Margaret Leslie Marshall and Kim Neil Marshall v Michael Prescott
[2012] NSWSC 515
•18 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: Margaret Leslie Marshall and Kim Neil Marshall v Michael Prescott [2012] NSWSC 515 Hearing dates: 1 May; 4 May 2012 Decision date: 18 May 2012 Before: Bellew J Decision: 1. The defendant, within twenty one (21) days, is to provide verified answers to those interrogatories numbered (1), (2), (3), (8), (9), (10), (11), (12), (13), (14), (19), (20), (21), (22), (23), (24), (25), (27), (28) and (30) in the draft form of interrogatories marked "A" and annexed to the notice of motion filed by the plaintiff on 21 October 2011.
2. I stand the matter over until 9.30 am on 1 June 2012 in order to hear argument on the question of costs.
Catchwords: PRACTICE AND PROCEDURE Interrogatories - whether relevant and necessary Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Attorney General v Gaskill (1882) 20 Ch D 519
Boyle v Downs [1979] 1 NSWLR 192
Danby v Australian Financial Agency and Guarantee Company Limited (1891) 17 VLR 156
Hall v Truman Hanley and Co (1885) 29 Ch D 307
Hawke v Tamworth Newspapers Pty Ltd [1983] 1 NSWLR 699
James v Davis (1883) 9 VLR 140
Lyell v Kennedy (1883) 8 App Cas 217
Marshall v Carruthers [2002] NSWCA 47
Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289Category: Procedural and other rulings Parties: Margaret Leslie Marshall and Kim Neil Marshall - Plaintiffs Michael Prescott - Defendant Representation: CJ Bevan & EW Young - Plaintiff
Turner Freeman - Plaintiff
Colin Biggers and Paisley - Defendant
File Number(s): 2009/297404
Judgment
Introduction
By a statement of claim filed on 10 February 2009, Margaret Leslie Marshall and Kim Neil Marshall, the first and second named plaintiffs respectively, have brought proceedings against the defendant Michael Prescott alleging:
(i) negligence;
(ii) breach of fiduciary duty; and
(iii) conspiracy.
By notice of motion filed on 21 October 2011, the plaintiffs seek an order pursuant to Rule 22.1 of the Uniform Civil Procedure Rules requiring the defendant to answer specified interrogatories which are more fully set out in the form annexed to the notice of motion. That order is opposed by the defendant.
Background
The present notice of motion comes before the court against a background of a long history of litigation which has taken place both in Australia and overseas. That background may be summarised as follows.
The late Neil Marshall ("the deceased") was the husband and father of the first and second named plaintiffs respectively. In or about June 1995, the deceased separated from the first named plaintiff and commenced to reside in a de-facto relationship with Linda Carruthers ("Carruthers"). In 1996 a property settlement was reached between the deceased and the first named plaintiff. However, no proceedings were brought seeking dissolution of the marriage.
On 31 May 2000 an aircraft in which the deceased was a passenger crashed near South Australia. The deceased, along with some twenty other passengers and the pilot, died as a result of that crash.
Following the deceased's death, Carruthers brought proceedings pursuant to the Family Provision Act seeking an order that provision be made to her from the deceased's will. At about the same time, she also commenced proceedings in the Compensation Court of NSW seeking a death benefit on the basis that she was the de-facto spouse of the deceased.
In the proceedings brought in the Compensation Court, Carruthers received a death benefit of approximately $200,000.00 which was paid by GIO Worker's Compensation (NSW) Pty Ltd ("GIO"). Although she was successful at first instance in the proceedings brought pursuant to the Family Provision Act, the Court of Appeal ultimately concluded that she was not entitled to any provision from the deceased's will (see Marshall v Carruthers [2002] NSWCA 47). The court further concluded that the deceased's estate was held by the first named plaintiff on trust for the second named plaintiff (who at that stage had not attained the age of 18 years). The finding which had been made at first instance that Carruthers and the deceased were in a de-facto relationship at the time of the deceased's death was not the subject of any challenge.
On or about 22 May 2002 a series of separate sets of proceedings were commenced in the United States District Court for the District of Pennsylvania ("the United States proceedings"). Those proceedings were brought by the surviving family members of each person who had died in the air crash, against the manufacturer of the engines that were attached to the aircraft. The first and second named plaintiffs were plaintiffs in one of those actions, all of which were ordered to be tried together. All of the plaintiffs in the United States proceedings were represented by a firm of lawyers in New York, Messrs Kreindler and Kreindler ("Kreindlers"). The United States proceedings were required to be commenced, for jurisdictional reasons, in the District of Pennsylvania for jurisdictional reasons. That necessitated Kreindlers engaging another lawyer in Pennsylvania to act as their agent.
The defendant in the current proceedings before this court is a South Australian lawyer who was instructed by some (but not all) of the plaintiffs in the United States proceedings. To the extent that he was not instructed by the remainder of those plaintiffs (including the first and second named plaintiffs in the current proceedings before this court) he appears to have acted as, for want of a better term, the "Australian representative" Kreindlers. In particular, it appears to have been part of his role to liaise with the Australian legal representatives of those plaintiffs in the United States proceedings for whom he did not act, and to appraise them of aspects of the progress of such proceedings.
On 21 February 2003 the United States proceedings were settled. As might be expected, it was necessary for various Deeds to be executed to give effect to the settlement which had been reached. Following the settlement being reached, but whilst the necessary Deeds were being prepared, Carruthers sought to make a claim for the payment, to her, of that part of the settlement money from the United States proceedings which was due to the first and second named plaintiffs in these proceedings. She did so notwithstanding the fact that she was not, and never had been, a party to the United States proceedings.
The notification of Carruthers' claim caused Kreindlers to advise that no part of the settlement money from the United States proceedings would be distributed to the first and second named plaintiffs in the present proceedings unless and until Kreindlers received some form of acceptable confirmation that Carruthers had no entitlement to it. In view of the advice of Kreindlers, the first and second named plaintiffs brought proceedings in this court against Carruthers seeking (inter alia) declaratory relief as to their entitlement to a share of the settlement monies from the United States proceedings.
Initially, Carruthers was represented in those proceedings by the present defendant. When this became apparent, the first named plaintiff sought, and obtained, an injunction against the defendant restraining him from, in effect, acting against her. It is relevant to note that in those proceedings orders were made by Barrett J requiring the defendant to deliver up, by reference to specified categories, the following material:
"... all his files, papers, records, diaries, emails, letters, original and copy documents, copies of all trust account and office account records relating to the affairs of the plaintiff and or Kim Marshall and or the estate of the late Neil Marshall, and the draft documents made on behalf of the plaintiff and or Kim Marshall and or the estate of the late Neil Marshall, and all office and home computer information stored in electronic format (to be delivered up on 31/2 "diskette or CD rom) for the period 1 June 2001 and until 15 November 2005..."
Ultimately, the first and second named plaintiffs succeeded in obtaining relief against Carruthers, the effect of which was to declare that Carruthers had no entitlement to any part of the settlement monies from the United States proceedings. In addition, the first and second named plaintiffs received the benefit of an order for costs in their favour. However, almost the entirety of the settlement monies from the United States proceedings to which the first and second named plaintiffs were adjudged to be entitled had, by that time, been expended in costs.
Accordingly, the first and second named plaintiffs commenced proceedings against the defendant seeking, by way of damages, the costs which were expended. It is in those proceedings that the current notice of motion has been brought.
The Evidence
In support of the motion, the plaintiffs relied upon two affidavits of their solicitor, Terence Louis Goldberg, sworn on 28 October 2011 and 2 December 2011. The Exhibit to the first of those affidavits extended for more than 300 pages, however in the course of submissions I was directed to limited parts of that material which were relevant to the issue to be determined on the motion. Importantly however, the exhibit to Mr Goldberg's first affidavit included a copy of an affidavit of the defendant which had been sworn on 7 October 2011 and which had been served by the defendant's solicitors in the course of correspondence concerning the issue of interrogatories. Paragraphs (6) and (7) of the defendant's affidavit were in the following terms:
"6 Annexed hereto and marked with the letter "A" is a copy of an email dated 25 April 2003 sent by Mr Justin Green of Kreindler and Kreindler Attorneys to Mr David Greenwell of counsel. I have no recollection of the circumstances or date upon which this email came into my possession or how it comes to pass that the name of my firm appears on the name of that header.
7 Since 2003 I have updated my computer system several times. In 2006 the computer which held my old emails crashed, the data was lost and the hardware was donated by me to a local church as a clean computer. There is no longer any electronic version of the above email in existence."
Annexure "A" to which the defendant referred in paragraph (6) of his affidavit was a copy of an e-mail purportedly sent from Justin Green at Kreindlers to a Mr Greenwell, a Barrister in Adelaide, and a Mr Bowman (whose position was not otherwise identified). Notwithstanding the fact the copy of the e mail is headed "Prescotts Barristers and Solicitors" the defendant is not named as a recipient In the course of that correspondence, Mr Green advised that he had been contacted by a lawyer in the United States who had been "contacted by the solicitor for Carruthers" and that "Carruthers wanted to know what could be done in the US to prevent all of the Marshall settlement being paid to Mrs Marshall and Kim".
There was considerable focus upon paragraphs (6) and (7) of the defendant's affidavit in the course of the hearing of the present motion. Specifically, what was described by the defendant in the affidavit as the "crash" of his computer assumed some importance, for reasons to which I will return.
In his second affidavit of 2 December 2012 Mr Goldberg deposed at paragraph (12) as follows:
"The orders made on 16 November 2005 by Justice Barrett contained order number 3, which included an order that the defendant to those proceedings, Michael Prescott, deliver up to the Court within 21 days of 16 November 2005 (that is, on or before 7 December 2005), all his files and papers for, including all records relating to the affairs of the plaintiffs, including the hard drive on his computer/or all its contents."
The orders of Barrett J are annexed to Mr Goldberg's affidavit. Mr Goldberg's assertion that they included an order that the defendant deliver up the hard drive on his computer is incorrect. There is no such reference appearing anywhere in his Honour's orders.
In paragraph (14) of the same affidavit Mr Goldberg further deposed as follows:
"It now seems clear to me from my reading of the affidavit of the defendant sworn on 7 October 2011 filed in this (sic) proceedings (see annexure "C" to this affidavit) that the defendant:
(a) failed to retrieve from his computer and print off, documents that he was required to produced pursuant to the orders of 16 November 2005, contrary to that order; and or
(b) deleted all the electronic information stored on the hard drive on his computer and thereafter gave the computer away as a second hand computer with a clean hard drive to a local church in Adelaide some time 2006 after he was served with the orders made on 16 November 2005, contrary to the express terms of those orders" (my emphasis).
Leaving aside the form of that paragraph, its contents amounted to an assertion by Mr Goldberg that the defendant had deleted all electronic information stored on the hard drive after he was served with a copy of the orders made by Justice Barrett. That is a most serious allegation and one which should only have been made if there was proper evidence to support it. In my view, there was not.
Mr Goldberg then proceeded to depose as follows in paragraph (15):
"The first notice which the plaintiff received of the matters deposed to in paragraphs 10 to 14 inclusive of this affidavit was when I read the affidavit of the defendants sworn 7 October 2011 on their behalf as their solicitor in both the 2005 proceedings and in these current proceedings. That was my first opportunity to consider how best to deal with the problem faced by the plaintiffs with the destruction of records by an officer of the Court after he had been served with a Court order directing him to produce to the Court, amongst other things, the hard drive of his computer containing electronic records of the plaintiff's affairs whilst he held a retainer from them as their solicitor and in the face of the order requiring the production of that hard drive with all those records on it in tact to the Court for inspection and use" (my emphasis).
For the reasons I have previously given, Mr Goldberg's assertion that the defendant had destroyed records after being served with an order of this Court directing him to produce such records, was not one which was reasonably open to be made. The general reliability of Mr Goldberg's assertion in that regard is probably best gauged by the fact that he again asserted that the orders of Barrett J required the defendant to deliver up the hard drive of his computer. Having regard to the terms of his Honour's orders, that assertion is incorrect.
The reliance by the plaintiffs upon Mr Goldberg's Affidavits in support of the motion prompted a further affidavit sworn by the defendant on 3 May 2012. In light of the submissions made by the parties it is necessary for me to set out the majority of that affidavit in full:
"2 I have previously sworn an affidavit in these proceedings dated 7 October 2011.
3 In my previous affidavit I deposed to the fact that in 2006 the computer which then held my emails crashed and that data contained within the computer was lost as a result.
4 My usual practise is to print out all my emails and other materials either received electronically and to store such material in hard copy files.
5 While it is possible that I may have omitted to print out an occasional email, this would be an exception to my usual practise. Subject to such possible inadvertent omission it is my belief that no documents were lost as a result of the computer crash in 2006.
6 In part in my usual practice is based on my understanding of best practise for risk management purposes. In addition, the practise of printing out documents and maintaining them in hard copy is more convenient to me than maintaining information solely in an electronic format.
7 I understand from Mr Roland Everingham, solicitor of Colin Biggers and Paisley, that an issue has been raised in the course of the plaintiffs' application to administer interrogatories as to why a brief of Mr Greenwell of Counsel has not been discovered in these proceedings.
8 Mr Greenwell was a qualified pilot in addition to being a member of the Bar. I had met him some years previously and was aware of his aviation experience. It was in these circumstances that I sought his advice. A number of solicitors who also had clients with claims arising from the aircraft crash also retained Mr Greenwell. To be the best of my recollection I did not provide Mr Greenwell with a formal brief, that is, observations, index and documents. It is my recollection that when I first sought the assistance of Mr Greenwell that I provided him with technical reports and related documentation that were in my possession. I am no longer certain when, or if, this material was returned to me. The technical reports and related documents which were in my possession, and which I believe were provided to Mr Greenwell from time to time, have been discovered and include the documents at 695 - 860".
In addition to the affidavit material there were two further documents tendered to which it is necessary for me to refer.
The first of those documents was a letter dated 14 November 2005 sent from David Greenwell, a barrister in Adelaide, to the plaintiffs' solicitors. It would appear that Mr Greenwell was briefed by the defendant to advise in relation to the United States proceedings. For present purposes, it is sufficient to note that Mr Greenwell's letter advised that he did not have any relevant documents in his possession and that they were all returned with his brief. The plaintiff relied upon this correspondence in answer to paragraphs (7) and (8) of the defendant's affidavit of 3 May 2012.
The second document, which was tendered by the defendant, was a copy of a letter from the defendant to Carruthers enclosing a tax invoice for work done between 13 August 2002 and 21 October 2004.
Finally, it should be noted that the defendant swore an affidavit of discovery on 3 December 2010. The accompanying List of Documents was 76 pages in length and enumerated 1,694 documents. Further, a Supplementary List of Documents was prepared in September 2011, at which time five boxes of material which had been previously produced to the court were returned to the defendant.
Submissions of the parties
Mr Bevan's primary position was set out in paragraph (3) of his written submissions dated 30 April 2012 in the following terms:
"The interrogatories are necessary because the defendant is unable to give proper discovery of all his documents relating to the Carruthers proceedings as he disposed of the computer containing his only record of the relevant documents (save for some hard copy documents produced several years ago under Court order) during the pendency of the Carruthers proceedings, after its hard drive "crashed" without repairing it in 2006.
That primary submission was restated by Mr Bevan on a number of occasions during the course of the hearing. For example at T 12 line 41 Mr Bevan said:
"Yes, we say they are relevant because of a gain, without any criticism because of the conduct that occurred back in 2006 when a computer containing electronic versions of documents was disposed of and we find ourselves in the position where six years later the defendant says 'well I don't have the missing hard copy document and I do not consider them necessary to prove your case'."
Mr Bevan also submitted that properly analysed, the affidavit evidence of Mr Goldberg was correct. He argued that the matters to which Mr Goldberg had deposed were a relevant consideration in assessing whether or not interrogatories were relevant and necessary.
Mr Bevan further argued (particularly at paragraph (8) of his written submissions of 3 May 2012) that interrogating the defendant "about the contents of documents he can no longer produce" was the only way in which the plaintiffs could ascertain what documents the defendant did or not have in his possession, and what he did or did not know about their contents.
Finally, Mr Bevan submitted that based on the correspondence from Mr Greenwell which was tendered, and notwithstanding the contents of paragraphs (7) and (8) of the defendant's affidavit of 3 May 2012, there was clearly material (and, in particular, the brief sent to Mr Greenwell) which was previously in existence but which had not been discovered. This, he submitted, was a circumstance favouring the making of the order sought. In particular, he argued that the copy of the tax invoice tendered by the defendant did not alter the position that there were documents which should be in existence, but which were not discovered.
Mr Everingham, who appeared on behalf of the defendant, pointed firstly to the contents of the affidavits of Mr Goldberg and submitted that the assertions made by Mr Goldberg in those parts of his affidavits which I have previously identified were contrary to the evidence. He submitted that to the extent that Mr Goldberg's affidavits constituted evidence upon which the plaintiffs relied in support of the order sought, the motion was misconceived and should fail.
On the basis of the defendant's affidavit of 3 May 2012, Mr Everingham submitted that the computer crash had no bearing on the matter at all, for the simple reason that if the evidence of the defendant was accepted, there were no further documents in existence in any event. Accordingly, Mr Everingham argued that to the extent that Mr Bevan had submitted that the necessity for interrogatories had arisen from the crash of the defendant's computer, such an assertion was simply not correct that submission should be rejected.
Mr Everingham also relied upon the fact that the statement of claim incorporated a statement signed by Mr Goldberg certifying that there were reasonable grounds for believing on the basis of (inter alia) the provable facts, that the plaintiffs' claim had reasonable prospects of success. He submitted that such certification provided a further basis for concluding that the proposed interrogatories were not necessary.
In respect of the correspondence from Mr Greenwell which was tendered, Mr Everingham submitted that the affidavit evidence of the defendant ought be accepted. He submitted that the effect of that evidence was that Mr Greenwell's retainer had been less than formal and that in these circumstances it was unsurprising that his brief had not been discovered.
Finally, Mr Everingham submitted that the proposed interrogatories were objectionable on the basis of oppression and/or relevance. In this regard, he took me to the individual interrogatories which are sought to be administered and in doing so helpfully set out his specific objections.
In reply, Mr Bevan maintained his primary position that the necessity for interrogatories had arisen in the manner he had previously outlined. However, he also submitted that an examination of the individual interrogatories evidenced further reasons why they were both relevant and necessary.
The relevant provisions of the Rules
Rule 22.1 of the Uniform Civil Procedure Rules is in the following terms:
Interrogatories
22.1 (1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.
(2) An application for such an order must be accompanied by a copy of the proposed interrogatories.
(3) In the case of proceedings on:
(a) a claim for damages arising out of the death of, or bodily injury to, any person, or
(b) a claim for contribution in relation to damages so arising,
such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.
(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.
(5) An order to answer interrogatories:
(a) may require the answers to be given within a specified time, and
(b) may require the answers, or any of them, to be verified by affidavit, and
(c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.
In addition, Rule 22.2 is in the following terms:
Objections to specific interrogatories
22.2 A party may not object to being ordered to answer an interrogatory except on the following grounds:
(a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order,
(b) the interrogatory is vexatious or oppressive,
(c) the answer to the interrogatory could disclose privileged information.
As I have set out below, the majority of Mr Everingham's objections to the individual interrogatories were based on sub-paragraphs (a) and (b) of Rule 22.2. The first of those objections necessarily falls to be resolved largely upon the pleadings. As to the second, what is oppressive may differ according to the circumstances of a particular case. Moreover, considerations which are taken into account in determining whether an interrogatory is oppressive may, to some degree, overlap with those considerations which are relevant to a determination of whether the interrogatory is necessary in the sense I have described below.
The relevant principles
A party who seeks an order pursuant to r 22.1 must establish that the proposed interrogatories are firstly relevant, and secondly necessary. Used in this context, the word "necessary" means necessary in the interests of a fair trial (see Boyle v Downs [1979] 1 NSWLR 192; Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289). As I have already noted, Mr Bevan's principal position was that the necessity in the present case had arisen in quite specific circumstances. Generally speaking however, the question of necessity is one to be determined having regard to a broad range of matters including the nature of the proceedings and the issues between the parties.
In light of the submissions made by the parties there are a number of further principles which are also relevant.
Firstly, an answer to an interrogatory may relieve the interrogating party of the need to adduce evidence in order to prove a certain fact. In this regard, r 22.6 provides that answers to interrogatories may be tendered in evidence. An interrogatory is not objectionable simply because its answer may already be known to the interrogator (see Attorney General v Gaskill (1882) 20 Ch D 519; James v Davis (1883) 9 VLR 140). Similarly, an interrogatory is not objectionable simply because the interrogator may have some other means of proving the subject matter in question (see Lyell v Kennedy (1883) 8 App Cas 217).
Secondly, an interrogatory is administered in order to obtain an admission which can be tendered in evidence against the party answering it. As such interrogatories constitute an important weapon in a litigant's armoury. As a consequence, it is imperative that an interrogatory be drafted in such a way so as to produce a clear answer (see Hawke v Tamworth Newspaper Pty Ltd [1983] 1 NSWLR 699 esp. at 707).
Thirdly, as a general proposition, interrogatories cannot operate as a form of cross-examination as to the adequacy of discovery. If there is an issue as to a particular document which prima facie ought to be in possession of a party, it may be proper to allow that party to be interrogated about it. However, such interrogation can never take the form of a roving or wide ranging enquiry in the nature of cross examination (see Hall v Truman Hanley and Co (1885) 29 Ch D 307 esp. at 320 - 321; Danby v Australian Financial Agency and Guarantee Company Limited (1891) 17 VLR 156).
Fourthly, and again as a general proposition, interrogatories about the contents of a document will be disallowed (see Winterbottom v Vardon and Sons Ltd [1921] SASR 364). That said, other aspects arising out of a document, such as the circumstances or time of its receipt, or a person's knowledge of its existence may, in certain circumstances, be sufficiently relevant to an issue in the proceedings to render interrogatories relevant and necessary.
Resolution of the issues
For the reasons I have expressed, the evidence falls substantially short of establishing that the defendant destroyed documents after he was ordered not to do so. I accept Mr Everingham's submission that to the extent that the notice of motion, and the asserted necessity for interrogatories, relied upon Mr Goldberg's affidavit evidence, it was fundamentally misconceived.
However, I do not accept Mr Everingham's submission that the certification which appears on the statement of claim leads, of itself, to a conclusion that interrogatories are not necessary. As I have already noted, an interrogatory is not objectionable on the basis that the interrogator knows the answer or is otherwise able to prove the fact to which the interrogatory is directed. The fact that Mr Goldberg may have certain provable facts at his disposal does not lead to a conclusion that interrogatories are not necessary.
On the whole of the evidence, and in particular having regard to the defendant's affidavit of 3 May, I do not accept the submission that the proposed interrogatories are necessary because documents were lost as a result of the failure of the defendant's computer. Accepting the defendant's evidence, that is simply not the case.
However as I have noted, Mr Bevan made an alternative submission, based upon an examination of the individual interrogatories, that they were necessary in the interests of a fair trial because there were matters which were relevant to the issues in the proceedings which were not discernible from those documents which had been discovered. In light of this submission, and the various objections made by Mr Everingham, I am left to determine the question of necessity, along with the various objections made by Mr Everingham, on the basis of an examination of each proposed interrogatory. In approaching the matter in that way, I have grouped a number of the interrogatories together consistent with the manner in which I was addressed by the parties.
Interrogatories 1 to 3
Interrogatories 1 to 3 are directed to the question of whether or not certain advice was given by the defendant to Mr Goldberg. The interrogatories are drafted by reference to seventeen (17) pages of letters and associated correspondence, covering a wide range of issues.
Whether any advice was given by the defendant to Mr Goldberg is obviously a matter within Mr Goldberg's knowledge and this is part of the objection which is taken by the defendant. However, as I have noted, an interrogatory is not objectionable simply because the answer is known to the interrogator.
Mr Everingham submitted that these interrogatories were (inter alia) both prolix and cumbersome. However in my view, they are neither. They are clearly directed to whether advice was given by the defendant to Mr Goldberg regarding the execution of certain agreements. The nature of the advice to which each interrogatory has been directed is clearly defined. Further, and whilst the documents certainly speak for themselves, the interrogatories are not directed to the contents of the documents but to matters ancillary thereto.
Interrogatories 4 to 7
Interrogatories 4 to 7 refer to some thirty five (35) pages of documents and are directed towards the question of whether or not the defendant "ever received legal advice ........ in the same or similar terms to the legal advice contained in those documents". That "legal advice" is not further defined.
In my view, these interrogatories are objectionable, for the simple reason that it is impossible for the defendant to ascertain with any precision the particular "advice" to which they are directed. As a result, they are virtually incapable of producing a clear response.
Interrogatories 8 to 10
Interrogatories 8 to 10 are directed towards the retainer of Mr Greenwell. Paragraphs (34) to (37) of the statement of claim make reference (inter alia) to the alleged involvement of Mr Greenwell in an agreement being reached with Kreindlers regarding Carruthers' claim to part of the settlement monies. In these circumstances, the interrogatories are, in my view, relevant to an issue in the proceedings. Contrary to the submission of Mr Everingham, they are relevant not only to the allegation of conspiracy, but also to the allegation of a breach of duty. So much is clear from paragraph C7 of the statement of claim.
Interrogatories 11 to 14
Interrogatories 11 to 14 are directed to annexure "A" to the affidavit of the defendant sworn on 7 November 2011 to which I have already made reference at paragraphs [15] and [16] above. The defendant submits that these interrogatories are oppressive in the light of the contents of that affidavit. That submission is based upon the proposition that in the course of that affidavit, the defendant has already deposed to the matters to which the interrogatories are directed. For the reasons to which I have already referred, they are not, in my view, objectionable on that basis.
Oppression is necessarily a wide concept but in my view, these interrogatories do not fall into such a category. In particular, it might reasonably be expected that in light of the defendant's affidavit of 7 November 2011, his response to interrogatory 11(a) will be "no". In those circumstances, interrogatories 12, 13 and 14 will fall away in any event.
Interrogatories 15 and 16
Interrogatories 15 and 16 are directed towards the awareness of the defendant of communications between Kreindlers and Mr Goldberg. Mr Everingham submitted that these interrogatories are irrelevant and unnecessary.
I accept Mr Everingham's submission. The awareness of the defendant of such correspondence is not, in my view, relevant to any issue in the proceedings.
Moreover, it appears to me that the interrogatories are fundamentally misdirected. There is a clear inference that the solicitor to whom reference is made in the correspondence is not the defendant but someone else.
Interrogatories 17 and 18
Interrogatories 17 to 18 are directed to the defendant's knowledge of communications between representatives of Kreindlers and representatives of Teece, Hogson and Ward who acted for Carruthers after the defendant was injuncted from doing so.
The fundamental objection taken by the defendant to these interrogatories is that they are not relevant to any issue in the proceedings. As I understood the submission made by Mr Bevan, these interrogatories are said to be relevant to the question of whether or not the communications were brought into existence after an order was made to restrain the defendant from acting for Carruthers. However, that submission appears to me to be at odds with the form of the interrogatories which, as I have said, are directed towards (inter alia) the defendant's knowledge of certain communications. The interrogatories do not, in my view, appear to be directed to any relevant issue in the proceedings.
Interrogatory 19
Interrogatory 19 is referable to nine (9) pages of documentation but properly read, it is in fact directed only towards the first two of those pages, which comprise a letter from Mr Goldberg to the defendant.
I accept the defendant's submission that the letter speaks for itself. However, the interrogatories are not directed to the content of the letter but rather to the question of what steps were or were not taken by the defendant in response to it. Significantly, the letter alleges a breach of duty or privilege on behalf of the defendant which is clearly an issue in the proceedings.
Interrogatories 20 to 24
Interrogatories 20 to 24 are directed to a claim, or proposed claim, by GIO on the settlement monies from the US proceedings. Mr Everingham has submitted that the interrogatories are oppressive because they are unnecessarily "framed" against a particular document.
The document in question comprises a series of e-mails covering only two pages. In circumstances where the material is so limited, and where there are references in it to the potential rights of GIO, I do not agree that the interrogatories are oppressive. Moreover, they are clearly relevant in light of paragraph (66) of the statement of claim.
Interrogatory 25
Interrogatory 25 is directed to forms of release which were relevant to the United States proceedings. The fundamental objection taken by the defendant is that the interrogatory is both wide and prolix.
In my view, interrogatory is clearly directed to the question of whether or not steps were taken by the defendant to negotiate certain release agreements on behalf of the plaintiffs. In those circumstances it is relevant to an issue in the proceedings.
Interrogatory 26
Interrogatory 26 refers the defendant to a number of documents and asks whether or not the defendant was aware of the "existence of the dispute referred to in those letters or subject matter".
Leaving aside questions of relevance, and having regard to the form in which it is drafted, the interrogatory is largely incapable of producing a clear answer. In particular, the "dispute" to which reference is made is not at all clear. It should not be left to the defendant to guess as to what it might be.
Interrogatories 27 and 28
These interrogatories are directed towards the question of whether or not the defendant took steps to restrain the distribution of the settlement funds to the plaintiffs until such time there was a judicial determination of the plaintiffs entitlement to that fund. The objection taken by the defendant to these interrogatories is that the question to which they are directed is, in effect, denied in the defence which has been filed.
As I have previously noted, the fact that an answer to an interrogatory is already known by the interrogator does not, of itself, prevent the interrogatory from being administered if it is otherwise relevant. In my view, the matters raised in this interrogatory are relevant to an issue in the proceedings.
Interrogatories 29 to 32
Interrogatories 29 and 31 ask the defendant to state "the reason or reasons that he has failed to give discovery" of a wide range of documents. Interrogatory 32 asks the defendant to state the present location of "all of the documents" to which reference is said to be made in other documents. In my view, such interrogatories are impermissible. They amount to a roving and wide ranging enquiry, bordering on cross examination of the defendant, as to the adequacy of discovery.
Interrogatory 30 is in a slightly different category as it is directed to a particular document. For this reason, in my view, it is permissible.
Orders
For the reasons given I make the following orders:
1 The defendant, within twenty one (21) days, is to provide verified answers to those interrogatories numbered (1), (2), (3), (8), (9), (10), (11), (12), (13), (14), (19), (20), (21), (22), (23), (24), (25), (27), (28) and (30) of the draft form of interrogatories marked "A" and annexed to the notice of motion filed by the plaintiff on 21 October 2011.
2 I stand the matter over until 9.30 am on 1 June 2012 to hear argument on the question of costs.
Decision last updated: 21 May 2012
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