National Auto Glass Supplies (Australia) Pty Limited v Nielsen and Moller Autoglass (NSW) Pty Limited (No 3)

[2006] FCA 1850

FEDERAL COURT OF AUSTRALIA

National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 3) [2006] FCA 1850

NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342, MAGGIE YEUNG LO AND HARVEY HUI OUYANG v NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595, JACK J MOLLER AND CARL MOLLER
NSD 2596 OF 2005

GRAHAM J
7 DECEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2596 OF 2005

BETWEEN:

NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First Applicant

MAGGIE YEUNG LO
Second Applicant

HARVEY HUI OUYANG
Third Applicant

AND:

NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First Respondent

JACK J MOLLER
Second Respondent

CARL MOLLER
Third Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	7 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The tender of the following interrogatories and the answers thereto contained in the ‘Second Respondents Verified Answers to Interrogatories’ be rejected – Nos. 30, 31 and 68.

2.The tender of the following interrogatories and answers thereto contained in the ‘Third Respondent’s Verified Answers to Interrogatories’ filed 28 November 2006 be rejected – No 20.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2596 OF 2005

BETWEEN:

NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First Applicant

MAGGIE YEUNG LO
Second Applicant

HARVEY HUI OUYANG
Third Applicant

AND:

NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First Respondent

JACK J MOLLER
Second Respondent

CARL MOLLER
Third Respondent

JUDGE:	GRAHAM J
DATE:	7 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants tender against the second respondent selected interrogatories and the answers thereto.  The particular interrogatories and answers are set out in a two page document entitled ‘Second Respondents (sic) Verified Answers to Interrogatories’, which was filed on 29 November 2006.  The interrogatories which the applicants wish to tender and rely upon and the answers thereto, if I may refer to them cryptically, are 4.1, 4.2, 26.1, 30, 31, 68 and 70. 

2. The answer proffered to interrogatory 30 is not in my view an answer to interrogatory 30 at all. Interrogatory 31 is predicated upon the answer to interrogatory 30 having been in the affirmative. It is impossible to discern from the answer to interrogatory 30 that it was answered in the affirmative. In the circumstances, in the exercise of the Court's powers under s 135 of the Evidence Act 1995 (Cth) (‘the Act’) I reject the tender of interrogatories 30 and 31 and the answers thereto.

3. In relation to the tender of interrogatory 68 and the answer thereto the relevant rule governing the admissibility of the interrogatory and the answer is Order 16, Rule 10(2) of the Federal Court Rules, which provides:

   ‘Where the whole or part of an answer to an interrogatory is tendered as evidence, the Court may:

   (a)      look at the whole of the answers; and

   (b) if it appears to the Court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, the Court may reject the tender unless that other answer or part is also tendered.

4. I have suggested to senior counsel for the applicants that the Court would, by reference to the interrogatories administered to the second respondent and the answers provided by him, be required to reject the tender of interrogatory 68 and the answer thereto unless interrogatory 69 and the answer thereto was also tendered, it being clear that the answer to interrogatory 69 is so connected with the matter tendered that the matter tendered, namely the answer to interrogatory 68, ought not to be used without the answer to interrogatory 69. 

5. Accordingly, I reject the tender of interrogatory 30 and the answer thereto, interrogatory 31 and the answer thereto, and interrogatory 68 and the answer thereto as contained in the ‘Second Respondents Verified Answers to Interrogatories’. 

6. The applicants have tendered against the third respondent a number of interrogatories and answers thereto which may conveniently be identified by the numbers 1, 2(b), 2(c), 2(d), 3.1, 3.2, 3.3., 4.1, 4.2, 16, 20, 24.1, 25(a), 25(b), 25(e), 26.1 and 26.7.  In considering the admissibility of the selected interrogatories and answers, the Court is required or may look at the whole of the answers and if it appears to the Court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, the Court may reject the tender unless that other answer or part is also tendered. 

7. I have indicated to senior counsel for the applicants that in my opinion interrogatory 21 and the answer thereto are so connected with the matter tendered in interrogatory 20 and the answer thereto that the interrogatory 20 and the answer thereto ought not to be used without the answer to interrogatory 21.  Accordingly, I will admit the document entitled Third Respondent's Verified Answers to Interrogatories, filed 28 November 2006, but rejecting from the tender against the second respondent interrogatory 20 and the answer thereto.

8. I reject the tender of interrogatory 20 and the answer thereto in the ‘Third Respondent’s Verified Answers to Interrogatories filed 28 November 2006.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       15 February 2007

Counsel for the Applicants:	S M Littlemore QC and A A Henskens
Solicitors for the Applicants:	Robert Yip & Co
The first respondent did not appear
The second respondent appeared in person
The third respondent appeared in person
Dates of Hearing:	4, 5, 6,7 December 2006
Date of Judgment:	7 December 2006