Heytesbury Properties Pty Ltd v City of Subiaco

[1999] WASC 116

HEYTESBURY PROPERTIES PTY LTD -v- CITY OF SUBIACO [1999] WASC 116

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 116
Case No:	CIV:1323/1996	Heard:	28 JULY 1999
Coram:	MASTER SANDERSON	Delivered:	4/08/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed in part
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Parties:	HEYTESBURY PROPERTIES PTY LTD (ACN 008 747 215) CITY OF SUBIACO HEYTESBURY PTY LTD (ACN 008 666 966) PETER JOHN PATRIKEOS JANET LEE HOLMES A COURT (as joint administrators of the Estate of the late MICHAEL ROBERT HAMILTON HOLMES A COURT) JANET LEE HOLMES A COURT
Catchwords:	Practice and procedure Further and better answers to interrogatories Turns on its own facts
Legislation:	Nil
Case References:	Nil Codelfa Construction Pty Ltd v State Rail Authority of NSW [1981-1982] 149 CLR 337 Hall v Truman, Hanbury & Co [1885] 29 Ch D 307 Hoad v Nationwide News Ltd, unreported; SCt of WA (Steytler J); Library No 980375; 11 June 1998 Mulley v Manifold (1959) 103 CLR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HEYTESBURY PROPERTIES PTY LTD -v- CITY OF SUBIACO [1999] WASC 116 CORAM : MASTER SANDERSON HEARD : 28 JULY 1999 DELIVERED : 4 AUGUST 1999 FILE NO/S : CIV 1323 of 1996 BETWEEN : HEYTESBURY PROPERTIES PTY LTD (ACN 008 747 215)

Plaintiff

AND

CITY OF SUBIACO
Defendant

FILE NO/S : CIV 1205 of 1997 BETWEEN : CITY OF SUBIACO

Plaintiff

AND

HEYTESBURY PTY LTD (ACN 008 666 966)
First Defendant

PETER JOHN PATRIKEOS
JANET LEE HOLMES A COURT (as joint administrators of the Estate of the late MICHAEL ROBERT HAMILTON HOLMES A COURT)
Second Defendants

JANET LEE HOLMES A COURT
Third Defendant

(Page 2)

Catchwords:

Practice and procedure - Further and better answers to interrogatories - Turns on its own facts

Legislation:

Nil

Result:

Application allowed in part

Representation:

CIV 1323 of 1996

Counsel:

Plaintiff : Mr S Penglis
Defendant : Mr J L Sher

Solicitors:

Plaintiff : Freehill Hollingdale & Page
Defendant : Corrs Chambers Westgarth

(Page 3)

CIV 1205 of 1997

Counsel:

Plaintiff : Mr J L Sher
First Defendant : Mr S Penglis
Second Defendants : Mr S Penglis
Third Defendant : Mr S Penglis

Solicitors:

Plaintiff : Corrs Chambers Westgarth
First Defendant : Freehill Hollingdale & Page
Second Defendants : Freehill Hollingdale & Page
Third Defendant : Freehill Hollingdale & Page

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

Case(s) also cited:

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1981-1982] 149 CLR 337
Hall v Truman, Hanbury & Co [1885] 29 Ch D 307
Hoad v Nationwide News Ltd, unreported; SCt of WA (Steytler J); Library No 980375; 11 June 1998
Mulley v Manifold (1959) 103 CLR 341

(Page 4)

1 MASTER SANDERSON: This is the plaintiff's chamber summons in action CIV 1323 of 1996 seeking an order that the defendant provides supplementary answers to certain interrogatories. There is an identical summons in action CIV 1205 of 1997 in which the City of Subiaco is the plaintiff and Heytesbury Pty Ltd is the first defendant. I will deal with CIV 1323 of 1996 but this decision applies to both actions. Although the chamber summons mentioned seven interrogatories, by the time this matter was heard there were only three interrogatories in issue. These were 3.1.2, 4 and 6.

2 While the pleadings in this matter are lengthy and somewhat complex, the issue between the parties is relatively simple. The defendant is the registered proprietor of certain land in Salvado Road, Subiaco, which was leased to a firm known as Humes Ltd. These leases were assigned by Humes Ltd to the plaintiff. It is the plaintiff's contention that under the terms of the leases (the land was leased under not one but a number of separate leases) the plaintiff was required to carry on certain activities on the leased property. It is claimed that it was prevented from doing so by the terms of a Town Planning Scheme No 2 put in place by the defendant. As a consequence, the plaintiff says that the leases have been frustrated or are otherwise unenforceable. The defendant denies that this is the case. The land in question has now been subsumed into the development popularly known as "Subiaco Centro". What is at issue now is whether or not the plaintiff owes the defendant a sum of money, claimed to be more than $1,000,000 for unpaid rent and taxes. The plaintiff says that, because of frustration of the leases and for other pleaded reasons, nothing is owing to the defendant. This summary of the dispute is very much a shorthand version of the matters in dispute. It will suffice for present purposes.

3 On 28 May 1999 the defendant in an affidavit sworn by Christopher Roy Liversage provided answers to interrogatories administered by the plaintiff. These interrogatories were administered pursuant to leave granted by Ipp J on 16 April 1999. Interrogatory 3 deals with a Deed of Assignment of Lease dated 8 March 1989. Question 3.1 asks whether, during the course of negotiating the terms of the assignment, the defendant was requested by a representative of the plaintiff for the leases the subject of the assignment to be varied so as to remove certain obligations upon the lessee. The defendant has answered this interrogatory in the affirmative. Based upon that affirmative answer, question 3.1.2 asks the defendant if the plaintiff's request was rejected the reasons why it was rejected. In supplementary answers to interrogatories

(Page 5)

filed 7 July 1999 the defendant says that it did not agree to the plaintiff's request because:

"(i) it was not obliged to do so; and

(ii) it did not believe that it was in its best interests to do so."

4 The plaintiff says that this response is inadequate. It is said that the defendant should explain why it was not in the best interests of the defendant to grant the plaintiff's request and that the answer, as it stands, is evasive. The defendant, for its part, says that the answer is sufficient and that to provide anything more would amount to disclosing its evidence.

5 In my view the answer in its present form is unsatisfactory. In answering the interrogatory the defendant should explain on what material facts it relied to come to the conclusion that it was in its best interests to refuse the plaintiff's requests. The answer in its present form is no answer at all. It is a conclusion based upon undisclosed material facts. This is not a case where the plaintiff is fishing for evidence. It is seeking to establish the case to be put against it. The defendant should provide a further and better answer to this interrogatory.

6 Interrogatory 4 directs the defendant's attention to a map annexed to the interrogatories. It then asks a series of questions in relation to a number of leases beginning with a lease entered into in 1930. The defendant raises a number of objections to this interrogatory. First, it says that the leases the subject of the interrogatory have not been discovered and are not relevant to the matters in issue between the parties. They therefore say that the interrogatory is irrelevant and they are not required to answer it. Further, they say that the interrogatory is in effect a back door means of discovery and should not be permitted on that basis. With respect, that submission seems to me to be correct. An application was made by the plaintiff for discovery of the leases referred to in the interrogatory. That application was refused. Subsequently, the statement of claim was amended and the plaintiff now says that the lease documents are discoverable. However, no application for discovery has been made. The position then is that the leases are not discovered and unless and until there is an order that they be discovered, any order that interrogatory 4 be answered would amount to a collateral attack on the decision of the Acting Master refusing discovery. In my view the defendant should not be compelled to answer interrogatory 4.

(Page 6)

7 Interrogatory 6 refers back to interrogatory 5. Interrogatory 5 deals with a certain specific amendment to the defendant's Town Planning Scheme. Interrogatory 6 then asks whether legal advice was sought about the amendment to the Town Planning Scheme, who on behalf of the defendant considered the amendments and what each person who considered the amendments thought their impact would be on. The defendant has objected to answering interrogatory 6 on the basis of legal professional privilege.

8 It is open to a party to decline to answer an interrogatory on the basis that to do so would be to disclose a communication which is privileged. But a question asking whether or not legal advice was sought does not require the disclosure of the advice if it is answered. Nor is it improper to ask the names of the persons who on behalf of the defendant considered a matter, even if by answering the question the names of the parties who provided the advice and the persons who considered that advice are disclosed. Thus questions 6.1 and 6.2 should be answered. It may well be that to answer question 6.3 - that is to say what a particular person considered the impact of the amendment to the Town Planning Scheme to be - might require the disclosure of advice. If so, then privilege can be claimed with respect to that particular question, so far as it relates to a particular individual. At present the blanket answer to interrogatory 6 is unsatisfactory. I think it is appropriate that a further answer to question 6 be provided, subject to any claim for privilege in relation to legal advice provided to the defendant.

9 Questions 3.1.2 and 6 ought be the subject of an order for further an better answers. I would decline to make an order with respect to interrogatory 4. I will hear the parties as to the precise form of orders and costs.