings of a business are clearly relevant, and the interrogatory seeks details covering the past six years. In such a case it may be appropriate to give details for two or three years (depending on circumstances) and object to the remainder. In saying this I do not mean to suggest that interrogators may consistently ask for more information than they are reasonably entitled to; they have their responsibilities also, and such an approach could easily lead to the whole set of interrogatories being struck out as oppressive. But nothing is gained by either party, or the legal system as a whole, if some interrogatories have to be repeated, with perhaps minor amendment, and then answered a second time. I am conscious of the fact that, in saying what I have, I am departing from the spirit of Blackburn CJ's comments in Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32 at 34. His Honour said, "It needs to be said (certainly not for the first time) that interrogatories and answers should be expressed in language of the most rigorous precision. This requirement is not mere pedantry. The nature and purpose of interrogatories and answers (being the seeking and the supply, respectively, of evidence in writing on oath) call for the strictest adherence to the letter of the words used. There is no place in interrogatories and answers for 'reading between the lines', adopting a liberal construction, or seeking the author's intention rather than the meaning the words bear on their face. Unless this principle is kept in mind, interrogatories may easily become an unjustifiable cause of expense and delay." With respect, and while not wanting to detract in any way from his Honour's insistence that interrogatories be drawn with care and precision, I fear that his references to "the most rigorous precision" and "the strictest adherence to the letter of the words used" have come to be used too often as an excuse for failing to answer questions which are, on any fair reading against the background of the pleadings, not irrelevant or oppressive or vexatious. These are the only objections to the form of interrogatories recognized by the relevant Federal Court Rule, 0.16 r.6. In the result, I believe that expense and delay is often caused by practitioners taking clever or pedantic objections to interrogatories which could, in fact, be answered without a@ifficulty. If necessary - perhaps because of some slight uncertainty as to the meaning of a question — an answer may begin by taking the relevant objection and then proceed to answer the guestion under cover of the objection - thus drawing attention to the difficulty and at the same time preserving the right to object to the question if the answer is challenged as being inadequate. Such an answer says, in effect, "I submit that I don't have to answer this question at all. Nevertheless I shall answer it; but if you try to challenge my answer as being insufficient for some reason, I reserve the right to rely on my initial objection". The deponent who is willing to be responsible and co-operative can, in this way, avoid waiving any rights afforded by shortcomings in the interrogatories. But he is, of course, bound by his answers; see Mitchell v Tsiros (No 1) [1982] VR 191, where the significance I have attributed to the "...under cover of this objection..." formulation does not seem to have been considered. In the present case the respondent objected to answering most of the disputed interrogatories on the grounds that they were "too wide, fishing, ambiguous, embarrassing, irrelevant, immaterial and in the nature of cross-examination". Other objections added in certain cases were that the particular interrogatory was "unintelligible, incomprehensible" or that it "includes an enquiry into the identity of a witness or witnesses who may be called at the hearing on behalf of the Respondents". Shortly before the notice of motion was due to be heard, it was realised that these objections did not comply with 0.16 r.9 of the Federal Court Rules, which provides (so far as is relevant and omitting reference to claims of privilege) "l.. a party may object to answering any interrogatory on the following grounds but no other: (a) ... 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 ..." Further answers were then made, which used the language of the rule and added certain material by way of argument. These were filed and, I believe, served the day before the hearing of the notice of motion, but only reached counsel for the applicants on the morning of the hearing. He objected to the new answers being used and counsel for the respondents did not urge them upon the Court. But it was tacitly agreed that, in argument, it was open to the respondent to rely upon each of the objections mentioned in the rule, but no other. In my view, the wording of the rule does to some extent limit the objections which might be taken in other jurisdictions. While the grounds referred to comprehend some of the traditional objections which were first relied on in this case, they do disclose a general intention that interrogatories should be answered unless they are either improper or distinctly unfair. Ground (a) of the rule covers the objection that the question is "irrelevant". In a particular instance it may also EERE rere ne a re en Ne ee ee oad overlap the allegations that the question is "too wide", "fishing" and "immaterial". It is, however, easier to apply than any of those criteria. In ground (b) of the rule, I believe that "vexatious" is used in the sense illustrated by the Shorter Oxford Dictionary when it says "Of legal actions: Instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant". Thus an interrogatory administered for a purpose foreign to the proceeding would be vexatious, as would the traditional "fishing" interrogatory, which seeks information on which to base claims not yet made; see Cayron v Crevelli (above); WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 574 and cases there cited. The word "oppressive" in ground (b) of the rule means, I think, unfair, or unreasonable, in the sense that a good deal too much is expected of the party questioned. It may be that the details sought would take many hours to extract from records and would only be relevant to some side issue in the case. Or the question may be so ambiguous that it would be unfair to expect the party questioned to make assumptions about its meaning. Or the question may cover a wider geographic area or a longer period of time than is reasonably necessary in readying the case for trial. There are many questions which might be admissible in cross-examination, but are by their very nature inappropriate, and thus oppressive, in interrogatories. Questions going to credit or to motive are obvious examples. ey OF Foes oe - 5 ee eee ae en Thus it can be seen that the types of question which may properly be objected to as "oppressive" are many and varied. Each contested instance will have to be resolved on the basis of the court's general impression as to what is reasonable. In reaching a conclusion, the court may find that the particular interrogatory Or answer takes colour from those surrounding it. Thus an apparent attempt to pose clear and precise questions, related directly to the particular case, should be treated more sympathetically than one bearing the hallmark of mass~production. Similarly a demonstrated willingness to answer questions in a helpful way will lend credence to a particular objection. The present case is a difficult one, where, in my view, both sides have acted responsibly. My impression is that all the applicants' interrogatories have been drawn with care and with close attention to relevance and, while searching, they do not appear on their face to be unnecessarily detailed or otherwise oppressive. Similarly, the respondents have answered most questions in a straight-forward manner, and I accept that their objections to the disputed interrogatories are not frivolous, clever or pedantic. I turn now to consider the particular interrogatories in dispute. The gist of the applicants' case here is that the respondents unlawfully appropriated a business name which the applicants were about to use and to which they had given some -10- publicity. They have alleged a conspiracy to harm them by | pre-empting their use of the name, as well as misleading conduct. ! The first interrogatory objected to was in the following terms: "18. Did you, on or before [the relevant date] (a) become aware; (b) believe; (c) suspect; (ad) hear; or (e) read - that the Applicants herein or any one or more of them (and if so, which of them) or any director or partner of or in any one or more of them (and if so who) - was using; proposed to use; or i) ii) iii) was contemplating using a {the relevant name] ...." Counsel for the respondents did not dispute that the applicants were entitled to ask about the respondents' state of knowledge of the applicants' plans. He argued, however, that this interrogatory was oppressively wide and ambiguous. I do not agree. In the first place I think the applicants were clearly entitled to ask if the respondent had become aware of (known) the plans by the relevant date. It would be equally important if they had a belief about those plans (while not being sure of them). Other logical possibilities as to their states of mind were that they entertained a suspicion (which fell short of a belief but might have called for further enquiry) or they knew nothing. I think the applicants were entitled to put these possibilities to . mn owen ts r AT Pi ste ee atcane or RRP TRUE ee Se data id - 11 - | them. In the same way, I think the distinction between using, proppsing to use and contemplating using is clear and unambiguous. Similarly I believe the applicants could properly ask whether the respondents had heard or read of the applicants intentions. It is not to the point that those expressions are not used in the statement of claim, so long as they are relevant to the issues. To some extent those questions might overlap with the earlier ones, but they represent a legitimate alternative approach to the matter and are not, in my view, so repetitious as to be oppressive. These questions also cover the further possibilities that the respondents knew something of the applicants plans, but had either forgotten them by the relevant time or did not believe what they had learnt. It is necessary to emphasise that this interrogatory goes to the heart of the applicants' case against the particular respondents, and relates to matters well within their knowledge but beyond the applicants'. Questions which might be oppressive, as being too detailed, in another context are not so here. It must also be remembered that, to cover the possible extent of the respondents' information, a number of combinations of persons and intentions had to be covered. I cannot see, and counsel was unable to show me, how the interrogatory might have been more clearly or economically posed. Further, a responsible answer to the interrogatory could assume that, if the answer to question 18(a) or (b) was yes, there ~12- would be no need to answer question (c), which could only be relevant if both (a) and (b) were denied. Questions (d) and (e) 'are jin a different category because they deal with the means by which information was gained rather than the state of mind of the respondent. The next disputed interrogatory, 19, asks "If yes to any part or parts of Interrogatory 18, (a) when; and (b) how, did you first come to become aware, believe, suspect, hear or read of the said matter enquired of?" In my view this is clearly an appropriate topic for inquiry. The source of a person's knowledge is usually relevant to the extent and timing of that knowledge. In this case the point has further importance because of the conspiracy allegation. The form of the interrogatory is also, in my view, unexceptionable. It is simple and direct and, because it relates only to the first awareness, belief, or suspicion and the first hearing or reading, it avoids any wasteful repetition of answers. To try to refine the question by offering a number of possibilities as to 'when' and 'how' would produce a cumbersome interrogatory. Interrogatories 20 and 21 are in identical terms to 18 and 19 except that they inquire about a different item of knowledge. My findings about 18 and 19 apply equally to them. wa Few -13- Interrogatory 22, so far as is relevant for present purposes, asks whether the respondents took part "in any discussion, consultation or correspondence which led to the adoption" by the first respondent company of the relevant name. The objection to answering was put on all the traditional grounds listed above as well as the ground that it was "unintelligible" and "incomprehensible". In argument it was said that the words "led to" were not sufficiently precise. When pressed, counsel suggested that the word "caused" might have cured the defect. But in my view that would have been more objectionable because it would have required the party questioned to reach a conclusion on a direct causal relationship between two events, whereas the wording actually used asked if the respondent had been involved in the processes which led up to the second event. I think it is implicit in the inquiry that those processes played some part in the second event, and were not simply earlier in time; but no judgment about causation is called for. In my view it was a proper topic for interrogation and the words chosen were at least reasonable and appropriate. If any respondent felt that the question implied a direct causal relationship which he did not want to concede, his answer could have been framed appropriately, drawing attention to his uncertainty or making a reservation. The interrogatory is not oppressive and should be answered, as should Interrogatory 23 which is a natural and proper extension of Interrogatory 22. sown wee nee et! - 14 - With regard to another objection taken to Interrogatory 23, I do not see this as a back-door method of obtaining the names of witnesses (which, if established, could be both irrelevant and vexatious - as an improper use of the occasion). I have no reason to doubt the motive underlying the interrogatory. Interrogatory 24 asks whether, at any time before the relevant date, the respondents formed "an intention that a business or prospective business in which you were or were to be involved would use" the relevant name. Once again, this seems to me to be a relevant topic for interrogation, and neither in itself, nor in conjunction with the other interrogatories I have considered, do I find it oppressive or otherwise objectionable. A question beginning "At any time before ..." may be too wide in some circumstances. But where the context of the pleadings clearly limits the enquiry to a period of a year or so, there is no inherent vice in the question. It depends upon both the context and the nature of the enquiry. The next interrogatory, 25, asks further questions dependent upon an affirmative answer to "Interrogatory 23". This is clearly a misprint for "Interrogatory 24", as the respondents cecognize by commencing their replies with the words "I refer to and repeat my answer to Interrogatory 24 ...". In spite of this, counsel argued that the interrogatory was incomprehensible since it clearly did not relate to Interrogatory 23. I have indicated ewe een Pe 7 AE Tee oye 1. - 15 - above that where a typing error is obvious, and there can be no | reasonable doubt as to what was intended, the interrogatory should be ahswered. | So far as the merits of the objection are concerned, they .raise the same issues which I have already dealt with. In the circumstances of this case I can see no valid objection to questions about the date of, or the names of persons involved in, a relevant "discussion, consultation or correspondence". Since the three named respondents have been alleged to be involved in contraventions of the Act, and in conspiracy, it is legitimate to ask who took part in relevant deliberations to which they were a party. I do not see this as an attempt to gain the names of witnesses. Finally, Interrogatory 27 refers to the use of the relevant name in certain displays and asks ".... did you, at any time before [a relevant date] (a) take any, and if so what, steps to effect or procure, or in aid of, the said display and/or use; (b) know that such display and/or use would take place or was taking place; or (c) consult or confer with any other, and if so which, Respondent herein in relation to such display and/or use?" Since the use of the name in a display is one of the essential elements on which a claim for damages for contravention of the Act is based, this seems to me to be an appropriate leona se i ned ee al | RUE Tercera —enprmere ~ 16 —- "A-r $=" quesd#eh Sifd U¥early worded. I have already dealt with the Ys —_— 'oby}ectFdh Afeeed am tthe vise 'of words such as "at any time before". cee - Ineectdingly "I think the applicants are entitled to -the meee as ~ ~~ . a Tone 4 *Grlidr's 'sovight im the notice <of motion. .I shall order that, within down te 721 "days, *€He *€écond, third and fourth respondents file and serve "fuethérZatid-better'answers to the-interrogatories number 18 to 25 *f{nelusive, and 27, specified in -the applicants', notice dated "4iPébruary -1987. Those respondents should pay the applicants' vores) 6TEGStS "OF TEhis*-nétice of: motion. I certify that this and the fifteen (15) preceding pages are a true and accurate copy of the "Reasons for Judgment herein of The Hon Mr Justice Woodward _ Associate Dated: 11 June 1987 Counsel for the Applicant: Dr C.N. Jessup Solicitors for the Applicant: Mallesons Stephen Jacques Counsel for the Respondent: Mr P.L. McCurdy Solicitors for the Respondent: Russell Kennedy and Cook ween tee new