| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MORAGO NOMINEES PTY LTD T/AS GAVIN CONSTRUCTION -v- CASVER IMPORTS PTY LTD [No 2] [2013] WADC 10 CORAM : BOWDEN DCJ HEARD : 18 JANUARY 2013 DELIVERED : 22 JANUARY 2013 FILE NO/S : CIV 1350 of 2011 BETWEEN : MORAGO NOMINEES PTY LTD T/AS GAVIN CONSTRUCTION Plaintiff
AND
CASVER IMPORTS PTY LTD
Defendant Catchwords: Civil practice and procedures - Appeal from registrar - Objections to answering interrogatories - Further discovery Legislation: Nil Result: Plaintiff provide further answers to interrogatories 15 and 18 (in part)
Plaintiff provide further discovery
Costs
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</Order> Representation: Counsel:
Plaintiff : Mr G Nairn
Defendant : Mr B Wheatley
Solicitors:
Plaintiff : Lavan Legal
Defendant : Mossensons
Case(s) referred to in judgment(s):
Dunmall v O'Sullivan [No 4] [2011] WADC 229
Hennessy v Wright (No 2) (1888) 24 QBD 445
International Land Developments Pty Ltd t/as Key West Realty v Diamo Nominees Pty Ltd [2008] WASC 152
Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32
Morton v Arbuckle [1919] VLR 333
Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd (1912) 13 CLR 101
Sharpe v Smail (1975) 5 ALR 377
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863
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1 BOWDEN DCJ: On 9 November 2012 a registrar made the following orders:
1. There be no order that the plaintiff provide further answers to interrogatories 15 and 18 of the defendant's interrogatories. 2. There be no order that the plaintiff give further discovery of the documents referred to in par (c) to par (e) of the schedule to the defendant's chamber summons for discovery of particular documents filed 29 October 2012. 3. The costs as to interrogatories be the plaintiff's costs in any event and that the defendant pay the plaintiff's costs as to particular discovery in any event. 2 The defendant appeals this decision. Pursuant to the District Court Rules 2005 this is a new hearing.
Brief summary of the cause of action 3 The plaintiff is a building company that constructed a building in East Perth for Superline Enterprises Pty Ltd (the owner). The glass was supplied and installed by the defendant. 4 The plaintiff claims against the defendant loss and damage due to the building not being able to be leased from 6 July 2010 to 30 January 2011. They claim the defendant was responsible for the delay in completing the building because the defendant supplied and installed defective lobby glass which they subsequently replaced. 5 The defendant contends that the cause of the plaintiff's loss and damage was the plaintiff's own defective workmanship and that the lobby glass it supplied and installed and subsequently replaced was not defective and did not cause any construction delays. 6 In September 2010 the owner terminated its building contract with the plaintiff and in March 2011 the plaintiff and owner entered into a deed of settlement and release (the deed) whereby the plaintiff agreed to carry out rectification works and agreed to pay the owner a substantial sum of money.
Interrogatories 7 The right to interrogatories is not confined to facts directly in issue but extends to any facts, the existence or non-existence of which is (Page 4)
relevant to the existence or non-existence of facts directly in issue: Sharpe v Smail (1975) 5 ALR 377, 381. Answers to interrogatories which, when taken with other facts may assist in establishing an inference that confirm a fact directly in issue or which is relevant to the existence or non-existence of facts directly an issue are relevant: Dunmall v O'Sullivan [No 4] [2011] WADC 229. 8 The connection between the subject matter of the interrogatory and the issues between the parties must be more than remote or speculative: Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd (1912) 13 CLR 101, 109 - 110. 9 Interrogatories relate to a matter in question if they can be fairly be said to be material to support a party's case or destroy that of his opponent: Hennessy v Wright (No 2) (1888) 24 QBD 445. 10 There must be a legitimate forensic purpose for interrogatories and the burden of answering them must be proportionate to the forensic purpose to be served. In International Land Developments Pty Ltd t/as Key West Realty v Diamo Nominees Pty Ltd [2008] WASC 152 Martin CJ said: … The range of forensic purposes that can be served by the administration of interrogatories is not closed. It includes gathering information in relation to events which are outside the knowledge of a party and which can be assumed to be within the knowledge of the party to whom the interrogatories are administered. That is a legitimate forensic purpose because it assists the administration of justice by enabling a party to adduce evidence of facts that are not within their ordinary knowledge. However that forensic purpose is subject to the principle that has been established with respect to fishing: see Mulley v Manifold (1959) 103 CLR 341 at 345 and Parnell v Walter (1890) 24 QBD 441 at 448 (per Lord Esher MR).
Interrogatories
Interrogatory 15 11 Interrogatory 15 asked the plaintiff to 'specify the dates and amounts of each payment' of liquidated damages to the owner pursuant to the deed of settlement. 12 The plaintiff's answer specified the amount of liquidated damages levied by the owner pursuant to the deed but otherwise objected to answering the interrogatory as they say 'the dates and manner in which the (Page 5)
plaintiff pays those liquidated damages are not relevant to any pleaded issue'. 13 The defendant says the dates and amounts of payments made are directly an issue as they may, when taken with other evidence, show the extent of rectification required and assist in establishing that some payments relate to work performed by others which was not remedied until after 30 January 2011 when essentially their liability ended. 14 The answer may when taken with other information be relevant in establishing the extent of the defective work carried out by persons other than the defendant and when that work was remedied. That is relevant to the ultimate question or whether or not it was the defendant's defective work which caused the delay on completion and be of assistance to the defendants defence, which is that the building was not handed over to the owners on time due to the plaintiff's defective work not theirs. 15 The connection between the interrogatory and the facts in issue is more than speculative or remote and there is nothing to establish the burden of answering the interrogatory is disproportionate to the forensic purpose to be served. I order that the questions be answered.
Interrogatory 18 16 Interrogatory 18 asks the plaintiff to 'state the date of the final handover and sign-off of the building at Lot 828 Lord Street, East Perth to the owner, Superline, and identify the document confirming the same and state in whose possession the document now is and where the same may be inspected'. 17 The defendant only seeks an answer to the first part of the interrogatory being 'state the date of the final handover and sign-off of the building at Lot 828 Lord Street, East Perth to the owner, Superline'. 18 The plaintiff objects to answering on the ground that the terms 'final handover' or 'sign-off' are vague and uncertain and refers to Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32, 34 where Blackburn CJ said: 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 … call for the strictest adherence of the letters of the words used. There is no place in interrogatories and answers for 'reading between the lines', adopting a liberal construction, or seeking the author’s intention rather than the meaning the words bear on (Page 6)
their face. Unless this principle is kept in mind interrogatories may easily become an unjustified cause of expense and delay. 19 They says that the words 'final handover' or 'sign-off' are not defined or referred to in the head contract or any subcontract or the deed of settlement and are so vague and uncertain that they should not be required to answer the interrogatory. 20 The defendant says that the words have a natural and ordinary meaning. They say the expression 'final handover' or 'sign-off' are used interchangeably and mean the delivery of possession of the building to the owner. Further they point out that the plaintiff is a builder and used those or similar expressions in correspondence discovered to the defendant and draw my attention to, a total of six documents whereby the representatives of the plaintiff have used the words 'signed off', 'handed over', 'final handover', 'handover', or 'the building handover'. 21 Clearly the date the owner was given possession of the building is a relevant fact. The plaintiff is a builder, the words in question are widely used in the building industry and do not, in my opinion lack certainty or precision, and accordingly the plaintiff is required to answer that part of the interrogatory. There is nothing to establish the burden of answering the interrogatory is disproportionate to the forensic purpose to be served.
Discovery
(c) Documents relating to the claim breakdown for liquidated damages 22 The defendant seeks further discovery of documents relating to 'the claim breakdown for the set-off monies and liquidated damages being withheld on the claims submitted to Palassis Architects and copied to the plaintiff'. 23 The plaintiff says in its written submissions but not under affidavit that searches have been undertaken and have been unsuccessful in locating those documents. They say no evidence exists to show they have not undertaken adequate searches or that the existing discovery is deficient and rely on Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 where it was stated: … it remains the case that an affidavit verifying a list of documents has, prima facie, a conclusive quality: Mulley v Manifold (1959) 103 CLR 341 [34]; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 574 per Gummow J. Such an affidavit is (Page 7)
conclusive unless the insufficiency of the list of documents is demonstrated in one of the ways described by Menzies J in Mulley v Manifold(ibid) … [9]. 24 The papers disclose that the plaintiff’s solicitors advised the defendant's solicitors on 18 October 2012 (exhibit C to the affidavit of Mr Leonhardt sworn 26 October 2012) that: 25 The position appears to be that although the plaintiff requested that Palassis provide them with the claims breakdown the plaintiff has made a search and has not been able to locate any such documents and is unsure whether such document exists and are or have been in their possession, custody or power. 26 Although the defendant says the plaintiff had not made sufficient effort to obtain those document I think the better view is that the plaintiff is not obliged to obtain documents it does not have from its independent contractors: Morton v Arbuckle [1919] VLR 333 although, of course, if they do have such documents or had possession custody or control of them they must be discovered. 27 In any event I note the defendant has issued subpoenas to Palassis Architects, who appear to have created the document, to produce those documents to the court and in my opinion, in light of the war of (Page 8)
correspondence between the parties and its tone, no further purpose would be served by making a specific order relating to those documents. 28 I therefore decline to order further discovery in respect of the claims breakdown documents
(d) Discovery relating to carpeting the premises 29 The defendant seeks further discovery of 'documents relating to the carpeting of the building at 59 Parry Street, Lot 828 Lord Street, East Perth which the plaintiff states was completed in approximately March 2011'. 30 An affidavit, handed to the court at the hearing on 18 January 2013, was provided by the plaintiff, whereby its Mr Gavin swears that it was the case that the plaintiff's contract including carpeting the building however subsequently the carpeting works were omitted from the contract and the plaintiff did not carry out carpeting in Lot 828 it being carried out by the owner. 31 When the carpet was laid is relevant to the question of when the building could be rented out, however as Mr Gavin's affidavit discloses the plaintiff did not carry out carpeting and I am not satisfied it would have any documents relating to the carpeting and I do not order any further discovery in that regard.
(e) Discovery relating to the final handover or sign off 32 The defendant seeks further discovery of 'documents relating to the final handover or sign-off of the building at 59 Parry Street, Lot 828 Lord Street, East Perth to the owner Superline Enterprises Pty Ltd.' 33 The plaintiff objects and says the words 'final handover/sign-off' are not referred to in the contracts or the deed of settlement and are vague and uncertain and further they say there is no evidentiary basis to justify an order for further discovery. 34 For reasons previously explained I reject the submission that the words are vague and/or uncertainty. The documents sought are relevant and ought be discovered. 35 However the plaintiff’s primary submission is that there is no evidentiary basis that those documents have not been discovered and therefore the conclusive quality of the affidavit of discovery has not been effectively challenged. (Page 9)
36 The plaintiff says the defendants has not provided any affidavit indicating that it has examined the affidavits of discovery and the documents sought have not been discovered. They say the defendant's approach has been to say to the plaintiff 'if you have discovered the documents, identify which documents they are, alternatively if you have not discovered them, please do so'. They argue they are required to make discovery but are not required to specifically identify which document contains the information the defendant seeks, it being the defendant's task to go through the discoverable documents and find it. 37 However when I asked plaintiff's counsel whether the documents had been discovered he was unable to confirm that it had, no doubt because of the voluminous nature of the discovery, which is as I understand it involves some 24 files. I am satisfied in light of that answer that the conclusive quality of the affidavit of discovery has been set aside and I order discovery of those documents. 38 If the documents had been discovered, the plaintiff should have confirmed that fact, identified the documents and they would have prima facie been entitled to their costs incurred as a result of any unsuccessful application by the defendant for further discovery.
Costs 39 I consider that it is appropriate that the plaintiff pay the defendant's costs of both the hearing and the appeal. 40 Clearly the defendant has not been successful in obtaining all the orders it has sought. Insofar as interrogatory 18 is concerned the defendant quite properly limited the answers it sought and the plaintiff's objection to part of the interrogatory had some validity. The defendant was not successful in relation to its request for further discovery in relation to items (c) and (d). However insofar as item (d) is concerned it was only because of the affidavit filed at the hearing that it became apparent that the plaintiff did not carry out the carpet works. That information could have been provided to the defendant at a much earlier date. 41 Notwithstanding that the defendant was not successful in some of its request it was successful in most and I consider it just that the plaintiff pay the defendants cost of the hearing of 9 November 2012 and this appeal. (Page 10)
Orders 1. The appeal is allowed. 2. Within 21 days the plaintiff provide further answers to interrogatories 15 and 18 (as amended). 3. Within 21 days the plaintiff give further discovery of the documents referred to in par (c) to par (e) of the schedule to the defendant's chambers summons for discovery of particular documents dated 29 October 2012. 4. The plaintiff pay the defendant's costs of the hearing of 9 November 2012 and the appeal.
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