er ee hoe Due cy NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION ee NO. WAG 9 of 1986 BETWEEN: SAGITTARIAN ENTERPRISES PTY LIMITED First Applicant RAYMOND ARTHUR WOOLLETT AND KAYE LORRAINE WOOLLETT Second Applicants and AMPOL LIMITED Respondent CORAM: FRENCH J. 8 MAY 19387 EX TEMPORE REASONS FOR _ JUDGMENT This 1S a notice of motion seeking orders that the respondent make and file further answers to certain interrogatories administered by the applicants in these proceedings. The broad nature and scope of the proceedings and the 2ssues canvassed in the pleadings filed to date have recently been xefexrred to by the Court in dealing with a motion on the part of the respondent to strike out the proceedings and/ox altexnatively certain parts of the statement of claim. — — The interrogatories for which, ; oY ny a m - fall into two groups: the first gkotp 'Seaks Cfrom! fry" + ON Beg information as to whether or not the 7speand t- <> O85 L ' ae a ed ' < O. {ee wnt gt Sere oe eee eae ste er cr re re oe creer womens oe 3. ere & 2. applicant, Mrs Woollett, was present at varl1lous meetings at which the respondent evidently alleges that 1t informed the first named second applicant of the existence of a lease; that is to say, that the respondent was not the owner of the subject premises. The matter arises under the pleadings in this way: in para. 3 of the defence and in answer to paras. 6 and 7 of the amended statement of claim the respondent alleges, in substance, that Mr Woollett knew, at all material times prior to the execution of the franchise agreement which 1s in issue and which was executed in July 1981, that the respondent was itself a lessee of the premises and that, in any event, he was orally informed by the respondent, before he executed the agreement, of the expiry date of the lease entered into by the respondent in respect of the premises. Various particulars were sought of these assertions and in the particulars the respondent asserted that during or about September 1979, and again on or about 29 July 1981, during a conversation between Mr Woollett and one Raymond Colgate at the premises, Mr Woollett was informed by the respondent of the existence of the lease. The respondent also gave particulars of its assertion, pleaded in the defence, that Mr Woollett had knowledge of the lease situation at all material times prior to executing the franchise agreement. He evinced an intention and made known to tt eee ee <= > ee. -* . 3. the respondent his wish to remain on the premises for as long as he could, and it was said that this was done on or about 29 July 1981 at the premises, orally to the respondent's representatives, Messrs. Taylor and Bolton. Particulars were also given of the allegation that Mr Woollett was orally informed by the respondent, prior to his execution of the franchise agreement, of the expiry date of the lease, and in those particulars the respondent contended that, on or about 29 July 1981, Mr Woollett was informed of the expiry date of the lease by Ross Bolton and/or Ron Taylor of the respondent, during a conversation between those persons and the applicant at the premises. Turning to the interrogatories: interrogatory 4 asks whether Raymond Colgate advised Mr Woollett, during ox about September 1979, that the respondent leased the service station premises; and asks various other questions in relation to that matter which are not relevant for present purposes. It leads on to interrogatory 5 and, ultimately, to interrogatory 6, which says:- "If the answer to interrogatory 4 above is yes, was the second named Second Applicant present at such meeting." The respondent objected to answering that intexrrogatory on the grounds that 1t is unnecessary, ixrelevant and seeks to cross-examine the respondent. aa, oa ees ys 4. A similar objection 1s taken to interrogatory 7(b)(1) which questions the respondent as to the presence of Mrs Woollett at the alleged conversation with Bolton and Taylor on 29 July 1981. Interrogatory 10 questions the respondent as to the presence of Mrs Woollett at the meeting of 29 July 1981, and interrogatory 12 raises the question of her presence at the meeting with Bolton and Taylor. The applicants' case, which appears from para. 7 of the statement of claim, is that they were not informed of matters relating to the ownership of the premises. The respondent's case 18 that the applicants, and, in paxticulax, Mr Woollett, wexe so informed, and the particulars indicate the alleged occasions on which that information was communicated to him. It seems to me that interrogatories as to the presence of the second named second applicant at any of those meetings are not necessary. The applicants will presumably, as part of their case, assert and seek to prove that the conversations in question did not involve any communication of the existence of the lease, and if Mrs Woollett 1s a witness to that effect, then, no doubt, she will be called to say that she was present and that no such communication or information was conveyed. « Anes poe es eg ee een tr ete cee te, wa Tr a Ta ep re rem cere . t — gest ae ~é v " Pn . COPTER Ree eereca oes opr en gee +4 5. Having said that, it is difficult to see how it is a useful part of the applicants' case to tender an interrogatory which asserts that Mrs Woollett was or was not present. If it asserts that she was present, it merely confirms what she is able to say in any event and would, no doubt, have to be conceded by the respondent. If it says she was not there, then it will not be part of their case because their case would be that she was there. Try as I may, I see no real justification for the administration of these interrogatories and, to that extent, the motion will be dismissed. Now, 1f I can turn to the second group of interrogatories, 19 and 20 which also stand together, question 19 asks: "did the Respondent at any time prior to 27 March 1984 inform the Applicants ox any of them and if so who, about the offer by the lessor to sell the premises for $200,000." Now, there 1S nothing on the record hitherto to indicate what offer is being spoken about, nox does there appear on the pleadings to be any issue in respect of which the offer, if an offer were made to sell the premises, would appear to be directly material. The applicants' complaint, centred around paras. 6 and 7 of the amended statement of claim, was that there was a failure TTT Uy oo a a ca enaaried ee c amare gyn A - to make the statutorily required disclosure in July 1981, and that failure would, no doubt, be relied upon to support the claim for * compensation under s.22 of the Petroleum Retail Marketing Franchise Act 1980. , There 1s also the assertion, in para.7, that there was a ee specific non-disclosure as to the existence of a lease over the c4, premises or, rather, that the respondent held the premises under a see ay lease due to expire on 3) August 1984, Ne1ther in the particulars nor in any of the pleadings 1s any reference made to an offer. ? It 1S suggested, by Mr Stokes for the applicants, that net this interrogatory is material because had the respondent been Dagar eer AM Tv " told prior to 27 March 1984 that an offer had been made to sell + the premises, this might have affected its conduct 1n some way. mt roy ' ote ee eo It is difficult to see how it would have affected its conduct having xegaxd to the fact that what is complained of is tate . its entry into a franchise agreement on 21 July 1981. In the circumstances, I am not pexsuaded that this interrogatory 1s necessary and I will not accede to the motion in + ere? we . wy e respect of it. A fortiori, the question contained in interrogatory 20 does not seem to me to have any relevance at all pare? TAF to any issue reasonably arising out of the pleadings and I will not grant the motion in that respect either. ' 7. So the upshot is that the motion is dismissed, although I note that the respondent has withdrawn its objections to interrogatories l(a), (b) and (c), which were the subject of the motion and 13(a), (b) and (c) and, on the other hand, the applicants no longer pursue 1(d), (e) and (f) having regard to the provision of the answers to (a), (b), and (c). I certify that this and the preceding six (6) pages are a true copy herein of the Reasons for Judgment of his Honour Mx Justice French. Associate: "Qeverct Wako Date: & Mor} \A87 Counsel: - for the Applicant: Mr C. Stokes instructed by Warren McDonald French & Harrison . for the Respondent: Mr Paterniti instructed by Parker & Parker Date of Hearing: 8 May 1987 Date of Judgment: 8 May 1987 a te