: bt Lice? asent JUDGMENT No. 222/37, De en INTERROGATORIES - leave requirement - purpose - in form of request for particulars - special reasons required - no special reasons - leave denied. Trade Practices Act 1974 s.82 Conde v 2KY Broadcasters Pty Limited (1982) 2 NSWLR 221 WHIM CREEK CONSOLIDATED NL v QUARRY PLANT DESIGN & MANUFACTURE PTY LTD, KENNETH MURRAY THOMPSON AND KENNETH GRAHAM THOMPSON NO. WAG 111 of 1984 FRENCH J. 4 September 1987 Perth IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION -eewww NO. WAG 111 of 1984 BETWE EN: WHIM CREEK CONSOLIDATED NL Applicant and QUARRY PLANT DESIGN & MANUFACTURE PTY LTD First Respondent KENNETH MURRAY THOMPSON Second Respondent KENNETH GRAHAM THOMPSON Third Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 4 SEPTEMBER 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: On the Second and Third Respondents' motion filed 15 July 1987:- l. The Second and Third Respondents have leave _ to interrogate in the terms of interrogatory 6 contained in the Notice to Answer Interrogatories filed 3 September 1987. The filing and delivery of the Notice embodying interrogatory 6 stands as the filing and delivery of that interrogatory. The Applicant 1s to file and deliver its answer to interrogatory 6 on or before 25 September 1987. The Second and Third Respondents are to bear their own costs of the motion in any event. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION we www NO. WAG 111 of 1984 BETWEEN: WHIM CREEK CONSOLIDATED NL Applicant and QUARRY PLANT DESIGN & MANUFACTURE PTY LTD First Respondent KENNETH MURRAY THOMPSON Second Respondent KENNETH GRAHAM THOMPSON Third Respondent CORAM: FRENCH J. 4 SEPTEMBER 1987 EX TEMPORE REASONS FOR JUDGMENT This 1S a motion by the second and third respondents in these proceedings for leave to deliver interrogatories. The action in which the leave 1s sought 1s one in which Whim Creek Consolidated NL claims against the respondents damages under s.82 of the Trade Practices Act and, alternatively, damages for fraud. The claim arises out of misrepresentations said to have been made by and on behalf of the first respondent as to the progress of the construction of a mobile primary and secondary crushing plant by the first respondent for the applicant at the first respondent's Melbourne factory. 2. Order 16 r.1 provides that:- "The Court may, in its discretion, give leave to any party to file and serve upon any other party, within the period limited by the Court for this purpose, a notice requiring the party served to answer interrogatories relating to any matter ain question between' the interrogating party and the party served." The requirement for leave which was introduced into the Federal Court Rules in comparatively recent times, 1S designed in Part to ensure that interrogatories are not administered unnecessarily and in circumstances where they would simply result 1n expense to the parties which could not be justified by their utility. In this case, the respondents have annexed to their motion for leave, a minute of some 13 interrogatories which they would seek to administer to the applicant. of those interrogatories the great proportion are by way of a request for further and better particulars of the statement of claim. Now, it is true that the court does have a discretion to allow interrogatories to be administered for such a purpose. However, the range of that discretion was considered by Hunt J. in Conde v 2KY Broadcasters Pty Limited (1982) 2 NSWLR 221. His Honour in that case considered objections to interrogatories which had been administered and which consisted of a number of questions in the form of requests for particulars. 3. The plaintiffs sought to justify them upon the basis that one of the purposes of interrogatories 1s to seek further and better particulars. His Honour said at 222:- "The authority most usually cited for that proposition 1s Green v Green (1912) 13 SR (NSW) 126, at pp 132, 141; 30 WN 34. In this State prior to 1972, of course, the process of discovery by way of interrogatories was known only to the old Equity Court; that Court did not even lend its aid to enforce such discovery in an action at law where that action was for "mere tort": Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246, at pp 249, 250. Consequently, the earlier practice in this State relating to interrogatories, and statements in the cases such as those in Green v Green, must be considered against the background that particulars were rarely (if ever) ordered in Equity: see Saunders v Jones (1877) 7 Ch D 435, at p 449; American Flange & Manufacturing Co. Inc v Rheem Australia Pty Ltd [1963] NSWR 116, at 118, 119. That background was in marked contrast to the practice in the common law side of the Court where particulars were regularly ordered: see generally Philliponi v Leithead (1959) SR (NSW) 352, at pp 358, 359; 76 WN 150, at pp 151, 152; Ellis v Grant (1970) 91 WN (NSW) 920, at pp 924, 925. In other jurisdictions in which the "great leap forward to 1875" was taken somewhat earlier than in New South Wales, the practice of ordering particulars developed much along the same lines as in the common law side of this Court. The availability of the information which a party sought - by way of answers to a request for particulars - had the effect of rendering' such interrogatories unnecessary: O'Meara v Stone [1884] WN 72; Davey v Danby (1887) 9 ALT 100, at p 101; cf Supreme Court Rules, 1970, Pt 24, r 3(3). Moreover, 1t came to be recognised that, except in special circumstances, it was unreasonable to oblige the party interrogated to verify particulars of his case when he did not have to verify his pleadings. In my own experience, this has certainly been the approach of the Supreme Courts of Victoria and the Australian Capital Territory for many years. Like Holroyd J in Davey v Danby, therefore, I do not propose to encourage the practice of seeking particulars by way of interrogatories now that this process is available also at common law." 4. I respectfully adopt what his Honour said and accept that the appropriate principle to apply in a case such as the present, 1s that interrogatories which are in the nature of a request for particulars should not be ordered and in the present context leave should not be granted to allow them to be administered except in special circumstances. There are not, in this case, any special circumstances. Independently of that principle, I turn to particular interrogatories proposed by the respondents. Interrogatory 2, in my opinion, is too wide in that it does not define the request or requests in respect of which it seeks information by reference to any issue relevant to the proceedings. Interrogatory 3, as framed, seeks to extract from 'the applicant information which in substance does not appear to be in issue between the parties. Interrogatory 6 does appear to address a matter of fact which is 1n issue and does not prima facie have the character of a request for particulars, and I am prepared to give leave to administer that interrogatory. Interrogatory 7 again addresses matters which are not 1n issue when one examines para. 13 of the statement of claim and the 5. admissions contained in relation to that pleading in para. 13 of the defence. Interrogatory 9 not only constitutes a request for particulars, but a request for particulars which 1n substance are already provided in para. 19(b) of the statement of claim. The balance of the interrogatories in my opinion, all fall into the category of requests for particulars and subject to the order I propose to make in respect of interrogatory 6, the motion is otherwise dismissed. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of His Honour Justice French. Associate: eprom da We Date: 4 rine 148) enn pew Counsel for the Applicant: Mr H. Dembo Solicitors for the Applicant: A.R. Rorrison & Co. Counsel for the Second and Third Respondents: Mr Dzekiol Solicitors for the Second and Third Respondents: David Lucas & Co. Date of Hearing: 4 September 1987 Date of Judgment: 4 September 1987