Echo Group Corporation Pty Ltd v Rise Energy Services Pty Ltd
[2022] VCC 564
•3 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-04931
| Echo Group Corporation Pty Ltd (ACN 158 561 927) | Plaintiff |
| v | |
| Rise Energy Services Pty Ltd (ACN 152 290 278) | Defendant |
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JUDGE: | Her Honour Judge Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers | |
DATE OF RULING: | 3 May 2022 | |
CASE MAY BE CITED AS: | Echo Group Corporation Pty Ltd v Rise Energy Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 564 | |
RULING
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Subject:Interrogatories
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:Piscioneri v Brisciani & Reardon [2017] ACTSC 237; Adams v Dickeson [1974] VR 77; Ryan v Federal Capital Press (1990) 101 FLR 396; Kalgeracos v Bomba [2009] NSWSC 1271; Boyle v Downs [1979] 1 NSWLR 192; Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70; Seidler v John Fairfax and Sons Ltd [1983] 2 NSWLR 390; Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1912) 13 CLR 101; American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193; Fiduciary Ltd v Morningstar Research Pty Ltd [2007] NSWSC 432; Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Jones | Robert James Lawyers |
| For the Defendant | Sparke Helmore Lawyers |
HER HONOUR:
Introduction
1On 29 January 2019, the plaintiff (“Echo Group”) and the defendant (“Rise Energy”) entered into an agreement pursuant to which Rise Energy agreed to provide services including the installation of products including lights, solar products, energy management products, PFC and battery storage at 12 Polaris Road, Mickleham (“the Premises”).
2In its statement of claim, Echo Group alleged that a fire occurring on 27 April 2020 at the Premises (“the Incident”) was caused by Rise Energy’s works. Rise Energy denies liability.
3On 8 April 2022, Rise Energy applied for leave to administer interrogatories in this matter. Echo Group opposes Rise Energy’s application and filed submissions on 21 April 2022 detailing objections to Rise Energy’s application.
Proposed Interrogatories
4The interrogatories proposed by Rise Energy include, inter alia:
(a) whether Echo Group performed any works at the Premises in the 12 months leading up to 27 April 2020 and if yes, details of the works;
(b) whether Echo Group engaged or contracted a party other than Rise Energy to perform works at the Premises in the 12 months leading up to 27 April 2020;
(c) whether Echo Group noticed any defects or non-compliance in the D’Orsogna project (as described in paragraph 6 of the statement of claim dated 18 November 2021);
(d) whether an electrical inspector from Energy Services Victoria attended the property after 27 April 2020 to inspect the fire, and if so, what defects and non-compliance were identified;
(e) whether it was Echo Group’s responsibility to provide materials for the project, and if so, what materials it provided;
(f) whether Echo Group received any complaints about the project prior to 27 April 2020;
(g) whether it was Echo Group’s responsibility to notify Rise Energy in writing of any quality of workmanship warranty claims within 5 business days of receiving a complaint;
(h) what dates each defect in paragraph 11 of Echo Group’s statement of claim dated 18 November 2021 was identified or discovered and first relayed to Rise Energy;
(i) why Echo Group delayed in preparing the Anova Renewable Energy Inspection Report dated 26 November 2020 (“Anova Report”);
(j) whether a new Certificate of Electrical Safety been issued at the Premises since the Incident;
(k) marking the location of the fire on annexed photographs.
Submissions
5Rise Energy provided submissions on interrogatories filed on 8 April 2022, submitting that it required further information in relation to Echo Group’s allegations in relation to the Incident and stating, inter alia, that:
(a) discovery served by Echo Group on 30 March 2022 was insufficient for an independent expert to be briefed on preparing a report on liability and the alleged defects;
(b) the two documents relied upon by Echo Group as evidence in support of Rise Energy’s liability (the Anova Report and the email from Scott Beesley dated 14 May 2020) are not compliant with Clause 3 of the Expert Witness Code of Conduct; and
(c) to date, Echo Group has not provided any further and better particulars.
6In its submissions filed on 21 April 2022, Echo Group argues that there are no exceptional circumstances warranting the administration of interrogatories and that Rise Energy does not explain how the proposed interrogatories could be said to facilitate the expeditious resolution of the dispute.
7Echo Group submits that:
(a) it is not a purpose of interrogatories to elicit evidence;
(b) the defendant has neither adduced any evidence as to how discovery is said to be insufficient nor detailed any requests in respect of further discovery, and that this ought to be addressed between the parties in the usual fashion pursuant to their ongoing discovery obligations;
(c) there is no merit in Rise Energy’s argument that the two documents relied upon by Echo Group as evidence in support of Rise Energy’s liability are not compliant with Clause 3 of the Expert Witness Code of Conduct – expert evidence as to damages and liability is not due until 10 June 2022;
(d) any complaint the defendant has about the provision of further and better particulars (which were not due at the time the defendant’s submissions were filed), ought to be pressed in the usual fashion, noting that authorities establish that interrogatories are not a substitute for particulars of pleadings.
(e) the proposed interrogatories are not necessary and many of the matters the subject of the proposed interrogatories are not proper matters for interrogatories:
(i)several are directed to exploring whether Echo Group or any other party undertook works at the premises prior to the defendant performing works at the premises — matters which do not arise on the pleadings and amount to fishing;
(ii)several are directed to exploring when defects or non-compliance were first noticed by Echo Group — matters which again amount to fishing;
(iii)several are directed to exploring why Echo Group did not obtain a report until several months after the incident — matters which again amount to fishing; and
(iv)several are improper insofar as they are directed to ascertaining Echo Group’s opinion as to the proper interpretation of the contract.
8In its reply submissions dated 27 April 2022, Rise Energy states that it is necessary to interrogate Echo Group to fully understand the case that Echo Group intends to make out. Rise Energy submits that the interrogations will assist to narrow certain issues in dispute and facilitate the expeditious resolution of the dispute in accordance with s14 of the Commercial Division Practice Note and save both parties the time and expense by reducing the amount of oral and documentary evidence which would otherwise have to be adduced at a trial.
9Rise Energy further responds to Echo Group’s submissions with the following:
(a) Echo Group’s claim has not been properly pleaded nor has sufficient evidence been provided in support of Echo Group’s claim and that there is no evidence to demonstrate that Rise Energy’s works were defective, that a fire occurred and that Rise Energy’s defective works caused the fire.
(b) the interrogatories are directly relevant to the fact in issue and are relevant for the following reasons:
(i)the cause of the alleged fire may have been related to works performed by the plaintiff or another party engaged by the plaintiff;
(ii)details of the works performed by the plaintiff or another party engaged by the plaintiff are relevant to the issue of whether the alleged defects were caused as a result of the defendant’s work or some other works.
(c) It is not incumbent on Rise Energy to adduce evidence that Echo Group’s discovery is insufficient. Rise Energy has articulated in its submissions dated 7 April 2022 the reasons for why Echo Group’s discovery is insufficient.
(d) The expert evidence provided by Echo Group is insufficient as it does not comply with the Expert Witness Code of Conduct.
(e) Rise Energy is still waiting on provision of further and better particulars of the pleading — the interrogatories proposed in Rise Energy’s application are made in addition, not substitution, to the request for particulars.
(f) Echo Group has the right to object to answer a specific interrogatory if there are proper grounds pursuant to r30.07 of the County Court Civil Procedure Rules 2018.
Analysis
10Pursuant to s14 of the Commercial Division Practice Note, leave to administer interrogatories will only be granted in exceptional circumstances and if the Court is satisfied that the administration of interrogatories will facilitate the expeditious resolution of the dispute.
11Associate Justice McWilliam states in Piscioneri v Brisciani & Reardon[1] that the object of interrogatories is to enable a party to obtain discovery of material facts in order to support or establish proof of that party’s case, or to find out the case to be met, or to destroy or damage the opposing case.[2] The general intention is that interrogatories be administered if necessary and if they serve a useful purpose.[3]
[1] [2017] ACTSC 237 at [35].
[2] Adams v Dickeson [1974] VR 77 at 79.
[3] Ryan v Federal Capital Press (1990) 101 FLR 396.
12Rise Energy relies on Justice Brereton’s ex tempore judgment in Kalgeracos v Bomba in which his Honour states:[4]
“the fundamental purpose of interrogatories, which are a form of discovery, is to obtain admissions or particulars about material facts in the proceedings. They are not to elicit evidence, nor to serve as a means of cross-examination”.
[4] [2009] NSWSC 1271.
13His Honour refused leave to administer the 88 interrogatories in that case. His Honour held that some were plainly unnecessary and went to minor matters or were matters not properly the subject of interrogatories but going to credit and almost all were in the nature of cross-examination on the plaintiff’s affidavit. Taken as a whole, the interrogatories were not necessary, and were vexatious and oppressive.
14The defendant’s application here is for leave to administer 18 interrogatories and cannot be said to be oppressive, unlike the number of interrogatories sought in Kalgeracos v Bomba or the 390 interrogatories sought in Piscioneri v Brisciani & Reardon.[5]
[5] [2017] ACTSC 237 at [38].
15In the commercial court, interrogatories are only permitted in exceptional circumstances with leave. Further, in order to determine whether interrogatories are appropriate, a court will examine the proposed interrogatories to decide whether they are relevant, proper and necessary having regard to the fair and expeditious conduct of the proceeding.
16“Necessary” in this context has been held to mean “necessary for the disposing fairly of the case or matter” and “necessary in the interests of a fair trial”.[6] The proposed interrogatories must therefore relate to the issues in the trial. It is relevant to consider whether the proposed interrogatories relate to matters which can be proved by other evidence.
[6] Boyle v Downs [1979] 1 NSWLR 192 at 204–5.
17Interrogatories have been held to be “necessary and allowed” where they related to matters, proof of which would be difficult or expensive.[7]
[7] Lang v Australian Coastal Shipping Commission [1974] 2 NSWLR 70.
18Interrogatories must relate to a question in the proceeding between the parties,[8] meaning an issue or matter of fact for determination by the court raised by the pleadings. The interrogatory relates to a question if it has some association or connection with the question. An interrogatory may extend to any facts the existence or non-existence of which is relevant to the existence or non-existence of facts directly in issue.[9]
[8] Seidler v John Fairfax and Sons Ltd [1983] 2 NSWLR 390.
[9] Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1912) 13 CLR 101 per Griffith CJ at 108–110.
19It is not permissible to request interrogatories that are properly a request for further and better particulars.
20Interrogatories that are directed at ascertaining what documents are available to be discovered are impermissible.[10] Such an interrogatory is improper for lack of precision, as well as being in the nature of “fishing”.[11]
[10] American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 at 196; Fiduciary Ltd v Morningstar Research Pty Ltd [2007] NSWSC 432 at [24].
[11] Piscioneri v Brisciani & Reardon [2017] ACTSC 237 at [37].
21The applicant must show that the order for interrogatories is necessary at the time of the application.[12] In the present case, there has not been a response to the request for further and better particulars, expert reports have not been filed at the time of the application and there are ongoing discovery obligations between the parties. In those circumstances, in my view, the defendant has not shown that the order for interrogatories is necessary at this time for the fair disposal of the case or matter.
[12] Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46.
22I accept the submissions made by Echo Group that:
(i)proposed interrogatories 1 to 4 are directed to exploring whether Echo Group or any other party undertook works at the premises prior to the defendant performing works at the premises which are matters that do not arise on the pleadings and amount to fishing;
(ii)proposed interrogatories 5 and 6 several are directed to exploring when defects or non-compliance were first noticed by Echo Group which amount to fishing;
(iii)proposed interrogatories 7 to 8 and 15(a) and (b) are directed to exploring why Echo Group did not obtain a report until several months after the incident which amount to fishing; and
(iv)proposed interrogatories 9 and 13 are improper insofar as they are directed to ascertaining Echo Group’s opinion as to the proper interpretation of the contract. These interrogatories are unnecessary and irrelevant.[13]
[13] Piscioneri v Brisciani & Reardon [2017] ACTSC 237 at [37].
23In relation to proposed interrogatory 15(c), in my view, it is not appropriate to seek elaboration of the allegation in the pleading of Echo Group where such information could be obtained by means of a request for further and better particulars of paragraph 12 of the statement of claim in relation to the Anova Report.[14]
[14] See, for example, paragraph 1.5 of the request for further and better particulars of the defendant’s letter dated 18 March 2022.
24In order to ascertain whether a new certificate of electrical safety has been issued at the Premises since the Incident (proposed interrogatory 16), the usual discovery process is appropriate. That is, discovery is the proper way to ascertain what documents are or have been in the possession of Echo Group.
25Proposed interrogatories 11 and 12 in relation to whether Echo Group received any complaints about the Project and the details of who made the complaints (if any) are not forensically relevant to proof of the plaintiff’s claim and amount to fishing.[15]
[15] Piscioneri v Brisciani & Reardon [2017] ACTSC 237 at [37].
26Proposed interrogatories 14, 17 and 18 are also in substitution of a request for further and better particulars in relation to the matters referred to in the relevant paragraphs of the statement of claim.[16]
[16] See, for example, paragraphs 1.1 and 1.7 of the request for further and better particulars of the defendant’s letter dated 18 March 2022.
Conclusion
27For the foregoing reasons, the defendant’s application for leave to administer interrogatories in the form dated 8 April 2022 is dismissed.
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Certificate
I certify that these 9 pages are a true copy of the ruling of her Honour Judge Burchell delivered on 3 May 2022.
Dated: 3 May 2022
Andrea Ko
Associate to Her Honour Judge Burchell
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