JUDGMENT No. 2:57.83 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY OLD G157 of 1987 GENERAL DIVISION ) S wt MINUTES OF ORDER gy , ~ c — JUDGE MAKING ORDER: PINCUS J. = , DATE OF ORDER: BETWEEN: COLIN JOHN WHITCOMBE and KAREN MAY WHITCOMBE Applicants AND: BOULDERCOMBE BRICKWORKS PTY LTD First Respondent AND: RUSSELL WILSON ANDERSON Second Respondent | 21 JUNE 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: NOTE: l. Ls) uw in relation to the notice of motion filed 31 May 1988, the applicants make further answers verified by affidavit in accordance with Order 16 rule 7, complying in particular with the requirements of rule 6 sub-rules (2) and (3); the applicants file and serve the further answers mentioned in Order 1 on or before 19 July 1988; Orders no. 4 and 5 made on 7 December 1987 be set aside; the matter be set down for review and further directions on Tuesday, 9 August 1988 at 9.30 a.m.; the costs of and incidental to the notice of motion be taxed and paid by the applicants to the respondents, other than the costs of the affidavit of Mr Cahill. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. s0seTeeontzovesees IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G157 of 1987 GENERAL DIVISION ) BETWEEN: COLIN JOHN WHITCOMBE and KAREN MAY WHITCOMBE Applicants AND: BOULDERCOMBE BRICKWORKS PTY LTD First Respondent AND: RUSSELL WILSON ANDERSON Second Respondent PINCUS J. 21 JUNE 1988 EX TEMPORE REASONS FOR JUDGMENT This is a claim for damages and interest by proceedings instituted in this Court on 18 August 1987. The statement of claim was filed on that day and it is, i1n summary, as follows, omitting allegations of a formal kind and those which are, for present purposes, of lesser significance. It says that there was a contract for sale of a prime mover under which the vendors agreed to grant, as 1t is put, the right to carry certain goods, conditionally upon the applicants entering into a leasing agreement in respect of the prime mover. It goes on to say that there were representations as to the conditions upon which the work would be done: that is, the availability of the work, the amounts likely to be earned, and matters of that sort. These representations are alleged to have been fraudulent and also to have been made in breach of s.52 of the Trade Practices Act 1974. There were sought by the respondents particulars of the statement of claim, or rather, certain aspects of it, and the particulars do not, so far as I have been able to see, make it clear in what respect the statute is said to have been breached. I mention that, although it is by the way, because it is sometimes thought that 5.52 gives a remedy in any case where a prediction or a promise is made which is unfulfilled. That 1s so only in certain circumstances. It is not clear to me that the applicants have pleaded what are the circumstances which falsified the representations made: for example, that there was no intention at the time of carrying out the promise, or no capacity to do so. The mere fact that promises are broken or predictions unfulfilled does not in itself mean they were misleading. The aspect of the matter with which I have to deal presently is not that which I have just mentioned, but the matter of some answers to interrogatories. By an order of the Court made on 7 December 1987 leave was given to the respondents to deliver interrogatories. That was done and only certain of the answers are complained of. It is unnecessary for present purposes to set out the questions and the answers inissue, and it may be sufficient to give as an example the first one. The question numbered 2(b) is: "If 'yes' to the foregoing Interrogatory, state with particularity which of the Companies and/or businesses part of the J.M. Kelly Group provided income to the applicants, and in each case, how much income was so earned." The answer is as follows: "In answer to Interrogatory No. 2(b) we say that we object to answer this Interrogatory on the grounds that it does not relate to any matter in question between the Applicants and either Respondent, the Interrogatory is vague, ambiguous, oppressive and that the Interrogatory is fishing." The question is not self-sufficient, because its full comprehension requires reference to the foregoing interrogatory, number 2(a), which sets out a list of enterprises and asks whether the applicants earned income from work done for them. The answer given to that was yes. Now, in the course of explaining the reasons for the refusal to answer, 1t was said from the bar table, among other things, that the applicants did not know for whom work was done, that the work in question was done, insofar as they were concerned, for Bouldercombe Brickworks, and that they were unfamiliar with the arrangements within the Kelly group. The question of the propriety of that answer requires some reference to the rules. Order 16, rule 6, sub-rule (1) requires in substance that an answer, unless the Court otherwise orders, conform to the requirements of that rule. Sub-rule (2) requires that the answer: "... deal with each interrogatory specifically either - (a) by answering the substance of the interrogatory without evasion; or (b) by objecting to answer the interrogatory on one or more of the grounds mentioned in sub-rule (3) and briefly stating the facts on which the objection is based." Sub-rule (3) reads as follows: "Subject to sub-rule (4), a party may object to answering any interrogatory on the following grounds but no other (a) where the answering 15 not required by an order, that the interrogatory does not relate to any matter in question between him and the party requiring the answer; (b) that the interrogatory 15 vexatious or oppressive; and (c) privilege." It 1s not necessary to set out sub-rule (4) in full. It is enough to say that 1t empowers the Court to require the applicant to specify on what grounds he objects to answers, in certain circumstances. One of the concerns which I have had in determining the matter ius that, as 1s candidly admitted, the answer which I have read out does not comply with rule 6; nor do any of the other answers. Mr Galloway for the respondents has, not unnaturally, pointed this out and relied upon 1t. He also relied upon the circumstance that, as appears to be the case, some of the reasons for declining to answer are factual reasons and have not been set out as required but stated from the bar table. One of the reasons for the present policy of the rules, in the form in which they have been since S.R. 61 of 1986, is to prevent or minimize disputes of the sort which has come before me today. Sance the insertion of that Statutory Rule requiring leave to deliver interrogatories, the practice has become, as I understand 1t, not to give leave automatically, so to speak, but to require some good reason for the delivery of interrogatories. It has been found that the delivery and answer of them sometimes produces disagreements about mere technicalities which waste time and money. The contents of rule 6, to which I have made reference, seem to me designed to lessen this evil by restricting the grounds upon which interrogatories may be objected to, and by requiring that the facts basing the objection will be set out. I have, in the course of hearing the matter, been somewhat troubled as to how to proceed, because it 1s of course undesirable that the time and the money spent on this hearing be wasted. It would, as 1t seems to me, be within my discretion to ignore the failure to comply with the rules, to act upon the statements made by counsel for the applicants (who, I have every confidence, makes them responsibly) and to determine the matter in that way. I have, however, and not without some hesitation and regret, arrived at the conclusion that it would be unfair to the respondents, and irregular, to proceed in the fashion just mentioned, The rules sometimes rub one way and sometimes another. It is in the power of the Court, in this situation and others, to overlook non-compliance with the rules and proceed in some less formal fashion than the rules require. The rule in question, however, seems to me one of central importance in Order 16. It gives the person asking the interrogatories valuable rights, namely that the party answering is restricted 1n the objections which he can take, and, perhaps just as important, that he must set out in the statement answering the interrogatories the facts on which any objection taken is based. Here the answers do not confine themselves to the objections allowed by the rules, and do not set out the facts upon which the objections taken are based. It 15 a pity to have to do so, but I can see no proper course other than to require the rule to be complied with. It may be that, on reconsideration of the matter, counsel for the applicants might abandon his objections and simply draft answers to the questions as best he can saying, where that 1s the case, or rather the applicants do not know the answer. It may be that he will persist im the objections; that 1s a matter for hin, I make the order which I am about to make with a consciousness that 1t may 1n the end resolve nothing of substance but simply achieve a compliance with the rules, and that the whole matter may be back before me, That is to be regretted, but I do not see any alternative 1f these rules are to he respected. I think I have no general licence to ignore them, that they should Prima facie be obeyed, and there is no particular reason in this case for overlooking their having been utterly disregarded. I will therefore order as to the notice of motion: (1) that the applicants make further answers verified by affidavit in accordance with rule 7, complying in particular with the requirements of rule 6 sub-rules (2) and (3); (2) that the costs of and incidental to the application heard today be taxed and paid by the applicants to the respondents, other than the costs of the affidavit of Mr Cahill, which seems to me umnecessarily to duplicate material which I already have. I also propose, subject to anything counsel may have to say to the contrary, to set aside orders no. 4 and 5 made by me on 7 December 1987. Order no. 4 was that the matter be set down for hearing on a date to be fixed by the Registrar on his being satisfied that it was ready for trial; order no. 5 related to exchange of statements. At the time when I made that order 1t seemed to me likely that a convenient course was to let the matter go to trial without any further review. I am satisfied, having more knowledge of the matter than I then had, that that is not an appropriate course, and it will be necessary for me to review the matter again. I will order that the further answers which I have mentioned be filed and served om or before 19 July 1988. I will bring the matter back before me on Tuesday, 9 August, which will give time for consideration of the answers and so forth, and I will set it down for 9.30 a.m. { certify that this and the '7 preceding pages are a true COpy of the reasons for judgment herein of His Honour Mr, Justice, Pincus Angelo Fw 'Associate