Girgis v Poliwka [No 3] - [2018] WASC 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GIRGIS -v- POLIWKA [No 3] [2018] WASC 133
CORAM:   DERRICK J
HEARD:   1 MAY 2018
DELIVERED          :   1 MAY 2018
PUBLISHED           :   3 MAY 2018
FILE NO/S:   CIV 2425 of 2014
BETWEEN:   SHERIF ELHAMY WADIE GIRGIS
First Plaintiff
GIRGIS NOMINEES (WA) 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 - Undertaking by defendants that they would not oppose tendering as admissions paragraphs of a witness statement - Case management principles

Legislation:

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

Result:

Application dismissed

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 decision(s):

Girgis v Poliwka [2015] WASC 446
Girgis v Poliwka [2016] WASCA 158
Girgis v Poliwka [No 2] [2017] WASC 9
Hennessy v Wright (1890) 24 QBD 445
Marriott v Chamberlain (1886) 17 QBD 154
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101
Ugle v The State of Western Australia [2002] WASCA 117

DERRICK J:

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

The application

This is a second application by the plaintiffs for leave to issue interrogatories pursuant to O 27 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). The first application was dismissed: Girgis v Poliwka [2015] WASC 446. An appeal from the decision dismissing the first application was also dismissed: Girgis v Poliwka [2016] WASCA 158.
The present application first came before Banks‑Smith J on 18 January 2017. The minute of proposed interrogatories that was before her Honour is the minute that is before me. Banks‑Smith J adjourned the application pending the exchange of witness statements. Her Honour did so on the basis that the exchange of witness statements might elucidate the evidence as to the pleaded issues and hence might remove the need for interrogatories: Girgis v Poliwka [No 2] [2017] WASC 9 [12].
Witness statements have now been exchanged by the parties. In light of the witness statements the parties have conferred on the minute of proposed interrogatories. However, they have been unable to reach agreement as to whether leave should be granted for the plaintiffs to administer the proposed interrogatories.

The claim

In general terms the plaintiffs' claim relates to advice allegedly provided by Mr Poliwka (a real estate and business agent) to Mr Girgis as to a number of investments, specifically the purchase of shares in the registered proprietor of a Midland property on which a hotel business operated (the Midland Property), the purchase of shares in that hotel business (the Pub Business), the purchase of a Vessel called the Moonlight Express (the Vessel), the purchase of a charter business carried on using the Vessel (the Charter Business) and the purchase of a Joondalup property (the Joondalup Property) on which a night club operated (the Nightclub Business).
The plaintiffs allege that Mr Poliwka told Mr Girgis in relation to each of the investments that he had 'conducted due diligence investigations' and was 'satisfied with his findings' (the due diligence representations): Second Further Re‑Amended Statement of Claim, [17.1.15], [24.1.6], [56.1.12] and [84.17]. The due diligence representations are one form of representation upon which Mr Girgis alleges he relied in deciding to make the relevant investments. There are other alleged representations and issues which are said to arise from them.
The plaintiffs allege that the due diligence representations were misleading or deceptive within the meaning of the Australian Consumer Law and other legislation because, on the assumption that Mr Poliwka had conducted due diligence, he ought to have been aware of and disclosed certain matters relating to the proposed investments, or alternatively, that he did not in fact conduct the due diligence: Second Further Re‑Amended Statement of Claim, [21], [21A], [22], [25], [26], [26A], [27], [60], [61], [61A] and [62]. The due diligence representations are also pleaded to have been provided negligently.
The plaintiffs also allege a breach of contractual obligation to conduct due diligence as to some of the assets the subject of the investments.
The defendants deny that Mr Poliwka made the due diligence representations: Re‑Amended Defence and Counterclaim to Further Re‑Amended Statement of Claim, [17], [24], [56.3] and [84]. They do not in their pleading otherwise directly engage on the issue of due diligence.
It follows from the above that on the plaintiffs' pleaded case the due diligence issue is of some importance. The issues for the court so far as the alleged due diligence representations are concerned will be whether the representations were in fact made, if they were made was due diligence undertaken, and if due diligence was undertaken was it adequate.
Whether or not due diligence was carried out and the nature of the due diligence is within the knowledge of the defendants but not the plaintiffs.

Legal principles

It is well established that there is no right to issue interrogatories under O 27 r 1. The discretion to order interrogatories is to be exercised with regard to the case management principles expressed in O 1 r 4B of the RSC.
The purpose of the requirement for leave to be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose. The range of legitimate forensic purposes that can be served by the administration of interrogatories is not closed. A legitimate forensic purpose includes gathering information in relation to events which are outside the knowledge of a party and which can be assumed to be within the knowledge of the party to whom the interrogatories are administered. This is a legitimate forensic purpose because it facilitates the administration of justice by assisting a party to prove a matter particularly within the knowledge of the other party by requiring the provision of sworn answers which can be tendered at trial: Girgis v Poliwka [2015] WASC 446 [2].
Interrogatories must relate to a 'matter in question' between the parties: O 27 r 1. Interrogatories do not relate to a matter in question unless they can fairly be said to be directed at adducing material to support a party's case or destroy that of the party's opponent: Hennessy v Wright (1890) 24 QBD 445, 447; Ugle v The State of Western Australia [2002] WASCA 117 [18].
The ability to give leave to interrogate is not confined to those cases in which the interrogatories relate to facts that are directly in issue. Rather, it extends to the situation where the interrogatories address facts the existence or non‑existence of which are relevant to the existence or non‑existence of facts directly in issue: Marriott v Chamberlain (1886) 17 QBD 154, 163; Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101, 112; Ugle v The State of Western Australia [18].

The proposed interrogatories

The four sets of proposed interrogatories, referred to in the minute as A, B, C and D, contain questions directed at whether and how Mr Poliwka conducted due diligence as to the assets the subject of the investments, and the conclusions that he arrived at as a result of carrying out any due diligence. The interrogatories are all worded similarly. Thus the first set of interrogatories, set A, which I will cite by way of example, is in the following terms:
A.Refer to paragraph 17.1.15 of the Statement of Claim and answer:
1.Prior to 23 October 2008, did you conduct due diligence investigations in relation to the Midland Property and the Pub Business?
2.If the answer to interrogatory 1 is in the negative, prior to 23 October 2008, did you conduct due diligence investigations in relation to the Midland Property or the Pub Business and, if so, which of them?
3.If the answer to interrogatory 1 or interrogatory 2 is in the affirmative: -
3.1did you review any document or documents in the course of carrying out the due diligence investigations referred to in interrogatory 1 or interrogatory 2 (as applicable) ('the Midland due diligence investigations')?
3.2if the answer to interrogatory 3.1 is in the affirmative: -
3.2.1identify the document or documents you reviewed in carrying out the Midland due diligence investigations;
3.2.2did you arrive at any conclusion or conclusions through reviewing the document or documents and, if so, state the conclusion or conclusions;
3.3did you seek information from any person or persons in the course of carrying out the Midland due diligence investigations?
3.4if the answer to interrogatory 3.3 is in the affirmative, state the substance and source of all material information which you obtained by seeking information from any person or persons in the course of carrying out the Midland due diligence investigations?
3.5did you arrive at any conclusion or conclusions during the entire process of carrying out the Midland due diligence investigations and, if so, state the conclusion or conclusions and the reason or reasons for the conclusion or each conclusion?
Set B of the proposed interrogatories relates to the Vessel and the Charter Business. Set C of the proposed interrogatories relates to the Joondalup Property and the Nightclub Business. Set D of the proposed interrogatories relates to the leasing of the Joondalup Property to a company called Joondalup Entertainment Pty Ltd (JEPL) which was to operate the Nightclub Business.
The proposed interrogatories, or at least the proposed interrogatories within each set of interrogatories which ask if Mr Poliwka carried out due diligence investigations in relation to the relevant assets (for example, proposed interrogatories 1 and 2 in set A), have been drafted in light of, and in reliance upon, comments made by Martin CJ during exchanges with the plaintiffs' counsel in the hearing of the appeal against the decision dismissing the first application. During these exchanges Martin CJ made comments to counsel to the effect that in light of the plaintiffs' pleaded case interrogatories asking the defendants whether they had done due diligence, and what due diligence they had done, would be understandable (transcript of appeal hearing, pages 4, 11‑12).
The defendants oppose the granting of leave to administer some or all of the proposed interrogatories on a number of grounds.
Firstly, the defendants oppose the granting of leave to administer any of the proposed interrogatories on the ground that the meaning of the term 'due diligence' is fluid and contextual, and it is not reasonable or useful for Mr Poliwka to be required to categorise his own conduct.
Secondly, the defendants oppose the granting of leave to administer any of the proposed interrogatories on the ground that they are not properly framed. The defendants contend that the proposed interrogatories are not properly framed essentially for two related reasons. One of the asserted reasons is that the question whether due diligence was undertaken and if it was, whether it was adequate, will require the court to undertake an objective assessment of the information obtained and considered by Mr Poliwka, including information in the form of conversations and documents, and that Mr Poliwka's subjective view as to whether he undertook due diligence is irrelevant. The second of the asserted reasons is that the proposed interrogatories are worded too broadly and should be restricted to asking Mr Poliwka if he saw specific documents which on the plaintiffs' pleaded case he should have seen as part of carrying out due diligence.
Thirdly, the defendants oppose the granting of leave to administer sets A and B of the proposed interrogatories on the ground that the matters covered by the proposed interrogatories are dealt with by Mr Poliwka in his witness statement dated 1 September 2017, in the sense that in his witness statement Mr Poliwka describes the knowledge and documents that he (and in some cases Mr Girgis) had or obtained prior to the acquisitions of the Midland Property, the Pub Business, the Vessel and the Charter Business, and any conclusions that he formed on the basis of this information.
Fourthly, the defendants oppose the granting of leave to administer sets C and D of the proposed interrogatories on the ground that Mr Poliwka's position is that his involvement in these transactions was simply as an agent for the vendor, and that he did not do any due diligence as such, and did not make any representations as to the quality of the acquisitions to Mr Girgis: Re‑Amended Defence and Counterclaim to Further Re‑Amended Statement of Claim, [56]; Mr Poliwka's witness statement, [415] ‑ [451], [477] ‑ [481].
I will deal with each of these grounds of opposition in turn.

Meaning of 'due diligence' is fluid and contextual

The term 'due diligence' is in my view well understood and has a well‑recognised meaning. In my view the well‑recognised meaning of the term is neatly and simply encapsulated in the definition contained in the Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013), the definition being 'the process of acquiring objective and reliable information on a person or company as required, especially before a commercial acquisition'. It follows that I do not consider that the application for leave to issue the proposed interrogatories should be refused on the basis that the term 'due diligence' is fluid and contextual or otherwise uncertain.

Proposed interrogatories not properly framed

Mr Poliwka's subjective view as to whether he undertook due diligence is, for the above referred to reasons advanced by the defendants, irrelevant. However, given the well‑recognised meaning of the term 'due diligence' it is in my view tolerably clear that the proposed interrogatories are not asking for Mr Poliwka's subjective opinion as to whether he undertook due diligence but rather whether he undertook investigations to acquire objective and reliable information in relation to the relevant assets.
As to the argument that any interrogatories should be directed at asking Mr Poliwka if he saw specific documents which on the plaintiffs' pleaded case he should have seen as part of carrying out due diligence, in my view at least the proposed interrogatories within each set which ask if Mr Poliwka carried out due diligence investigations in relation to the relevant assets are properly framed. My view in this regard is, of course, consistent with the comments made by Martin CJ during the hearing of the appeal against the decision dismissing the first application.
The remaining proposed interrogatories within each set, that is the interrogatories directed at ascertaining whether Mr Poliwka, as part of carrying out his due dilligence, reviewed documents or obtained information from any person, and if he did what conclusions he arrived at as a result of doing so, are in my view framed in an impermissibly broad way. In my view more appropriately framed interrogatories would ask Mr Poliwka, assuming he stated in answer to the previous interrogatories that he did conduct due diligence, what due diligence did he undertake and whether he had in conducting the due diligence seen specific documents which on the plaintiffs' pleaded case he should have seen as part of carrying out the due diligence investigations. I do not agree with the plaintiffs' counsel's submission that this would be to replicate the form of interrogatory which was the subject of criticism during the hearing of the appeal against the decision dismissing the first application. To the contrary, Martin CJ would appear to have accepted in his exchanges with the plaintiffs' counsel that an interrogatory asking Mr Poliwka if he had seen a specific document as part of conducting due diligence, as opposed to interrogatories directed at the contents of the document, would be permissible (transcript of appeal hearing, pages 15 and 18).
In short, if I was to allow the application I would do so on a limited basis only. That is, I would not grant leave to administer the proposed interrogatories which ask if Mr Poliwka, as part of carrying out his due diligence, reviewed documents or obtained information from any person, and if he did what conclusions he arrived at as a result of doing so.

The matters covered by sets A and B of the proposed interrogatories are dealt with by Mr Poliwka's witness statement

So far as the purchase of the Midland Property and the Pub Business are concerned, the defendants point to the following assertions made by Mr Poliwka in his witness statement:
1.In the course of discussions with Mr Girgis he informed Mr Girgis that he had ownership interests in the Albany Hotel and the Nannup Hotel: [103];
2.He had been in discussions with the owners of the Midland Property since August 2007: [107];
3.In about mid‑September 2008 he had discussions with Mr Kevin Pollock, who he understood to represent the owners of the Midland Property, regarding the purchase of the Midland Property, and that although he cannot specifically recall the content of the discussion the discussion was sufficiently positive that he decided to arrange a time to inspect the Midland Property: [109] ‑ [110];
4.In subsequent discussions Mr Pollock told him that the Midland Property was leased and was showing a return of 8%: [111];
5.In late 2008 he and Mr Girgis had a meeting with the vendors of the Midland Property and others regarding the possible purchase of the Midland Property: [119] ‑ [129];
6.Not long after the meeting with the vendors of the Midland Property he told Mr Girgis that he intended to proceed with the purchase of the Midland Property with or without him, and that he was attracted by the high return on the investment but that the high return meant high risk: [134] ‑ [135];
7.In the period leading up to the acquisition of the Midland Property he was sent or given a copy of the Burgess Rawson valuation report dated 23 January 2008 and discussed the report with Mr Girgis: [136], [139];
8.He was given a copy of the bank loan agreement between the owner of the Midland Property and ME Bank which referred to and relied on the valuation: [137];
9.He had decided to buy the Midland Property by himself and that he said to Mr Girgis that he was going to proceed with the purchase and that Mr Girgis was welcome to purchase 50% if he so desired based on material that had been presented to him: [142];
10.He conducted an RP Data search: [149];
11.He and Mr Girgis carried out a second inspection of the Midland Property including viewing the renovations and discussing them with the hotel manager, Mr Tim Caporn: [151] ‑ [155];
12.The estimate of the time frame for the completion of the renovations did not concern him because Mr Caporn had told he and Mr Girgis that although rent had been suspended pending completion of the ground floor renovations, rent payments would recommence after the renovations were completed and the Midland Property reopened: [156];
13.He told Mr Girgis that in his view the rent would be more than adequate to cover the interest repayments on the ME Bank loan: [158];
14.He did not consider the historical ownership of the Midland Property to be relevant: [161];
15.Prior to the purchase of the Midland Property he and Mr Girgis were provided with ASIC searches for the company that owned the Midland Property and the lessee of the Midland Property: [172];
16.He and Mr Girgis discussed the caveats that were recorded on the certificate of title for the Midland Property: [173] ‑ [174];
17.He received and discussed with Mr Girgis profit and loss statements for the lessee of the Midland Property: [187.5];
18.He had extensive discussions with Mr David Hancock, whose company was a shareholder in the lessee of the Midland Property, and also Tim Caporn as to his experience and competence, before buying the Pub Business: [187.8], [190], [191], [193];
19.He gave consideration to the bottle shop's ongoing sales as an indicator of the likely performance of the Midland Property upon reopening: [187.6];
20.He and Mr Girgis had a discussion with an accountant, Mr Graeme Pickrell, about various financial issues associated with buying the Pub Business: [195]; and
21.During the course of negotiations between he and Mr Girgis on the one hand, and Mr Hancock and Mr Caporn on the other, in relation to the purchase of the Pub Business he received multiple emails from Mr Hancock and Mr Caporn concerning the operation of the Pub Business: [205].

In relation to the purchase of the Vessel and the Charter Business the defendants point to the following assertions made by Mr Poliwka in his witness statement:
1.In October 2008 he became aware that the Vessel was for sale by tender under what he understood to be forced sale conditions: [224];
2.He obtained the history of the Vessel from McGrath Nicol, the receivers: [228];
3.He was informed by the receivers who the Vessel was previously owned by and that the previous owner had used the Vessel as a charter vessel: [230];
4.He had various discussions with different people, including someone from the company that was selling the Vessel, other people familiar with the Vessel, and potential tenderers of the Vessel: [231];
5.He learned that the Vessel was old and required quite a bit of work to be done on it before it could be operated commercially: [232];
6.He cannot recall whether or not he saw the market appraisal for the Vessel dated 9 May 2008: [233];
7.In discussions with the company selling the Vessel he learned about an opportunity to also acquire a commercial jetty for the Vessel: [235]; and
8.He discussed with Mr Girgis the profit and loss statement for the Vessel: [241].
The defendants submit that the above referred to paragraphs of Mr Poliwka's statement reveal what investigations he undertook, what knowledge he obtained, and what conclusions he arrived at, in relation to the Midland Property, the Pub Business, the Vessel and the Charter Business prior to the acquisition of these assets. Thus, the defendants submit that if they are required to answer set A and set B of the proposed interrogatories it is likely that they, that is Mr Poliwka, will simply refer to the relevant paragraphs of Mr Poliwka's witness statement.
The defendants further submit that the plaintiffs may contend that the above referred to proposed evidence of Mr Poliwka does not establish that he undertook due diligence, or that the due diligence that he did undertake was inadequate, but that they cannot say that they do not know what the defendants' case will be in this regard.
The plaintiffs submit that the above referred to paragraphs of Mr Poliwka's witness statement do not directly respond to set A and set B of the proposed interrogatories but merely touch upon some issues concerning the relevant investments. They submit that if the defendants answer the proposed interrogatories by way of an affidavit of Mr Poliwka stating that the extent to which Mr Poliwka conducted due diligence in relation to the relevant investments is limited to the matters referred to in the paragraphs of Mr Poliwka's witness statement referred to above, proper answers to the proposed interrogatories will have been given and the answers will be admissible in the plaintiffs' case. They submit that Mr Poliwka's witness statement currently makes no such statement.
The plaintiffs also submit that even if contrary to their primary position the court finds that Mr Poliwka's witness statement does adequately deal with the issues covered by the proposed interrogatories, there is no certainty that Mr Poliwka will give evidence. The plaintiffs acknowledge in this context that Banks‑Smith J, in adjourning the application, stated that once the plaintiffs had received the defendants' witness statements and reviewed the defendants' evidence 'sought to be relied upon as due diligence (to the extent it is dealt with, whether described as due diligence or otherwise)' they could then, if necessary, 'seek to rely on any particular admissions in the defendants' witness statements': Girgis v Poliwka [No 2] [12]. The plaintiffs further acknowledge that Banks‑Smith J also stated that failing consent they could apply for an appropriate order from the court permitting reliance on identified admissions: Girgis v Poliwka [No 2] [12]. However, they submit that because the witness statement of Mr Poliwka does not contain any clear statement as to what due diligence he conducted such an order permitting tender would not be sufficient for their purposes.
During the course of the hearing, and in light of the above referred to comments made by Banks‑Smith J, the defendants' counsel confirmed that in order to deal with the plaintiffs' concern about the possibility that Mr Poliwka will not give evidence (a risk which the defendants' counsel understandably described as very small) the defendants were willing to give an undertaking, conditional on the plaintiffs' application being dismissed, that they will not oppose any application by the plaintiffs to tender as admissions the paragraphs of Mr Poliwka's witness statement to which I have referred above.
In my view the above referred to paragraphs of Mr Poliwka's statement, although they do not expressly refer to 'due diligence investigations' that Mr Poliwka undertook, do adequately reveal the investigations that Mr Poliwka asserts that he undertook in relation to the Midland Property, the Pub Business, the Vessel and the Charter Business prior to the acquisition of these assets. More specifically, the paragraphs of Mr Poliwka's statement do, in my view, reveal the people he asserts that he spoke to in relation to the assets, the information that he asserts that he obtained as a result of these conversations, the documents that he asserts that he reviewed in relation to the assets, and the conclusions that he arrived at on the basis of the information obtained and the documents reviewed. It follows, in my view, that what is sought to be achieved by the administering of the proposed interrogatories will be able to be achieved by the tendering as admissions of the paragraphs of Mr Poliwka's witness statement in accordance with the defendants' proposed undertaking. I do not accept the submission that the tendering of the relevant paragraphs of Mr Poliwka's witness statement will not be capable of achieving the plaintiffs' desired purpose because the statement does not by its terms expressly state that the matters referred to in the relevant paragraphs of the statement constituted the due diligence undertaken.
Of course, if Mr Poliwka gives evidence, and in his evidence attempts to suggest that he undertook investigations beyond those specified in the above referred to paragraphs of his statement, he will be able to be cross‑examined on that issue.
I note that the plaintiffs have identified some diary entries discovered by Mr Poliwka which they say reveal that from September through to December 2008 Mr Poliwka had conversations with and/or met various people regarding the potential purchase of the Midland Property, the Pub Business, the Vessel and the Charter Business, and that he reviewed or researched particular matters in relation to the potential purchase of the Midland Property, the Pub Business, the Vessel and the Charter Business. The plaintiffs assert that Mr Poliwka's witness statement is silent as to both what was discussed during the conversations and meetings referred to in the diary entries and what, if any, conclusions he drew from his review or research referred to in the diary entries. The plaintiffs submit that this provides a further reason for granting leave to administer the proposed interrogatories.
It seems to me from looking at the diary entries, as is submitted by the defendants, that almost all of the matters referred to in the entries are referred to, in varying levels of detail, in the above referred to paragraphs of Mr Poliwka's witness statement. In any event, and as the defendants assert, Mr Poliwka's witness statement sets out what the defendants' case is in relation to the extent of the investigations undertaken in relation to the assets by Mr Poliwka. Further, to the extent that any of the entries are not directly addressed in Mr Poliwka's witness statement, or are inconsistent with Mr Poliwka's witness statement, this can be the subject of cross‑examination if Mr Poliwka does give evidence. Accordingly, I do not consider that the diary entries provide a basis for granting leave to administer the proposed interrogatories.
For the reasons I have stated, I am not persuaded that as things currently stand there is a legitimate forensic purpose to be served by granting leave to administer set A and set B of the proposed interrogatories. I would therefore refuse leave to administer set A and set B of the proposed interrogatories.

Mr Poliwka's acceptance that he did not undertake due diligence in relation to the Joondalup Property, the Nightclub Business or JEPL

As I have already indicated, so far as the plaintiffs' case concerning the Joondalup Property, the Nightclub Business and JEPL is concerned, Mr Poliwka's position as revealed by the previously referred to paragraphs of the Re‑Amended Defence and Counterclaim to Further Re‑Amended Statement of Claim and his witness statement is that he acted as agent for the vendor, that he did not make any representations to Mr Girgis as to the quality of the assets and that he did not do any due diligence.
During the course of the hearing the defendants' counsel confirmed that the defendants are willing to give an undertaking, conditional on the plaintiffs' application being dismissed, that they will not oppose any application by the plaintiffs to tender as admissions the paragraphs of Mr Poliwka's witness statement setting out his position in response to the plaintiffs' case concerning the Joondalup Property, the Nightclub Business and JEPL, that is, [415] ‑ [451] and [477] ‑ [480]. Given this indication by the defendants, and for substantially the same reasons as I have given in relation to sets A and B of the proposed interrogatories, I do not see any legitimate forensic purpose in granting leave to administer set C and set D of the proposed interrogatories. I would therefore refuse leave to administer set C and set D of the proposed interrogatories.

Conclusion

For the reasons I have stated the application is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK
3 MAY 2018