Capricorn Society Ltd v Lear

[2003] WADC 251

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CAPRICORN SOCIETY LTD -v- LEAR & ORS [2003] WADC 251

CORAM:   WISBEY DCJ

HEARD:   10 NOVEMBER 2003

DELIVERED          :   13 NOVEMBER 2003

FILE NO/S:   CIV 2696 of 2001

BETWEEN:   CAPRICORN SOCIETY LTD

Plaintiff

AND

N J & F J LEAR PTY LTD (ACN 074 722 606)
First Defendant

NATHAN JOHN LEAR
FELICITY JOY LEAR
Second Defendants

PETER EDWARD RAWLINSON
Third Defendant

Catchwords:

Practice and procedure - Appeal from order of Deputy Registrar granting leave to serve interrogatories - Relevance to matters in issue

Legislation:

Nil

Result:

Appeal allowed in part

Representation:

Counsel:

Plaintiff:     Mr G F McGrath

Second Defendants       :     Mr J M Wojtowicz

Third Defendant           :     Mr J Eastoe

First Defendant             :     No appearance

Solicitors:

Plaintiff:     Durack & Zilko

Second Defendants       :     Wojtowicz Kelly

Third Defendant           :     Jonathon Eastoe

First Defendant             :     No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. WISBEY DCJ:  By notice filed 25 August 2003 the plaintiff appeals from the decision of Deputy Registrar Hewitt delivered on 14 August 2003 giving the third defendant leave to issue interrogatories numbered 2.6, 2.7 and 2.8 in the minute of proposed interrogatories; refusing leave in respect of proposed interrogatory 2.9; and directing that the costs of the application be in the cause.  It is the plaintiff’s contention that the Deputy Registrar erred in law in giving leave to interrogate as proposed since the interrogatories were not relevant to any pleaded issue between the plaintiff and the third defendant. 

2. The plaintiff issued a writ against (inter alia) the third defendant on 17 October 2001.  The writ contained a general indorsement for moneys due and owing by the first defendant for trade credit provided by the plaintiff to it pursuant to a written agreement, and claimed that the third defendant had guaranteed the obligations of the first defendant.  The third defendant filed an appearance on 12 November 2001.  For reasons which are not relevant to this decision, a statement of claim was not filed until 23 October 2002.  The statement of claim sets out the cause of action against the first defendant, and asserts that the third defendant by deed guaranteed the obligations of the first defendant. 

3. On 7 February 2003 the third defendant filed his defence, which in essence is one of non est factum. 

4. On 27 May 2003 the third defendant issued a summons seeking leave to interrogate the plaintiff, and it was accompanied by a minute of proposed interrogatories.  The application came before Deputy Registrar Hewitt on 14 August 2003.  There was at that stage no contest as to interrogatories 2.1 to 2.5, the argument relating to interrogatories 2.6 to 2.9 inclusive, which as the Deputy Registrar observed “concerned the state of knowledge and training of the individual who presented the documents to the third defendant for signing and precisely what transpired between them at that time in the way of communication of the nature of the documents and the requirements for signature”.  He stated that he was inclined to agree with counsel for the plaintiff that the interrogatories were not relevant to any aspect of the defence of non est factum.  The Deputy Registrar noted, however, that it appeared from the papers on file that defences of misrepresentation or false and misleading conduct under the Trade Practices Act or Fair Trading Act may be available to the third defendant, and his counsel had indicated an intention to apply to amend the defence to allege such conduct.  He then stated that he “dealt with the interrogatories on the basis that such an application will be made and the defence amended in the terms that I have outlined”.  He adopted what he described as a pragmatic approach and granted leave to issue interrogatories 2.6 to 2.8. 

5. In the event the third defendant filed an amended defence on 28 August 2003.  It is not necessary for the purposes of these reasons to say more than it does appear he requires leave to do so. 

6. As appealing as it is to apply a pragmatic view to the conduct of litigation, it is also necessary to adhere to principle.  There can be no dispute that interrogatories must be confined to matters in issue at the time when application is made to administer those interrogatories.  It is not appropriate to grant leave on the basis that they will relate to matters in issue if an amended pleading is filed, because of course it is only subsequent to the filing of an amended pleading and any pleading in response thereto, that the controversy between the parties can be properly identified. 

7. Proposed interrogatories 2.6 and 2.7 are not relevant to the pleaded issues at the time of the order of the Deputy Registrar, and consequently leave should have been refused. 

8. Proposed interrogatory 2.8 is relevant to the pleaded issues and it is proper to grant leave to the third defendant to interrogate in the terms thereof.