FPT (Australia) Pty Ltd v Transfield Pty Ltd
[2001] WASC 214
•14 AUGUST 2001
FPT (AUSTRALIA) PTY LTD -v- TRANSFIELD PTY LTD [2001] WASC 214
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 214 | |
| 14/08/2001 | |||
| Case No: | CIV:2199/2000 | 31 JULY 2001 | |
| Coram: | MASTER BREDMEYER | 10/08/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| B | |||
| PDF Version |
| Parties: | FPT (AUSTRALIA) PTY LTD (ACN 081 459 878) TRANSFIELD PTY LTD (ACN 000 854 688) SKILLED MATERIALS HANDLING PTY LTD (ACN 086 261 225) |
Catchwords: | Interrogatories Application for leave to administer interrogatories Relevant considerations |
Legislation: | Nil |
Case References: | Kupresac v Clifton Bricks (Canberra) Pty Ltd (1984) 75 FLR 172 Aspar Autobarn Co-operative Society v Dovola (1987) 16 FCR 284 Attorney-General v Gaskill [1882] 20 Ch D 519 Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Derham v Amev Life Insurance Co Ltd (1978) 20 ACTR 23 Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236 Hennessy v Wright (No 2) [1882] 24 QBD 445 Herald & Weekly Times Ltd v Hawke [1984] VR 587 Hooton v Dalby [1907] 2 KB 18 Irvine v The State of Western Australia [2000] WASCA 56 Konings v Naylor [1964] Qd R 235 McKinley v Robinson [1888] 14 VLR 195 Michael Gerson (Leasing) Ltd v Wilkinson [2001] 1 All ER 148 Mulley v Manifold (1959) 103 CLR 341 Richey Fishing Co Ltd v TSB Developments Pty Ltd [1999] TASSC 151 Seidler & Anor v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 Sharp v Smail (1975) 5 ALR 377 Spedley Securities Ltd (In Liq) v Yuill (No 4) (1991) 5 ACSR 758 The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd [1995] 2 Qd R 121 Thiess v TCN Channel Nine Pty Ltd (No 3) [1992] 1 Qd R 587 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TRANSFIELD PTY LTD (ACN 000 854 688)
Defendant
SKILLED MATERIALS HANDLING PTY LTD (ACN 086 261 225)
Third Party
Catchwords:
Interrogatories - Application for leave to administer interrogatories - Relevant considerations
Legislation:
Nil
(Page 2)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Plaintiff : Mr D M Fairweather
Defendant : Mr P Clifford
Third Party : No appearance
Solicitors:
Plaintiff : Allens Arthur Robinson
Defendant : Geoffrey Walker
Third Party : No appearance
Case(s) referred to in judgment(s):
Kupresac v Clifton Bricks (Canberra) Pty Ltd (1984) 75 FLR 172
Case(s) also cited:
Aspar Autobarn Co-operative Society v Dovola (1987) 16 FCR 284
Attorney-General v Gaskill [1882] 20 Ch D 519
Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Derham v Amev Life Insurance Co Ltd (1978) 20 ACTR 23
Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236
Hennessy v Wright (No 2) [1882] 24 QBD 445
Herald & Weekly Times Ltd v Hawke [1984] VR 587
Hooton v Dalby [1907] 2 KB 18
Irvine v The State of Western Australia [2000] WASCA 56
Konings v Naylor [1964] Qd R 235
McKinley v Robinson [1888] 14 VLR 195
(Page 3)
Michael Gerson (Leasing) Ltd v Wilkinson [2001] 1 All ER 148
Mulley v Manifold (1959) 103 CLR 341
Richey Fishing Co Ltd v TSB Developments Pty Ltd [1999] TASSC 151
Seidler & Anor v John Fairfax & Sons Ltd [1983] 2 NSWLR 390
Sharp v Smail (1975) 5 ALR 377
Spedley Securities Ltd (In Liq) v Yuill (No 4) (1991) 5 ACSR 758
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd [1995] 2 Qd R 121
Thiess v TCN Channel Nine Pty Ltd (No 3) [1992] 1 Qd R 587
WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559
(Page 4)
1 MASTER BREDMEYER: This is an application by the plaintiff for leave to administer interrogatories to the defendant. The application is opposed. All questions are opposed except question 9.
2 Leave is now required to get interrogatories. One reason for this is that we now have witnesses' statements, so the plaintiff in this case will learn something useful of the defendant's evidence prior to trial by that means. Another reason is the belief that interrogatories were, and can easily be, misused. There can be too many questions, the questions can be too complex, they can put the recipient to too much trouble to answer. They can ask questions on matters not really in issue. We all know of cases where hundreds of questions are asked and answered and, at trial, only a few answers are tendered.
3 Questions 1 to 9 begin:
"At the time Transfield came into possession of the Drive Assembly Components, did any servant or agent of Transfield ... ."
- The phrase "Time Transfield came into possession of the Drive Assembly Components" is defined in a glossary of terms at the beginning of the interrogatories to mean:
"The respective dates between about 29 November 1999 and 12 February 2000 when the Drive Assembly Components were transported to the Site by FPT as specified in paragraph 3 of the Plaintiff's answers to the Defendant's request for further and better particulars of reply and a defence to counterclaim."
So, the questions do not really ask about possession. They ask about when the drive assembly components were transported to the CBH site as Esperance. The defendant objects to the word "possession".
4 At par 4(b) of the defence and counterclaim the defendant admits that it took delivery of the Goods (that is, the drive assembly components). I consider these questions should be amended to read: "At the time Transfield took delivery of the Drive Assembly Components at the Site did any servant or agent ... ." I consider I am able to amend interrogatories. The old law says that I should not. Kupresac v Clifton Bricks (Canberra) Pty Ltd (1984) 75 FLR 172 at 174 states that interrogatories must be framed with rigorous precision, otherwise they will be objectionable. That case did not concern a leave application. I consider that case is not relevant on a leave application. A leave application gives the court a chance to allow some questions and refuse
(Page 5)
- others, thereby cutting down the burden of the interrogatories, and to amend others, hopefully to improve them - to make sure they are relevant to the issues and not over burdensome. The interrogatories submitted with this application are, in effect, draft interrogatories. They are the ones the plaintiff would like to ask if granted leave by the court. I can surely amend them to make them clearer, sharper, less oppressive and easier to answer. I can draw an analogy with leave to appeal, where the appeal notice submitted is usually designated a draft appeal notice. It is understood that in considering granting leave to appeal the court can amend the appeal notice.
5 I consider leave to ask questions 1 to 4 should be refused, as not strictly necessary because the questions asked are basically admitted in par 4(c)(iii) of the defence and counterclaim. That paragraph, in summary, states that in or about January 2000 Brian Irvine, on behalf of the plaintiff, orally informed Andrew Mattiske, on behalf of the defendant, during several telephone conversations that the plaintiff was making arrangements pursuant to the plaintiff's supply contract to carry out assembly works on Site in respect of the Goods which had been delivered to the Site pursuant to the plaintiff's supply contract. Mr Irvine said that he or other employees of the plaintiff would visit the Site for the purposes of finalising the assembly, including any incidental commissioning activities.
6 Questions 2 and 3 are not relevant. Whether the defendant knew of the varied contract or not, the defendant knew from the phone calls mentioned with Irvine and from a letter from Irvine pleaded at 4(c)(iv) of the defence and counterclaim that FPT, with the help of a local engineering company, had to assemble the Goods on site pursuant to the plaintiff's supply contract with Skilled. It matters not whether the defendant knew that that was a term of the original contract or a variation of that contract.
7 I will allow question 5, as amended. The amendments are twofold. As indicated previously, it will state that:
"At the time Transfield took delivery of the Drive Assembly Components at the Site, did any servant or agent of Transfield ... "
8 The second amendment is that I will delete reference to the word "suspect" in question 5(a)(b). I will also delete reference to 5(c) which also refers to suspicion. The reason for that is that the plaintiff is trying to
(Page 6)
- prove that the defendant knew, or ought to have known, that the plaintiff retained title to the Goods. To suspect is irrelevant to knowledge. To prove that someone ought to have known something is done by inference. The plaintiff will need to prove certain facts and then ask the court to infer from those facts that the defendant ought to have known. That some servant of the defendant suspected that FPT had not formally handed over title to the goods to Skilled, for example, is not a hard fact which will lead to an inference of "ought to know". The suspicion may be unreasonable and unfounded. You prove your facts and then ask the court to draw an inference from those facts that the defendant knew or should have known.
9 I propose to allow questions 6 to 9, as amended. The amendments will be similar to those made in par 5.
10 I propose to allow questions 10 and 11, as amended. The amendment in those questions is to delete the word "review" in line one and replace by the word "inspect". In question 11, I will also delete the phrase "came into possession" and replace it by "took delivery".
11 I have a comment on par 10 for the plaintiff's future reference. The questions asked should be self-contained. They should not refer to other documents. The plaintiff's solicitor should have put into the question what is said at par 5(a) of the plaintiff's answers to further and better particulars of the reply and defence to counterclaim, so that when the question and answer is tendered at trial it is self-contained. It immediately makes sense to the Judge without having to find other documents.
12 I refuse leave to ask question 12 because I consider the question not sufficiently relevant to the issues. The reasons are that the three delivery notes, the subject of the questions, were addressed to:
Dalais Engineering Services
Skilled Materials Handling Pty Ltd
CBH Esperance
- The defendant is not Dalais Engineering Services, nor Skilled Materials.
13 The plaintiff says that because the defendant was the head contractor for the work at the CBH terminal in Esperance and was in charge of the storage yard, all goods would have gone to it. I consider that is conjecture and too remotely relevant. It may be true that all goods delivered to sub-contractors had to be receipted by the head contractor, Transfield, but
(Page 7)
- that is not immediately obvious to me. The plaintiff should ask Dalais Engineering and Skilled about these three delivery dockets.
14 I propose to allow question 13, as amended. The amendment is line two is to replace the word "is" by "was".
15 I refuse to allow question 14 as not sufficiently relevant. The defendant, in par 42(v) of the defence and counterclaim has pleaded that:
"Certain assembly work including machining and incidental commissioning as aforesaid was carried out on Site by the plaintiff as aforesaid in respect of the Goods."
- The plaintiff wants to ask the defendant about that work which the plaintiff did. The answer lies within the plaintiff's own knowledge. That the plaintiff carried out some work at the site in order to assemble the drive assembly components is pleaded in its own case.
16 I refuse leave in connection with question 15, as not relevant. As I see it, the defendant, in par 42(b) of its defence and counterclaim, admits taking delivery of the Goods at the Site from Skilled and it paid Skilled for the Goods. There is therefore no need to ask a question about something which is admitted in the defendant's own pleading.
17 In summary, I allow questions 5 to 9, 10 and 11 and 13, all of which are amended. I will supply the parties with a photostat copy of the interrogatories showing the amendments I have made. Those amendments also include a few minor incidental amendments.
0
9
1