Beech, B. t/as Aaron Film & Video Service v Concise Data Systems Pty Ltd

[1985] FCA 540

Re: BARRY BEECH t/as AARONS FILM & VIDEO SERVICE
And: CONCISE DATA SYSTEMS PTY. LIMITED
No. G 400 of 1984
Practice and Procedure

COURT

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

CATCHWORDS

Practice and Procedure- sufficiency of discovery and of answers to interrogatories- oral interrogatories and oral evidence to determine extent of insufficiency.

HEARING

SYDNEY
#DATE 11:10:1985

JUDGE1

This is a dispute arising from the sale in February 1983 of a micro computer and a video hire system together with maintenance of computer hardward and software. The dispute is said by the pleadings to have various federal elements and it has other associated matters involving ordinary state jurisdiction.

1. There has been discovery and inspection of documents and administration of interrogatories has taken place but the applicant challenges the sufficiency of the discovery of documents and the adequacy of answers to interrogatories by the respondent.

2. A considerable amount of correspondence was exchanged between the solicitors for the parties relating to these matters and a supplementary list of documents has been more recently filed by the respondent on 7 June 1985. That too is challenged by the applicant on the ground of its alleged insufficiency.

3. Verified statements in answer to interrogatories were filed by the respondent on 18 September 1985. The discovery was verified by the managing director of the respondent, a Mr. Beniacar, who also verified the respondent's answers to interrogatories.

4. There is evidence before me which shows that the respondent may have problems in giving the fullest discovery and fully answering the interrogatories in that it seems after the date of the sale of the equipment the subject of the proceedings those who may have been engaged in the relevant discussions leading up to the agreement and otherwise relevant to the causes of action are no longer in the employ of the respondent. Nevertheless, the extent to which the respondent has actually sought to obtain the fullest possible information from those people, who appear to be primarily a former managing director and a former commission agent, is not clear. Some effort has obviously been made because answers to interrogatories refer to information obtained from one or other of those gentlemen.

5. I think the applicant's challenge to the sufficiency of the discovery and to the answers to interrogatories has been made out. The normal course that would be followed is for the Court to direct further discovery and further answers to interrogatories but I think in the light of what has been said the proper course to take is one which I mentioned and which is a course to which no dissent is taken, and that is that to bring the matter effectively to a head the applicant ought to be able to administer interrogatories orally in court and to put to the witness or witnesses of the respondent the particular matters that are the basis of the challenge to the sufficiency of discovery of documents. In the latter case this would be preceded by a further verified discovery being given in the witness box on behalf of the respondent.

6. In other words the course I would envisage would be along these lines; that the respondent would profer from the witness box the appropriate officer, who on present indications would seem to be Mr. Beniacar, and the respondent would obtain from him the material usually offered when further affidavits of discovery are filed following a successful challenge to the sufficiency of the discovery. It would then be open to counsel for the applicant to cross-examine the witness in the usual way for the purpose of testing the sufficiency of the answers. In the case of interrogatories, counsel or solicitor for the applicant could then interrogate that witness or indeed any other witness being an officer of the respondent who may be available for the purpose. I would expect that the respondent would have available the appropriate person or apropriate people who can deal with the matters to which I have referred and if any difficulties arise in the course of preparing for this particular proceeding I will be happy if the matter is listed to assist the parties in any way I can.

7. Accordingly the best course to take is to adjourn the matter to a date to be fixed. I would ask the legal advisors to the parties to be in touch with my Associate, if possible today, if not early next week, for the purpose of fixing the actual date, a date that must meet the convenience of the particular witness or witnesses to be called on behalf of the respondent.

8. The interrogatories to be orally administered are those which are referred to in an amended notice of motion which has been filed in court today. If the applicant wishes to expand on or vary it at all it should do so by giving reasonable notice to the solicitors for the respondent of any change in that respect so that the respondent has ample notice of what is the subject matter of the inquiry. Costs of today's proceedings are reserved.