Kent Heating Ltd v Peuren Agencies Pty Ltd

[1987] FCA 204

i r '

!

IN THE FEDERAL COURT OF AUSTRALIA

I

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN : KENT HEATING LIMITED

Applicant

I AND : PEUREN AGENCIES PTY. LIMITED

I	I	First respondent
I

JOHN CLARENCE BRIDGE

i	Second respondent
I

i	LIMITD
CAN-FAB ENGINEERING PTY.
i

I	Third respondent
i

l

HI-TECH COATING SYSTMES

PTY. LIMITED (formerly

Durelink Engineerlng Pty.

Limited)

Fourth respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.

,

DATE OF ORDER	: 3 Aprll 1987
WERE MADE	: Canberra

THE COURT ORDERS THAT:

1. The first and second respondents within 14 days

from the date of this order make further answer,

verified by affldavit in accordance with Order 16,

rule 7 of Ehe Federal Court Rules, to the

interrogatories set out in the notice dated 27

February 1986 served by the applicant on the first and second respondents and numbered 22, 25, 37(a), 40, 58 and 59(f).

L .

2.	Otherwise, the motion notice	of which was given on
14 August 1986 be dismissed.

3. The applicant pay three-quarters of the costs of

the first and second respondents of the motion.

N o t e : Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

.

IN THE FDERAL COURT OF AUSTRALIA

I )

! AUSTRALIAN CAPITAL 1'ERRITORY 1

No. G 85 of 1982

DISTRICT REGISTRY

1

DIVISION GENERAL )

I

I

I

EETWEEN: KENT HEATING LIMITED

Applicant

AND: PEUREN AGENCIES PTY.

LIMITED

First respondent

I JOHN CLARENCE BRIDGE

Second respondent

CAN-FAB ENGINEERING PTY.

LIMITED

Third respondent

HI-TECH COATING SYSTMES

PTY. LIMITED (formerly

Durelink Engineering Pty.

Limited)

Fourth respondent

CORAM: Neaves J.

m: 3 April 1987

REASONS FOR JUDGMENT

:'

Kenc Heating Limited ("the applicant") has applied to

the Court by motion on notice that Peuren Agencies Pty. Limited

("the first respondent") and John Clarence Bridge ("the second

respondent") be ordered to make further answer, verified by

affidavit in accordance with 0.16, r.7 of the Federal Court

Rules, to a number of interrogatories set out in	a notice dated
27 February 1986.

! I

, '

1 d . L .

The notice to answer lnterrogatories was given in

proceedings in which the applicant seeks relief against the

flrst and second respondents and against Can-F& Engineering

Pty. Lmited ("the third respondent") and Hi-tech Coating

Systems Pty. Limited, formerly Durelink Englneering Pty.

Limlted ("the fourth respondent"). According to its amended

application, filed herein on 11 September 1985, the applicant

claims :

i "(a) An injunctlon restraining the First,

Third and Fourth Respondents by their

directors, officers, s rvants,

contractors or agents, and the Second

Respondent, manufacturing, from

distributing, advertising, selling, or

offering for sale or otherwise dealing

with the heaters manufactured by them

and marketed under the name 'Erik 2000 '

or any other heater similar to or

substantially simllar to the Tile Fire

or any other heaters manufactured by the

Applicant.

Delivery up to the Applicant of all

heaters, dyes, jigs , components,

brochures, advertising materials and

drawings infringing Appl cant's

copyrlght;

(i)Damages as in an action for conversion pursuant to Section

, 116 of the Copyright Act;

(ii) Further alternatlvely or

damages in respect of	loss of
sales and reputation;

(iii) Alternatively an account of

profits;

(iv) Alternatively damages; and

(d) Such further or other orders as may be

appropriate. "

.

3 .

By its Second Amended Statement of Claim (pars 3

and 4 ) the applicant, a New Zealand corporation, alleges

that m or about 1978 it acquired a licence to manufacture and distribute throughout New Zealand and overseas, and

began manufacturing, a log burning heater known as "The Kent

Log Fire", that in or about 1979 it designed and began

manufacturmg a variation thereof known as "The Tile Fire", and that it has marketed and sold its heaters in Australia

and has acquired a substantlal reputacion in respect of

them. It is further alleged (par.6) that since in or about

July 1982 the first, third and fourth respondents, or one or

more of them, have copied	the design of the Tile Fire and
manufactured and marketed	a heater under the name "Erik

2000" also called "the Hornet" and sometimes without name

described as "Slow Combustion Heater". In the pleading,

this heater 1 s referred to as "the Erik 2000". It is also

alleged (par.8) that the first, third and fourth respondents

have since July 1982 distributed and sold the Erik 2000

heaters in Australia and in doing so have put forward such

heaters as an Australian version of the Tile Fire and led

the public to believe that they were affiliated with the

applicant. The first, third and fourth respondents are

alleged to have claimed that the Erik 2000 is equal to the

Tile Fire in its quality of manufacture and performance.

Paragraph 9 of the Second Amended Statement of Claim is in

the following terms:

"9.	Kent claims that:-
(a! In copying the design of the Kent

heater;

c

4 .

In manufacturing and marketing the Erik

2000 heater being almost identlcal in

deslgn, dlmension and appearance to the

Tlle Fire;

In dlstrlbutinq and selllng the Erik

2000 heater as aforesald; and

In claimmg equality of quality of manufacture and performance;

the First, Third and Fourth Respondents, or one or more of them, have contravened Section 52 of the Trade Practices Act In that they have engaged

and are continuing to engage in conduct that is

misleadmq and deceptlve or which is likely to

mislead or deceive."

"he second respondent, who is and was at all material times

the managing director of the flrst respondent, is said to

have been involved in the contravention of s.52 of the Trade

Practices Act 1974 (Cth) within the meaning of that

expresslon in s.82 thereof (see also s.75B).

The applicant also alleges (par.14) that since

about July 1982 the first, third and fourth respondents, or

one or other of them, infringed the applicant's copyright in

certain plans by producing or causing to be produced

drawings and writings which were copies of such plans, by

,

reproducing each of the plans in the form of the Erik 2000

heaters, by reproducing the individual components depicted

in the plans in the form of the components of the Erik 2000

heaters and by selllng and by offering or exposing the Erik

2000 heaters for sale by way of trade without he

applicant's licence.

.

5.

The first and second respondents, apart from

admltting that the flrst respondent has since about July

1982 manufactured, marketed, distributed and sold the Erik

2000 heater In Australia, have put In issue all the other

allegations of substance	set out In the Second Amended
Statement of Clam.

It will be necessary to consider seriatim the

interrogatorles in questlon. By way of preface, for reasons

which will become apparent, attention should be focussed on

the need for precision in the framing of interrogatories.

As Blackburn C.J. sald in Kupresak v. Clifton Bricks

(Canberra) Pty. Ltd. (1984) 75 F . L . R . 172 at p.174:

"It needs to be sald (certainly not for the first

time) that interrogatories and answers should be

expressed in language of the most rigorous

precision. This requirement is not mere

pedantry. The nature and purpose of

interrogatories and answers (being the seeking

and the supply, respectively, of evidence in

writing on oath) call for the strictest adherence

to the letter of the words used. There is no

place in interrogatories and answers for 'readlng

between the lines', adopting a liberal

construction, or seeking the author's intention

rather than the meaning the words bear on their

face. Uqless this principle is kept in mind,

interrogatories easily may become an

unjustiflable cause of expense and delay."

See also Atochem S.A. v. Button (Federal Court	of Australia
(Burchett J.) - unreported - 7 March 1986) .

.

i	c
I

I 6 .

Interrogatory 1 asked -

"Whlch person designed, planned or invented the

Erik 2000?"

The flrst and second respondents objected to answering this

!

interrogatory on the ground -

"that it proceeds on an assumption which is

neither proved nor admitted namely that the Erlk

2000 was designed, planned or invented by a

person. 'I

I uphold the refusal to answer on the ground relied upon by

the first and second respondents and on the further ground

that it lacks the necessary precision. It treats the

designmg, planning and inventing of the Erlk 2000 as

I mutually exclusive events. How is an answer to be framed

if, for example, the Erik 2000 was not only planned but also

designed and invented or if one person designed it, another

planned it and a third invented it?

Interrogatory 2 asked -

,.I

"With regard to the answer given	to 1,	who was
that person employed by?"

This interrogatory cannot stand i ependently of

lnterrogatory 1. It is also objectionable in that the

draftsman has failed to include an interrogatory designed to

elicit whether the person referred to in the answer to

.

interrogatory 1 was employed at the relevant time. The

I .

question is also too wlde in asking who was the person‘s

I

employer. The relevant question 1 s whether he was employed

by the flrst respondent at the relevant time.

Interrogatory 3 asked -

“Under whlch person’s directlon did the person

referred to in- 1 design, plan or invent	the Erlk
Z O O O ? ”

This interrogatory is dependent on Interrogatory 1 and is,

in any event, objectlonable in that it assumes that the

person concerned, in designing, plannlng or inventing the

Erik 2000, was acting under the direction of another person.

Interrogatory 4 asked -

“When was the Erik	2000	designed, planned or
invented?”

The objection taken is that the interrogatory proceeds on an

assumption which is neither proved nor admitted namely that

the Erik 2000 was designed, planned or invented. I uphold

that objection. The interrogatory is also objectionable in

that it treats the designing, planning or inventing	as
mutually exclusive events.

I

Interrogatory 5 asked -

“Did the person who designed, planned or invented

the Erik 2000 have a Kent Tile Flre or a Kent Log

Fire or any part thereof in his or her possession

8.

at the time helshe designed, planned or Invented

the Erik ZOOO? If the answer is yes, give

particulars. "

Objectlon to answering this interrogatory was taken in the

following terms -

"it proceeds on an assumptlon which is neither

I

proved nor admitted, namely that a person

designed, planned or invented the Erik 2000.

Further, the interrogatory is oppressive and

embarrassing by reason of the inclusion of the

final sentence therein which is arnblguous as to

its requirement."

Interrogatory 5 is clearly dependent on interrogatory 1 and,

in any event, need not be answered in its present form. The

requirement to give particulars read with the earlier part

I of the interrogatory is imprecise and objectionable.

Interrogatory 6 asked -

"If the answer to 5 is that the person had a part

of the Kent Tile Fire or Kent Log Fire in hislher

possession which part(s) was it?"

This mterrogatory is dependent on interrogatory 5 which I have found to be objectionable.

Interrogatory 7 asked -

"Did the person who designed, planned or invented

the Erik ZOO0 have any drawing, brochure or other

documentary material depicting the Kent Log Fire

or the Kent Tile Fire (or a part thereof)? If

so, gi-ve particulars. "

i

9.

Apart from any other objection, this interrogatory 1s

objectionable as it is not limited in point f ime.

Interrogatory 8 asked -

"Dld the person who designed, planned or invented

the Erik 2000 make any sketches, drawings,

diagrams or specifications of or	for	the Erik
Z O O O ? "

This interrogatory suffers from the same defect as

interrogatory 1. It is also objectionable as it contains no

limitation as to time.

I

Interrogatory 9 asked -

"If the answer to 8 is yes, where are they?"

This interrogatory is dependent upon interrogatory 8 and, as

that interrogatory is objectionable, interrogatory	9 need
not be answered.

:'

Interrogatories 10 and 11 asked -

"10. Did the person who designed, planned or

invented the Erik 2000 make a prototype of the

Erik 2000?

11. If the answer to 10 is yes, where is it?"

Interrogatory 10 has the same defect as interrogatory 1.

Interrogator? 11 is dependent on interrogatory 10.

10.

Interrogatory 12, which asked when the Erik 2000

was flrst manufactured, was answered by stating that first

manufacture took place In the month of October 1983.

Interrogatory 13 then asked -

"Who manufactured the Erik ZOOO?"

Thls was objected to on the ground that it was not limited

to any particular time or any particular unit. I thmk that

objection is well taken. In any event, both the first and

second respondents have admitted on the pleadings that the

first respondent manufactured the Erik 2000 so that the

interrotarory	does	not	relate	to	any	issue	in	the
proceedings.

Interrogatory 14 asked -

"Under which person's direction was the	Erik 2000
manufactured?"

This interrogatory assumes an answer to an interrogatory

,

that the draftsman did not ask, namely whether the Erik 2000

was manufactured under the direction of a person. Counsel

for the applicant said that it was intended to elicit the name of the person who supervised or was in charge of production. If that is what was intended the interrogatory requires redrafting. It need not be answered In its present

form.

*

11.

I

Interrogatory 15 asked -

"Since it has been manufactured, who has marketed

the Erik ZOOO?"

As both the first and second respondents have admitted on

the pleadings that the first respondent has marketed the

Erik 2000, this interrogatory need not be answered.

Interrogatory 16 asked -

"Under which person's dlrection has the Erik	2000
been marketed?"

Again, this interrogatory proceeds on an assumptlon which 1 s

neither proved nor admitted and is objectionable.

Interrogatory 18 asked -

"How many units of the Erik 2000 has the First Respondent had in its possession or control?"

I am not satisfied that this interrogatory is relevant to

2

any issue that arises in	the proceedings.	It, therefore,
need not be answered.

Interrogatory 19 asked -

"In what capacity has the First Respondent had

these units In its possession or control?"

.

I

1 12.

i

This Interrogatory cannot stand in the light	of my rejection
of interrogatory 18.

j	Interrogatory 20 asked -
,
!

"Has	the First Respondent distributed the Erik
2000?"

i

~	The	first	and	second	respondents	objected	to answering	this
I

interrogatory on the ground that it was oppressive and was

not restricted as to any particular time. There is no

l

I

substance in this objection. However, the first and second

j respondents have admitted on the pleadings that he first

respondent distributed the Erik 2000 so that the

interrogatory should not have been asked	and need not be
answered.

I Interrogatory 21 asked -

"Under which person's direction did the First

Respondent distribute the Erik 2000?"

This interrogat'ory is dependent upon interrogatory	20 which
I have found need not be answered.

Interrogatory 22 asked -

"How many units of the Erik	2000 has the First
Respondent distributed?"

.

13.

j

i

I This interrogatory was ob~ected to on the ground that it

proceeded on an assumption whlch was nelther proved nor

admitted namely that the first respondent had distributed

units of the Erik 2000. In view of the admisslon on the

pleadings as to dlstribution, there is no substance in this

objection. !The interrogatory is relevant	to the question of
damages and should be answered.

Interrogatory 23 asked -

"If the answer to 20 is yes, has any other person

or company distributed the Erik	2000?	If so,
who?"

This interrogatory depends upon lnterrogatory 20. In any

event it is too wide in its present form to be relevant to

any issue in the proceedings.

Interrogatory 24 asked -

"If the answer to 20 is no, who has distributed

the Erik 2000?"

As this interrogatory depends on interrogatory 20, it need not be answered.

Interrogatory 25 asked -

"Has the Flrst Respondent advertlsed the Erik

2000?"

.

14.

This interrogatory was objected to as being unrestricted as

to time. In my opinlon, having regard to the issues as they

emerge from the pleadings, the objection taken to this

lnterrogatory is not well founded and the interrogatory

should be answered by the first and second respondents.

Interrogatory 26 asked -

"Under which person's direction did the First

Respondent advertise the Erik 2000?"

This interrogatory proceeds upon an assumption that an

answer has been given to an unasked question.	It need not
be answered in its present form.

Interrogatory 27 asked -

"How many units of the Erik	2000 has	the First
Respondent advertised?"

This interrogatory should, I think, be disallowed. In

referring to the number of units that have been advertised

,P

it departs, without explanation, from the language of the

prevlous interrogatory which refers to the advertising of

the product itself. The latter is understandable, the

former, without more, is not.

Interrogatories 28 and 29 asked -

" 2 8 . If the answer to 25 is yes, has any other

person or company advertised the	Erik	2000?	If
so, who?

15.

29 . If the answer to 25 is no, who has

advertised the Erik ZOOO?"

These interrogatories are too wide and should be disallowed. second respondents' servants and agents.

Interrogatory 30 asked -

"Has the First Respondent offered for sale the

Erik ZOOO?"

This interrogatory is not relevant to any issue in the

proceedings. The allegation pleaded is that the first

respondent	sold	the	Erik	2000 and	that	allegation	is
admitted.

Interrogatory 31 asked -

"Under which person's direction did the First

Respondent offer the Erik 2000 for sale?"

For the reasons:' given in relation to interrogatory 30, this

interrogatory need not be answered. In any event it assumes

an answer to an unasked question.

Interrogatory 32 asked -

"How many units of the Erik 2000 has	the First
Respondent offered for sale?"

.

I

I

16.

I

131s interrogatory depends on interrogatory 30 and need not

i

be answered.

Interrogatories 33 and 34 asked -

i I

J

l " 3 3 . If the answer to 30 is yes, has any other

person or company offered for sale	the Erik 2000?
If so, who?

34. If the answer to 30 is no, who has offered

l	for sale the	Erik ZOOO?"
I
I

1	These are too wide	and, therefore, objectionable. They need
i
not be answered.
j I I

I	Interrogatory 35 asked -
I
I
I

"Has the Flrst Respondent sold any units or parts

of the Erlk 2000?"

There is an admission on the pleadings that units were sold.

There is no allegation in in the pleadings to which the

selling of parts of units is relevant.	The interrogatory,
therefore, need.,not be answered.

Interrogatory 36 asked -

"Under which person's direction did the First

Respondent sell the Erik 2000 unit or parts?"

Apart from any other objection, this interrogatory assumes

an answer tcran unasked question and need not be answered in

its present form.

17.

Interrogatory 37 asked -

"(a) How many unlts of the Erlk 2000 has the

First Respondent sold?

(b)	How many parts of the Erlk	2000 has the
First Respondent sold?"

The objection to interrogatory 37(a) 1 s an objection that it

is unlimited as to time. I do not think that objection is

well taken having regard to the issues as they appear from

the pleadings. The objectlon to interrogatory 37(b) is

sustained as there is no allegation in the amended statement

of clam to which the selling of parts is relevant.

Interrogatory 38 asked -

"If the answer to 35 is yes:-

(a) Has any other person or company sold the Erik 2000 or parts thereof?

(b) If so, who?

(c) If that person or company has sold parts

of the Erik 2000 which parts?"

,

This interrogatory is dependent on interrogatory 35 and need not be answered in its present form.

Interrogatory 39 asked -

"If the answer to	35 is no, who has sold the Erik
2000?"

.

I

!	18.
I

I This interrogatory is objectionable as it requires inquiries

to be made of persons other than the servants and agents of

the flrst and second respondents. Sales made by persons

I	other	than	such	servants	or	agents	are	irrelevant	to	the
!

I	issues as dlsclosed by the pleadings.
I	i

i	Interrogatory 40 asked -
I

"What was the total gross revenue of the sales of

the Erik Z O O O ? "

This interrogatory was oblected to as being too wide. Read

i

I	in	the context of the earlier interrogatories which, In
I I

!	terms, were wide enough to encompass sales by persons other than the first and second respondents and their respective
I
i	servants or agents, it could be considered to suffer from
l	the same defect as those arlier interrogatories. However,
once those interrogatories are struck out, this
interrogatory is to be read as relating to sales by or on behalf of the first and second respondents and should, in my view, be answered.

,

Interrogatory 41 asked -

"What has been the retail sales value per unit of

the Erik ZOOO?"

Thls interrogatory is impreclse and need not be answered in

Its present form. One would think that the interrogatory

should have ;eferred to the sale price per unit rather than

!

19.

the sales value. The interrogatory does not indicate how

I the sales value is to be ascertained.

Interrogatory 42 asked -

"What has been the manufacturlng cost per unit	of
the Erik 2000?"

This interrogatory does not specify a tlme as at which the

I manufacturing cost is to be ascertained. I think it should

be drafted in more precise terms. In any event,

manufacturing costs per unit would appear to be irrelevant

to any issue arising on the pleadings. The interrogatory

I need not be answered in its present form.

Interrogatory 43 asked -

"What has been the marketing/advertising cost per

unit of the Erik 2000?"

This interrogatory displays similar defects to

Interrogatorles 41 and 42 but even more acutely and need not

be answered in its present form.

Interrogatory 44 asked -

"What has been the distribution cost per unit of

the Erik ZOOO?"

The language of this interrogatory is too vague. It need

not be answered m its present form. .

20.

Interrogatory 46 asked -

"Has First the Respondent manufactured,

distributed, advertised, marketed, offered for

sale or sold, or otherwise dealt with, a heater

similar to, or substantially slmilar to, the Erlk

ZOOO?"

This interrogatory is objectionable as it does not relate to

any issue arising on the pleadings.	The applicant conceded
that it need not be answered.

Interrogatory 47- asked -

"If the answer to question 46 is yes, then:-

(a) What was the name of the heater?

(b) What was the total number of units

I involved?

I (c) What was the value of the total number of units involved?"

The applicant conceded that this interrogatory need not be answered.

,

Interrogatory 50 asked -

"Has any other person or company manufactured,

dlstributed, advertised, marketed, offered for

sale or sold, or otherwise dealt with, a heater

similar to, or substantially similar to, the Erik

ZOOO? If s o : -

(a) What is the name of that person or

company?

(b) What was the name used for the heater?"

-

l’he appilcant concedw: tnat t n l s Interrogatory need not be

answered.

“54. Has the Fxrst Rcsponden-, ever manufactured,

dlstrlbuted, advertised, marketed, offered for

sale or sold, of otnerwise deair. wlth, a heater

as depictea In the coplr advertisement being

document umber 6 7 in the Applicant’ S

Supplementary List of Documents?

55. If the answer to 54 is yes, answer questions

1 to 45 (inclusive) a.oo-,*e, as lf each of those

questions was asked in relatlon to that heater

(that is as if thne name of that heater

descri2tlon was used In place of tine name ‘the

Erik 2000 ‘ ) . ”

I

Thc ddvertiscment referred to =as in the following form -

.

22 .

Interrogatory 54 was ob~ected to In the following terms:

"I object to answerlng this interrogatory as It

is oppressive: It 1 s not restricted as to any

particular time: it is fishlng: it is not

material to matters In dispute between the

applicant and the first and second respondents

herein or either of them. Further, the facts

sought in answer to the interrogatory would

requlre the first respondent to make unreasonable

and unnecessary enqulries."

It was said on behalf of the applicant that these

interrogatories were designed to elicit evidence in support

of par.6 of the Second Amended Statement of Claim. That

paragraph, as has already been mentioned, refers to the manufacture and marketing by the first, third and fourth

respondents of "a heater under the name 'Erik 2000' also

called 'the Hornet' and sometimes without name described	as
'Slow Combustion Heater"'.

Counsel for the applicant accepted that par.6 of

the Second Amended Statement of Claim refers only to one

type of heater "marketed under different names namely "Erik

2000" or "the Hornet" or without name. He submitted that

the interrogatories were necessary as the applicant was

entitled to know whether, for example, the answer given by

the first and second respondents to interrogatory 17 (which

asked how many units of the Erik 2000 had been manufactured)

referred to all units of that type whether marketed under

either of the names mentioned or without brand name.

23.

It is important to note that, immediately following

the words quoted above, par.6 of the Second Amended

Statement of Claim continues:

"The Plaintiff Capplicantl hereinafter refers to these heaters as 'the Erik 2 0 0 0 ' . This heater is

almost ldentlcal In design, dlmenslon and

appearance to the Tile Fire."

Paragraphs E and 9 of the Second Amended Statement of Claim

are also relevant. Paragraph E alleges distribution and

sale of "the Erik 2000 heaters in Australia" and par.9

alleges, inter alia, that in manufacturing, marketing,

distributing and selling "the Erik 2000 heater being almost

identical in design, dimension and appearance to the Tile

Fire" the first, third and fourth respondents have

contravened 5.52 of the Trade Practices Act 1974 (Cth). It

is also to be noted that the first and second respondents in

their respective defences admit that the first respondent

has manufactured, marketed, distributed and sold the "Erik

2000" heater. It may be a question whether the phrase "the

Erik 2000 heate?" is used in the defences in the same sense

as it is used in pars 8 and 9 of the Second Amended

Statement of Claim.

The interrogatories preceding interrogatory 54

refer to "the Erik 2000" but those references are to be read

l

in the light of the statement made in the notice to answer

interrogatories that in the interrogatories certain

.

24.

abbreviations have been used. One of those abbreviations

was the expresslon "the Erik 2 0 0 0 " which	was said to refer
to :

I

"The heater referred to in the CSecondIl Amended

Statement of Clam filed herein and in particular

referred to in paragraph 9 of the Statement of

Defence filed by the First Respondent	and the
Second Respondent.

Paragraph 9 of the respective defences of the first and

second respondents admitted that the first respondent

distrlbuted and sold the "Erik 2000" heater in Australia.

It, therefore, appears that the interrogatories

preceding interrogatory 54 were drafted on the basis of

requiring answers in respect of the Erik 2000 heather whether manufactured and marketed under that name or under

i

the name "the Hornet" or wlthout brand name. If any

ambiguity remains it must be laid at the door of the

applicant and cannot be used to support an application that

the flrst and second respondents answer interrogatories 54

and 55.

>

In my oplnion, those interrogatories need not be

answered.

Interrogatory 56 asked -

"Look at the copy advertisement depicting a 'Slow

Combustion Heater' and being document number 67

In the Applicant's Supplementary List of

Documepts. Now answer the following questions:-

25.

Has the First Resp0nder.t seen a heater of

the type depicted in that advertlsement?

the Is heater appearlng in the

advertisement similar or substantially

similar to the Erik ZOOO?

Who manufactures the heater depicted in the advertisement?

Who distributes the heater depicted in the advertisement?

Who sells the heater depicted in the advertisement?

With regard to the answers given for (c),

(d) and (e) herein, did the First

Respondent authorise those persons to

manufacture, dlstribute or sell that

heater, as the case may be?"

Paragraphs (a) and (b) were answered in the affirmative.

The applicant conceded that par.(c) was irrelevant and need

not be answered. Paragraphs (d), (e) and	(f) are equally
irrelevant and need not be answered.

!

Interrogatory 57 asked -

"57. Look at the bundle of correspondence between

the First Respondent and Durelink Engineering

Pty. Ltd, (hereinafter 'Durelink') and Can-Fab

Engineering Pty. Ltd (hereinafter 'Can-Fab'),

appearing as document number 5 in the First and

Second Respondent's Csic7 list of Documents dated

the 28th of May 1983 and answer the	following
questions:-

(a) What is or was the relationship between

the First Respondent and Durelink?

(b) What functlon did Durelink perform with

regard to the	manufacture, distribution,
supply or sale	of 'the Erik ZOOO'?

(c) Has the Second Respondent had any

. relationship with Durelink? If so, give

details.

26.

What is or was the relationship between

the First Respondent and Can-Fab?

'fiat functlon dld Can-Fab perform with

regard to the manufacture, distribution,

supply or sale of 'the Erik 2 0 0 0 ' ?

Has the Second Respondent had any

relationship wlth Can-Fab? Is so, give

detalls. I'

The objections to answering the various questions asked in this lnterrogatory were expressed in the answer in the

following terms -

I object to answering this interrogatory as it is oppressive: it is ambiguous: it is not restricted as to time: it is

fishing: it proceeds on an assumption

which is neither proved nor admitted

namely that there o is was a

relationship between the first respondent

and Durelink: it does not relate to

matters in dlspute between the applicant

and the first respondent and the second

respondent or either of them.

I object to answering this interrogatory

as it is oppressive: it is not restricted

as to any particular time: it proceeds on

an assumption which is neither proved nor

admitted namely that Durelink performed a

function with regard to the manufacture,

distribution, supply or sale of the Erik

2000: it is fishing, it does not relate

to matters m dispute between the

applicant and the first respondent and

the second respondent or either of them.

I object to answering this interrogatory

as it is oppressive: it is not

restricted as to any particular time: it

is fishing: it is embarrassing as it

does not specify the details which are to

be given: it does not relate to matters

in dispute between the applicant and the

first respondent a d the second

respondent or either of them.

.

(d) I object to answering thls interrogatory

as it 1s oppressive: it IS ambiguous:

it 1 s not restricted as to time: it is

fishing: it proceeds on an assumption

which is neither proved nor admitted

namely that there or is was a

relationship between the first respondent

and Durellnk Cslc3: it does not relate

to matters in dispute between the

applicant and the flrst respondent and

the second respondent or either of them.

(e)	I object to answering this interrogatory
as it 1s oppressive: not it s

restricted as to any partlcular time: it

proceeds on an assumption which is

nelther proved nor admitted namely rhat regard to the manufacture, distribution,

supply or sale of the Erik 2000: it is
fishing, it does not relate to matters in dispute between the applicant and the
first respondent second the a d
respondent or either of them.
(f)	I object to answering this interrogatory
as it oppressive: s it is not;

restricted as to any particular time: it

is fishing: it is embarrassing as it

does not specify the details which are to

be given: it does not relate to matters

in dispute between the applicant and the

first respondent and the second

respondent or either of them."

In my opinion interrogatory 57 is too imprecise to

be allowed. It is by no means clear what the interrogator means by the w?rd "relationship" in questions (a), (c), (d) and (f). Those questions are, in any event, expressed at

large in terms of relationship and are not limited in such a

way as to demonstrate on their face their relevance to the

issues that arise on the pleadings. Further, no time is

stated as at which the questions are to be answered. This defect is accentuated by the use of the words "is or was" in

questions (a) and (d). Questions (b) and (e) are expressed

.

in very general terms and are not limited, on their face, to

, .> -

28 .

I

a function performed on behalf of the first or second

respondents. InLerrogatory	57 need not	be answered in Its
present form.

Interrogatory 58, so far as relevant for present

purposes, asked -

"Look at the manufacturing contract disclosed by

the First and Second Respondents as document

number 6 In their List of Documents dated the

28th of May	1983	and	answer	the	following
questions:-

(a) What is the date of the agreement?

....

This question was objected to on the ground that it amounted

to cross-examination on the contents of a document.

However, examination of the document referred to in the

preamble to the interrogatory reveals that, while it

purports to have been executed by the parties, the provision

I

in it for the insertion of its date has not been completed.

In my opinion, this question should be answered.

Interrogatory 59, so far as material for present

purposes, asked -

"Look at the two pages of handwritten notes

appearing in the bundle of documents discovered

in the First and Second Respondent's Csic7 List

of Documents dated the 28th of May 1983 as

document number 6 and answer the following

questions:-

.

29.

Whose handwriting appears on those two documents?

Who employed the person referred to in

(a)?

At he time that hose handwritten

drawings and writings were made, had a

prototype of the	'Erik	2000'	been
constructed?
....

Where is the	prototype	of	the	'Erlk
2000 '? "

The first and second respondents answered question	(a) by
stating that the person was the second respondent but

objected to answering question (b) on the grounds that it

proceeded on an assumption neither proved nor admitted that

the person referred to in (a) was employed by someone and

that the question was oppressive and too wide as it was not

restricted as to any particular time. I think this

objection is well taken. Question (b) need not be answered

in its present form. The first and second respondents

answered question	(c) in the affirmative but objected to
answering question	(f) on the ground that it proceeded on an

assumptlon nelther proved nor admitted that there was a

prototype of tge Erik 2000. As the answer to question ( c )

admitted that there was such a prototype, the objection

cannot be sustained. The question should be answered.

Interrogatory 62 asked -

"Did the Second Respondent supervlse andlor

direct the First Respondent, in any of the

following regards:-

30.

(a) manufacture;

(b) marketing;

(c) distribution;	and/or
(d) selllng;

of the Erik ZOOO? If so, give details?"

The first and second respondents answered question (a) in

the negative and questions (b), (c) and (d) in the

affirmative but ob~ected to giving detalls as the question

was in that respect "embarrassing and too wide and

oppressive". In my opinion the objection is well taken and

no further answer to lnterrogatory 6 2 is required.

Interrogatory 6 3 asked -

"If the answer to any part of 62 is no, then

which person supervised andlor directed that

work?"

The applicant conceded that this interrogatory need not be

answered.

>

In the result, I am of opinion that the first and

second respondents are required to make further answer,

verified by affidavit in accordance with 0.16, r.7 of the

Federal Court Rules, to interrogatories numbered 2 2 , 25,

37(a), 40, 58 and 59(f). Otherwise, the motion is

dismissed. As the applicant has substantially failed, the

.

I L

a 31.

i

appropriate order for costs 15 that the applicant pay

three-quarters of the costs of the first and second

respondents of the motion.

I certify that this and

the preceding 30 pages are

a true copy of the Reasons

for Judgment herein of the

Honourable	Mr Justice
Neaves.

Associate

Dated: 3 April 1987

Counsel for the applicant : Mr N.J. Topfer

l	Solicitors for the applicant	:	Stephen Jacques Stone James
Counsel for the first and	:	Mr S.L. Walmsley

second respondents

Solicitor for the first and : Ray Swift

second respondents

Date of hearing : 8 September 1986