Espanol Holdings Pty Ltd v Banning - [2001] WASC 362

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ESPANOL HOLDINGS PTY LTD & ANOR -v- BANNING & ORS [2001] WASC 362

CORAM: MASTER BREDMEYER

HEARD: 30 NOVEMBER 2001

DELIVERED : 6 DECEMBER 2001

PUBLISHED : 28 DECEMBER 2001

FILE NO/S: CIV 1172 of 1999

BETWEEN: ESPANOL HOLDINGS PTY LTD
First Plaintiff
MARIA MICHELLE ORTIN
Second Plaintiff
AND
MARTIN PAUL BANNING
First Defendant
DOUGLAS FRANK BREWER
Second Defendant
ESCON LANE PTY LTD
Third Defendant
JOHN ANDREW MILLER
Fourth Defendant
COUNTRYWIDE HOME LOANS PTY LTD
Fifth Defendant
GEORGE JASPER
Sixth Defendant
DON CAMPBELL-SMITH
Seventh Defendant

Catchwords:

Interrogatories - Leave to serve interrogatories - Interrogatories can follow a notice to admit facts

Legislation:

Rules of the Supreme Court, O 32

Result:

Application allowed in part

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr B R Gannon
Second Plaintiff            :     Mr B R Gannon
First Defendant             :     Mr K J O'Toole
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance

Solicitors:

First Plaintiff                :     Solomon Brothers
Second Plaintiff            :     Solomon Brothers
First Defendant             :     K J O'Toole & Associates
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance

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

Dalecoast v Monisse [1999] WASCA 103

Case(s) also cited:

Nil

MASTER BREDMEYER: This is an application by the plaintiffs for leave to issue interrogatories against various defendants. These reasons refer to the application for leave to administer interrogatories against the first defendant only. The application poses interesting questions as to the relationship between a notice to admit facts under O 32 of the Rules of the Supreme Court and interrogatories. I have had the benefit of legal argument on these issues from these parties.
On 20 July 2001 the plaintiffs gave a notice to admit facts to the first defendant. The notice asked 308 questions with a number divided into sub‑questions. There are many documents attached.
The first defendant's reply to that notice is dated 16 October 2001. It answers all questions. Many questions have been "admitted". Some have been "not admitted". Some have been "denied" and a few questions have been answered with a sentence of explanation.
Interrogatories were drafted before the reply to the notice to admit facts was received. When the answers were received the plaintiffs' solicitor revised the interrogatories by reducing the number of questions asked. The set of interrogatories before me is the amended minute of plaintiffs' interrogatories to the first defendant of 21 November 2001. Forty‑eight questions are asked, some of which are divided into sub‑questions. In the course of argument a number of those 48 questions were withdrawn. It would have been better if the case management orders had allowed an interval after the notice to admit facts and before the interrogatories. An interrogatory need not be asked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WASC 362
Decision Date

CaseChat Overview and Summary

Espanol Holdings Pty Ltd and Maria Michelle Ortin, the plaintiffs, sought leave to issue interrogatories against various defendants, with the first defendant, Martin Paul Banning, being the focus of this summary. The application was concerned with the procedural relationship between a notice to admit facts and interrogatories, specifically whether interrogatories could follow a reply to a notice to admit facts. The plaintiffs had previously served a notice to admit facts on the first defendant, which he answered by admitting, denying, or providing explanations for various questions. After receiving these responses, the plaintiffs amended their interrogatories, which were then the subject of the current application. The court had to determine whether it was appropriate for interrogatories to follow a reply to a notice to admit facts, and if so, under what circumstances.

The court considered several legal principles in reaching its decision. It noted that interrogatories are not limited to facts directly in issue but extend to facts relevant to the facts in issue, applying the "Peruvian Guano" test. The court disagreed with the interpretation that a notice to admit facts must always precede interrogatories, citing the specific facts of Dalecoast v Monisse as not establishing a general rule. The court held that interrogatories could follow a reply to a notice to admit facts if the reply did not admit the fact in question. The court also ruled that denials in a reply to a notice to admit facts could be treated as denials on instructions, barring interrogatories on the same matter unless they introduced new information. The court further addressed the quantity and quality of the interrogatories, deciding to allow most of them despite their faults, to narrow issues at trial and save costs.

The court granted the application in part, allowing certain interrogatories while disallowing others. The interrogatories that were allowed were deemed necessary to narrow the issues at trial, while those that were disallowed were either redundant or poorly formulated. The court emphasized the importance of precise questioning to avoid supplementary interrogatories and to ensure that the plaintiffs were content with the answers provided. This decision highlights the procedural nuances in managing discovery processes and the importance of tailoring interrogatories to the responses received from the parties involved.

Orders