Girgis v Poliwka

[2015] WASC 446

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GIRGIS -v- POLIWKA [2015] WASC 446

CORAM:   MITCHELL J

HEARD:   18 NOVEMBER 2015

DELIVERED          :   18 NOVEMBER 2015

FILE NO/S:   CIV 2425 of 2014

BETWEEN:   SHERIF ELHAMY WADIE GIRGIS

First Plaintiff

GIRGIS NOMINEES PTY LTD
Second Plaintiff

AND

WASIL NICHOLI POLIWKA
First Defendant

POLIWKA GROUP PTY LTD
Second Defendant

FIRST WESTERN ADMINISTRATION PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Application for leave to administer interrogatories - Case management principles

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 27 r 1

Result:

Leave refused

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr D H Solomon

Second Plaintiff            :     Mr D H Solomon

First Defendant             :     Mr M A MacLennan

Second Defendant         :     Mr M A MacLennan

Third Defendant           :     Mr M A MacLennan

Solicitors:

First Plaintiff                :     Solomon Brothers

Second Plaintiff            :     Solomon Brothers

First Defendant             :     Bennett + Co

Second Defendant         :     Bennett + Co

Third Defendant           :     Bennett + Co

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

MITCHELL J: 

(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)

1. This is an application by the plaintiffs for leave to issue interrogatories pursuant to O 27 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules). It is well established that there is no right to issue interrogatories under O 27. The discretion to order interrogatories is to be exercised with regard to the case management principles expressed in O 1 r 4B of the Rules.

2. A principal purpose of interrogatories is to save time and expense for a party proving a matter particularly within the knowledge of the other party by requiring the provision of sworn answers, which can be tendered at trial.

3. The experience of the law is that interrogatories frequently waste parties' time and divert resources from the substantive resolution of the matter.  In the late 1980s and early 1990s, it became common to issue voluminous word‑processed interrogatories for little practical benefit.  That experience informs the modern approach of carefully scrutinising requests for leave to administer interrogatories.

4. The minute of interrogatories proposed by the plaintiffs does appear something like a relic from last century.  It is 68 pages long and contains 121 questions with many sub‑questions.  It has 150 pages of annexures and is said by the defendant to contain 528 questions in total.

5. I am not satisfied that granting leave to administer those interrogatories will produce any saving in time and expense in these proceedings.  In fact, the contrary seems to be clear from the bulk of the request.  Even accepting, for the purposes of argument, that there is nothing inadmissible about any individual interrogatory, in cumulation it seems to me to be disproportionate to the matters in issue to require each of those questions to be answered.  Many of the questions relate to matters within the plaintiffs' knowledge - for example, when a document was shown by the first defendant to the first plaintiff.

6. I am not satisfied that any substantial injustice will result from the refusal of leave.  The case essentially involves allegations of misleading and deceptive conduct and negligent misrepresentation.  The making of any representations will be within the plaintiffs' knowledge, and the existence of reasonable grounds for any relevant belief may be matters for the defendant to prove.  In a practical sense, it seems likely that the defendant will be required to give evidence, and the usual programming orders about witness statements will be made.

7. I accept that there is a limit to the utility of witness statements, and as counsel for the plaintiff points out, a witness may not necessarily be called even if a statement is provided.  However, on balance it seems to me that it is not in the interests of case management of these proceedings to grant leave to administer interrogatories in the form proposed in the minute.  Therefore, leave will be refused.