LOM ant JUDGMENT No. 2224733 — CATCHWORDS PRACTICE AND PROCEDURE - Interrogatories - Provision of further and better answers -— whether use of phrase "I cannot say with precision" is evasive - whether interrogatories irrelevant, vexatious and fishing or seek details of legal advice - effect of requirement to give "the substance of a conversation". 0.16 £.8 Federal Court Rules CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. v WHITE INDUSTRIES No G198 of 1986 Ryan J. 22 April 1988 Brisbane IN THE FEDERAL COURT OF AUSTRALIA) QUEENSLAND DISTRICT REGISTRY No. G198 of 1986 ) GENERAL DIVISION ) BETWEEN: CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. (Applicant) WHITE INDUSTRIES (QLD) PTY. LIMITED (Respondent) WHITE INDUSTRIES (QLD) PTY. LIMITED i (Cross-Claimant) lg CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. (Cross—Respondent ) Coram: Ryan J Date: 22 April 1988 Place: Brisbane EX TEMPORE REASONS FOR JUDGMENT By motion on notice dated 18 April 1988, the respondent, White Industries (Qld) Pty. Limited. ("WIQ"), has sought an order that the applicant, Caboolture Park Shopping Centre Pty. Ltd. ("Caboolture Park"), provide further and better answers to certain interrogatories delivered for its examination on behalf of WIQ. The first answer to which exception is taken is that to Interrogatory 1(d)(i) which asked, on the assumption of an affirmative answer to an oy earlier enquiry whether Hersfield Developments Corporation Pty. Ltd. ("HDC") was the agent of Caboolture Park, "what was the scope of its agency?" Caboolture Park has answered:- "(d) (4) The scope of the agency of Hersfield Developments Corporation Pty. Ltd. was that Hersfield Developments Corporation Pty. Ltd. undertook and continues to undertake on behalf of the Applicant, tasks concerning the development, construction and management of the Caboolture Park Shopping Centre." It is objected that that answer is ambiguous in that a reference to the undertaking of "tasks" by an agent does not describe the limits or scope of his authority. It occurs to me that the fault may lie partly in the width of the interrogatory and its embodiment of a question of law or mixed fact and law. However, Caboolture Park has chosen to answer it, and, in my view, by referring to unspecified "tasks" which HDC undertook and continues to undertake on behalf of Caboolture Park, it has not responsively dealt with the enquiry as to the scope of HDC's agency. Accordingly, I shall order that Caboolture Park provide a further and better answer to Interrogatory 1(d)(i). The second of Caboolture Park's answers to WIQ's interrogatories which is claimed to be deficient is part of that to Interrogatory 2(b) which asked in respect of each of seven specified documents:- "(b) from whom did the applicant or its servants or agents obtain possession of the document?" - The answers complained of are as follows:- ° (ii) With respect to Annexure "B", I cannot say with precision from whom the document was received but, to the best of my knowledge, I am of the belief that it was handed to a representative of Hersfield Developments Corporation Pty. Ltd. by either Mr Dugan, Mr Anderson or another representative of the Respondents at a meeting between the representatives of the Applicant and the representatives of the Respondent. (iv) With respect to the document marked as Annexure "D" I cannot say with certainty how the document was obtained by the Applicant, but, to the best of my knowledge, I believe that it was handed to the Applicant, or to one of the Applicant's servants or agents, by a representative of the respondent, during, or at a meeting held between the representatives of the applicant and the representatives of the respondent. (v) With respect to the document marked as annexure "EB" I believe that it was received by mail. (vi) With respect to the document marked as annexure "PF" I cannot say with certainty how the document was obtained by the Applicant, but, to the best of my knowledge, I believe that it was handed to the Applicant, or to one of the Applicant's servants or agents, by a representative of the respondent during or at a meeting held between the representatives of the applicant and the representatives of the respondent. (vit) With respect to the document marked as annexure "G" I believe that it was received by the Applicant or its servants or agents by mail." In some respects the answer in (ii) gives more than has been asked for, but the complaint is made that the answer should not be hedged about with qualifications such as "I cannot say with precision ... but to the best of my knowledge, I am of the belief that ...". A similar complaint is made about the answers to (iv), (v) (vi) and (vii). I am not persuaded that the use of those expressions is evasive in the context in which they are used, and I would not order a further and better answer on that ground. However, the further complaint is made that a distributive answer should be given in respect of the date on which each of the documents enquired after was received by Caboolture Park, or one of its servants or agents. Mc Perry, for Caboolture Park, has acknowledged that such an answer can be given, and I shall order that it be supplied. By Interrogatory 3.(a), WIQ enquired as follows:- "As at 10 September, 1985 what information had the applicant or its servants or agents provided to the respondent or its servants or agents relevant to the assessment by the respondent or its servants or agents of the likely cost of construction of the building works the subject of the agreement referred to in paragraph 2 of the amended statement of claim?" Subsequent parts of the interrogatory then ask whether the information was provided in writing, or by conversation and seek the date and place of each conversation the participants in it and the substance of it. The following answer has been supplied to Interrogatory 3:- "with respect to interrogatories numbered 3(a), 3(b), 3(c), 3(d) and 3(e) I am unable to say to what extent the Respondent may have considered the information that was supplied by the Applicant to be relevant to its assessment of the likely costs of the construction of the building works the subject of the agreement referred to in paragraph 2 of the amended statement of clain. However, I can say that information had been supplied by the Applicant, its servants or agents, both orally and in writing prior to the 10th September, 1985. With respect to that information I say that it included: (i) The concept plans supplied to Messrs. Anderson and Dugan in or about June, 1985 (ii) The tender documents supplied to the Respondent in or about mid July, 1985; (iii) The preliminary discussions, had between Mr Bennett on behalf of the Applicant and the representatives of the Respondent at the meeting held on the 27th August, 1985 I have been informed by Mr Bennett and verily believe that those discussions were of a general nature and concluded in a suggestion that the Respondents, its servants or agents, should review their figures incorporated in a document entitled "Sub-contractor Summary Sheet - Caboolture Shopping Centre (Budget Estimate) 1 August, 1985". (iv) The further discussions had between Mr Bennett, on behalf of the Applicant and the representatives of the Respondent at a meeting held on the 9th day of September, 1985. I have been informed by Mr Bennett and verily believe that the substance of the conversations was a detailed discussion of the summary sheet prepared by the Respondent and that as a result of those discussions the representatives of the Respondent indicated that they would re-examine the figures contained in the summary sheet." The interrogatory suffers from the vice that it does not specify the criteria by which it is to be decided whether information was "relevant to the assessment by the respondent --. Of the likely cost of construction" or whether that relevance was to be determined objectively, or as perceived by the applicant at the time when it supplied the information. The introductory sentence of the answer appears to acknowledge that difficulty but Caboolture Park has proceeded to give a substantive answer. Having done that, it is bound to give an exhaustive description of the information enquired after and cannot merely say that the information "included" certain specified items. Likewise, an answer that a conversation consisted of discussions "of a general nature" or of "detailed discussions" of a summary sheet does not give the substance of the conversation. Accordingly, I would order that a further and better answer be provided to Interrogatory 3. Interrogatory 4 requires the deponent to look at the following list of persons:- " (1) The applicant or its servants or agents (identify such servants or agents). (ii) Mr George Herscu. (iii) Mr Ian Bennett. (iv) Mr Arthur Briggs. (v) Hersfield Developments Corporation Pty. Ltd." The deponent is then required to answer in relation to each person listed the following questions:-— "(a) Did the person have any skill, competence or experience in making or assessing estimates of - (i) the likely cost of construction of building works? (ii) the likely cost of construction of shopping centre projects? (b) if 'yes' with respect to either of the sub-paragraphs of (a), what was the nature and extent of the skill, competence or experience?" That is an extraordinary interrogatory, but the deponent has grappled with it and has prefaced his answer by saying:- "with respect to interrogatories 4(a) and (b) I am able only to express my opinion with respect to all of those persons named but from my own knowledge and from my inquiries I can say that:" The answer then proceeds to state certain facts about each of Mr Herscu, Mr Bennett and Mr Briggs indicating relevant experience which each has had. The answer concludes with the following paragraph:- " (iv) With respect to the Applicant and Hersfield Developments Corporation Pty. Ltd. I can say that those companies have been involved in the development and construction of shopping centres and in particular the Caboolture Park Shopping Centre. However, Hersfield Developments Corporation Pty. Ltd. is a large corporation with interests in many areas and I am unable to express an opinion as to whether the corporation as a whole might be considered to possess the attributes referred to in interrogatory 4(a)." The answer does not expressly impute skill or competence of any nature or extent to any of the persons enquired after but, having regard to the form and nature of the interrogatory, I am not disposed to order Caboolture Park to give any further answer to it. Interrogatory 7 asked:-— "Prior to entering into the agreement referred to in paragraph 2 of the amended statement of clain, aid the applicant or its servants or agents assess or make an estimate of the likely costs to the applicant of the construction of - (a) the building works provided for in the agreement; or (b) any component part of the building works?" Caboolture Park provided the blanket answer "yes" to that interrogatory without differentiating between its two distinct parts. It is true that part (b) does not require the deponent in the event of an affirmative answer to specify the component part which was the subject of an estimate of cost by Caboolture Park. However WIQ is entitled to a distinct affirmative or negative answer to each part of Interrogatory 7 and I shall order that a further and better answer to that interrogatory be supplied. Interrogatory 8 asked whether:- "Prior to entering into the agreement referred to in paragraph 2 of the amended statement of clain, aid the applicant or its servants or agents obtain from some source other than the respondent or its servants or agents an assessment or an estimate of the likely cost to the applicant of the construction of - {a) the building works provided for in the agreement; or (b) any component part of the building works?" An objection was taken to answering that interrogatory on the grounds that is irrelevant, vexatious and fishing. As I understand the authorities, the most instructive test of the propriety of an interrogatory is whether the same question could be asked of the deponent in evidence-in-chief. I am unable to see that a prior estimate, whenever obtained, by some third party of the cost of constructing the supermarket or some part of it can have any bearing on the issues as pleaded between Caboolture Park and WIQ. Accordingly, I uphold the objection to answer Interrogatory 8. Since Interrogatory 9 depends in part on an affirmative answer to Interrogatory 8, I shall only compel an answer to that interrogatory if and insofar as an affirmative answer is given to either part of Interrogatory 7 when a further and better answer is given to that interrogatory. Interrogatory 10 requires the deponent to look at the same list of persons set forth in the Schedule to Interrogatory 4 and requires the deponent to answer the following questions in relation to each period listed:- "(a) Prior to entering into the agreement referred to in paragraph 2 of the amended statement of claim did the person obtain any advice in relation to the liability to the respondent which the applicant would or might incur under the agreement? (b) If 'yes' to (a), from whom was the advice obtained and what was the advice?" Caboolture Park has objected to answering that interrogatory on the grounds that it seeks details of legal advice obtained by Caboolture Park, is oppressive and amounts to fishing. The only allegation discernible in the pleadings which makes relevant any belief by Caboolture Park in - 10 - relation to the liability to WIQ which it would or might incur by entering into the agreement referred to in paragraph 2 of the amended statement of claim is paragraph 19 of the amended defence and cross-claim which pleads:- "The Applicant knew when it entered into the agreement mentioned in paragraph 2 of the amended Statement of Claim that the agreement did not limit the Applicant's liability thereunder to the amount of the target contract sum ($13,375,000.00) or to a sum close thereto." I do not consider that the matters enquired after by Interrogatory 10 are sufficiently related to that matter and I uphold the objection to that interrogatory. Interrogatory 13 required the deponent to look at a document annexed to the interrogatories and to answer the following questions with respect to it:- "(a) Did a servant or agent of the applicant transmit by facsimile or otherwise send an original or copy version of the document to the respondent's Brisbane office? (b) If 'yes' to (a), when was the original or copy of the document transmitted by facsimile or otherwise sent to the respondent's Brisbane office? (c) Is the purpose of the document that it be used by the applicant or its servants or agents as a budgetary control in relation to sub-contractors and suppliers for construction projects and the like being developed by the applicant or its servants or agents? (d) if 'no' to (c), what is the purpose of the document?" -11- To those questions Caboolture Park has provided the following answers:- " (4) With respect to interrogatories numbered 13(a) and 13(b) I say that I have made inquiries of the Applicant, its servants, its agent, Hersfield Developments Corporation Pty. Ltd. and its servants or agents and I am unaware of the identity of the person who may have sent the document. It appears from the face of the document that it was a facsimile transmission sent of the 7th day of June, 1985. (ii) With respect to interrogatories numbered 13(c) and 13(d) I say that the document appears to be one that is used for and in connection with the documentation of progress claims." It is complained that Interrogatory 13 has not been answered adequately because it does not deal with whether the facsimile was sent to WIQ''s Brisbane office. However, I regard the answer as accepting that the document was transmitted to the destination, as well as on the date, which appears on its face. It is also claimed that if the deponent had made all the enquiries of Caboolture Park servants and agents, including Hersfield Development Corporation Pty. Ltd., which he was bound to make, it is inconceivable that he would be unable to identify the "purpose of the document". I take the "purpose of the document" to mean the purpose which its author intended it to serve. Since the Court is concerned for the purposes of the present motion only with the sufficiency, and not with the truth of the answers, I consider that, having sworn that he cannot identify the author of the document, the deponent was entitled to confine his answer to the purpose which he -~12- considered appeared on the face of the document. I therefore decline to order a further answer to Interrogatory 13. By Interrogatory 14 WIQ required the deponent to look at documents annexed to the interrogatories and marked "B", "Dp", "gE", "F* and "I", and to answer the following questions in respect of each document:- "(a) Was an original or copy of the document produced at a meeting between representatives of the respondent and representatives of the applicant which took place on or before 10 September 1985? (b) If 'yes' to (a), where and on what days and between what times did the meeting(s) take place and who attended the meeting(s)? (c) If 'yes' to (a), in respect of each meeting at which the original or the copy of the document was produced, what was the substance and effect of what was said by the representatives of the respondent' in relation to the document? (d) If 'yes' to (a), in respect of each meeting at which the original or a copy of the document was produced what was the substance and effect of what was said to each of the representatives of the applicant during the discussion relating to the document?" The following answers have been provided by Caboolture Park:- "(a) Yes. (b) The meetings at which the documents were produced took place on the 9th and 10th September, 1985. I am informed by Ian Bennett and verily believe that the persons who attended those meetings were Mr Dugan, Mr Anderson and Mr Dempster on behalf of the Respondent and Mr Briggs, Mr Bennett and, for a pact of the time Mr Herscu on behalf of the Applicant. ~13- (ce) and (d) (i) With respect to document 'B', I have been informed that the substance of the conversation between the parties present was that the document was to form the basis of the discussion concerning the respondents price for the work. (ii) With respect to document ''D' I am informed by Ian Bennett and verily believe that the substance of the conversation between the parties present was that the document represented the Respondents offer and represented their price in respect of the tender. I am further informed by Ian Bennett and verily believe that a general discussion was entered into concerning the appropriateness of that offer and price. (iii) With respect to document 'E', I have undertaken inquiries and am unable to answer that interrogatory further. (iv) With respect to document 'F' I am informed by Ian Bennett that the substance of the conversation between the parties present was that the document represented the terms of the Respondents offer. I am further informed that Mr Dugan altered the contract price during the meeting at which this document was discussed." The answer does not deal at all with the document marked "I", nor does it indicate, assuming the deponent to be able to say, which documents were produced on 9 September, and which were produced on 10 September. As I have already indicated, it does not give the substance of a conversation to say that "A general discussion was entered into". The last sentence of the answer, with respect to document ""D, should therefore be omitted. -14- If more were said by any cepresentative of WIQ about that document than that it represented WIQ's offer and its price in respect of the tender, the substance of that additional comment should be given. I read the answer in respect of document "E" as meaning that after making all due and proper enquiries the deponent is unable to say whether anything was said about that document by any representative of WIQ. Since, as I have said, the Court is bound to presume for present purposes the truthfulness of that answer, it is not insufficient. However, the answer in respect of document "P*® is deficient because it does not clearly acknowledge that it was a representative of WIQ who said in substance that the document represented the terms of WIQ's offer. If the alteration by Mr Dugan of the contract price was something said in relation to document "F" the substance of what he said in making that alteration should be given. It will be apparent from what I have said that a further and better answer must be given to Interrogatory 14. Interrogatory 15 referred to certain meetings specified in paragraph 7 of the amended statement of claim, and asked for the substance and effect of what was said by each of Caboolture Park's representatives and WIQ's representatives during the discussion which took place at each meeting. The parts of the answer to that interrogatory which are complained of are as follows:- ~15 ~- (2) With respect to the meeting that occurred on the 27th August, 1985 I am informed that the substance of Mr Bennett's conversation concerned an analysis of the figures shown for the subtrades and suggestions by him with respect to some of those subtrades. (3) With respect to Mr Briggs I have made inquiries but am unable to state the substance of any statement made by him at that meeting. (4) With respect to the meeting that occurred on the 10th day of September, 1985 I am informed that the substance of Mr Bennett's conversation was that: (i) he outlined his understanding of the terms and nature of the contract and stressed that the Applicant had entered the contract upon the basis that the Respondent's final contract price would be in the order of $13.375 million and that that price would incorporate the price of all the various trades included in the works." And then in sub-paragraph 5 of the same answer it is deposed:-— " With respect to the meeting that occurred on the 10th day of September, 1985 I am informed that the substance of Mr Briggs' conversation was a general discussion concerning the figures for the various trades." For reasons which I have already indicated, it does not give the substance of a conversation to say that it "concerned" a certain analysis or certain suggestions, or that somebody "outlined his understanding" of something. The vice which I have already indicated in respect of a reference to a general discussion recurs in sub-sub-paragraph 5 of the answer which I have just reproduced. - 16 - I propose, therefore, to order that a further and better answer be given to Interrogatory 15, giving the substance of what was said by Mr Bennett at the meeting of 27 August 1985, the substance of what was said by Mr Bennett at the meeting of 10 September 1985 about his understanding of the terms and nature of the contract, and giving the substance of what was said by Mr Briggs at the meeting of 10 September 1985. The answer should also specify whether anything was said at either meeting by Mr Dempster, and, if so, the substance of that should be given. Interrogatory 16 similarly enquired after the substance of what was said by each of Caboolture Park's and WIQ's representatives at certain meetings, including one which eccurred on 9 September 1985. In partial answer to that interrogatory it was deposed in sub-paragraph (a)(3)(b) as follows:- "with respect to the meeting of the 9th day of September, 1985 I am informed that the substance of Mr Bennett's conversation was that he assessed and commented upon each of the figures for the various subtrades set out in the sheet tabled by Mr Dempster." In my view, a proper answer to that part of that interrogatory should give the substance of the assessment and commentary on each of the figures for the various sub-trades. In the light of concessions made by Mr Perry on behalf of Caboolture Park, I shall order that the further and better answer to Interrogatory 16 should include a statement of the substance of what was said, if anything, by each of Mr Briggs -~17 - and Mr Dempster, and, more precisely, identifying so far as Caboolture Park is able, the summary sheet referred to in paragraph 16B(b)(iii) of its existing answers to the interrogatories. In the result, therefore, I order that Caboolture Park within 14 days of this day file and serve further and better answers verified by affidavit to interrogatories numbered 1(d)(i), 2, 3, 7, 9, if necessary, 14, 15 and 16 of the interrogatories delivered for its examination on behalf of WIQ on 16 December 1987. I order that Caboolture Park pay WIQ's costs of the motion on notice dated 18 April 1988, including the costs of this day. I certify that this and the sixteen (16) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Ryan. AP VW Venan%s Associate Dated: 22 Borce "9 PS,