Nadjarian v City Cabs Co-operative Society Limited

[1991] TASSC 170

Serial No B56/1991

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Nadjarian v City Cabs Co-operative Society Limited [1991] TASSC 170; B56/1991

PARTIES:  NADJARIAN, George
  v
  CITY CAPS CO-OPERATIVE SOCIETY LIMITED

FILE NO:  M295/1989
DELIVERED ON:  4 October 1991
JUDGMENT OF:  Cox J

Judgment Number:  B56/1991
Number of paragraphs:  6

Serial No B56/1991
File No M295/1989

GEORGE NADJARIAN v CITY CABS CO-OPERATIVE SOCIETY LIMITED

REASONS FOR JUDGMENT  COX J

4 October 1989

1. The plaintiff has sought an order that certain interrogatories addressed to the defendant company be answered by several employees of the company. The defendant does not oppose the answering of interrogatories addressed to those employees who are either members of the company or statutory officers thereof, but objection is taken to their being answered by persons who are only employees and are neither members nor officers of the company.

1. Order 31, r6 provides:

"If any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may deliver interrogatories to any member or officer of such corporation, company, or body."

This follows the old English rule which provided for the delivery of interrogatories to "any member or officer of such corporation, company or body". The secretary was, as a general rule, the proper person to answer (Jessel MR in Berkeley v Standard Discount Company 13 Ch D 99), but if it was desired to interrogate a member other than the secretary or other proper officer, that member was required to be served with notice (Chaddock v British South Africa Company [1896] 2 QB 153). The current English rule provides that interrogatories are to be served on "such officer of the body as may be specified in the order" (O26, r2).

1. There is no express provision allowing the party to interrogate the servant of another whether the latter be a natural person or a corporation, nor, in my view, is there any justification for such a course. The process of making discovery by way of interrogatories is one designed to enable the opposing party to avail himself of such admissions as the answers may constitute. The status of being the employee or servant of another is not of itself sufficient to make the statement of such a person an admission by the employer or master although such a statement, if given on oath at the trial will constitu

1. te evidence capable of being used against the employer. A company can only make answer through a natural person and for that reason must use the agency of one of its proper officers. But just as there is no power to compel the servant of a natural person to answer interrogatories on behalf of his master and the out of court answer of the servant cannot amount to an admission by the master, so in my view there is no power to compel a person in his capacity as a servant only to answer for a company nor is his answer an admission by the company. Only the officers or members of the company may make admissions binding on the company. In the case of a company, the proper officer must enquire of all servants or agents having knowledge of the transaction, and in this case the proper officer, Mr Dale, who is the managing director, has deposed to having made enquiries of the servants named and has answered accordingly.

1. The applicant referred to the case of Harrington v North London Polytechnic & Others [1984] 3 All ER 666, where it was held that provided adequate notice was given to them, servants of the Polytechnic could be compelled to make discovery on oath as to the identity of persons unknown to the plaintiff but alleged to have participated in tortious activity against him. The Court of Appeal, in a judgment delivered by Donaldson MR, adverted to the "mere witness" rule which was considered in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC133, at p203, where the rule was stated by Lord Kilbrandon as being:

"You cannot get discovery against someone who has no connection with the litigious matters other than that he might be called as a witness either to testify or to produce documents at the trial".

In the latter case, the House of Lords was also concerned with a situation where a litigant was seeking information in the hands of another against whom he had no cause of action as such concerning the identity of tortious wrongdoers (breaching his patent). Lord Kilbrandon went on to say:

"The defendant is not a mere witness, or any kind of witness, because the whole basis of the application is that, until the defendant has disclosed what he knows, there can be no litigation in which he could give evidence. Furthermore, if he were to disclose, either voluntarily or under compulsion, the names of the third parties whom the plaintiff desires to pursue, even then he might well not be a witness in the ensuing litigation. He might have no evidence to give; what he knew would not necessarily be required post litem motam." (Ibid.)

1. To again use Lord Kilbrandon's words, "We are not here in that territory." (Ibid, line 10). The persons sought to be interrogated may be called as witnesses at the trial to state what they know about the issues defined by the pleadings in this litigation. It is not a case where discovery is sought of the identity of wrongdoers. The case cited does not assist the applicant.

1. In my view, I have no jurisdiction to order the persons named to answer the interrogatories.