Hughes, K.J. v Western Australian Cricket Association

[1986] FCA 269

Re: KIMBERLEY JOHN HUGHES
And: WESTERN AUSTRALIAN CRICKET ASSOCIATION (INC.) and OTHERS; MT. LAWLEY
DISTRICT CRICKET CLUB (INC.) and OTHERS; LESLIE ANNISON (sued on behalf of
himself and all other members of the Scarborough Cricket Club) and OTHERS and
KEVIN MORRIS TAYLFORTH (sued on behalf of himself and all other members of the
Cricket Council of Western Australia Cricket Association (Inc.))
No. WA G14 of 1986
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Practice and Procedure - claim under Trade Practices Act and accrued jurisdiction - interrogatories administered by applicant outside time fixed by Court - objection by respondents to answer interrogatories - interrogatories numbering in excess of 200 and including many to which objection may properly be taken - whether interrogatories oppressive - whether likelihood of injustice to the applicant if interrogatories not answered

Federal Court Rules 0.16 r.1

HEARING

PERTH

#DATE 16:7:1986

ORDER

The claim in para.3 of the applicant's minute of proposed directions filed 4 July 1986 is dismissed.

The applicant pay the respondents' costs of the claim.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The hearing of this application is to begin on 29 July. It is estimated that the hearing will last ten days. The evidence of the parties is to be adduced by affidavit.

1. The applicant, who is a well known professional cricketer and a former captain of the Australian test team, has brought action against the Western Australian Cricket Association (Inc.)("the Association"), its constituent clubs, and against the Cricket Council of the Association through a representative. The issues between the parties raise questions as to the operation of sections of the Trade Practices Act 1974 and as to the lawfulness of the applicant's disqualification from playing cricket in Western Australia. It is unnecessary to say anything more about these matters.

2. The parties have been before the Court on a number of occasions to seek directions (and variations of directions) and interlocutory orders in relation to pleadings, discovery and interrogatories. On 5 May 1986 the Court gave extensive directions designed to ensure that the matter would be ready for trial on a date which the parties were seeking. Shortly thereafter, the application was listed for hearing on 29 August in the expectation that all interlocutory steps would by then have been completed.

3. The matter came before the Court on 9 June at which time the parties were granted extensions of time for the filing of affidavits. The directions previously given by the Court required that interrogatories be administered by 16 June. At the request of counsel for the applicant, the date fixed for the administration of interrogatories was not altered. The respondents administered interrogatories to the applicant on 16 June. The applicant did not administer any interrogatories to the respondents by that date.

4. On Friday, 27 June and on Monday, 30 June the applicant filed and served on the respondents' solicitors 11 sets of interrogatories, one set directed to the first and fourth respondents and the other sets directed to certain of the second and third respondents. The respondents' solicitors gave notice that they declined to answer the interrogatories because of the lateness of their administration, because they were oppressive and because objection was taken to a large number of individual interrogatories.

5. On Monday, 14 July the Court heard an application by the applicant that the respondents answer the interrogatories administered to them, failing which their defence be struck out and judgment entered for the applicant. Having heard argument from counsel for the parties, I acceded to a submission by counsel for the applicant that the matter be stood over until the following day so that he might give consideration to a reduction in the number of interrogatories sought to be administered. They then stood at more than 400. The matter was further argued yesterday.

6. The applicant needs leave to administer the interrogatories, both because he has not complied with the timetable laid down by the Court and also because O.16 r.1 of the Federal Court Rules, as recently amended, confers on the Court a discretion to give leave to any party to administer interrogatories. The applicant has reduced substantially the number of interrogatories now sought to be administered. Nevertheless, in the case of the first and fourth respondents they stand at about 45 and in the case of the second and third respondents at about 160, a total of more than 200 interrogatories.

7. Counsel for the applicant was given an opportunity to justify in general terms the administration of interrogatories so late in the day and also to support the particular interrogatories themselves. Counsel for the respondents argued strongly that to require his clients to answer the interrogatories would be greatly oppressive. He also attacked most of the interrogatories, while maintaining the stance that the Court should reject the application without considering each interrogatory in detail. In this respect, he relied upon the judgment of Myers J. in American Flange and Manufacturing Co. Inc. v. Rheem (Australia) Pty. Ltd. (No. 2) (1965) NSWR 193. At 196 his Honour said:
   
   

"It was established under the earlier English rules that interrogatories which were prolix and oppressive or unnecessary could be disallowed as a whole, even though some of them were proper, and that the Court was not required to go through interrogatories of that kind and ascertain which were admissible and which were not. It was also established that the Court was entitled to come to the conclusion that interrogatories were of the kind specified on a general view of the interrogatories and indeed that the mere obligation of the opposite party and the Court to go through the interrogatories and pick out from a large number that were improper the comparative few that were allowable, was itself unreasonable and itself could constitute oppressiveness".

See also the judgment, to much the same effect, of Foster J. in Southern Pacific Hotel Services Inc. v. Southern Pacific Hotel Corporation Limited (unreported judgment of Supreme Court of New South Wales, delivered 10 December 1984).

1. In their original form, that is while they exceeded 400, I would have had no hesitation in applying the approach of Myers J. and simply declined to order that any interrogatory be answered. Counsel for the applicant submitted that, even if this approach was justified in regard to the interrogatories as administered originally, they had been reduced sufficiently in number to warrant their administration except in a few cases where counsel acknowledged the weight of the objection taken.

2. Notwithstanding the reduction in the number of interrogatories, I am satisfied that it would be oppressive to require the respondents to answer them at this stage. So far as the second and third respondents are concerned, they are in the main staffed by volunteers, each of whom would be required to spend an inordinate amount of time coping with the interrogatories relating to his particular club. Each set of interrogatories is prefaced with the remark that "a reference to any of the following namely the Club, the International & Interstate Cricket Committee of the first respondent and the Australian Cricket Board ("A.C.B.") includes the servants, agents, representatives, delegates or committees thereof". Even if each set was qualified by making it clear that it was to be answered by the president, secretary or other proper officer of the club, a wide range of inquiries would be necessary. Some interrogatories relate to the knowledge each club possesses of such matters as the terms of settlement of an action in the Supreme Court of Victoria and knowledge of a media release by the Australian Cricket Board regarding those terms of settlement. The questions are formulated in such a way as to be virtually impossible of answer. Other questions relate to the activities of members of the club in circumstances where the club itself may not be able to answer without pursuing inquiries.

3. The interrogatories addressed to the first and fourth respondents leave quite unclear whether each interrogatory is to be answered by each of those respondents or whether the responsibility lies with the respondents to decide by whom they are to be answered. Counsel for the applicant met this problem by agreeing that the interrogatories should be confined to the first respondent only. But many difficulties remain.

4. Some interrogatories are couched in such imprecise terms as to make it difficult for the first respondent to answer. Instances are interrogatory 6 (with its reference to "any other entity"), 22A (with its reference to "the Club"), 36 (with its reference to "banning"), 53 (with its reference to "indicate" and "normal basis") and 59 (with its reference to "other relationship"). Some interrogatories are objectionable as inviting expressions of opinion on matters which must be for the Court to determine. Other interrogatories (21 and 22 for example) could involve the first respondent in extensive inquiries. It is apparent that many if not most of the objections taken by the respondents to particular interrogatories would be upheld.

5. Notwithstanding the unsatisfactory nature of the various sets of interrogatories, I would be disposed to embark upon a detailed examination of each interrogatory if I thought that otherwise the applicant might suffer an injustice. But I am not persuaded that this is likely. Counsel for the applicant submitted that, without answers to the interrogatories, his client would be in some difficulty establishing a number of matters crucial to his claim against the respondents. It was pointed out to him that he could secure the attendance of the deponents of the many affidavits filed on behalf of the respondents and cross-examine them on those matters which were the subject of the interrogatories. In many cases the interrogatories are more properly the subject of cross-examination. This view is strengthened by the suggestion made by counsel for the applicant at the end of the hearing that perhaps interrogatories be answered by a selection of the clubs. This seemed to me to point up that in truth the exercise was in large part one of cross-examination.

6. It is true that O.14 r.9, while enabling a party to require the attendance of a deponent for cross-examination, does not automatically secure that person's attendance. Failure to attend means that the affidavit "shall not be used without the leave of the Court" (O.14 r.9(3)). It is conceivable that a party may decide not to rely upon a particular affidavit, thereby precluding cross-examination of a deponent. Even if that happened, the Court could meet any likely injustice to the other party by giving leave to adduce further evidence. But the question does not arise here for, when I raised the possible difficulty with counsel for the respondents, he stated quite unequivocally that the respondents would rely upon all affidavits filed on their behalf and would produce all deponents for cross-examination if required by the applicant. In those circumtances I can see no injustice resulting to the applicant from a refusal to allow the administration of interrogatories at this stage.

7. The recent amendment to O.16 r.1 of the Federal Court Rules to require the leave of the Court for the administration of interrogatories reflects a concern that interrogatories are sometimes administered without regard to the usefulness of any purpose they may serve. See Ch.9 of Delays and Efficiency in Civil Litigation, a publication of The Australian Institute of Judicial Administration Incorporated. I am not suggesting that the interrogatories presently before the Court fall into that category; clearly a great deal of thought was given to their preparation and to what the applicant's advisers saw to be the need for them. Nevertheless the rule serves as a reminder that interrogatories are not to be permitted as a matter of course. Each case will no doubt depend on its own facts but I am satisfied that in the present case it would be oppressive to require the respondents to answer these interrogatories and that many of them would in any case be refused as objectionable. Equally I am not persuaded that the applicant will suffer any injustice by a refusal to order that the interrogatories be answered.