Kalgeracos v Bomba

[2009] NSWSC 1271

CITATION:	Kalgeracos v Bomba [2009] NSWSC 1271
HEARING DATE(S):	23 October 2009
JURISDICTION:	2551/07
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	23 October 2009
DECISION:	Leave to administer interrogatories refused.
CATCHWORDS:	PROCEDURE – Interrogatories – permissible purposes to elicit facts not evidence – not cross-examination – whether vexatious and oppressive.
LEGISLATION CITED:	American Flange and Manufacturing Company Inc v Rheem (Australia) Pty Ltd No 2 [1965] NSWR 193 Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703 Dunbar v Perc [1956] VLR 583 Johns v James (1879) 13 Ch D 370 Kennedy v Dodson [1895] 1 Ch 334 Lyell v Kennedy (1883) 8 App Cas 217 Spedley Securities Ltd (in liq) v Yuill (No4) (1991) 5 ACSR 758 Tiver v Tiver [1969] SASR 40
CATEGORY:	Procedural and other rulings
PARTIES:	Alexander Kalgeracos (plaintiff) Irene Bomba (defendant)
FILE NUMBER(S):	SC 2551/07
COUNSEL:	Ms K Balendra (plaintiff) Mr M Meyer (sol) (defendant)
SOLICITORS:	Webb Lawyers (plaintiff) Meyer Pigdon (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday 23 October 2009

2551/07 Alexander Kalgeracos v Irene Bomba

JUDGMENT (ex tempore)

1 HIS HONOUR: The fundamental purpose of interrogatories, which are a form of discovery, is to obtain admissions or particulars about material facts in the proceedings. They are not to elicit evidence, nor to serve as a means of cross-examination [Dunbar v Perc [1956] VLR 583, 591; Lyell v Kennedy (1883) 8 App Cas 217, 234, Spedley Securities Ltd (in liq) v Yuill (No4) (1991) 5 ACSR 758, 762; Johns v James (1879) 13 Ch D 370; Tiver v Tiver [1969] SASR 40; Kennedy v Dodson [1895] 1 Ch 334, 341; Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703].

2 In the celebrated case of American Flange and Manufacturing Company Inc v Rheem (Australia) Pty Ltd No 2 [1965] NSWR 193, Myers J described the interrogatories – which had been crafted by Mr Arthur Rath QC as that learned judge then was, and Mr J S Lockhart of junior counsel as that distinguished judge then was, as follows:

The interrogatories are extremely numerous. They number only 27 but each interrogatory has been divided into parts, one into no less than 48 parts, and those parts have themselves again been subdivided into further parts, and on some occasions there is even a fourth subdivision. In reality instead of there being 27 interrogatories, there are actually something in the order of 300 interrogatories and they occupy 37 foolscap pages of type.

3 As is well-known, Myers J, without descending into a detailed examination of each of the interrogatories, took the view that on an overview of the whole of them they were oppressive and ought not be required to be answered.

4 The defendant’s application here is for leave to administer interrogatories, 88 in number, many of which are subdivided into sub-interrogatories – often as many as eight sub-interrogatories – and some of which are further subdivided into further sub-interrogatories (for example, interrogatory 71). Some of them at least are plainly not necessary and go to relatively minor matters (such as a conversation about a dishwasher), or matters not properly the subject of interrogatories but going to credit (such as whether the plaintiff has ever been convicted of criminal offences and if so, what offences and what sentences were imposed and even whether he has been charged with but not convicted of any offences). They extend not quite to the 37 foolscap pages of type referred to in American Flange, but at least to 24 A4 pages of type. Almost all are in the nature of cross-examination on the plaintiff’s affidavit.

5 In my view, taken as a whole, these interrogatories are not necessary, and ae vexatious and oppressive. Carefully drafted, no doubt as they are, by Mr Meyer, they should suffer exactly the same fate as befell those carefully drafted by Mr Rath and Mr Lockhart, and should be disallowed in whole.

6 I refuse leave to administer the interrogatories.

7 I order that the defendant pay the plaintiff's costs of the motion for interrogatories.

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