Milner, Bryan John v Delita Pty Ltd

[1984] FCA 494

IN THE FEIjERAL COURT OF AUSTRALIA

No. G164 of 1982

NEW SOUTH WALES DISTRICT REGISTRY	No.	G 85 of 1983
GENERAL DIVISION

I N T H E MATTER of the

TRADE PRACTICES ACT, 1974

BETWEEN : BRYAN JOHN MILNER AND ORS.

Applicants

fWD :

EEJLIITA FTY. LIMITED

ROGER McMILLAN CLASSON and

MGRRIS WALTER LEWIN

Respondents and

First Cross-Claimants

AND :

JOHN CHRISTCPHEH DENMETT

First Cross-Respondents

and

Second Cross-Claimants

AMD :	ROGEF. McMILLEN GLASSOPJ and
MORRIS WALTER .LEbIIkJ

Second Cross-Respondents

LOCKHART J .

This is t he first dav of the t r i a l of 3 complicated and

1enuth;r matter which has been the subioct of a larcre number of

directions hearinas extending over 3 period in exces3 of l2 months.

This morninu, counsel for the applicants informed that the

applicants' solicitors received last Fridap the verified answers to

iriterroaatories which had been administered to the cross resPondents

bv the applicants. The cross respondents obiect to snswerinu certain

of the interroaatories on various arounds, but principallv on the

Ground that thev do not relate to any fact in	issue between the
applicants and the cross respondents.

The applicants have moved this mornina t'or an order, Pursuant

to (3.16 r.8. that the cross-respondents be required t o make further

answers to interroaatories. verified b - ! . affidavit. on the around that

the cross-respondents are not entitled to take this obicction; or. if

thev are entitled to do so. it should not succeed.

3 .

The directions were made. so far as presentlv relevant. bv

consent and followed discussion between counsel and me prior to the

taking of evidence on commission in Hawaii (which in fact was taken in

June this veari: and one of the purposes of those directions was to

crystallise all outstandinu matters between the parties that could

have a bearinu on the formulation	f issues and the takina	of evidence
in Hawaii.

The applicants' assertion that the cross-respondents are

barred from takina the crround of objection to which I have referred is

founded essentially upon the provisions of 0.16 R . c j c 3 ) ( a i . I have

been referred to -;srious iudcrments of sinalc iudcres of the Supreme

Court of New South Wales: but none of the iuduments touch the

Darticular question which I have to decide.

L accept, for present purposes ibut I still leavc it as an

npen question) that this Court has power to permit an applicant to

administer interrouatories to a cross-respondent, and has o3o';Jcr to

enforce that order bTJ requirinu the cross-rcs~ondtnt to answer those interrouatories. The question reallv, in my view, is nhether in this

case, unless the cross-resoondents are barred from takina the point

which thev have taken, the Court. as a matter of discretion, should

require that thev answer the interroaatories in auestion.

I need not refer in detail t.o the -mrio...s provisions of this Court's Rules to which 1 have been referred. Thev may he summarised

bv zspina t.hat under 0. l 6 R. L. ;i Partv mavJ Serve .I notice

4.

interroqatina another Partv. as of riaht. within the times and subiect

to the conditions specified in that rule. The Court has power to

order any part? to answer interrouatories whenever it wishes: 0.16

R.5. I am firmly of the opinion that it vas not intended bv the

Court or the parties, when the consent orders were made on 5 March

this -Jear,that the interroaated partT? should be barred from obiectina

to answerina intcrroaatories on the around in question here. Not on17

40 I think that the circumshnces surroundina the makina of those

orders operate acrainst that conclusion; but the orders themselves,

upon their proper construction. deny! the applicants' contention.

I do not reaard 0.16 r a . 6 ( 3 ) ( 3 ) as Dointina to a contrarv

conclusion. That oaracrraph has in mind, at Icast orincipallv!, thouah Derhaos not exclusively, the case where the Court orders a party to

answer 3 :';pecific interrouatorr xhich has then been formulated and

which is before t.he tl'ourt and was then. o r could have been, the subiect of debate. 'mat is not this r a s e . as no oarticular

intcrroaatories vere before the Court on S March 1'324.

(:In t h e 87uer;t.ion of discretic2n. 1 *,KS t ~ l d from the Bar table

that the applicants ham thcmsel-Jes answered intcrrogatories which the

crctzz rcsDoncicnts administered to them. The applicants submitted

that, not to require the cross-resoondent5 to cio the same. -~ould be to

vitiate the elcment of mutualit-! inherent in the orders of 5 March. 1

am n o t satisfied that this is so. Althoucrh the aoplicants .Inwered

the cross-respodents' intcrrouatorics, it is common around that the

substance of those answers was covered bv the applicants in their

5 .

answers to the respondents' interrogatories. I do not see anv

specific prejudice which the applicants miuht sustain if the obiection

taken by the cross-respondents i upheld.

Another qround taken by the cross-respondents to answerina

some interrogatories which the applicants seek to administer to them

ifor example. interrocratorv number 4) is that it is said to be

oppressive. I am satisfied that this around of obiection fails.

There are no issues on the Dleadinas between the applicants

and the cross--resoondents. I think, in all the circumstances. that

the Droper course is to decline at this staac to make the orders

soucrht bz the applicants. 1 will not, however, shut out he

applicants from renewincr their application in the future if thcv wish