Cedric Constructions Pty Ltd v Elders Finance & Investments Co. Ltd

[1989] FCA 358

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG475 of 1986

)

GENERAL DIVISION )

BETWEEN:  CEDRIC CONSTRUCTIONS PTY.
LIMITED

Applicant

AND: ELDERS FINANCE AND INVESTMENTCOMPANYLIMITED

& ANOR.

Respondent

3 May 1989

REASONS FOR JUDGMENT

LOCKHART J.

This matter has a lengthy and rather complex history

which I need not relate. The purpose of this afternoon's

directions hearing is twofold: first to decide whether the first respondent's objection to the administration of interrogatorles to it by the applicant is sound, and second as to the form rn which evidence should be given at the final hearing.

On 26 February 1987 another Judge of this Court gave leave to

I shall first deal with the question of interrogatories.

each party, if it wished to do so, to file and serve interrogatories, and dlrected that verified answers be filed and served by a later date. The orders were not complied with.

On 6 April 1987 orders were made by another Judge of this Court in effect extending the time within which those interrogatories could be admrnistered and verified answers filed.

On 16 February 1989 I directed that any party could interrogate and serve draft interrogtories on the other, on or before 16 March 1989.

Between the directions of April 1987 and February this

year, a substantial number of interlocutory proceedings

- occurred. In one instance an order was made by another Judge of this Court striking out the statement of claim, subsequently a Full Court of this Court reversed that order. The latter decision was followed by the filing of a further amended statement of claim.

On 28 April 1989, after noting the first respondent's

objection to the administration of all the interrogatories that the applicant sought to administer to it, a Judge of this Court directed that the matter stand over to a date for further hearing. This is the issue which is currently before the Court.

The view I take of the matter is that I should not depart from orders of other Judges of this Court in directions hearings. However, when analysed, all that those orders have done, and I add some substantial time ago, is to give leave to parties to interrogate. Such leave necessarily is subject to the right of the relevant parties to object to the administration of any particular interrogatory or indeed all interrogatories. That is what has happened here.

The history of the events from February 1987 to April 1989 is such that the Court should now regard itself as free to look at the question of interrogatories afresh. The interrogatories which the applicant seeks to administer to the first respondent are in two batches and they are substantial in number.

Counsel have adopted the course, and I certainly have adopted the course, of dealing with the interrogatories in a global way related broadly to the issues of the case. I have formed the view that some interrogatories do not relate to any real issue in the case; some are of uncertain meaning;

meaning of interrogatories; and others will be of little, if	some require the first respondent to form judgments as to the
any, assistance to the applicant in the preparation and proof of its case or reply to the defence.
The view I take of the interrogatories, looked at globally, is that they should not be allowed to be administered. However, the case is a complicated one, and in view of what I have been told by counsel for the applicant there may well be issues which the applicant will seek to prove and which relate to matters peculiarly or solely within the knowledge of the first respondent. These issues may be essential to the proof of the applicant's own case or essential to its answer to the first respondent's defence.
I am concerned, given the history of the matter, as no doubt the parties are, to ensure that the most expeditious and sensible course is adopted to satisfy that legitimate demand, if it exists, of the applicant. Suffice to say that, for present purposes, I decline to allow the applicant to administer the interrogatories sought on the first respondent.
I direct that if any party seeks to interrogate any other party, except as between the first and second respondents themselves, or to obtain admissions of facts or documents with respect to any matter in issue, that the party interrogating or serving a notice to admit matters peculiarly
otherwise not within the knowledge of the party seeking to in the knowledge of the party interrogated or served or interrogate or serve shall serve upon the party concerned
draft interrogatories or draft notices to admit on or before 23 June 1989. I further direct that on or before 13 July 1989 each party that has received a document of the type referred to above shall supply draft answers.
The evidence in the matter should be primarily by oral evidence but lists of witnesses when it is proposed to call together with a brief outline of heads of evidence should be handed to other parties. Expert evidence should be given in the form of reports to be verified by affidavit and given to the other parties. To the extent that this is not possible the situation may be reviewed by the Court.
The matter is adjourned to 9.30 a.m. on 14 July 1989 for further directions.
The Court notes that the applicant is not required to answer interrogatories set out in the second notice to admit interrogatories served on the applicant by the second respondent which, for the purposes of identification, have been initialled and dated by me and placed with the papers.
As to costs, costs of today shall be costs in the proceeding except as to the costs of preparation of the interrogatories served by the applicant on the first
will be the first respondent's costs in the proceeding. respondent on 22 April 1987 and 28 April 1987 where costs I certify that this and the preceding

four (4) pages are a true copy of the reasons for judgment herein of the Honourabl# Mr. Justice Lockhart.

Date: 3 flay 1989