Cartigney Australia Pty Ltd v Borden Australia Pty Ltd

[1987] FCA 816

IN THE FEDERAT. COURT OF AUSTRALIA )

~

i )

' GENERAL	DIVISION	)	No. VG 171 of 1985
1

NEW SOUTE WALES DISTRICT REGISTRY 1

Between: CARTIGNY PTY. LIMITED

- And : BORDEN AUSTRALIA PTY.LIMITED

CORAM: Einfeld J.

PLACE: Sydney

DATE: 19 August 1987

EX TEMPORE JUDGMENT

Part of this notice of motion deals with the alleged inadequacy of the

answers the by applicant the to respondent's administered

interrogatories.

I have already dealt in argument 'with the matters raised under

interrogatories 1 and 2, and counsel for the applicant has indicated

that he will comply with and supply the information adumbrated	in.	my
observations and argument.

Paragraphs 10A and 1OC are referred to by counsel for the respondent as

having been inadequately answered. The basis of the argument, as I

understand it, is that the applicant has failed to identify the relevant

wholesale market or wholesale price for raw material as alleged in its

amended statement of claim, especially in paragraph 8 thereof.

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It is comion ground in this case that at the relevant time the

respondent~monopolised the Australian raw material supply, and that the

only alternative supply to that supplied by the respondent would .have

been and was from overseas.

The applicant has indicated that the wholesale market upon which its claim is based is the wholesale market represented by the respondent.

The applicant also alleges that the price of $8.50 per roll for the

clingwrap was to be tested in terms of fairness and the other criteria

alleged against the price charged from time to time by the respondent.

In those circumstances, and having regard to the detail given in the so-

called claims tables which the applicant has supplied in

particularisation of its'allegations, it seems to me that there is no

substance to the assertions made on behalf of the respondent that the

answers to the interrogatories 10A and 1OC are inadequate.

The next objection is taken to interrogatory ll(d) to which the

applicant has given an answer and further clarification to the

respondent's solicitor in a letter dated 12 August 1987. For the

reaasons given in argument, in my view, the answers given thus far are

adequate.

Objection is also taken to interrogatory ll(i). I find that question

not only multiple in content but almost impossible to understand. The

rephraseology of it that I put in argument was ad.:opted by counsel for

the respondent, but I must observe that that rephraseology is not what

the words actually say in the question. In terms of the rephrasing

which was adopted during argument, it seems to me that the matter has

now been adequately dealt with by the applicant in its additional

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material supplied by the letter of	12 August 1987 to which	I	have
referred.

The final objection taken is to questions 26, 21 and 32 which are all

interlocked. The confirmation required by question 26 is supplied in

the 12 August letter to which I have referred, but in respect of the

balance of that question and the two questions referred to, it seems to

me that there is no entitlement to administer interrogatories in those

terms. The respondent in its letter to applicant of 3 July sought to

argue the appropriateness of this interrogatory and expanded that

argument today by referring to some matter raised in the defence.

Whilst of course interrogatories may be administered that go to clear

and acknowledged issues in the matter, I fail to see. on any basis and

with all respect to the advocacy of Mr. Campbell, that this matter can

be interrogated about at all. It may be that the respondent will be

able to answer some partt of the applicant's claim by the argument

advanced, but that does not provide a basis for administering

interrogatories. In any event, I am unable to see how the actual

questions asked even bear on or would supply relevant material to

support the argument which	M r .	Campbell suggests will arise in the
casse.

In those circumstances and for those reasons, I decline to make the

order sought in relation to the interrogatories which have been

identified.