Deputy Commissioner of Taxation for the Commonwealth of Australia v Robinswood Pty Ltd
[2003] WASC 76
DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA -v- ROBINSWOOD PTY LTD [2003] WASC 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 76 | |
| Case No: | CIV:2300/1997 | 20 MARCH 2003 | |
| Coram: | WHEELER J | 9/04/03 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Orders made in respect of proposed interrogatories | ||
| B | |||
| PDF Version |
| Parties: | DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA ROBINSWOOD PTY LTD (ACN 008 844 488) MADDELIENE CARATTI VENETIAN NOMINEES PTY LTD GRANGEFIELD HOLDINGS PTY LTD EXCELCO MINING PTY LTD MINE EXC PTY LTD |
Catchwords: | Interrogatories Turns on own facts |
Legislation: | Nil |
Case References: | Barbarian Motor Cycle Club Incorporated v Koithan (1984) 35 SASR 481 Deputy Commissioner of Taxation v Robinswood Pty Ltd (2001) 24 WAR 284 Deputy Commissioner of Taxation v Robinswood Pty Ltd [2003] WASC 1 Robinswood v Deputy Commissioner of Taxation [2002] WASCA 141 Sneddon v Morro [1958] Qd R 494 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROBINSWOOD PTY LTD (ACN 008 844 488)
Defendant
- Plaintiff
AND
MADDELIENE CARATTI
Defendant
- Plaintiff
(Page 2)
- AND
VENETIAN NOMINEES PTY LTD
Defendant
- Plaintiff
AND
GRANGEFIELD HOLDINGS PTY LTD
Defendant
- Plaintiff
AND
EXCELCO MINING PTY LTD
Defendant
- Plaintiff
AND
MINE EXC PTY LTD
Defendant
(Page 3)
Catchwords:
Interrogatories - Turns on own facts
Legislation:
Nil
Result:
Orders made in respect of proposed interrogatories
Category: B
Representation:
CIV 2300 of 1997
Counsel:
Plaintiff : Mr S Owen-Conway QC & Mr R E Lindsay
Defendant : Mr J A Davies
Solicitors:
Plaintiff : Australian Government Solicitor
Defendant : Dawson Davies
CIV 2318 of 1997
Counsel:
Plaintiff : Mr S Owen-Conway QC & Mr R E Lindsay
Defendant : Mr J A Davies
Solicitors:
Plaintiff : Australian Government Solicitor
Defendant : Dawson Davies
(Page 4)
CIV 2320 of 1997
Counsel:
Plaintiff : Mr S Owen-Conway QC & Mr R E Lindsay
Defendant : Mr J A Davies
Solicitors:
Plaintiff : Australian Government Solicitor
Defendant : Dawson Davies
CIV 2321 of 1997
Counsel:
Plaintiff : Mr S Owen-Conway QC & Mr R E Lindsay
Defendant : Mr J A Davies
Solicitors:
Plaintiff : Australian Government Solicitor
Defendant : Dawson Davies
CIV 2322 of 1997
Counsel:
Plaintiff : Mr S Owen-Conway QC & Mr R E Lindsay
Defendant : Mr J A Davies
Solicitors:
Plaintiff : Australian Government Solicitor
Defendant : Dawson Davies
(Page 5)
CIV 1126 of 1998
Counsel:
Plaintiff : Mr S Owen-Conway QC & Mr R E Lindsay
Defendant : Mr J A Davies
Solicitors:
Plaintiff : Australian Government Solicitor
Defendant : Dawson Davies
Case(s) referred to in judgment(s):
Barbarian Motor Cycle Club Incorporated v Koithan (1984) 35 SASR 481
Deputy Commissioner of Taxation v Robinswood Pty Ltd (2001) 24 WAR 284
Deputy Commissioner of Taxation v Robinswood Pty Ltd [2003] WASC 1
Robinswood v Deputy Commissioner of Taxation [2002] WASCA 141
Sneddon v Morro [1958] Qd R 494
Case(s) also cited:
Nil
(Page 6)
1 WHEELER J: These are my rulings in relation to the plaintiff's and the defendants' respective applications for leave to administer interrogatories. I do not propose to set out the background to the action in which the applications are made. I have described that in earlier decisions, particularly Deputy Commissioner of Taxation v Robinswood Pty Ltd (2001) 24 WAR 284. To the extent necessary, those reasons should be read together with the reasons which I now give.
2 There are a number of broad principles relating to interrogatories which are applicable to this application. They are usefully discussed in Barbarian Motor Cycle Club Incorporated v Koithan (1984) 35 SASR 481. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue. However, there are important limitations. Interrogatories will not be permitted if they are directed only to an attempt to ascertain the nature of the opponent's evidence or the names of witnesses, nor if merely "fishing". Importantly, the interrogatory which it is sought to administer must be "sufficiently material" at the stage at which it is administered. Whether it is so is a discretionary judgment to be made in the light of the purposes for which interrogatories are allowed, and involves a balancing of the cost and inconvenience involved in administering and answering interrogatories against such contribution as the answers may make to the fair disposal of the proceedings and the saving of costs.
3 I also accept the submission made by Mr Davies, counsel for the defendants, to the effect that in modern procedure, where there is a broad disclosure pre-trial of a witness's evidence, interrogatories do not perhaps have the function they once did. Nevertheless, as Mr Davies submits, they are of use if they save time at trial and should be permitted wherever they appear likely to be of "genuine utility".
4 In the circumstances of this case, it is important to my evaluation of the interrogatories sought to be administered, to consider the present state of disclosure of facts between the parties, and my appreciation of the way in which the plaintiff's case is framed. Although they were not required to do so, and although the form of the pleading is, as I observed on earlier occasion, unusual, substantial portions of the plaintiff's "schedules" which effectively form part of its statement of claim, contain very detailed reference to the evidence upon which the plaintiff will seek to rely to make out its case. At the hearing of this application, Mr Owen-Conway QC for the plaintiff, demonstrated for me precisely how the hyperlinking of the material which has been made available in
(Page 7)
- electronic form points one to the precise documents and evidence which are relevant to an alleged employee. As I noted on another occasion, because of the very large number of alleged employees, the plaintiff's case rests only in part upon direct evidence in relation to the conditions of employment of those persons, and even then evidence is adduced as to conditions of employment in respect of some but not all of the alleged employees. My understanding is that the court will be asked to draw inferences as to the existence of contracts of employment, from patterns which emerge from the documents and from the evidence.
Interrogatories on behalf of corporate defendants
5 I turn first to the minute of draft interrogatories on behalf of the corporate defendants dated 17 February 2003.
Interrogatory 1
6 This seeks to know what facts, other than those pleaded in the claim and particulars, are relied upon to establish that each of the named persons is a natural person. The facts pleaded in the statement of claim and particulars are the material facts upon which the plaintiff relies. It appears to me that the call for additional facts seeks only to ascertain what evidence the plaintiff may rely upon at trial, and is not permissible.
Interrogatories 2 - 9 inclusive
7 These are all directed towards the contract of employment relationship of persons listed in schedules A and C with their alleged employers. The first difficulty with them appears to be that they are based on an assumption as to how the plaintiff seeks to make out its case - indeed, an assumption as to how the plaintiff must make out its case - which is incompatible with the reasons which I gave in Deputy Commissioner of Taxation v Robinswood Pty Ltd (2001) 24 WAR 284, dealing with the statement of claim in this matter (pars 42 and 48). Further, in relation to these issues, the Full Court expressed the view in Robinswood v Deputy Commissioner of Taxation [2002] WASCA 141 at [15] and [16] that the plaintiffs' claim "has been particularised as comprehensively as it is possible to do". In my view these interrogatories are unnecessary and oppressive. The fullest particulars of these matters have already been provided. The matters are in any event within the knowledge of the corporate defendants. It appears to me that the most that could be obtained from answers to such interrogatories would be a
(Page 8)
- further indication to the defendant of the way in which the plaintiff will seek to establish the legal sufficiency of the evidence which is already known to the defendant, to make out the allegations in the statement of claim.
Interrogatory 10
8 This seeks to ascertain whether any of the persons listed in the schedules as employees derived income from the operation of a business, and in which relevant tax years they did so, and whether in relevant tax years they disclosed to the plaintiff income derived from a defendant and how it was described. In relation to these matters it appears to me at present that the plaintiff's submission is correct; that is, at the end of the day it matters not whether income was derived from other sources. The relevant question is whether, in relation to payments alleged to be made by the defendants, those persons are persons who were in receipt of wages or salary. The plaintiff's case in relation to that matter is in my view sufficiently particularised for the reasons which I have already given, and it appears to me to be both oppressive and of either no or very peripheral relevance to require any answers to interrogatory 10. I am advised by Mr Owen-Conway QC that all of the tax information of relevance has in any event been discovered.
Interrogatory 11
9 This seeks an admission from the plaintiff as to the identity or otherwise of acts and omissions included in the overt acts alleged against Madeliene Caratti and her co-accused at the criminal trial, with the allegations in the present case. Those, it appears to me, are questions of law which would be for me to determine, should they become relevant. How they could be of relevance does not immediately appear, having regard to my decision in Deputy Commissioner of Taxation v Robinswood Pty Ltd [2003] WASC 1.
Interrogatory 12
10 This seeks admissions as to the identity or otherwise of persons referred to in affidavits in the Dyonna proceedings (the nature of which I explained in [2003] WASC 1) and persons named in the schedules. It appears to me that the question there asked is a question of inference for me, rather than admission by the plaintiff.
(Page 9)
Interrogatory 13
11 This seeks admissions as to the ownership of certain farming properties. The identical question is the subject of interrogatories delivered by the plaintiff to the defendants. These are matters within the knowledge of the defendants rather than the plaintiff, and I see no utility in an interrogatory directed to the plaintiff in respect of these issues.
Interrogatories 18 - 23
12 These interrogatories seek admissions in relation to property development or earthmoving businesses said to be owed by two of the defendants. The relevance is said to be that the identity of the proprietor of the business in each case is "relevant to the identity of the putative employer". The precise relevance does not appear from either the statement of claim or, importantly, from any averments made in the amended defence of the defendants. In any event, these would appear to me to be matters peculiarly within the defendants' knowledge. I do not see any utility in requiring the plaintiff to answer these interrogatories.
Conclusion - corporate defendants' proposed interrogatories
13 In my view the corporate defendants should not be permitted to administer the proposed interrogatories.
Minute of draft interrogatories on behalf of Maddeliene Caratti
Interrogatories 1 - 3
14 These deal with questions as to what facts might be relied on by the plaintiff to establish that Madeliene Caratti became a business partner of Sergio Caratti. In my view all of these seek in essence to establish what evidence would be relied upon in relation to this issue, assuming it to be a relevant issue. However, some aspects of the interrogatories are in any event misconceived, since the requirement to prove an employment relationship does require proof that payments were made to employees of the partnership alleged, but does not require proof of any particular ongoing business relationship between Sergio and Madeliene Caratti.
(Page 10)
Interrogatories 4 - 15
15 These duplicate interrogatories 2 - 11 of those proposed to be delivered on behalf of the corporate defendants, and I take the same view in relation to them.
Interrogatories 16 and 19 - 26
16 These all seek admissions relating to the Dyonna proceedings. They seek admissions, for example, that the plaintiff commenced those proceedings, and as to what was alleged in those proceedings, and as to what evidence was produced in those proceedings or what the effect of that evidence might have been. These are all, it appears to me, matters of record. The fact of the commencement and course of the proceedings, and the existence of evidence filed on behalf of the plaintiff in those proceedings, is all material which is able to be ascertained from the Supreme Court file. The plaintiff disputes the relevance of much of this material in any event, asserting that the res judicata and estoppel arguments which the defendant Maddeliene Caratti seeks to raise in relation to the Dyonna proceedings can relate only to findings and determinations in proceedings and not to the affidavit or other evidence which forms part of the adversarial process. Assuming the question of relevance in favour of the defendant, it nevertheless appears to me that these are not properly the subject of interrogatories. If the defendant seeks to rely upon material which is a matter of record, that could be produced and proved in the usual way. The effect of that material, and the inferences to be drawn from it, are in any event matters for determination at trial and not matters for admission.
Interrogatories 17 and 18
17 These also relate to Dyonna and simply seek admissions as to whether or not Dyonna was at any time a registered group employer and, if so, between what dates it was so registered. These are matters of the plaintiff's records and it appears to me that they are appropriate for interrogatories.
Interrogatory 27
18 This seeks a particular admission in relation to a person named Wayne Davies. The question is whether the Wayne Davies referred to in the Dyonna proceedings is identical to a person listed in the schedules in
(Page 11)
- the present proceedings. These second of the questions relates to all of the persons named in interrogatory 26, and asks whether Dyonna made any tax instalment deductions in respect of them during four identified tax years. I have commented in my earlier reasons ([2003] WASC 1) on the potential difficulties of the argument which the defendant seeks to make out in relation to the Dyonna proceedings. However, I have held that that issue is arguable; the interrogatory may be of relevance to that issue; it seeks answers in respect of matters which by reason of confidentiality provisions in the taxation legislation the defendant might otherwise be unable to ascertain. It therefore appears to me appropriate to order that the defendant Maddeliene Caratti have leave to administer this interrogatory.
Interrogatory 28
19 This seeks certain admissions in relation to the company Keystyle Holdings Pty Ltd. I was advised during the course of argument that the relevance of this question is that that company was the "successor" to Dyonna. It seeks information which can readily be obtained from the plaintiff's records, and should in my view be able to be administered.
Interrogatory 29
20 This interrogatory seeks two types of admissions. One is as to whether named persons were issued group certificates by Keystyle during two tax years. The other seeks an admission as to whether or not each person was an "employee" of Keystyle during the relevant tax years. As to the former question, I am advised that the fact that Keystyle did issue group certificates to named persons is a matter of documentary record about which full discovery has already been given. It is not in my view the function of interrogatories to duplicate matters already appropriately dealt with by discovery or otherwise. The question of whether persons were employees of Keystyle appears to me again to be a question of law and of inference from facts rather than a question of fact about which an admission can appropriately be made.
Interrogatory 30
21 This seeks certain admissions in relation to whether persons worked at named farms during particular tax years. These are the farms about which the plaintiff seeks to interrogate the defendant. They are matters, it appears to me, peculiarly within the knowledge of the defendants. It
(Page 12)
- appears to me to be the type of interrogatory considered to be objectionable in Sneddon v Morro [1958] Qd R 494 which "is designed not to ascertain facts but to ascertain what the other party says are the facts" and is not in my view a proper subject for interrogatories.
Interrogatories 31, 32 - 37
22 In my view these should not be permitted. They are in effect identical to interrogatories 13 and 18 - 23 in the minute on behalf of the corporate defendants, with which I have already dealt.
Conclusion
23 In my view the defendant Madeliene Caratti should be permitted to administer the interrogatories numbered 17, 18, 27 and 28 in her minute.
The plaintiff's interrogatories
24 On 7 February 2003 I dealt with a proposed interrogatory seeking similar information which I held however to be objectionable because of a lack of clarity. In my view the plaintiff's present proposed interrogatories dated 20 February 2003 have cured the defects which I then identified. I note that the proposed questions 8 and 9 somewhat expand the information now sought, by seeking admissions in relation to businesses carried on on those farms. In my view answers to those interrogatories could assist the plaintiff proving its case by demonstrating that persons working on those farms or for those businesses were employees of Robinswood Pty Ltd. It is my view that the plaintiff should have leave to administer the interrogatories annexed to its chamber summons filed 21 February 2003.
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