Allwest Clearwater Pty Ltd v C.C. Kenny Pty Ltd

[1986] FCA 595

NOT I N T E N D E D FOR GENERAL

DISTRIBUTION

I N THE FEDERAL COURT )

AUSTRALIA OF )

AUSTRALIA	WESTERN	1	No. WAG 37 of 1986
DISTRICT REGISTRY	)

GENERAL	D I V I S I O N	)
B E T W E E N :
ALLWEST CLEARWATER PTY LIMITED

A p p l i c a n t

and

C.C. K E N N Y PTY LIMITED

Respondent

CORAM: FRENCH J.

1 DECEMBER 1986

EX TEMPORE REASONS FOR JUDGMENT

T h i s is a motion w h e r e b y t h e a p p l i c a n t s e e k s a n o r d e r

t h a t t h e r e s p o n d e n t w i t h i n 1 4 d a y s f i l e a n d se rve answers t o

c e r t a i n of t h e a p p l i c a n t ' s i n t e r r o g a t o r i e s w h i c h were d e l i v e r e d o n

9 September 1986. The statement o f claim f l l e d i n t h e p r o c e e d i n g s

by t h e a p p l i c a n t d i s c l o s e s t h a t ~t s e e k s d a m a g e s a g a i n s t t h e

r e s p o n d e n t a r i s i n g o u t of a n a l l e g e d c o n t r a v e n t i o n o f s.52 of t h e

Trade Pract ices Act 1974 and a b r e a c h of a c o n t r a c t a r l s l n g o u t of

t h e p u r c h a s e b y tfie applicant from t h e r e s p o n d e n t o f c e r t a l n

vend ing mach ines .

2.

In its statement of claim the applicant alleges that the

respondent, in the course of negotiations in late Aprll and early

May 1983 and in order to induce the applicant to enter into a

contract for the purchase of the machlnes, made certain oral

representations to Its sales manager, one Barry Kidd. Without setting the representations out In full It is sufficient to say that they related to the availabllity, the location and installation, operating costs and quality guarantees attaching to

the machines to be supplied. It is further alleged that another

representative of the respondent, one P. Kenny, orally represented to the applicant that a machlne had been installed by the respondent and was performing in accordance with the representations made in a previous advertisement and by Barry Kidd. The appllcant contends that these representations were false in various particulars which have also been set out in the statement of claim.

The respondent, by its defence, denies that Barry Kidd

was employed by it as a sales manager as alleged or at all and denies that it made the representations alleged and says in any event that so far as the vending machines were concerned it had been willing and able to maintain them at all material times, any alleged lack of maintenance of the machines was caused or contributed to by the applicant's fallure to deliver them to the respondent for malntenance, that i L they broke down lt was due to the applicant and other persons for whom the respondent was not

responsible, failing to take any or any proper care of the

3.

m a c h i n e s a n d u s i n g t h e m o r p e r m l t t i n g t h e m t o b e u s e d i n a n

lmprope r manner.

I h a v e n o t e n d e a v o u r e d t o c a n v a s s t h e p l e a d i n g s ~n

d e t a i l b u t s u f f i c i e n t l y t o i n d i c a t e t h e g e n e r a l n a t u r e o f t h e

issues b e t w e e n t h e p a r t i e s i n t h i s c a s e .

T h e r e s p o n d e n t h a s r e c e i v e d i n t e r r o g a t o r i e s f r o m t h e

a p p l i c a n t d a t e d 9 September 1986 and among t h o s e i n t e r r o g a t o r i e s

are t h e f o l l o w i n g : -

" 2 . As t o p a r a g r a p h 8 o f t h e S t a t e m e n t o f C l a i m and

d e f e n c e :

i h ) Did t h e R e s p o n d e n t e n t e r i n t o a p u r c h a s e

ag reemen t on or a b o u t t h c 8 t h A u g u s t 1 9 8 3

t o s u p p l y two m a c h i n e s t o Hans and Vera

McKaay?

What o t h e r m a c h i n e s h a s t h e R e s p o n d e n t

s u p p l i e d ?

D i d t h e R e s p o n d e n t p l a c e all m a c h i n e s u p p l y

( s i c ) by it?

If t h e a n s w e r t o ( i ) 1 s yes w h e r e d i d i t

l o c a t e t h e m a c h i n e s ?

Are a n y o f t h e m a c h i n e s s u p p l i e d by t h e

Responden t s t i l l o p e r a t i n g ?

I f t h e answer t o (k) is y e s :

( i ) by whom are t h e y owned;

( i i ) w h e r e a r e t h e y l o c a t e d : a n d

4 ili ) what percentage of t h e t a k i n g does t h e

s h o p owner r e q u i r e : "

T h e r e s p o n d e n t h a s d e c l i n e d t o answer e a c h of t h o s e

i n t e r r o g a t o r i e s o b j e c t i n g , i n t h e case o f 2 ( h ) t h a t t h e q u e s t i o n

4.

is not material to the proceedings and in the case of 2(i)

to (m), that the questlons are fishing interrogatories and are not material to the proceedings and are irrelevant and unnecessary. It can be said generally of these questlons that they all relate

to conduct of the respondent in connection with the supply of

machines to persons other than the applicant and to the

performance of those machines so supplied.

There is nothing in the statement of claim which

directly raises the question of supply of machines to other

persons or their performance characteristics as an issue to be

determined. There is no allegatlon, for example, that the

respondent has made representations to the applicant generally concerning the performance of machines supplied to other persons apart from the limited representation pleaded in para.6 whlch

appears to relate to one machine only. Nor are there alleged any

representations which relate to the characteristics of all such machines dealt with by the respondent, their mode of manufacture or other matters which might be taken as a general reference to

their performance apart from the performance represented as that

which the applicant would e n ~ o y	upon the acquisition of those it
would purchase.

I am not satisfied that the interrogatories 2 ( h ) to Z(m)

inclusive are material to the issues between the parties in these proceedings. In saying that I do not wlsh to be taken as maklng

any ruling applicable to the substantlve hearing of the

5 .

application as to the relevance of such evidence should such questions arise or evidence in relatlon to the supply of machlnes to other persons be sought to be adduced at the hearing. Suffice It to say that for present purposes I am not satisfled that these interrogatories are warranted and am not prepared to make the

orders sought.

In addition to interrogatories 2(h) to 2 ( m ) inclusive,

the applicant also sought an answer to Interrogatory	6(a).	This
interrogatory read as follows:-

"As to paragraph 21(a) on what date or dates did the

applicant fail to deliver the machines to the

respondent?"

This refers to paragraph 21 of the defence filed by the respondent on 17 June and in particular sub-para. 2 1 ( a ) which provides:-

"AS to the whole of the Applicant's claim the Respondent

says that if the Applicant has suffered any loss or

damage, which is denied, then such loss or damage was

wholly caused by and/or contrlbuted to by:

The Applicants fallure to deliver the vending

machines to the Respondent for maintenance.

The Applicants failure to take any or any proper care of the vending machines and or using he (sic) vending machines or permitting the same to be used in an improper manner.

The Applicants failure toadequately and/or properly supervise the day to day operatlons of its vending machines.

The Applicants fallure to take any or any

sufficient steps to mitigate its loss."

6 .

I t m a y b e s a i d t h a t t h e terms o f t h e p l e a d i n g i n

s u b - p a r a . ( a ) of p a r a . 2 1 are not as c l ea r a s t h e y c o u l d be I n

t h a t t h e y d o n o t i n d i c a t e w h e t h e r t h e f a l l u r e a l l e g e d is a f a i l u r e

t o d e l i v e r t h e v e n d i n g m a c h l n e s f o r m a i n t e n a n c e o n p r e - a r r a n g e d

d a t e s o r w h e t h e r I t is a f a i l u r e t o d e l i v e r t h e v e n d i n g m a c h i n e s

o n a n y o c c a s l o n r e g a r d l e s s o € a n y a r r a n g e m e n t or w l t h o u t a n y

a r r angemen t hav ing been made .

I n t h e answer t o i n t e r r o g a t o r y 6 ( a ) t h e r e s p o n d e n t

s a i d : -

"On s u c h da t e or d a t e s o n w h i c h t h e m a c h i n e s r e q u i r e d

r e p a i r ; t h e r e s p o n d e n t o b j e c t s t o p r o v i d i n g f u r t h e r

p a r t i c u l a r s o n t h e g r o u n d s t h a t t h e i n t e r r o g a t o r y is

u n r e a s o n a b l e , o p p r e s s i v e a n d e m b a r r a s s i n g . "

T h i s h a s a b o u t i t t h e c h a r a c t e r o f a r e s p o n s e t o a

r e q u e s t f o r p a r t i c u l a r s a n d i t i s e v i d e n t l y t h e r e s p o n d e n t ' s

p o s i t i o n t h a t t h e dates o n w h i c h t h e m a c h i n e s r e q u i r e d r e p a i r is a

m a t t e r w i t h i n t h e k n o w l e d g e of t h e a p p l i c a n t . W h a t e v e r one m i g h t

s a y of t h e a p p r o a c h t h e r e s p o n d e n t h a s t a k e n t o a n s w e r i n g

i n t e r r o g a t o r y 6 ( a ) , I t seems t o m e t h a t i t i s a m a t t e r w h i c h is

b e t t e r d e a l t w l t h by way o f p a r t i c u l a r s and c l a r i f i c a t l o n o f t h e

p l e a d i n g s . I am n o t p r e p a r e d t o a c c e p t a s a g e n e r a l p r o p o s i t i o n

t h a t l n t e r r o g a t o r l e s c a n s l m p l y be used t o c l a r l f y t h e p l e a d l n g s

i f t h e r e is s o m e a m b i g u i t y i n t h e m . A c c e p t i n g t h a t t h e r e may well

be some a m b i g u i t y i n p a r a . 2 l ( a ) t h e r e m e d y f o r t h a t is n o t by way

of i n t e r r o g a t o r y ; i t is by way o f a r e q u e s t f o r p a r t i c u l a r s , a

matter which could b e d e a l t w l t h r e a d i l y p r i o r t o t h e h e a r l n g of

7 .

the application. In any event I am not prepared to make an order

for any further answer to interrogatory 6(a).

The second limb of the appllcant's motion seeks further and better discovery from the respondent of documentation relating to the supply by it of the vending machines to persons or entlties other than the appllcant. For the reasons that I have already indicated I am not satisfied that that 1s an appropriate order and I am not prepared to make it. In the clrcumstances the motion

will be dismissed.

The orders will be:-

1. The motion is dismissed; and

2. The applicant pay the respondent's costs of the motion in any event.

I certify that this and the preceding six (6) pages are a true copy of the ex tempore

reasons for ~udgment herein of his

Honour Mr Justice French.

Dated: 1 December 1986

. . L

8 .

COUNSEL

. for the applicant -

McDonald.

Mrs J. Withers instructed by Jackson

. for the respondent -

Mr A.H. Nichols lnstructed by Cocks

MacNish & Co.

Date of Hearing :

1 December 1986

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