JUDGMENT No..4:21.4.83__ IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) NSW G749 of 1987 GENERAL DIVISION ) BETWEEN: PAUL HOGAN First Applicant AND: RIMFIRE FILMS LIMITED Second Applicant AND: KOALA DUNDEE PTY LIMITED First Respondent AND: ANTHONY ROBERT REEVES and JOSEPH ANTHONY JOHN PIOVESAN Second Respondents MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 10 AUGUST 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: l. further and better answers to interrogatories, numbers 5, 6, 20, 21, 29{e), 29(£), 32, 33, 34, 35, 4i(e), 50 as to the first respondent, 51, 52 as to the first respondent, and 53, be delivered on or before 9.30 a.m. on Monday, 15 August 1988; 2. costs of today be reserved. NOTE: Settlement and entry of orders is dealt with IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSW G749 of 1987 BETWEEN: PAUL HOGAN First Applicant AND: RIMFIRE FILMS LIMITED Second Applicant AND: KOALA DUNDEE PTY LIMITED First Respondent AND: ANTHONY ROBERT REEVES and JOSEPH ANTHONY JOHN PIOVESAN Second Respondents PINCUS J. 10 AUGUST 1988 EX TEMPORE REASONS FOR JUDGMENT In this matter, the reasons must necessarily be brief. The interrogatories asked are multitudinous, and I have to give my reasons in a summary form. I will, however, preface them by making a few remarks about the rules. The provisons of 0.16 r.8 of the Federal Court Rules, as I understand them, give the Court a discretion to require any further answers to interrogatories that have been insufficiently answered, but do not oblige the Court to do so. In this case, leave to interrogate upon particular subjects was given, and there is no complaint by Mr O'Donnell, who has appeared for the respondents, that the interrogatories answered have gone beyond the leave. Nevertheless, some of them seem to me to relate to matters which are so peripheral that they should be in a category to be dealt with by discretion under 0.16 r.8. I will mention some of those as I go along. Order 16 r.6 has been drawn, as I understand it, in such a way as to limit the grounds of objection to those which have been specifically listed there. There are three: one is irrelevance; the second is that the interrogatory is vexatious or oppressive and the third one is privilege. In the pre-existing law, there could be quite a number of other objections, which do not now become irrelevant. But if they are to survive, they must survive under ground 6(3)(b), that is on the ground of vexatiousness or oppressiveness. To take an example, 1t may or may not be vexatious or oppressive to ask a question which assumes a fact. In some instances, as in Konings v. Naylor [1964] Qd.R. 235, it was not vexatious or oppressive. It will be recalled that in that case, the question which was asked assumed the existence of a weapon whose existence had been implicitly admitted by the parties during the course of the litigation. This admission was held not to be enough to get around the rule. This Court, if I may say so, thankfully is not burdened by technicalities of that sort when dealing with interrogatories. Nevertheless, decisions of that kind are sometimes helpful in determining whether an interrogatory is vexatious or oppressive, but if it 1s not vexatious or oppressive, it does not Matter if one has infringed some ground of objection not included in 0.16 r.6 sub-r.(3). To come now to the first of the interrogatories in issue: number 3 has been answered. Mr Campbell suggested, in effect, that the answer is tricky. I am not satisfied it is, and I do not require a further answer. Interrogatory number 5 seems to me to be relevant enough, and the grounds of objection taken to 1t are not made out; in particular, it seems to me to be quite wrong to say that 1t is irrelevant. One could almost take judicial notice of the fact that Australians would be conscious of the movie, but there could be no doubt that consciousness or otherwise of the movie on the part of the respondents can help the applicants' case. I therefore require a proper answer to 5. The same applies, although with less force, to 6. It seems to me that whether or not the persons identified had seen the film can help the applicants' case, and I require a further answer to 6. As to 7 and 8, with some doubt, I determine that they are not likely to produce sufficiently helpful answers. Seven in particular seems to me to be a difficult question to answer, and would require great skill in drafting so as not to leave any ground for the other side to criticize it. Number 8 is "o even more marginal. I have decided not to require a further answer to 8, Numbers 11 and 12 go into the mental processes involved in selecting a name. Both of them seem to me not to be questions likely to advance the resolution of the problem between the parties, and I will not require a further answer. The same line of reasoning applies to 17 and 18. In particular, 18 has rather a sophisticated wording: "What part did your perception of the attractiveness of the name 'Dundee' play in your selection of the name 'Dundee Country'?" It requires a kind of introspection which I do not think is called for here. Number 19 1s on a slightly different tack. It asks why you selected the site. Everyone knows that tourists go to Surfers Paradise, and I do not think it is likely to be a useful question, and I will not require an answer. Now, coming to 20: 20 1s a bit like 19, except that it asks about the name rather than the site, and I will require an answer to 20. Similarly 21: I require it to be answered. Numbers 25(e), (f£), (g), and (h) raise a difficult point. Numbers 25(e), (ff), (g), and (h) raise principally the question whether the respondents are entitled to say they do not know, that is, using the information available to them, they do not know. Mr O'Donnell told me that the gentleman who was engaged to draw these documents up was not an agent or an independent contractor. It seems to me to be an extremely improbable sort of an answer, but nevertheless, I think the applicants are stuck with that. On the whole, though, and with some doubt, I will not require a further answer to 25(e), (£), (g), and (h). Going now to 26 and 27: [I think they are too peripheral to require an answer. Number 29(e) seems to me to be relevant enough to require an answer; 29(f£) similarly. Going to 32, 33, 34 and 35, I iunatially thought that they should not be answered, but in view of the fact that, from what Mr O'Donnell has been instructed, at least the name of the town may be a question, I think it is probably safer to require an answer. Obviously answering would not be burdensome in these cases, and I will require an answer to 32, 33, 34, and 35. Number 41 asks how many receipts; Mr O'Donnell says they do not know. They must have some idea, so they have to answer 4l(e). Mr O'Donnell's explanation of the discrepancy, in relation to 50 and 51, between the company's answers and the answers of the other respondents 1s based upon a view of the law which is at least arguably wrong, and I will require an answer to 50 and 52 from the first respondent. I require further answers to 5, 6, 20, 21, 29(e), 29(f), 32, 33, 34, 35, 41(e), 50 as to the first respondent, and 52 as to the first respondent. I will add to that list 51 and 53. That makes the list now 5, 6, 20, 21, 29(e), 29(£), 32, 33, 34, 35, 41(e), 50, 51, 52, and 53. I order that further and better answers be delivered on or before 9.30 am on Monday the 15th day of August 1988. Costs reserved. t certify that this and the Ss preceding pages aré a true copy of the reasons for judgment herein of His Honour Mr, Justice Pincus 9. Angela Digsrrcege Dated so August (FSF