Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd

[1988] FCA 223

CATCmORDS .

PRACTICE AND PROCEDURE - Interrogatories - Provision of further and better answers - whether use of phrase "I cannot

say with precision" is evasive - whether interrogatories

irrelevant, vexatious and fishing or eeek details of legal

advice - effect of requirement to give "the substance of a

conversation".

0.16 r.8 Federal Court Rules

CABOOLTURE PARK	SFIOPPING CENTRE PTY. LTD. v WHITE INDUSTRIES
(OLD.) PTY. LTD. NO G198 Of 1986
Ryan J.
22 April 1988
Brirbane

IN THE IEDERAL COURT O? AUSTRALIA)

)

QUEENSLAND DISTRICT REGISTRY	1 No. G198	of	1986
)
GENERAL DIVISION	1

BETWEEN:  CABOOLTURE PARK

PTY.

LTD ~

AND :	-	WHITE INDUSTRIES (QLD)
PTY. LIMITED

(Respondent)

-	AND :	WHITE
PTY. LIMITED

INDUSTRIES (QLD)

(Cross-Claimant)

AND :  - CABOOLTURE PARK

SHOPPING CENTRE PTY.

LTD -

Coram: Ryan J

- Date: 22 April 1988

Place: Brisbane

EX TEMPORE REASONS ?OR JUDGMENT

By motion on notice dated 18 April 1988, the

respondunt, White Industries (Old) Pty. Limited. ("WIQ"), has

sought an order that the applicant, Caboolture Park Shopping

Centre Pty. Ltd. ("Caboolture Park"), provide further and

better answer6 to certain interrogatories delivered for its

examination on behalf of W I Q . The first answer to which

exception is taken is that to Interrogatory l(d)(i) which

asked, on the assumption of an affirmative answer to an

earlier enquiry whether Hersfield Developments Corporation

Pty. Ltd. (*BDC.) was the agent	of Caboolture Park, "what was
the scope of it8 agency?" Caboolture Park has	answered:-

"(d)	(i)	The scope of the agency of Hersfield
Developments Corporation Pty. Ltd. was
that Hersf ield Developments
Corporation Pty. Ltd. undertook and
continue8 to undertake on behalf of
the Applicant, tasks concerning the
development, construction and
management of the Caboolture Park
Shopping Centre."

It is objected that that answer is ambiguous in that a

reference to the undertaking of "tasks"	by an agent does not
describe the limits	or scope of his authority. It occurs to

me that the fault may lie partly in the width of the

interrogatory and its embodiment	of a question of law or
mixed fact and law.	However, Caboolture Park has chosen to

answer it, and, in my view, by referring to unspecified

"tasks" which ADC undertook and continues to undertake	on
behalf of Caboolture Park,	it hae not responsively dealt with
the enquiry as to the scope	of HDC's agency. Accordingly, I

shall order that Caboolture Park provide a further and better

answer to Interrogatory l(d)(i).

The second of Caboolture Park's answers to WIQ's

interrogatories which is claimed to be deficient	is part of
that to Interrogatory 2(b) which asked	in respect of each of
.even specified documents:-

*(b) from whom did the applicant or its servants

or agents obtain poesession of the

document?"

The answers complained of are as follows:-

With respect to Annexure "B", I

cannot say with precision from whom

the docurent was received	but, to the
best of my knowledge,	I am of the

belief	that it was	handed to a
reprerentative	of	Hersfield

Developments Corporation Pty. Ltd. by either Mr Dugan, MC Anderson or

another representative the of

Respondents at a meeting between the representatives of the Applicant and

representatives	tho the of
Respondent. With respect to the document marked
as Annexure "D" I cannot say with
certainty how the document was
obtained by the Applicant, but, to the best of my knowledge, I believe that it was handed to the Applicant,
or to one of the Applicant's servants or agents, by a representative of the respondent, during, or at a meeting held between the representatives of the applicant and the representatives of the respondent.
With respect to the document marked as annexure "E' I believe that it was received by mail.
With respect to the document marked
as annexure "F" I cannot say with
certainty how the document was
obtained by the Applicant, but, to
the best of my knowledge, I believe that it was handed to the Applicant,

or to one of the Applicant's eervants

or agents, by a representative of the

respondent during or at a meeting

held between the representatives of
the applicant and the representatives
of the rerpondent.

With respect to the document marked as annexure "G" I believe that it was

received by the Applicant	or its
servants or agents by mail."

In some respects the answer in (ii) gives more than has

been 8ak.d for, but the complaint: is made that the answer should not be hedged about with qualifications such as "I

cannot say with precision .. . but to the best of my

knowledge, 1 ar of the belief that . . . A similar complaint

is made about the answers to (iv), (v) (vi) and (vii).

I am not persuaded that the use of those expressions is

evasive in the context in which they are used, and I would

not order a further and better answer on that ground.

However, the further complaint is made that a distributive

answer should be given in respect of the date on which each

of the documents enquired after was received	by Caboolture
Park, or one of its servants	or agents.

M r Perry, for Caboolture Park, has acknowledged that

such an answer can be given, and I shall order that	it be
supplied .

By Interrogatory 3.(a), WIQ enquired as follows:-

“As at 10 September, 1985 what information had the

applicant or its servants or agents provided to

the respondent or its servants or agents relevant

to	the	assessment	by the	respondent or	its
aervants or agents	of	the	likely	cost	of

construction of the building works the subject of

the agreement referred to in paragraph	2 of the
amended statement of claim?“
Subsequent parts	of the interrogatory then ask whether

the information was provided	in writing, or by conversation
and seek the date and place of each conversation	the
participants in it and the substance of it.	Thh following
answer has been supplied to Interrogatory	3:-

"With respect to interrogatories numbered 3(a),

3(b), 3(c), 3(d) and 3(e) I a6 unable to say to what extent the Respondent may have considered the information that was supplied by the Applicant to be relevant to it8 assessment of the

likely costa of the con8truction of the building
works the subject of the agreement referred to in

paragraph 2 of the amended statement of claim.

However, I can say that information had been

aupplied by the Applicant, its servants or

agents, both orally and in writing prior to the

10th September, 1985. With respect to that

information I say that it included:

( i ) The concept plans supplied to MCSSrS.

Anderaon and Dugan in or about June, 1985

( i i ) The tender documents supplied to the

Respondent in or about mid July, 1985;

( i i i )  The preliminary discussions, had between

Mr Bennett on behalf of the Applicant and

the representatives of the Respondent at
the meeting held on the 27th August, 1985

I have been informed by MC Bennett and

verily believe that those discussions were
of a general nature and concluded in a

suggestion that the Respondents, its

aervants or agents, should review their

figures incorporated document in a

entitled "Sub-contractor Summary Sheet -

Caboolture Shopping Centre (Budget

Estimate) 1 August, 1985".

(iv) The further discussions had between MC

Bennett, on behalf of the Applicant and

the representatives of the Respondent at a

meeting held on the 9th day of September,

1985. I have been informed by Mr Bennett

and verily believe that the substance of

the conversations was a detailed

diSCU8SiOn of the summary sheet prepared

by the Respondent and that as a result of

those discusaions the representatives of
the Reapondent indicated that they would

re-examine the figures contained in the

summary aheet."

The interrogatory suffers from the vice that it does

not specify the criteria	by which it is to be decided whether
information was "relevant to the assessment	by the respondent
... of the likely cost	of construction" or whether that
relevance was to be determined objectively,	or as perceived

..

- 6 -

by the applicant at the time when it supplied the

information. The introductory sentence of the answer appears

to acknowledge that difficulty but Caboolture Park has

proceeded to give a substantive answer. Having done that, it

is bound to give an exhaustive description of the information

enquired after and cannot merely say that the information

"included" certain specified	items. Likewise, an answer that
a conversation consisted of discussions	"of a general nature"

or of "detailed discussions" of a summary sheet does not give

the substance of the conversation. Accordingly, I would

order that a further and better answer	be	provided to
Interrogatory 3.

Interrogatory 4 requires the deponent to look at the following list of persons:-

" (i) The applicant or its servants or

agents (identify such servants or

agents).

(ii) MC George Herscu.

(iii) MC Ian Bennett.

(iv) MC Arthur Briggs.

(v) Hersfield Developments Corporation

Pty. Ltd."

The deponent is then required to answer in relation to

each person listed the following questions:-

'(a) Did the person have any skill, competence or

experience in making	or assessing estimates
of -

(i)   the likely cost of construction of building works?

(ii) the likely cost of construction of

shopping centre projects?

(b) if 'yes' with respect to either of the

sub-paragraphs of (a), what was the nature

and extent of the skill, competence or

experience?"

That is an extraordinary interrogatory, but the

deponent has grappled with	it and has prefaced his answer	by
saying:-

"With respect to interrogatories 4(a) and (b) I am

able only to express	my opinion with respect to
all of those persons named	but from my own

knowledge and from my inquiries I can say that:"

The answer then proceeds to state certain facts about

each of Mr Rerscu, MC Bennett and M r Briggo indicating

relevant experience which each has	had. The answer concludes
with the following	paragraph:-

" (iv) with respect to the Applicant and

Hersfield DeVelOpm~nt6 Corporation Pty.

Ltd. I can 6ay that those companies have

been involved in the development and

construction of shopping centres and	in
particular the Caboolture Park Shopping corporation with interests in many area8 Centre. However, Hersfield Developments

and I am unable to express an opinion as

to whether the corporation as a whole

might be considerad to possess the

attributes referred to in interrogatory
4(a) ."

The answer does not expressly impute skill or

competence of any nature or extent to any of the persons

enquired after but, having regard to the form and nature of

the interrogatory,	I am not disposed to order Caboolture Park
to give any further answer to	it.

Interrogatory 7 asked:-

"Prior to entering into the agreement referred to

in paragraph 2 of the amended statement of claim,

did the applicant or its servants or agents
amsemm or make an estimate of the likely costs to
the applicant of the construction of -

(a) the building works provided for in the

agreement; or

(b) any Component part of the building works?"

Caboolture Park provided the blanket answer "yes" to

that interrogatory without differentiating between its two

distinct parts. It is true that part (b) does not require

the deponent in the event of an affirmative answer to specify

the component part which was the subject of an estimate of

cost by Caboolture Park. However WIQ is entitled to a

distinct affirmative or negative answer to each part of answer to that interrogatory be supplied.

Interrogatory 8 asked whether:-

"Prior to entering into the agreement referred	to
in paragraph	2 of the amended statement of claim,

did the applicant or its servants or agents

obtain from some source other than the respondent
or its servants or agents an assessment or an

estimata of the likely cost to the applicant of

the construction of -

(a) the building works provided for in the

agreement; or

(b) any component part of the building works?"

An objection was taken to answering that interrogatory

on the grounds that is irrelevant, vexatious and fishing.

As I understand the authorities, the most instructive

test of the propriety of an interrogatory is whether the same

question could be asked of the deponent in evidence-in-chief.

I am unable to see that a prior estimate, whenever obtained,

by some third party of the cost of constructing the

supermarket or some part of it can have any bearing on the

issues as pleaded between Caboolture Park and WIQ.

Accordingly, I uphold the objection to answer Interrogatory

8. Since Interrogatory 9 depends in part on an affirmative answer to Interrogatory 6, I shall only compel an answer to

that interrogatory if and insofar as an affirmative answer is

given to either part of Interrogatory 7 when a further and

better answer is given to that interrogatory.

Interrogatory 10 requires the deponent to look at

the same list of persons set forth	in	the Schedule	to
Interrogatory	4	and requires the deponent to answer	the

following questions in relation to each period listed:-

"(a) Prior to entering into the agreement

referred to in paragraph 2 of the amended

statement of claim did the person obtain any

advice in relation to the liability to the
respondent which the applicant would	or
might incur under the agreement?

(b) If 'yes' to (a), from whom was the advice

obtained and what was the advice?"

Caboolture Park has objected to answering that

interrogatory on the grounds that	it seeks details of legal
advice obtained	by Caboolture Park, is oppressive and amounts
to fishing. The only allegation discernible	in the pleadings

which makes relevant any belief by Caboolture Park in

relation to the liability to #IQ which it would or might

incur by entering into the agreement referred to in paragraph

2 of the amended statement of claim is paragraph	19 of the
amended defence and	cross-claim which pleads:-

"The Applicant knew when it entered into the

agreement montioned in paragraph 2 of the amended

Statement of Claim that the agreement did not

limit the Applicant's liability thereunder to the

amount target the contract of sum

($13,375,000.00)	or to a sum close thereto."
I do not consider that the matters enquired after	by

Interrogatory 10 are sufficiently related to that matter and

I uphold the objection to that interrogatory.

Interrogatory 13 required the deponent to look at a

document annexed to the interrogatories and to answer the

following questions with respect to it:-

Did a servant or agent of the applicant
transmit by facsimile or otherwise send an
original or copy version of the document to

the respondent's Brisbane office?

If 'yes' to (a), when was the original or

copy	of	the	document	transmitted	by
facsimile	or	otherwise	sent	to	the

respondent's Brisbane office?

Is the purpose of the document that it be

used by the applicant or its	servants or
agents as a budgetary control	in relation to

sub-contractors suppliers and for

construction projects and the like being
developed by the applicant or its servants

or agents?

if 'no' to (c), what is the purpose of the

document?"

l .

- 11 -

To thore quertions Caboolture Park has provided the

following anrrers:-

'	(i)
With rerpect to interrogatories numbered inquiriee of the Applicant, its servants,
its agent, Eersfield Developments
Corporation Pty. Ltd. and its servants or
agent. and I am unaware of the identity of
the pereon who may have sent the document. that it was a facrimile transmission sent
of the 7th day of June, 1985.

(ii)   With respect to interrogatories numbered 13(c) and 13(d) I say that the document

appear8 to be one that is used for and in

connection with the documentation of

progresr claims."

It is complained that Interrogatory 13 has not been

answered adequately because it does not deal with whether the

facsimile wae sent to WIQ's Brisbane office. However, I

regard the answer as accepting that the document was

transmitted to the destination, as well as on the date, which
appears on ita face. It is also claimed that if the deponent

had made all the enquiries of Caboolture Park servants and

agents, including Eersfield Development Corporation	Pty.
Ltd., which he was bound to	make, it is inconceivable that he

would be unable to identify the "purpose of the document".

I take the 'purpose of the document" to mean the

purpose which it8 author intended it to serve. Since the

Court is concerned for the purposes of the present motion

only with the rufficiency, and not with the truth of the

anrrerr, I COn8ider that, having #worn that he cannot

identify the author of the document, the deponent was

entitled to confine his answer to the purpose which he

considered appeared on the face of the document. I therefore

decline to order a further answer to Interrogatory 13.

By Interrogatory 14 WIQ required the deponent to look

at documents annexed to the interrogatories and marked "B",

"D", "C", "F" and "I", and to answer the following questions

in respect of each document:-

"(a) war an original or copy of the document

produced at meeting a between

representatives of the respondent and

representativer of the applicant which took

place on or before 10 September 19851

(b)	If *yes' to (a), where and on what days and between what times did the meeting(s) take place and who attended the mceting(s)?
(c) If 'yes'	to (a), in respect of each meeting

at which the original or the copy of the

document was produced, what was the

substance and effect of what was said by the

representatives of the respondent in

relation to the document?

(d) If 'yes' to (a), in respect of each meeting

at which the original or a copy of the
document war produced what was the substance
and effect of what was said to each of the
representatives of the applicant during the

discussion relating to the document?"

The following answers have been provided by Caboolture

Park:-

"(a) Yes.

(b) The meetings at which the documents were

produced took place on the 9th and 10th

September, 1985. I am informed by ran

Bennett and verily believe that the persons

who attended thoro meetings were	MC Dugan,
M r Andermon and	Mr Dempster on behalf of the

Rempondent and MC BriggS, MC Bennett and,

for a part of the time	M r Herecu on behalf
of the Applicant.

.

- 13 -

With respect to document 'B', I have been informed that the substance of the conversation between the parties

present was that the document was to

form the basis of the discussion

concerning the respondents price	for
the work.

with respect to document 'D' I am

informed by Ian Bennett and verily

believe that the subrtance of the

conversation between the parties

present was that the document

represented the Respondents offer and reprerented their price in respect of

the tender. I am further informed by

Ian Bennett and verily believe that a general discussion was entered into

concerning the appropriateness of

that offer and price.

(iii) With respect to document *Ef, I have

undertaken inquiries and am unable to

answer that interrogatory further.

(iv) with respect to document ' F r I am

informed by Ian Bennett that the

substance ofthe conversation between
the parties present was that the

document represented the terms of the

Respondents offer. I am further

informed that Hr Dugan altered the

contract price during the meeting at

which this document was discussed."

The answer does not deal at all with the document

marked "I", nor doer it indicate, assuming the deponent to be

able to say, which documents were produced on 9 September,

and which were produced on 10 September. As I have already

indicated, it doer not give the substance of a conversation

to say that "A general discussion was entered into". The

last sentence of the answer, with respect to document	"D,
should therefore be omitted.
If more were said by any representative of WIQ about that document than that it reprerented WIQ'e	offer and its
price in renpect of the tender, the substance of that

additional comment should be given. I read the answer in

renpect of document "C" as meaning that after making all due

and proper enquirien the deponent is unable to say whether
anything wan naid about that document by any representative

of WIQ.

Since, as I have said, the Court is bound to presume

for present purposes the truthfulness of that answer,	it is
not insufficient. However, the answer	in respect of document
*F" is deficient becaune	it does not clearly acknowledge that

it was a representative of WIQ who said in substance that the

document represented the terms of WIQ's offer.

If the alteration by Hr Dugan of the contract price was

something said in relation to document	"P" the substance of
what he said in making that alteration should be given.	It
will be apparent from what I have said that a further	and
better annwer must be given to Interrogatory

Interrogatory15 referred to certain meetings specified 14.

in paragraph 7 of the amended statement of claim, and asked

for the substance and effect of what was said by each of

Caboolture Park'n	representativen and W1Q.s representatives
during the dincunnion which took place	at each meeting. The

parts of the answer to that interrogatory which are

complained of are an fol1own:-

With respect to the meeting that occurred on

the 27th August, l985 I am informed that the

substance of W r Bennett's conversation

concerned an analysis of the figures shown

f o r the subtrades and	suggestions by him
with respect to some	of those subtrades.

With respect to Mr Briggs I have made

inquiries but am unable to state the

substance of any statement made by him at

that meeting.

With respect to the meeting that occurred on

the 10th day of September, 1985 I am

informed that the substance of	Mr Bennett's
conversation was that:

(i) he outlined his understanding of the

terms and nature of the contract and

stressed that the Applicant had

entered the contract upon the basis that the Respondent's final contract price would be in the order of $13.375 million and that that price would incorporate the price of all

the various trades included	in the
works.

And then in sub-paragraph 5 of the same answer it is

deposed:-

" With respect to the meeting that occurred

on the 10th day of September, 1985 I am informed that the substance of Mr Briggs'

conversation was a general discussion

concerning the figures fo r the various

trades."

For reasons which I have already indicated, it does not

give the substance of a conversation to say that it

"concerned" a certain analysis	or certain suggestions, or
that somebody "outlined his understanding"	of something. The
vice which	I have already indicated in respect of a reference
to a general discussion recurs	in sub-sub-paragraph 5 of the

answer which I have just reproduced.

I propose, therefore, to order that a further and

better answer be given to Interrogatory	15,	giving the
substance of what was said by	Mr Bennett at the meeting of	27
August 1985, the substance	of what was said	by Mr Bennett at

the meeting of 10 September 1985 about his understanding of

the terms and nature of the contract, and giving the

substance of what was said by M r Briggs at the meeting of 10

September 1985. The answer should also specify whether

anything was said at either meeting by Mr Dempster, and, if

so, the substance of that should be given.

Interrogatory16 similarly enquired after the substance

of what was said by each of Caboolture Park's and WIQ's

representative8 at certain meetings, including one which

occurred on 9 September 1985. In partial answer to that

interrogatory it was deposed in sub-paragraph (a)(3)(b) as

foll0wP:-

"With respect to the meeting of the 9th day of of
Mr Bennett's conversation was that he assessed and commented upon each of the figures for the varioua subtrades set out in the sheet tabled by

Mr Dempster."

In my view, a proper answer to that part of that

interrogatory should give the substance of the assessment and

commentary on each of the figures for the various sub-trades.

In the light of concesaions made by M r Perry on behalf

of Caboolture Park, I shall order that the further and better

answer to Interrogatory	16 should include a statement of the
substance of what was said, if anything, by each	of M r Briggs

and Hr Demprter, and, more precisely, identifying so far as

Caboolture Park is able, the sumnary sheet referred to in

paragraph 16B(b)(iii) of its existing answers to the

interrogatorier.

In the rerult, therefore, I order that Caboolture Park

within 14 days of this day file and serve further and better

anrwers verified by affidavit to interrogatories numbered

l(d)(i), 2, 3, 7, 9, if necessary, 14, 15 and 16 of the

interrogatories delivered for its examination on behalf of

WIQ on 16 December 1987.

I order that Caboolture Park pay WIp's costs of the

motion on notice dated	18 April 1988. including the costs of
thin day.

I certify that this and the sixteen

(16) preceding pages are a true copy
of the Reasons for Judgment herein

of his Honour Mr. Justice Ryan.

Associate