Eltran Pty Ltd v Westpac Banking Corporation

[1990] FCA 79

C A T C H W O R D S

PRACTICE AND PROCEDURE - interrogatories - whether respondent must answer - discretion in exercise of jurisdiction but prima facie governed by 0.16 r.6(3) - principles governing relevance of interrogatories.

Federal Court Rules 0.16, r.3

~ l t r a n PLY Limited h Ors

v. Westpac Banking Corporation & Anor

~ l d G141 of 1986

I

PIhCUS J:

BRISBANE

9 MARCH 1990

! \

!	1h THE FEDEML COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G141 of 1986
GENERAL DIVISION	1

BETWEEN: ELTRAN PTY LIMITED

First Applicant

AND: PREMAYDENA PTY LIMITED

Second Applicant

AND: CRESWELL PLACE PTY LIMITED

Third Applicant

AND: ADAM'S ROW PTY LIMITED

Fourth Applicant

AND: CARTER LANE PTY LIMITED

Fifth Applicant

hl~i BERNARD STREET PTY LIMITED

sixth Applicant

ANDi ORACA PTY LIMITED

Seventh Applicant

ANDi BINON PTY LIMITED

Eighth Applicant

AND: TREVOR RONALD KING

Ninth Applicant

ANDi WESTPAC BANKING CORPORATION

First Respondent

AND! JOHN GEOFFREY ALLPASS and
ALAN RAPHAEL TUTTLE

Second Respondents

MINUTES OF ORDER

JUDGE ~ I ~ K I ~ J G ORDER: PINCUS J .

DATE OF ORDER:	9 MARCH 1990
WHERE ~ADE:	BRISBANE

I

i

THE COURT ORDERS THAT:

1. the'respondents answer interrogatories l(a),
Z(a)(ii)i 2(b), 2(c); Z(g)(iii), Z(g)(iv),
3(c)(iv), 4 ; 5, 6(a)i 6(b) and 9;

2.     the respondents need not answer interrogatories 6(c), 7 or 10.

NOTE ? Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

I

QLD G141 of 1986

BETWEEN: ELTRAN PTY LIMITED

First Applicant

AND: PREMAYDENA PTY LIMITED

Second Applicant

AND :  CRESWELL PLACE PTY LIMITED

Third Applicant

AND :  ADAM'S ROW PTY LIMITED

Fourth Applicant

AND :  CARTER LANE PTY LIMITED

Fifkh ~pplicant

AND ! BERNARD STREET PTY LI~ITED

Sixth Applicant

AND I ORACA PTY LIMITED

Seventh Applicant

AND :  BINON PTY LIMITED

Eighth Applicant

AND :  TREVOR RONALD KING

Ninth Applicant

AND :  WESTPAC BANKING CORPORATION

First Respondent

AND	?	JOHN GEOFFREY ALLPASS and ALAN RAPHAEL TUTTLE
Second Respondents

9 MARCH 1990

REASONS FOR JUDGMENT

I	The applicants have delivered interrogatories which the respondents say they should not be required to answer; the applicants disire that the respond6nts be ordered to answer. I have treated the hearing as an application by the respondents for orders under 0.16 r.3 that they not be required to answer the interrogatories; or some of them.
~t appears to me that there is a discretion in exercising this jurisdiction, but that prima facie the exercise of that discretion is to be guided by the matters set out in 0.16 r.6(3). ~f an interrogatory does not appear to be objectionable on one of the three grounds there set out, then, prima facie, the court will order an answer.
With one exception, the respondent's bases for arguing that they not be required to answer were that the interrogatories lacked relevance - i.e. that they did not "relate to any matter in question . The more modern cases appear to take a more generous view of what is sufficiently relevant than do the older atithorities. For example; Sharpe v. Smail (1975) 49 ALJR 130, a decision ok Gibbs J., is authority for the view that inkerrorgatories "may be directed not only to matters directly in
isstik. An interrogatory cannot be described as fishing if it is isshe but also to facts which are relevant to some question in
I	directed to obtaining information as to a fact relevant to an
I
I
I	issue raised by the pleadings".
1	I
I	This principle; easy enough to state, is difficult to apply in such a case as that before me. If it is an issue on the pleadings whether allegation A is true, then one may be permitted to interrogate, not only about A directly, but about B, which
!
I	i
bears on the question whether A is true, and perhaps also about C, I
which is releGant to B. The chain of reasoning which, in the end, shows at the trial that C throws light on A may be fairly involved. without a much more intensive investigation of the matter at the hearing than time permitted, 1 could not form any conclusive view as to whether certain of the matters asked about wkre sufficiently relevant to an issue.
without objection, reference was made to discovered documentsr in the course of argument. There is authority suggesting that in determining whether interrogatories have been sufficiently answered; one should not look at extensive material: Cairns; he Law o£ Discovery (1983) p.98. The author cites Hulley v. Manifold 103 CLR 341 at 345 as one authority in support of the
that one must determine sufficiency from "the pleadings, the interrogatories and the other answers". It is not cleat to me that ~enzies J. meant to say that. His Honour rematked:

"I now torn to the pleadings to determine what other

matters at issue between the parties, because	discovery is a procedure directed towards obtaining
a proper examination and determination of those issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of inquiry which would, either advance a party's bwn case or damage that of his adversary."

The second sort of relevance - which might be called

indirect relevance - can sometimes, but not always, be determined

I	on the basis of the pleadings alone. I would not accept that the
,
!	!

court cannot obtain guidance, in determining' . relevance of interrogatori8s1 outside the "pleadings, the interrogatories and

I	the other answers". If, for example, a discovered document shows cleakly thak inquiry into a particular subject-matter is likely to bring out information relevant to matters in issue, why should the court not look at it?
The amended statement of claim as filed on 20 July 1989 ailkges, and it is admitted, that the first respondent (Westpac) advanced the first applicant (Eltran) amounts in Swiss francs and Japanesh yen, in 1984. That was done under an agreement called "the f~cility" constituted by certain identified documents - also admitted. he statement of claim then says that Westpac told Eltran that Westpac had expertise in foreign exchange dealing and the like and thak on the faith of such representations Eltran decided to take up the facility offered. The statements made by Westpac are alleged to have been misleading.
Paragraph 12 of the statement of claim alleges that loss; being set out in a schedule to the pleading.
~estpac agreed to take protective measures to reduce the risk of

Westpac's account of this, according to its pleading, will be that there wbre certain requests made to write forward exchange contractb; some of which were accepted and some not. Eltran says that wgstpac did not give effect to the instructions of Eltran as to forward exchange contracts accurately and at on-market rates. hext; ~ltran complains that there were breaches of contract. They consikt of failing to give proper advice on foreign exchange dealings and matters of that sort, in not effecting instructions

I

promptly and accurately and at on-market rates, chhrging excessive

fees and (parA.l8(j)):

"Westpac purported as and from April 1985 to take
over and effect management of the loan."

There was some discussion at the hearing before me as to the effect of the allegation just quoted. It appeared to be suggested by counsel for the applicants that it made relevant qdestion$ as to the subsequent fate of "the loan". But it is unclear to me in what way that can be relevant. The claim for damages in para.47 of the statement of claim identifies the paragraphs relied on, under the various headings; no damages are claimed under paragraph 18(j). Nor can I find any other claim for relief which bears upon that, nor is there any indication in the pleading as to what flowed from the alleged unlawful act in taking over and managing the loan. It is common ground that loans were made in two ctirrencies; the money went to Eltran. Presumably what is contemplated by para.lE(j) is that the Court will look into the question of what transactions westpac effected in relation to

money to ~ltran. But that, and indeed the whole subject of the liability which Westpac dndertook for the purposes of lending	alleged relevance of "management of the loan" up to the present
timei is left obscure by the applicantfs pleading.
To return to the question discussed above, it appears to me that it may well be necessary, in order to decide indirect relevance; to look at documents other than the pleadings. But it is to the pleadings themselves that one ultimately looks, to see whether an interrogatory can be connected to the case. ~t is my I

I

opinion that,' at least in general, the alleged management of the

I

loan up to the present time must, on the grourld of lack of
relevance, be treated as not a fit subject for interrogatories.

1 will turn now to the specific interrogatories. I will give additional reasons where it appears to me that the matter requires discussion - otherwise not. The interrogatories are those directed to the first respondent; the others were not dealt with at the hearing.

Interrogatory Number	Ruling
l(a)	Answer.

Answer (ii) but not (i).

2(b) and (c)	Answe r .
2(g)(iii) and (iv)	Answe r .
Answer: It appears to me that the amount of Westpacts liability in

respect of withholding tax is in

issue and that in determining the amount, the matter inquired about may be relevant.

4 and 5	Answer: I am doubtful about the relevance of these ir~terrogatories, but it appears to me that they probably fall within the "train of inquiry" category referred to by Menzies J. in Mulley v. Manifold
( above) .

I

i	6(a) and (b) ,	Answer.
l
6(c)	Do not answer. This appears to me to be fishing, since it is admitted
!	that there is nothing to suggest that Westpac hedged the loan in question.
Do not answer. I agree with the criticisms that the period mentioned is too wide and also that it does not relate, as Ear as one can tell, to any issue raised by the pleadings. A question along these lines about the alleged secret commissions in Schedule 3 might conceivably have been permissible, but this one is not.
Answer: it was suggested, on behalf of the respondents, that this might be oppressive, but subsequent discussion has persuaded me that it is not. It seems to me unlikely that giving an answer will involve the respondents in any extraordinary

degree of trouble.

Do not answer: assuming in favour of the applicants that there is a document suggesting that Westpac accepted a foreign exchange management role relevant to this case at some time, I cannot see in what way the pleadings make it relevant to analyse the performance of that role from August 1986 up to the present.

I should add that the Court is to make a southern judge available to try the case in August, but it is proposed that, for the time being, I will continue to be responsible for the management of the matter. Altliough I was assured that the statement of claim has been examined, there appears to me to be a curious discrepancy between what the applicantsr counsel regards it as raising and what it in fact does raise. I would not like the trial to be bedevilled by the repeated arguments as to its scope which have taken place before me. I should add that an estimate of 4-5 weeks was given for the trial, but if the evidence is confined in the issues raised by the pleading, I cannot imagine how it could take so long. I

I certify that this and the seven
preceding pages are a true copy of the
reasons for judgment herein of His Honour

Mr. Justice Pincus.