Alexandra Private Geriatric Hospital Pty Ltd v Blewett

[1985] FCA 242

Re: FAT-SEL PTY. LIMITED
And: BRAMBLES HOLDINGS LIMITED
No. G16 of 1985
Discovery and Interrogatories

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Discovery and Interrogatories - prolix interrogatories - undesirable in commercial litigation.

HEARING

SYDNEY
#DATE 11:6:1985

ORDER

1. The applicant pay the respondent's costs of its objection to the interrogatories sought to be administered.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

The respondent seeks the costs of its successful objection to the administration of interrogatories by the applicant. The background to the application is that although this matter is set down for hearing at the end of this month, interrogatories requiring in all some 3,000 responses were administered only late last month by the applicant. The respondent objected to these interrogatories on the grounds, inter alia, that their sheer volume was oppressive (se American Flange and Manufacturing Co. Inc. v. Rheem (Australia) Pty. Limited (No. 2) (1965) NSWR 193).

1. When the hearing of the respondent's objections commenced, I indicated to the applicant that I had serious reservations about the utility of prolix interrogatories of the kind now pressed, at least in commercial litigation of this kind especially where, as here, discovery had taken place (see Colman, The Practice and Procedure of the Commercial Court (1983) at p.58; Book Review (1985) 59 A.L.J. at p.300). I also expressed doubts about the retention of the hearing date later this month if orders were made directing the respondent to answer even a fraction of the interrogatories sought.

2. After an adjournment to take instructions, the applicant indicated that, because it was anxious that a final hearing of the principal proceedings should proceed at an early date, it would not press its interrogatories. The respondent now seeks the costs of its objection to the interrogatories.

3. It is a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary (see Milne v. Attorney-General for the State of Tasmania (1956) 95 CLR 460 at p 477; Gladstone Park Shopping Centre Pty. Limited v. Wills, Full Federal Court, unreported, 18 December 1984). The applicant having abandoned its wish to administer the interrogatories, it must follow that the usual rule should apply and that costs should follow the event. The circumstances in which the interrogatories were not pressed cannot provide sufficient reason for depriving the respondent of its costs.

4. I order that the applicant pay the respondent's costs of its objection to the interrogatories sought to be administered.