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

1. 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.

2. 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.

3. 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.

4. 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 if a fact or document is formally admitted.  In the same way interrogatories should normally follow discovery and inspection.

5. I want to make a few legal points at the outset.  Firstly, interrogatories are not limited to facts directly in issue as disclosed by the pleadings but extend to facts relevant to the facts directly in issue.  That is the "Peruvian Guano" test which applies to both discovery and interrogatories, see Seaman par 27.1.1B.

6. Secondly, I do not regard Dalecoast v Monisse [1999] WASCA 103 as deciding that a notice of admit facts must always precede interrogatories. That case should be confined to its own facts. The Court was considering there a second application for interrogatories, not a first application as here. The plaintiffs there wanted to interrogate primarily on some documents discovered late. The acting Master refused leave and said the plaintiffs could get the same information by a notice to admit. That decision was upheld on appeal. That does not mean that in every case a notice to admit must precede interrogatories. I do not regard Dalecoast v Monisse (supra) as deciding that interrogatories can never follow a reply to a notice to admit.  I think they can in limited circumstances.  Where the reply to the notice to admit has admitted a document, or an assertion of fact, an interrogatory on the same document or fact should not be allowed.  Where however, the reply to the notice to admit does not admit a fact asserted in the notice, an interrogatory can follow.

   Eg: Q [Question] in the notice to admit ‑ look at the letter dated … annexed hereto and marked with the letter "A".  Did you write that letter?

   A:  Not admitted.

   An interrogatory can ask:

   "Who wrote the letter?"

7. Thirdly, it was put in argument by Mr O'Toole for the first defendant, that a denial of a fact asserted in the notice to admit, is final.  I consider a notice to admit is not a pleading and a denial is not really a permissible response.  Logically, a denial could be a firm denial on instructions - one which the client would be willing to maintain on oath - or it could be a tactical denial.  In this case Mr O'Toole said he got proper instructions and each denial made is of the former kind.  I am going to hold him to that and, in the interest of narrowing the issues and saving costs, I propose to accept those denials as if they were in a pleading.  I will not require them to be made on oath as I do not think that going that extra step helps the plaintiffs much.  I cannot imagine the plaintiffs tendering a denial in the reply to the notice to admit, as part of their case.

8. As stated, I will treat these denials as denials on instructions and not tactical denials.  I will therefore not allow any interrogatories on the same question unless introductory to some other matter eg, to introduce a document or to a supplementary question as given in the example above:

   "Who wrote the letter?".

9. In the fourth place, I do not think the interrogatories are so numerous that I should disallow them en bloc as oppressive.

10. Fifthly, some of the questions are duplicitous.  Eg, question 99:

    "Was the original of the document, a copy of which is annexed hereto and marked P186, written, drafted, or produced by you or at your direction?"

    It should have been in this form:

    "Was the original of the document … (1)  written  (2)  drafted  (3)  produced by you or  (4)   at your direction?"

    I refer to Vol 22 Atkins: Court Forms 1991 Issue, Form 15 as a precedent.

11. I propose to allow these questions despite their faults.  This is a concession to the plaintiffs in the interest of saving costs.  I think if answered they will narrow the issues at trial.  If a question like that is answered "yes" or "no" I would not allow supplementary interrogatories to elucidate the answer.  The plaintiffs should be stuck with the answer to their imprecise questions.

12. (The oral judgment went on to allow and disallow various questions.  That part of the judgment is not reproduced in these reasons).