J Corp Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch)(No 2)

[1993] FCA 42

~ Z J - . lq7-

SUl&?JEMr No. . , . , ..... . . , , .

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No.NG 667 of 1990
1
GENERAL DIVISION	1

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

OF AUSTRALIA

BETWEEN: HARTOGEN ENERGY LIMITED (IN

LIOUIDATION)

First applicant (in the

principal proceedings)

ACTRAINT No. 71 LIMITED (IN

LIOUIDATION)

Second applicant (in the
principal proceedings)

BRIAN RAYMOND SILVIA AND WARREN PANTZER IN THEIR CAPACITY AS LIOUIDATORS OF THE FIRST AND SECOND APPLICANTS

Third applicants (in the
principal proceedings)

AND: THE AUSTRALIAN GAS LIGHT COMPANY AUSTRALIAN REGISTERED BODY NUMBER: 052 167 405

First respondent (in the

principal proceedings)

AGL PETROLEUM LIMITED (formerly
TMOC RESOURCES LIMITED)

AUSTRALIAN COMPANY NUMBER 009

principal proceedings)

666 700

Second respondent (in the

principal proceedings)

INTERNATIONAL OIL PROPRIETARY

AUSTRALIAN COMPANY NUMBER 004

552 621

Third respondent (in the
principal proceedings)

JOHN EDWIN HOOPER as Secretary for the time being of The Australian Gas Light Company

Fourth respondent (in the

AND: JOHN EDWIN HOOPER as Secretary for the time being of The Australian Gas Light Company

Cross Claimant (in the principal

proceedings )

AND: ACTRAINT No. 71 LIMITED ( IN

LIOUIDATIONL

First Cross-Respondent (in the

principal proceedings)

AND: HARTOGEN ENERGY LIMITED I IN

LIOUIDATIONL

Second Cross-Respondent (in the

principal proceedings)

C O W :	BEAUMONT, WILCOX AND HILL JJ.
PLACE :	SYDNEY
m:	17 FEBRUARY 1993

MINUTES OF ORDER

1.    Leave to appeal granted.

1. Appeal allowed.

3.    Set aside that part of order 1A made by Gummow J. on 13

November 1992 as made orders in terms of para.4 of the Notice of Motion filed 6 November 1992; in lieu thereof

order that, within 28 days of this order, or such further or other time as the parties may agree or a Judge of the Court may fix, the appellants (the respondents in the principal proceedings) file and serve answers to the interrogatories referred to as "Interrogatories 2" in accordance with the Rules of Court, but subject to any valid objection in any particular instance.

4.   Order that the appellants (the respondents in the principal proceedings) pay the respondents' (the applicants in the principal proceedings) costs of the appeal.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN TNE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No.NG 667 of 1990
1
GENERAL DIVISION	1

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

OF AUSTRALIA

BETWEEN: HARTOGEN ENERGY LIMITED I IN

LIOUIDATIONL

First applicant (in the

principal proceedings)

ACTRAINT No. 71 LIMITED ( IN

LIOUIDATIONL

Second applicant (in the
principal proceedings)

BRIAN RAYMOND SILVIA AND WARREN PANTZER IN THEIR CAPACITY AS LIOUIDATORS OF THE FIRST AND SECOND APPLICANTS

Third applicants (in the

principal proceedings)

AND:	THE AUSTRALIAN GAS LIGHT COMPANY AUSTRALIAN REGISTERED BODY NUMBER: 052 167 405
First respondent (in the principal proceedings)
AGL PETROLEUM LIMITED (formerly TMOC RESOURCES LIMITED)

Second respondent (in the

principal proceedings)

INTERNATIONAL OIL PROPRIETARY
AUSTRALIAN COMPANY NUMBER 004
552 621

Third respondent (in the
principal proceedings)

JOHN EDWIN HOOPER as Secretary for the time being of The Australian Gas Light Company

Fourth respondent (in the
principal proceedings)

.AND: JOHN EDWIN HOOPER as Secretary for the time being of The Australian Gas Light Company

Cross Claimant (in the principal

proceedings)

AND: ACTRAINT No. 71 LIMITED I IN

LIOUIDATIONl

First Cross-Respondent (in the

principal proceedings)

AND: KARTOGEN ENERGY LIMITED I IN

LIOUIDATIONL

Second Cross-Respondent (in the

principal proceedings)

C O W :	BEAUMONT, WILCOX AND HILL JJ.
m:	17 FEBRUARY 1993

REASONS FOR JUDGMENT

THE COURT:

Before the Court is an application by the

respondents in the principal proceedings for leave to appeal

administration of interrogatories. The issues in the from an interlocutory order made by Gummow J. for the	principal proceedings, which are complex, are summarised in an
earlier interlocutory ruling given by his Honour: see (1992) 109 ALR 177 at 180-1.
In essence, the matter dealt with by Gummow J. and the subject of the application for leave to appeal was a direction that the answers to certain interrogatories described as "Interrogatories 2" be verified on behalf of the
respondents in the principal proceedings by the following persons in respect of the questions nominated for answer by them respectively: ( I ) Messrs Beeren and Clare, officers of
the first respondent in the principal proceedings; (2)
Messrs Davenport, Williams and Mason, respectively formerly the Chairman of Directors, formerly the Managing Director and formerly a Director of the first respondent in the principal proceedings; (3) Messrs Binstead and Jephcott, who had been allegedly retained by the respondents in the principal proceedings to advise them in the transactions the subject of the principal proceedings. ( I t appears that the questions were divided between the several deponents in accordance with the answers given by them in examinations under s.541 of the
Com~anies (New South Wales) Code.)

After referring to this background, Gummow J. said:

"In seeking to proceed in this way, with the designation of particular persons in the first

instance to answer the interrogatories on behalf of	the respondents, the applicants had in mind what was
said by several members of the High Court in Smith Kline and French Laboratories Limited v Inter- continental Pharmaceuticals (Australia I Ptv Ltd (1969) 123 CLR 514 at 520, 522. In the circumstances now before me an order in this form is
appropriate .
The principal objection by counsel for the respondents was not based upon this particular procedure. The main subject of contention was whether, to put it broadly, the course adopted by Cole J. in the Comn~ercial Division of the Supreme Court of New South Wales in S~edlev Securities Limited (in liauidationl v B.A. Yuill /No. 41 (1991) 5 ACSR 758 should be adopted here. In that case, as here, a question arose as to the administration of interrogatories where a transcript had been taken of
examina t ions pursuant t o s .541 o f t h e C o m ~ a n i e s (New
Sou th Wales l Code.
I n f raming I n t e r r o g a t o r i e s 2 h e a p p l i c a n t s have
sought t o g i v e e f f e c t i n t h e c i rcums tances o f t h e
p r e s e n t c a s e t o what was s a i d by Cole J i n t h e f irst
paragraph on p . 762. Counsel f o r the responden t
o b j e c t e d t o t h i s cour se and t o i t s possible e f f e c t
on t h e conduct o f t h e t r i a l . Counsel f o r the
a p p l i c a n t s po in ted t o what h e s a i d was severe
p r e j u d i c e t o t h e i r c a s e , which i s brought by
l i q u i d a t o r s , i f I n t e r r o g a t o r i e s 2 were n o t a l lowed
i n th i s way. I w i l l n o t r e c a p i t u l a t e what was pu t
t h i s morning and since t h e resumpt ion . However, I
was impressed , i n p a r t i c u l a r , by what M r E l l i c o t t
submi t t ed a f t e r l u n c h .
Having heard t h e s t r o n g and cogen t submi s s ions b o t h
f o r and a g a i n s t t h i s cour se I have dec ided , on
ba lance , t h a t i t i s one t h a t should be fo l lowed ."

I n t h e passage i n S ~ e d l e v r e f e r r e d t o b y h i s Honour,

Cole J . , a f t e r commenting upon a perce ived l a c k o f co-

o p e r a t i o n between t h e p a r t i e s i n s eek ing t o i d e n t i f y t h e r e a l

i s s u e s i n t h a t l i t i g a t i o n , sa id ( 5 ACSR a t 7 6 2 ) :

" I t i s t h u s n e c e s s a r y f o r b o t h p a r t i e s now t o g i v e

c l o s e r c o n s i d e r a t i o n t o the f a c t u a l m a t t e r s t o be

argued. I propose t o g i v e t h e p a r t i e s a f u r t h e r

o p p o r t u n i t y t o d i s t i l the i s s u e s by p e r m i t t i n g SSL

t o serve f u r t h e r i n t e r r o g a t o r i e s and a n o t i c e t o

admit	f a c t s . . .	More	t han	30	i n t e r r o g a t o r i e s may	be
asked .	I t w i l l	be	n e c e s s a r y f o r	SSL	t o d i s t i l	from

the s.541 t r a n s c r i p t , o r o t h e r m a t e r i a l , t h e p r e c i s e

q u e s t i o n s i t wishes t o a s k A N I w i t h a v i e w t o

o b t a i n i n g	admi s s ions ,	o r	t h e	p r e c i s e	q u e s t i o n s	o f
f a c t	i n r e s p e c t	o f which	i t seeks	an	admiss ion .	To
encourage	admiss ions	by	AWI	r e f e r e n c e s	should	be

g i ven by SSL t o t h e p o r t i o n s o f t h e s .541 t r a n s c r i p t

where persons who were d i r e c t o r s o f ANI gave

e v i d e n c e , o r t o documents which may be l i ke ly t o

a s s i s t	ANI	i n making	some	a p p r o p r i a t e	admiss ion	o f
f a c t	o r answer	t o i n t e r r o g a t o r y .	I	e x p e c t	ANI,	i n

r e spond ing , n o t t o t a k e a strictly t e c h n i c a l v i e w i f

t h e r e be some impediment t o a s u b s t a n t i v e answer b u t

t o d i s c u s s t h e s u b s t a n t i v e answer it can g i v e w i t h

SSL, or t o g i v e an answer t o make such admiss ion

r e g a r d i n g	a	t o p i c a s i t	i s p r o p e r l y	a b l e	t o	g i v e	or
make. "

It thus appears that, consistently with the approach taken by Cole J., Gummow J. was seeking to give effect to a plan for case management with the object of assisting the parties in their process of identification of the real issues in the litigation.

The relevant provisions of the Rules of Court dealing with interrogatories are as follows. By 0.16 r.l(l) the Court may, in its discretion, give leave to administer interrogatories relating to any matter in question between the interrogating party and the party served. The contents of a statement in answer to interrogatories are dealt with by 0.16

r. 6. Form 24, which refers to 0.16 rr. 6 and 7? contains a

form of affidavit in these terms:

"AFFIDAVIT

On 19, , I (name), of

(address) (occupation) say

on oath:

1. I am the secretary of the respondent and an1

authorised to make this affidavit on its behalf.

2. (The deponent should state which of the answers are true to his own knowledge and which are true to the best of his knowledge, information and belief based on his inquiries of officers of the company and others and on his other investigations.)

Sworn etc."

Order 16 r.7 is relevantly as follows:

"7(l) Subject to sub-rule (2), an affidavit verifying a statement of a party in answer to interrogatories may be made as follows -

(a) by the party;

(C) where the party is a corporation or

organisation, by a member or officer of the
corporation or organisation;

7(2) Where the party is a person to whom any of paragraphs (l)(c) ... applies and the affidavit is to be filed and served pursuant to an order, the Court may, in relation to any or all of the interrogatories -

(a)	specify by name or otherwise the person to make the affidavit; or
(b)	specify by description or otherwise the persons from whom the party inay choose the person to make the affidavit.

7(3) Subject to sub-rule (Z), where the party is a person to whom any of paragraphs (I) (c) . . . applies, the party shall, in relation to each interrogatory, choose a person to make the affidavit who is qualified under the relevant paragraph and has

knowledge of the facts. "

Several arguments were put to us on behalf of the
respondents in the principal proceedings. I t appears that

some of them were not put to Gummow J. and for this reason,

particular, it is now contended that his Honour erred in his Honour did not refer to them in his reasons. In	principle in directing that persons who never had, or no
longer have, authority to bind the respondents in the principal proceedings, are directed to verify answers "on behalf of" those respondents. There are plainly difficulties with the adoption of such a course. One of the legitimate objectives of interrogatories is to obtain admissions. It must follow that an interrogatory seeking to achieve this objective can only serve a useful purpose if it is directed to
be answered by a person who has authority to make an admission on behalf of the party concerned. As has been noted, in the present case, in many instances, this authority was lacking. For this reason, the interrogatories proposed would, to a large extent, fail to achieve a useful purpose.
We would add that there is a real question whether it is ever appropriate to require more than one person to verify a set of interrogator~es addressed to a corporation and in any event it seems inappropriate to distribute the questions asked according to particular evidence given by particular people on a previous occasion especially where that occasion was a compulsory examination under s.541 of the Companies (New South Wales) Code and in respect of which the corporation had no right of representation. Such a requirement may well be oppressive and may also divert those people from their duty to make full inquiry.
In the circumstances, we think that the preferable course is to order, instead, that the provisions of 0.16 r.7(l)(c) and r.7(3) should operate in the present case. It will be recalled that it is there provided that, in the case of a corporation, the affidavit verifying its statement is to be made by one of its members or officers (r7(1)(c)) and that the corporation shall, in relation to each interrogatory, choose a person to make the affidavit who is a member or officer having knowledge of the facts (r.7(3)). If this
procedure were followed here, it would obviate the present difficulty that a person who appears to have no authority to make admissions on behalf of zhe corporation is, notwithstanding this, directed to answer the interrogatories. Indeed we understood that senior counsel for the applicants in the principal proceedings did not now seriously oppose the making of orders in the form we now propose, subject to an appropriate order for costs being made.
As we have said, it does not appear that the point now raised was agitated before Gummow J. In all the circumstances , the respondents in the principal proceedings should pay the costs of the appeal.

We propose to make the following formal orders:

1.    Leave to appeal granted.

2. Appeal allowed.

1. Set aside that part of order 1A made by Gummow J. on 13 November 1992 as made orders in terms of para.4 of the

order that, within 28 days of this order, or such further Notice of Motion filed 6 November 1992; in lieu thereof or other time as the parties may agree or a Judge of the Court may fix, the appellants (the respondents in the principal proceedings) file and serve answers to the interrogatories referred to as "Interrogatories 2" in accordance with the Rules of Court, but subject to any valid objection in any particular instance.

4.   Order that the appellants (the respondents in the

principal proceedings) pay the respondents' (the applicants in the principal proceedings) costs of the appeal.

I certify that this and the preceding

eight (8) pages are a true copy of the

Reasons for	of the Court
Associate Dated: 17

Z