Wilson v Tetley & Anor [2003] NSWSC 256

New South Wales Supreme Court

CITATION : Wilson v Tetley & Anor [2003] NSWSC 256 revised - 03/04/2003 HEARING DATE(S) : 1/4/03 JUDGMENT DATE : 1 April 2003

JUDGMENT OF : Gzell J DECISION : Application dismissed

CATCHWORDS : PROCEDURE - Discovery and Interrogatories - Whether interrogatories requiring the giving of information rendering an action for damages for breach of contract unnecessary, can be administered - Defendant refusing to name bull from which semen taken to fertilise cows under an embryo flush programme - Whether interrogatories are "necessary" in terms of Supreme Court Rules 1970, Pt 24 r 5(2) - Whether mandatory injuction requiring answers to interrogatories should be made - Whether the defendant should be orally examined as to the identity of the bull LEGISLATION CITED : Supreme Court Rules 1970 Murphy v Murphy (1998) 1 WLR 282 CASES CITED : A v C [1981] QB 956 at 959 Boyle v Downs [1979] 1 NSWLR 192 PARTIES : Dennis Paul Wilson - Plaintiff jason Tetley - Defendant FILE NUMBER(S) : SC 1955/03 COUNSEL : Mr J S Wheelhouse (For Plaintiff Mr Jason Tetley (In Person) SOLICITORS : Susan Hill, Solicitor (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 1 APRIL 2003

1955/03 DENNIS PAUL WILSON v JASON TETLEY & ANOR

Extempore JUDGMENT

1 The plaintiff conducts a business of breeding Murray Grey cattle. The defendant was engaged to attend to the culling of cattle for sale, the general health and well-being of the cattle by administering drenches, inoculations, vaccinations and the like and the preparation of cattle for showing. The plaintiff conducted an embryo flush programme with respect to his herd, involving the selection of an appropriate female cow, the administration of drugs to the chosen cow to produce a large number of eggs for insemination and fertilisation, the artificial insemination of the cow when she was ready with the semen of the bull and arranging and causing to be carried out by a qualified technician the flushing of the eggs from the cow. 2 The defendant was required to select cows for artificial breeding, prepare them for the embryo flush to be administered by another, to choose the bulls and record the identity of the bulls whose semen had been used to artificially inseminate the selected cow and to attend upon the embryo flush technician. 3 There is evidence before me that the identity of the sire is critical to the process, as without this information embryos are either valueless or almost valueless, whereas a well-chosen sire with good pedigree with a dam of good pedigree could make an embryo worth up to $3000 or thereabouts. 4 With respect to the last flush programme carried out in December 2002 with the flush effected in January 2003, the defendant failed to record the identity of the bull from which the semen was taken with respect to two cows called Queen Lylia and Grey Dame. The defendant has refused to provide that information on request and the certificates in relation to the embryos in question do not contain the name of the sire, with the consequence that in a market such as that to take place at the Wodonga Exhibition Centre on April 3, the embryos are valueless. 5 The plaintiff comes before me on a summons seeking an order that the defendant answer on oath the following interrogatories, namely: (a) What was the name of the sire whose semen was used to artificially inseminate the Murray Grey cow Kaltara Grey Dame BJO R809 on or about 20-23 January 2003?