Cerini v McLeods (A Firm)

[2002] WASC 84

CERINI -v- McLEODS (A FIRM) [2002] WASC 84

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 84
Case No:	LPA:4/2002	Heard:	20 MARCH 2002
Coram:	MASTER BREDMEYER	Delivered:	17/04/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	B
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Parties:	GRAHAM VICTOR CERINI McLEODS (A FIRM)
Catchwords:	Notice to admit facts Interrogatories Discovery
Legislation:	Supreme Court Rules, O 26 r 4
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CERINI -v- McLEODS (A FIRM) [2002] WASC 84 CORAM : MASTER BREDMEYER HEARD : 20 MARCH 2002 DELIVERED : 17 APRIL 2002 FILE NO/S : LPA 4 of 2002 BETWEEN : GRAHAM VICTOR CERINI

Plaintiff

AND

McLEODS (A FIRM)
Defendant

Catchwords:

Notice to admit facts - Interrogatories - Discovery

Legislation:

Supreme Court Rules, O 26 r 4

Result:

Application allowed in part

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr H W Dixon
Defendant : Ms L E Rowley

Solicitors:

Plaintiff : Machlins Lawyers
Defendant : McLeods

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: This is an application by the defendant by way of chamber summons dated 8 March 2002 for the following procedural orders:

"1. The Plaintiff supply further and better answers to the Defendant's Amended Notice to Admit Facts dated 6 February 2002 in accordance with the letter of request dated 1 March 2002.

2. The Plaintiff supply answers to interrogatories in accordance with the order made Plaintiff the Honourable Justice Pullin on the 11th day of February 2002.

3 The Plaintiff provide further particularisation of the documents set out in Part 2 of the First Schedule of the Discovery Affidavit of Graham Cerini sworn on 13 February 2002.

4 In default of compliance in respect of either paragraphs (1), (2) or (13) by no later than 7 days from the date of such order, the Plaintiffs application to set aside the Defendant's Terms of Engagement be struck out".

2 In relation to the first order sought, I decline to make any order for further answers to the notice to admit facts. Question 10 is asked in three parts, (a), (b) and (c), and the answer given is "Not admitted". It would have been better if each part had been separately answered, but, nevertheless, I think it is clear that the answer is a non-admission to each part of the question. Question 12 is not broken into (a), (b) and (c), but, nevertheless, contains three separate questions rolled up into one. I consider the answer is clear enough that all parts to the question are not admitted by the plaintiff. Likewise, with question 20. I consider the non-admission applies to all parts of the rolled-up question.

3 In relation to the second order sought, I will order the plaintiff to answer the interrogatories annexed to the order of Pullin J made on 11 February 2002, within 14 days. Pullin J gave leave to the defendant to administer interrogatories in the form of the interrogatories contained in the minute set out in the Schedule to the order. I have checked his handwritten fiat on our file. He endorsed a proposed minute to that effect. He made some handwritten alterations to that minute, but not to cl 4 in that minute, which dealt with interrogatories. The extracted minute, signed by one of our Registrars, follows the Judge's endorsement faithfully. The order for interrogatories has been changed from order 4 to

(Page 4)

order 7, but the wording is identical. There is some force in Mr Dixon's argument for the plaintiff that that order may have been made by mistake, because at page 12 of the transcript of the proceedings on that day before Pullin J, in which Mr Dixon and Ms Rowley appeared as counsel, the Judge said:

"All right. I'm prepared to make an order in terms of paragraph 1 and 2 and 3. I'm not prepared to grant leave to administer interrogatories at his stage. It may that an application is necessary although I notice that some of the questions in the list of interrogatories are points which were within the knowledge of McLeods and can be dealt with by McLeods in affidavits to be filed in the case. In any event, I won't make orders in terms of paragraph 4 today. I'll make orders in terms of 1, 2 and 3 and … "

4 If the order for interrogatories was made by mistake, I consider only Pullin J can correct that. But, whether the order made by Pullin J for interrogatories was made by mistake or not, I consider that leave should be given. The learned Judge gave one reason why he thought the order as to interrogatories was premature at that stage, namely, that some of the questions were within the knowledge of McLeods and could be dealt with by an affidavit from McLeods. I think, undoubtedly, another silent reason was that if Mr Cerini answered positively the notice to admit, then many of the interrogatories would be unnecessary. The present position is that Mr Cerini has answered very few of the questions in the notice to admit. He admitted in question 1 that he engaged a solicitor, Mr Corin Caine, to act for him in the period 1999 to 2000 in a compensation matter, which ultimately became CIV 2472 of 2000. He engaged Mr Caine prior to instructing McLeods on the same matter. He was asked a series of questions whether Mr Caine provided him with a solicitor-client costs agreement, in the Law Society form, and whether Mr Caine explained certain matters to him about that costs argument, and how it compared with the Supreme Court costs scale, and whether he signed that costs agreement. Mr Cerini chose not to admit any of those matters. A non-admission is not an admission or a denial. I therefore consider it just that he should be asked the same matters on oath in interrogatories. If he admits some of those matters, it will save McLeods having to prove the same matters at trial through calling Mr Caine, for example. Some of the other questions ask Mr Cerini if he had engaged solicitors on other occasions and had signed costs agreements on other occasions, and had received advice on costs matters on other occasions. I consider those questions are also relevant to the issues in this case to establish

(Page 5)

Mr Cerini's knowledge or ignorance of these matters. Given that the answers may involve some delving into his records, I think 14 days appropriate.

5 In relation to the third order sought, which asks for further particularisation of the documents for which privilege is claimed in Part 2 of the First Schedule of Mr Cerini's discovery affidavit of 13 February 2002, I decline to make this order. His description of the documents for which privilege is claimed is as follows:

"PART 2

(a) Professional communications of a confidential nature made to the Plaintiff by his solicitors or made by the Plaintiff to his solicitors for the purpose of giving legal advice.

(b) Cases for the opinion of the Plaintiffs solicitors and instructions to the Plaintiffs solicitors prepared and given in anticipation of and during the progress of these proceedings.

(c) Letters and copies of letters from the Plaintiff to his solicitors or from the Plaintiff s solicitors to the Plaintiff sent in anticipation and during the progress of these proceedings.

(d) Drafts, notes and sundry memoranda by the Plaintiffs solicitors made and given in anticipation and during the progress of these proceedings. "

6 That is in standard form in the sense that other practitioners often claim privilege in that form. I have checked the discovery affidavits on several other files. It does not really comply with O 26 r 4 of the Supreme Court Rules, which requires a list of the documents with dates and descriptions, which would enable the defendant in this case to decide whether the privilege is claimed properly or not. But, in this case, I cannot see the point of asking for further itemisation. I remind myself that Mr Cerini was represented by McLeods during this period. So, the documents for which he claims privilege must surely be on McLeods' file. I decline to make the order sought.

7 I do not think a springing order appropriate. I will make the orders outlined in the reasons above, and will order the plaintiff to pay the

(Page 6)

defendant's costs of this application on a 50 per cent basis, in any event. I have done that because it has been a partial win only for the defendant.