Morgan, S. v A.G.C. (Advances) Ltd

[1987] FCA 203

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(NOT FOR DISTRIBUTION)

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I IN THE FEDERAL COURT OF AUSTRALIA )

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VICTORIA D STRICT REGISTRY ) No. VG 277 of 1985

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I	GENERAL DIVISION	)
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BETWEEN:

SHIRLEY JOAN MORGAN and

I	LEO JAMES MORGAN	Applicants
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and

l	l	A.G.C.	(ADVANCES) LIMITED	Respondents
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I	MINUTES OF ORDER
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!	COURT: Woodward J.

I	-	DATE: 9 April 1987
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PLACE: Melbourne

THE COURT ORDEXS THAT:

The notice	of motion dated	1 December be dismissed with
costs.

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- NOTE: Settlement and entry of orders is dealt with in Order 36 of

i	the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA )

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VICTORIA	DISTRICT	REGISTRY	)	No. VG 277 of 1985
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DIVISION GENERAL 1

SHIRLEY JOAN MORGAN and

LEO JAMES MORGAN Applicants

and

A.G.C. (ADVANCES) LIMITED Respondents

COURT: Woodward J.

U: 9 April 1987

PLACE: Melbourne

=-TEMPORE REASONS FOR JUDGMENT

In this matter the applicants are seeking further

discovery of certain financial records of the respondent and

further and better answers to interrogatories. So far as the

discovery question is concerned, I am satisfied on the evidence

before me that the additional banking records which have been

sought would not bring about the better or more convenient trial

of the action.

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With regard to what have been referred to as the

'posting' records, I am prepared to accept that there are in the

interstices of the respondent's record-keeping system individual

entries, whether held on computer or elsewhere, which may indicate

certain payments being received by the respondent from the

applicants. However, the respondent has pointed out by affidavit

that those records are immediately transferred to the applicants'

individual ledger cards and that the entries on the ledger cards

have been made available to the applicants and the dates and

amounts of payments received have been disclosed by way of answers

to interrogatories.

It is by no means clear whether any of those payments

are actually in dispute in these proceedings, and if so whether

the dispute relates to more than very few of the payments that have been made. Certainly so far as the pleadings are concerned,

there is only one reference to a dispute about a particular

payment. Given these facts, it seems to me that in the exercise

of my discretion it would be quite improper for me to put the

respondent to the trouble and expense of trying to trace all the

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individual posting records of payments made by the applicants.

Accordingly, that part of the notice of motion seeking further and

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better discovery of financial records will be dismissed.

I	So far as the request for further and better answers	to
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interrogatories is concerned, that has been contested by the

I	respondent on the grounds that the interrogatories administrered
i	by the applicant are vexatious and oppressive. It is relevant in
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I	these circumstances to record the fact that this is the second lot
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of interrogatories which have been administered. The first set

were answered in part and, as to the remainder, the respondent was

able successfully to establish to the satisfaction of the Court

that the unanswered interrogatories in that set were oppressive

and vexatious.

I find, having one in detail through the 55

interrogatories, many of them with various sub-interrogatories,

and the 10 attachments to the interrogatories, that the objection

of the respondent to this set is properly taken. I have been able

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to identify only two or three of the 55 interrogatories which,

arguably, the applicant could be entitled to have answered in

whole or in part. It seems to me that, taking the interrogatories

as a whole, the defects in them are so serious and so widespread

that the only proper course for the Court to take is to uphold the

objection to the whole set of interrogatories, and not to try to

identify a few parts of two or three interrogatories which might

arguably be free of objection.

I have indicated, as counsel have gone through the

interrogatories, the nature of my criticism of a number of them.

I I think it is true to say that many of them fall because they

!	relate to matters which are not in issue between the parties. The
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statement of claim in this matter was filed on 9 December 1985.
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I	The defence was delivered early in 1986; it is over 12 months
ago. There has already been litigation about the previous set of interrogatories, as I have indicated.

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Nevertheless, it is now put to me that there are a

number of things that the statement of claim might have said, but

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has not, about the nature of the harassment alleged, which would

provide a foundation for many of the interrogatories that have

recently been administered. The simple fact of the matter is that

the statement of claim does not allege, with one minor exception,

that the respondents were harassing the applicants about moneys

which were said to be owing, but which were not in fact owing.

And yet the great bulk of the interrogatories are directed, in the

minutest detail, much of which would have been objectionable in

any event, to opening up the whole of the transaction between the

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parties and dealing with the nature of the original contract, the

circumstances and amounts of payments that were made pursuant to

that contract, and so on.

It is because the interrogatories are thus related to

matters which have not been pleaded, and which are not in issue

between the parties, that the great bulk of them fall. However,

as I have indicated in going through the interrogatories, there

are a number of them, both those which are subject to that general

criticism and also a number which are not, which are vexatious or

oppressive simply because of their width and the way in which the

interrogatories have been couched, or the details which they seek,

going in many cases far beyond any issue between the parties.

I do not think any useful purpose will be served by my

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I	running through each	of the interrogatories in detail; there are
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a number of them which counsel has not sought to justify. They

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give the general impression, as I indicated in argument, that the

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draftsman of the interrogatories, instead of trying to identify

the real issues between the parties and concentrate on

interrogating about matters which the applicants need to have

established before trial, has simply asked every conceivable

question about the history of the transaction between the

applicants and the respondent. That is not the way to go about

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interrogating.

The particular interrogatories that I have identified in

I my own mind as being perhaps free of objection are parts of

interrogatory 14, interrogatory 22 and parts of interrogatory 27.

However, in my view, none of those interrogatories seek answers to

questions which it will be important for the applicants to have

answered before the litigation in these proceedings commences.

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I think it has to be borne in mind that it is for the

applicants to establish, in a subjective way, what incidents

occurred which make up the alleged claim of harassment. It would

be for the respondent, if it seeks to do so, to try to establish

that any actual harassment that did occur, occurred without its

authority or instruction. That is not a defence which has been

i	raised or foreshadowed in the material before me and, accordingly,
any interrogatories directed to those sorts of issues are, in my
view, unnecessary to pursue.

1	Some of the interrogatories relate	to documents which
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are available to both parties and not in dispute. Some of those

i	interrogatories are clearly objectionable on their face, because
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i	they simply asked for verification of something which is quite
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apparent on the face of the document. On the other hand, some

parts of interrogatory 14 are arguably proper, because they seek

some clarification of particular entries on the documents. But my

clear impression is that the interrogatories are far too wide and

not really necessary for the launching of the applicants’ case.

Accordingly, this being the second time that the

applicants have sought to administer a set of interrogatories, and

also bearing in mind the current practice of the Court, as

illustrated by the recent amendments to the rules, to discourage

interrogation unless it is absolutely necessary, I do not propose

to allow any further opportunity for the applicants to

interrogate. Accordingly, the order of the Court is simply that

the notice of motion dated 1 December be dismissed with costs.

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I certify that this and the

five ( 5 ) preceding pages are

a true and accurate copy of the

Reasons for Judgment herein of

The Hon Mr Justice Woodward

Associate

Dated: 9 April 1987

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