JUDGMENT No. .445.1.83_. NOT FOR DISTRIBUTION CATCHWORDS PRACTICE AND PROCEDURE -— interrogatories — leave to interrogate —- general principle. Federal Court Rules Aste v Stumore (1883) 13 QBD 326 Abduramanoski v Aidan Nominees Pty Ltd (unrep. French J.; 2.11.87) Tye v Willoughby (1894) 38 Sol. Jo. 338 Codd v Delap (1906) WN 57 Conde v 2KY Broadcasters Pty Ltd (1982) 2 NSWLR 221 UNMACK SERVICES PTY LTD v J.W. BOLTON PTY LTD WAG 2 OF 1988 FRENCH J. PERTH 9 AUGUST 1988 ete ne IN THE FEDERAL COURT ) NOT FOR DISTRIBUTION OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) No. WAG 2 of 1988 BETWEEN: UNMACK SERVICES PTY LTD Applicant and J.W. BOLTON PTY LTD Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 9 AUGUST 1988 WHERE MADE: PERTH THE COURT ORDERS THAT: There be leave to the respondent to administer interrogatories in terms of interrogatories 4, 5, 9(b), 9(c)(i), 10, 11(a), 11(b)(i), 16(a) and 17(a) in the respondent's draft notice to answer interrogatories filed 25 July 1988. The filing and service of the respondent's draft notice to answer interrogatories shall stand as filing and service of the respondent's interrogatories. The applicant is to file and deliver answers to the respondent's interrogatories on or before 30 August 1988. The applicant is to file and deliver any amended particulars of damage on or before 30 August 1988. 2. The respondent is to file and deliver any request for further and better particulars on or before 6 September 1988. The applicant is to answer such request on or before 14 September 1988. The directions hearing is relisted for 21 September 1988 at 9 am at which time the question of trial or remittal will be considered. The costs of today be in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. epesee ne woe vk nn IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NOT FOR DISTRIBUTION ee ee NO. WAG 2 OF 1988 BETWEEN: UNMACK SERVICES PTY LTD Applicant and J.W. BOLTON PTY LTD Respondent CORAM: FRENCH Jd. 9 AUGUST 1988 EX TEMPORE REASONS FOR JUDGMENT ON LEAVE TO ADMINISTER INTERROGATORIES This is a directions hearing to determine the question of whether the respondent should have leave to administer interrogatories to the applicant. A draft notice of some 20 proposed interrogatories was filed and served by the respondent on or about 15 July 1988 and notice of various objections to certain of those interrogatories was filed and served on or about 25 July. The dispute between the parties relates to a contract said to have been entered into between them for the design, construction and fitting by the respondent of a camper unit to a Mercedes Benz Unimog model U1300L/37 cab chassis, supplied by the mre se a applicant. The litigation arises from the applicant's complaint that in the agreement certain weight limitations were specified for the completed unit and that as completed, it exceeded those limits. The respondent denies the contract as alleged, saying it had agreed to undertake a certain element of the work and that that agreement was not with the applicant, but with Mr Unmack, a director of the applicant. For the moment I need say no more about the pleadings as this hearing is concerned simply with the question of leave to interrogate. Before a party to proceedings in this Court may administer interrogatories, it has to obtain the leave of the Court to do so and that is a requirement imposed by 0.16 r.1 which provides:- "1(1) 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 in question between the interrogating party and the party served." That requirement was introduced into the rules of this Court in 1986, but has existed under the English Rules of the Supreme Court since 1883. Its genesis there was explained by Bowen LJ in Aste v Stumore (1883) 13 QBD 326 at 329 and that explanation is set out in my decision of Abduramanoski v Aidan Nominees Pty Ltd (umrep. 2.11.87;). It is evident from the judgment of Brett MR in Aste v Stumore (supra) that the leave requirement is not simply a matter for determination by the consent of the parties. As the Master of the Rolls there said:- re ea ee 7 — wrt ee oe re ee ee wore ee a ver "The Rules of the Supreme Court, 1883, were made by the judges, and what I understand the view of the Rule Committee to have been is, that they ought to protect the parties litigant against themselves, even aithough it should be said that they consented to interrogatories such as I have mentioned". It is not part of the function of the Court on a leave application to settle interrogatories, but rather to decide whether they should be permitted — Tye v Willoughby (1894) 38 Sol. Jo. 338; Codd v Delap (1906) WN 57, 78. The discretion conferred by 0.16 r.1 is a broad one and it is inappropriate to try to codify it, but the underlying purpose is reasonably clear and that is to enable the Court to regulate the availability of the facility of interrogation. In that function it will have regard to a variety of factors, in particular, the necessity for and utility of the proposed interrogatories to the fair and expeditious conduct of the proceedings. The factors that may be taken into account at that stage are necessarily wider than the grounds of objection to the provision of particular interrogatories set out in 0.16 r.6(3), although such objections may be taken into account in the decision whether to grant leave . In the case where, as at present, I consider the question of leave to interrogate on a draft of the proposed interrogatories, it is convenient to deal both with the question of leave and with specific objections as they arise. Turning to the interrogatories for which leave is sought, I do not consider that it is desirable to go into elaborate reasons for granting or withholding leave. There has ee way cece —a oe a already been considerable discussion between counsel and myself with respect to particular interrogatories and the general thrust of my views with respect to specific matters has emerged in the course of that discussion. Taking the interrogatories seriatim, I am not prepared to grant leave with respect to interrogatory 1 and that is for a variety of reasons. In part, it asks a question which would be expected to be within the knowledge of the respondent, that is the date of the delivery of the cab chassis to the respondent's premises and the other questions, I think, are, at best of Marginal or no relevance. Question 1(b) is dependent on 1(a)(iii) and falls with it. 1(c) is similarly dependent on 1(b) and falls with that. I would not grant leave to interrogate in terms of 2(a) as that seems to me to be a request for particulars and, as I have said on previous occasions, it is not a proper function of interrogatories, unless exceptional circumstances exist, to use them for the purpose of seeking what is in essence an elaboration of the pleadings. In that respect I refer to the decision of Hunt J. in Conde v 2KY Broadcasters Pty Ltd (1982) 2 NSWLR 221. Interrogatory 2(b), relates to a matter within the knowledge of the respondent. Interrogatory 2(c) is dependent on 2(b). Interrogatory 2(d) again, is a matter within the knowledge of the respondent and I am not satisfied that the nature of the — sn — arr mor case warrants an interrogatory in those terms having regard to that fact. Interrogatory 2(e) falls on the same basis because it is dependent on 2(d). Going to interrogatory 3(a), it is extraordinarily wide. It is not at all clear that it has any bearing on any of the issues and I will not grant leave to administer it. iInterrogatory 3(b) falls with it. Interrogatory 4, I am satisfied is appropriate and I will give leave to interrogate in terms of both 4{a) and 4(b). Similarly, with respect to 5(a) and (b) I am prepared to give leave. Although 5(a), it could be said, is a matter within the knowledge of the respondent, it raises a question of sufficient importance that it can be justified in these particular circumstances. Interrogatory 6 identifies a potential deficiency in the discovery of a document which is referred to in the statement of claim. I have made it clear to the parties that I would regard that document as discoverable. It should either be identified in the last of documents and produced for inspection or if it has been lost or passed out of the custody, power or possession of the applicant, then some explanation of what has happened to it should be given. Mr Colvin for the applicant, concedes that that is a matter upon which the applicant would have to respond to _ the respondent's request and that is the way in which the matter re re tee re tt et ee ee we en en oe re ee et ere ee ~er ee we rerecr es pepe oe should be dealt with. It is not a question which requires the use of the facility of interrogation. Interrogatory 7 is, in essence, a request for further and better particulars and indeed it may go beyond that to constitute a request for further pleading of the terms of the contract alleged in para. 8 of the statement of claim. I do not consider that special circumstances have been made out to justify the use of the interrogatories to ask a question of that' kind. Similarly with respect to interrogatory 8, it asks for interpretation and particulars and I will not give leave to administer it. The relevance of interrogatory 9(a) escapes me and I am not prepared to give leave in respect of it. 9(b) I think can properly be asked, having regard to the assertion by the applicant that the vehicle was unlicensable as a result of the breach of contract said to have been committed by the respondent. I will give leave to administer 9(b) and 9(c)(i). The rest of the interrogatories in 9(c) go beyond what is reasonable and necessary for the purposes of the case. Some of these questions may 'be the subject of cross examination at trial, but that is not a criterion for the grant of leave. I am prepared to give leave with respect to 10{a), (b) and (c) and also with respect to 11(a) and (b)(i). Interrogatories 11(b)(ii) and (iii) are of marginal relevance and would require considerable enquiry in order to properly answer them. ee ee Se hl ae TIT OTS, eee rn ces : aa ' ' Interrogatory 12 is not pursued. Interrogatory 13, as at present expressed, is contingent on 12, but Mr Jordan asks that I consider 13 on the basis of the deletion of the contingency on the answer to interrogatory 12. This interrogatory really addresses the question of the compromise agreement which is pleaded in the defence. No reply has been filed and so, pursuant to 0.11 r.14(2), there is taken to be a denial of the compromise. I do not think it appropriate that the interrogatory should seek to, as it were, cross examine on the pleadings at this stage and I suspect it would be a fruitless exercise. I am therefore not prepared to give leave to interrogate in terms of interrogatory 13. Interrogatory 14 is embarrassing. It asks when the applicant first considered that the completed vehicle may have problems with excess weight. It is not clear quite how a party could be satisfied that he had exhaustively answered such an interrogatory and I am not satisfied, in any event, that it has much to do with the issues raised on the pleadings. I will not allow leave to interrogate in terms of interrogatory 14. Nor will I allow leave in respect of interrogatory 15. So far as interrogatory 16 is concerned, I will allow 16(a), although it might on one view be said to have the character of a request for further and better particulars. rt is sufficiently precise and perhaps sufficiently of an evidential were em eee —— aren eee te pe ne RI character. It is not objected to and I do not see any great harm arising from its administration. Interrogatory 16(b) seems to me to have not much to do with the issues on the pleadings. The weight of the springs which were said by the applicant to have been fitted after the event, does not affect the question whether or not the applicant has breached the contract alleged if there were such a contract prior to the time at which the springs were fitted. I am prepared to allow interrogatory 17(a) with respect to fixtures, fittings or moveable items fitted or attached to the unit or cab chassis. It may well be relevant to the question of damages even though it does perhaps also bear the character of a request for particulars. However, the further detailed delving in 17(b) through to (g) is not necessary or particularly helpful at this stage and I am not prepared to give leave to interrogate in those terms. As to (g), I add the comment that insofar as that relates to documents relevant to a matter raised on the pleadings or in the particulars, then such documents should be discovered if they have not already been discovered by the applicant and I understand Mr Colvin to accept that proposition. The state of the applicant's awareness which is addressed in 18 cannot be answered without involving a judgment as to law, the applicant being a corporation, but in any event, even assuming the substitution of Mr Unmack for the applicant in the terms of the interrogatory, I am not satisfied that it is sufficiently helpful to warrant the grant of leave. nan! eye cere pee ey mee laine iy anes ye myo te tern ane toy a As to interrogatory 19, that is dependent on 18 and I am not going to allow it. Interrogatory 20 relating Lo the make, type and size of tyres, is at best of marginal utility and I am not prepared to give leave in respect of that interrogatory either. {Further submissions were made on consequential and other directions. J I will make the orders foreshadowed in these reasons and the other directions set out in the minute annexed hereto. I certify that this and the preceding eight (8) pages are a true copy of the Ex Tempore Reasons for Judgment of his Honour Justice French. Date: G.3.86 * Counsel for the Applicant: Mr C. Colvin Solicitors for the Applicant: Robinson Cox Counsel for the Respondent: Mr G. Jordan Solicitors for the Respondent: Jackson McDonald Date of Hearing: 9 August 1988 Date of Judgment: 9 August 1988 re ee rn mee per ores, perenne weer wee ro eee ee