Norris George Carter v Gribbles Pathology Pty Ltd and Gribbles Pathology (Vic) Pty Ltd No. SCGRG 571 of 1989 Judgment No. 3622 Number of Pages 11 Discovery and Interrogatories

[1992] SASC 3622

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE J

CWDS
Discovery and interrogatories - interrogatories - Appeal from a Master - Application for further and better answers to interrogatories - Consideration of principles concerning pleadings and the answering of interrogatories - Learned Master entitled to reject appellants' application for further and better answers to Interrogatories 1, 2, 3, 4, 12, 31, 32, 41, 42, 43, 47, 48, 49, 60(c), 60(d), 61, 62, 74,75, 76, 77, 78,79, 80 and 81 - No error by Master in exercise of discretion - No variation or setting aside of any order made by learned Master.
Prenn v Simmonds (1971) 1 WLR 1381 at 1384; Eade v Jacobs (1877) 3 ExD 335; Marriott v Chamberlain (1886) 17 QBD 154 at 163; Bishop v Bishop (1901) P 325 AT 326-328; Knapp v Harvey (1911) 2 KB 725 at 729-30 and O'Sullivan v Rath and Anor (1952) SASR 71 at 73-75, applied. Barbarian Motor Cycle Club Incorporated v Koithan and Anor (1984) 35 SASR 481 at 483 and Mullett and Anor v. Gabriel and Anor (1989) 52 SASR 330 at 333, discussed. Tiver v Tiver and Tivering Park Pty Ltd (1969) SASR 40 at 47; Aspar Autobarn Cooperative Society and Ors v Dovala Pty Ltd and Ors (1987) 74 ALR 500 at 552-553; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1974-75) 133 CLR 228; Petchem Ltd (in Liq) v B.F. Goodrich Chemical Ltd (1982) VR 485 at 487 and Sharpe v Smail and Anor (1975) ALJR 130, considered.

HRNG ADELAIDE, 4-6 December 1991 #DATE 22:9:1992
Counsel for appellant:        Mr S Ward
Solicitors for appellant:     Piper Alderman
Counsel for respondent:     Mr D Trim
Solicitors for respondent:    Andersons Barker Gosling

ORDER
Appeal dismissed.

JUDGE1 LEGOE J In this appeal from a Master the appellants (defendants) in the action claim that the respondent (plaintiff) should give further and better answers to certain interrogatories which have been administered in the action. The interrogatories are lengthy both in the content of each interrogatory and in number (82 in all on 34 pages). The respondent objected to answering the majority of the 82 interrogatories on various grounds including "unnecessary", "not material", "seeks names of potential witnesses", "not material to any issues raised on the pleadings", "market value - not shown I possess the relevant expertise," "would require me to make determinations on matters of law", "requires me to make a determination of or express an opinion on a matter of law", "oppressive" and similar objections. The respondent answered interrogatories 17, 33(a) and (b), 34 and 35, 37, 45, 59 and 60(a) and (b), 67, 72 and 82. 2. The appellants took out an application that the respondent provide further and better answers to interrogatories numbered 1-32 inc., 33(c), 33(d), 36, 38-44 inc., 46-58 inc., 60(c), 60(d), 61-66 inc., 68-71 inc. and 73-81. The respondent took out an application to dismiss the appellants' application for further and better answers. The Master refused that application and adjourned the matter for argument. There were two hearings before the Master but the argument was still unfinished. The parties having agreed that many of the arguments being the same, agreed that written submissions on the balance of the argument that had not been dealt with at that stage be made to the Master. The interrogatories, in respect of which the Master had dealt with when the appellants' application for further and better answers was adjourned for the written submissions, I take from the learned Master's reasons as follows:-
    "1. I refuse an order in respect of interrogatories 1 to 4.
    2. The defendant withdrew the application in relation to
    interrogatory 5.
    3. I refuse to make an order in respect of interrogatories 6,
    7 and 8.
    4. The plaintiff to provide a further and better answer to
    interrogatory 9.
    5. The defendant does not pursue the request in respect of
    interrogatory 10.
    6. I refuse to make an order in respect of interrogatories
    11, 12 and 13.
    7. The plaintiff to provide further and better answers to
    interrogatory 14 Parts (a) to (f) inclusive.
    8. I refuse to make an order in respect of interrogatory 15.
    9. The plaintiff to provide a further and better answer to
    interrogatory 16(a).
    10. I refuse to make an order in respect of interrogatories
    17 and 18.
    11. The defendant withdraws the application in respect of
    interrogatories 19 and 20.
    12. I refuse to make an order in respect of interrogatories
    21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31.
    13. The plaintiff to provide further and better answers to
    interrogatories 33(c) and (d) and 36." 3. In his reasons the learned Master ordered that the respondent give further and better answers to some of the balance of the interrogatories and others he refused to order any further answer or in other cases that the respondent need answer the interrogatory. 4. The learned Master having ordered that:-
    "1. Within 14 days the plaintiff file further and better
    answers to Interrogatories 9, 14(a) - (f), 16(a), 33(c) and (d),
    36, 38(b), 39(b), 40, 51 52, 53, 54, 55, 56, 57(a) and (c),
    58(a) and (d), 73 and 82(g) - (k) inclusive.
    2. The question of costs be reserved.
    The appellants appeal against that part of the above decision
    refusing their application of the 14th March 1991 for further
    and better answers to Interrogatories administered by the
    appellants for the examination of the respondent and numbered 1,
    2, 3, 4, 12, 31, 32, 41, 42, 43, 47, 48, 49, 60(c) and (d), 61,
    62, 74, 75, 76, 77, 78, 79, 80 and 81, respectively ("the said
    Interrogatories").
    UPON THE GROUNDS that:
    1. The learned Master erred in law and/or in exercise of his
    discretion in finding that the answers to the said
    Interrogatories were sufficient.
    2. The learned Master erred in law in finding that the
    objections taken by the plaintiff to the answering of the said
    Interrogatories were proper and/or that there was sufficient
    facts or grounds available to the plaintiff in support of the
    said objections." THE APPELLANTS' CASE ON APPEAL
5. Counsel for the appellants said that the major complaint that the appellants have about the Master's decision is that in rejecting orders to give further and better answers the Master had taken "too narrow a view of what is material." He submitted the reasons expressed by the Master indicated he had taken an "unduly restrictive" approach by apparently confining his decision to what had been pleaded. Counsel submitted that what a party may interrogate on is not confined to facts directly in issue. 6. In support of the general principle referred to above counsel for the appellants cited Barbarian Motor Cycle Club Incorporated v. Koithan and Anor
(1984) 35 SASR 481 at 483 where King CJ referred to Halsbury's Laws of England 4th Edition Volume 13 p 80 stating that interrogatories must be relevant, and, moreover, they must, as the rule indicates, be 'sufficiently material' at the pretrial stage at which they are administered. The rule shows that they must also be necessary. At p.484 the Chief Justice goes on to point out that the application of these tests clearly involves a considerable degree of discretionary judgment on the part of the Court; see Tiver v. Tiver and Tiverina Park Pty. Ltd. (1969) SASR 40 at 47 per Walters J The Chief Justice stated that:-
    "On ordinary principles a fact is relevant, not only if it
    is a fact in issue in proceedings, but if it is a fact the
    existence or non-existence of which tends to prove or disprove a
    fact in issue. That this test of relevance applies to
    interrogatories as well as to questions at trial is shown by a
    passage from the judgment of Lord Esher MR in Marriott v.
Chamberlain (1886) 17 QBD 154 at 163 where His Lordship said -
    'The law with regard to interrogatories is now very sweeping.
    It is not permissible to ask the names of persons merely as
    being the witnesses whom the other party is going to call, and
    their names not forming any substantial part of the material
    facts; and I think we may go so far as to say that it is not
    permissible to ask what is mere evidence of the facts in
    dispute, but forms no part of the facts themselves...' This
    passage was adopted by the Full Court of the Supreme Court of
South Australia in McBride v. Sandland (1917) S.ALR 249 at
    255-256. In Tiver v. Tiver (supra) Walters J in his conclusion
    at page 50 appears to me to take the same position as did the
    Full Court in McBride v. Sandland (supra) when he says that
    interrogatories ought not to be allowed 'if their object is only
    to establish facts which, if proved, will not of themselves
    prove the material issues apparent on the pleadings, or provide
    a link in the chain of evidence necessary to establish the case
    disclosed by the pleadings' (the emphasis is mine). It must not
    be supposed, however, that every interrogatory which meets the
    test in that passage will be allowed. As Fletcher Moulton LJ
pointed out in Nash v. Layton (1911) 2 Ch 71 at 80-81, Lord
    Esher was 'laying down the limitations beyond which the court
    may not go'. The interrogatory must still be 'sufficiently
    material' at the stage at which it is administered and whether
    it is so is a discretionary judgment to be made by the court.
    That judgment must be made in the light of the purposes for
    which interrogatories are allowed and involves a balancing of
    the costs and inconvenience involved in administering and
    answering interrogatories against such contribution as the
    answers may make to the fair disposal of the proceedings and
saving of costs." 7. Secondly, counsel for the appellants referred to the well-known principle that in answering interrogatories a party should not take an unduly pedantic approach. In this regard counsel referred to Aspar Autobarn Cooperative Society v. Dovala Pty. Ltd. (1987) 74 ALR 550 at 552-553 per Woodward J. 8. Counsel for the respondent reminded me that the principles to be applied in an appeal of this nature are those frequently referred to in the authorities but succinctly put by O'Loughlin J in Mullett v. Gabriel (1989) 52 SASR 330 at 333 where His Honour said:
    "It is necessary, in order to succeed in an appeal against
    an exercise of discretion, to show that an error has been made
    in its exercise; it is not sufficient that the appellant court
    might have exercised its discretion to reach a contrary view:
House v. The King (1936) 55 CLR 499. Thus in the case at bar,
    the appellant court is not at liberty to exercise its discretion
    in preference to that of the learned Master unless and until the
    latter is shown to be flawed in its exercise. The appellant,
    therefore, faces the task of establishing that the learned
    Master did not pay regard, or did not pay sufficient regard, to
the factors listed above." 9. Secondly, counsel for the respondent stressed that when one has regard to what are the issues, that can be determined by the pleadings even in an indirect sense. This second principle should be borne in mind when looking at the individual interrogatories as an examination of those individual interrogatories the subject of the appeal and will, according to counsel, reveal that they go well beyond what could be relevant even when one applies the broadest test as expounded in the authorities above. 10. I turn now applying those principles to the individual interrogatories which are the subject of this appeal. The interrogatories were taken either in groups or individually as counsel deemed it appropriate and I heard submissions first from the appellants in relation to each group or individual interrogatory and then from the respondent. INTERROGATORIES 1-4 11. Counsel for the appellants drew my attention to the pleadings. The respondent sought certain declarations including declarations that the Memorandum of Agreement, particularly Clauses 14.1 and 14.2, were invalid by reason of being an unreasonable restraint of trade and further, that the service contract was invalid by reason of being an unreasonable restraint of trade. Further, the respondent claimed that he had been wrongfully dismissed by the appellants from his contract of employment as the Executive Officer of the appellants' pathology company. By paragraph 12 of the defence the appellants admitted that the respondent was dismissed by one Wallace Cameron, a director of the appellants' company, and the letter dated the 24th November 1988 had been sent to the respondent. Further, by paragraph 12 the appellants allege that the respondent was guilty of gross misconduct or breach of the Memorandum of Agreement or the Service Contract and that they were entitled to dismiss him accordingly. Full particulars of that misconduct are given in paragraph 12. Further, in paragraph 5 of the defence the appellants deny that the Memorandum or the Service Contract are illegal as being an unreasonable restraint of trade. The appellants say that Clause 14.1 and 14.2 were and are fair and reasonable in all the circumstances of the case. Full particulars of the reasonableness of those clauses are set out in paragraphs 5.1 to 5.7 inclusive. Those particulars allege a number of details relating to the pathology services in South Australia, Broken Hill and Alice Springs as they affect the parties to the Memorandum and the Service Agreement. The only particular where allegations about the negotiations leading up to the Memorandum for sale of the pathology practice on the 5th November 1987 appears in paragraph 5.4, where reference is made to the fact that the respondent was represented by an experienced legal practitioner when negotiating the terms of the Memorandum. 12. Counsel for the appellants submitted that interrogatories 1-4 inclusive are directed to the issue of the reasonableness of the covenant. He submitted that in determining whether the covenant is reasonable from the point of view of both the parties and the public, it is relevant to enquire as to the progress of the negotiation between the parties, the price paid, and also to examine whether the parties had an 'equality of bargaining power'. He referred to Amoco Australia Pty Ltd v. Rocca Bros. Motor Engineering Co Pty Ltd (1974-75) 133 CLR 288, particularly in the judgment of Walsh J at 305-307 and Gibbs J (as he then was) at 316-318. 13. Interrogatory No. 1 relates to the dates, places and persons present at the discussions or negotiations for the sale and purchase of the practice referred to in the Statement of Claim. Interrogatories 2 and 3 relate to the identity and dates when the respondent first consulted a lawyer in relation to the sale and purchase of the practice. Interrogatory No. 4 is a lengthy interrogatory relating to discussions, negotiations and the basis of agreements for the restraint of trade clauses in the Memorandum and the Service Agreement. Further, that interrogatory poses a number of further questions putting the appellants' version of those negotiations seeking an affirmative or negative answer. 14. Counsel for the respondent submitted that the written agreement overtook the prior discussions and negotiations. The questions which were submitted do not go to the equality or inequality of the partners at that stage of their relationship. Lord Wilberforce in Prenn v. Simmonds (1971) 1 WLR 1381 at 1384 stated that evidence relating to the surrounding circumstances of an agreement should not include 'evidence of negotiation'. The exclusion of evidence of the negotiations that led to the concluded contract in written form is an obvious manifestation of the parol evidence rule. Such evidence is inadmissible on the theoretical ground that all that went before is obliterated by the final document which is the sole repository of the parties' contractual intentions, see The Law of Contract by Greig and Davis pages 407/408. It is the relative bargaining strength of the parties which is relevant on the principles in Amoco v. Rocca referred to above; - see a discussion on this point in The Law of Contract by Greig and Davis (supra) at pages 1107-1108. Greig and Davis earlier describe this equality of bargaining power as a 'phenomenon of the consumer movement', see page 33. 15. I agree with the submissions of counsel for the respondent. Although the learned Master gave no reasons for rejecting the appellants' application for further and better answers to interrogatories Nos. 1-4, I am of the opinion that the learned Master was entitled to reject this application. Another matter that was canvassed in argument relates to interrogatory 1.3 wherein the appellants seek the names of the persons who were present at the negotiations. I cannot see that an answer to this question is in any way material or necessary to the facts either directly in issue or indirectly in the case at this stage. Indeed, I am of the view that this interrogatory merely seeks to ascertain the identity of a witness or possible witnesses for the respondent in the case. In this regard it is clearly not permissible by way of interrogatories; see Eade v. Jacobs (1877) 3 ExD 335 and Marriott v. Chamberlain (supra) and Bishop v. Bishop (1901) P 325 at 326-328 and Knapp v. Harvey (1911) 2 KB 725 at 729-730 all of which are referred to and applied in O'Sullivan v. Rath and Another (1952) SASR71 at 73-75 per Abbott J. The identity of the persons present so far as that interrogatory seeks an answer is irrelevant. In so far as Interrogatories 4(b)-(e) pose a dilemma of giving an imprecise answer I am of the opinion that the learned Master was correct or at the very least he has exercised his wide discretion on principles which have not been demonstrated to be wrong on this appeal. INTERROGATORY 12 16. The respondent is asked to state the amount of the first appellant's offer, the date when offered, and the fact that he rejected such offer as well as stating each and every subsequent offer, when negotiating the terms and the price and conditions leading to the written agreement. It is submitted by the appellants that interrogatory 12 is relevant to:-
    1. The course of dealings and the consideration for the
    sale of the business;
    2. The covenant in restraint of trade and restraint of the
    respondent's pathology practice; and
    3. Whether the parties negotiated the amount on an equal
bargaining basis. 17. Counsel for the appellants referred again to the judgment of Gibbs J (as he then was) in Amoco v. Rocca supra at page 317 where His Honour said:- "The fact that the parties have bargained from a position of equality is therefore one of the circumstances to be considered in determining whether the covenants were reasonable..." 18. But in my opinion this interrogatory does not go to the facts of equality of the parties bargaining power. Furthermore, the facts sought in this interrogatory must have been known to the appellants or its agent. The questions can therefore serve no other purpose than a fishing cross-examination question to obtain an answer which may cause a conflict. It is not a question to further the appellants' case nor to destroy the respondent's case, because the offers were all superseded by written agreements both as to the sale and purchase and as to the respondent's continuing Service Contract. It is not necessary for me to consider the form of question 12(c) - "Is it not the case ..." which the learned Master commented upon in his reasons. The appellants have failed to show how and where the learned Master erred in the exercise of his discretion refusing the appellants' application for further and better answers to interrogatory 12. This application was in my opinion refused on a proper basis. INTERROGATORIES 31 AND 32 19. These interrogatories are said to relate to the respondent's claim for wrongful dismissal, and the appellants' allegation that the respondent was justifiably dismissed for "gross misconduct" (paragraph 12(1) and 12(2)(c) of the amended Defence). The interrogatories seek to ask the respondent "each and every duty attaching to your appointment as Chief Executive Officer of the Practice" (interrogatory 31). The respondent is also asked (interrogatory 32) "Do you not agree ..." that inter alia he had to devote his whole time and attention to the practice affairs, attend management meetings and a number of other details connected with the interests of the practice. 20. Although the specific duties to be carried out by the respondent are not particularised in the categories appearing in the interrogatories, counsel for the appellants says that they are relevant as an indirect issue. It was put that the trial Judge will have to determine what were those duties and then, when the categories and details have been determined, the Judge will have to consider whether the respondent breached any or all of those duties. It is said to touch on an indirect issue. 21. Counsel for the respondent submits that to ask the respondent to answer interrogatory 31 by spelling out each and every category of duty is casting too wide and irrelevant a net. It is partly a question of law as to the duties contained in the Service Contract and what may be implied by such a contract. The appellants have "nailed their colours to the mast" in the Particulars, of the respondent's failure to devote his full time to the practice. The issues are thus confined. It would be oppressive to go so far beyond the issues raised on the pleadings (Defence and Reply) and require the respondent to answer interrogatory 31 as it stands. 22. As to interrogatory 32, counsel for the respondent raises the further objection that this question asks the respondent to express views on questions of law. That will be a matter for the trial Judge to determine. 23. In my opinion the appellants have not shown that the learned Master exercised his discretion incorrectly or contrary to principle. INTERROGATORIES 41, 42 AND 43 24. These interrogatories were disallowed on the grounds of relevancy, oppression, or not material. In general, these interrogatories seek from the respondent details of his absence from the practice and his alleged failure to devote time to the practice. Paragraph 12 of the Defence is quite specific on these allegations. Again, counsel for the appellants say the learned Master took too narrow a view of the issues. These interrogatories go to the indirect issues of the detailed absences or failures of the respondent as the Chief Executive Officer. 25. Counsel for the respondent emphasises that these interrogatories are the best example of where a wide discretion has been exercised and it is not possible for me to say that such discretion was improperly exercised. I agree with counsel for the respondent. The respondent should not be required to answer any of these interrogatories. In my opinion and bearing in mind the time lag, it would be oppressive to require the respondent to now give all the details asked for even if such details are indirectly relevant. INTERROGATORIES 47, 48 AND 49 26. These relate to the respondent's activities as a member of and one time Chairman of the Pathology Services Advisory Committee (PSAC) which is a Commonwealth body set up under the Health Act. The learned Master refused the applications in respect of these on the grounds that the appellants do not allege that the respondent "deliberately or knowingly" drew, promoted and advised that the Fee Schedule be accepted by the Health Commission, or that they were not material on the pleadings. 27. Counsel for the appellants submits that the rejection of the applications was once again adopting too narrow an approach. The questions are indirectly relevant to the plea of gross misconduct in the Defence and issue found in the Reply. Counsel submitted that the Particulars necessarily imply deliberate and intentional conduct by the respondent. 28. Counsel for the respondent supported the reasons given by the learned Master for rejecting the applications on the basis that nothing in the pleadings, nor in the interrogatories, establishes that the respondent had a separate role that could be, of itself, productive of what is enquired of him in the interrogatories. 29. I cannot see that the Masters view of these interrogatories was wrong and for the reasons he gave and the added submissions of Mr Trim to me, I would refuse the appeal on these interrogatories as well. INTERROGATORIES 60(c) AND (d) 30. These interrogatories relate to alleged meetings with the Australian Democrats political party (see interrogatory no. 59). 60(c) and (d) ask the respondent if he did have such a meeting, who was present (60(c)) and (d) "the reason you did so?"). It is necessary to go back to 58 and 59 to ascertain that 60(d) relates to certain information the respondent gave (or is alleged to have given to a Senator John Coulter of the Democrats). 31. Counsel for the appellants agree this issue picks up the point raised earlier about disclosing names of witnesses. For the reasons expressed by Abbott J in O'Sullivan v, Rath and Another supra, I am of the opinion that such a question is not relevant, and cannot be asked in an interrogatory. Counsel for the respondent submitted these questions were plainly fishing and not otherwise relevant. Mr Trim also referred to answers given to 59(b) and (c) where the respondent admitted he met with Senator Coulter, but in 59(c) he denied that he handed over confidential information. To go past that denial is simply "fishing." 32. Counsel for the appellants submitted that the concept of relevance should be tested with the question and not the possible answer - see Simpson Bailey and Evans on Discovery and Interrogatories page 77 and Petchem Limited (in Liq.) v B.F. Goodrich Chemical Limited (1982) VR 485 at 487. But that case does not appear to consider the point here - ie. "Is (are) the question (s) fishing?" 33. I would reject the appeal on these two interrogatories. The learned Master in my opinion correctly rejected interrogatories 60(c) and (d). INTERROGATORIES 61 AND 62 34. Interrogatory 61 clearly seeks from the respondent as to whether he obtained certain information in the form of a "computer model of the costs and financial effects to the practice." Paragraph 12(2)(a) alleges as a particular of the respondent's "misconduct and/or breach of contract" confidential information for the purpose of "drawing, promoting and gaining acceptance for the Fee Schedule prepared by a sub-committee of PSAC." 35. The respondent in his answer objects to answer this interrogatory (61) "because it is directed to matters which are not material to any issues raised on the pleadings." 36. The learned Master noted the appellants' claim that his interrogatory is directed to a relevant question in issue, "namely the use to which the plaintiff (respondent) put confidential information of the defendants (appellants) in his work with the PSAC." 37. I agree with the learned Master that as pointed out by counsel for the respondent the interrogatory is explicitly directed to the obtaining of information and not to its use. Counsel for the appellants submit this is too narrow an approach, see Marriott v. Chamberlain supra, and Sharpe v. Smail and Anor (1975) 49 ALJR 130 per Gibbs J (as he then was). I do not agree. The appellants' submission asks me to make several assumptions as to the real intent of the interrogatory. But the questions must at least disclose the relevant issue either directly or indirectly. This interrogatory does neither. I agree with the learned Master that the order for further and better answers to interrogatory 61 should be refused. 38. Interrogatory 62 asks the respondent whether he ever advised the appellants "of the effect of the Fee Schedule." 39. The learned Master said "I am unable to see how it is said that (paragraphs 12(1)(2)(3) and 13 of the Amended Defence) makes the matter relevant." I agree with the Master. I note that the respondent also says that to answer 62 would require the respondent to express an opinion on a matter which should be determined by the Court. I cannot see how this is wrong. The application for an answers to 61 and 62 were correctly refused in my opinion. INTERROGATORIES 74 TO 81 40. These interrogatories all relate to the respondent's attempts to obtain other employment and any actual employment since his dismissal in November 1988. The appellants still submit (as before the Master) that these interrogatories are justified on the basis that they are relevant to the issue of damages for wrongful dismissal and the reasonableness, or otherwise, of the covenant between the parties. 41. The respondent submitted to the Master and repeated before me that there is no allegation in the pleadings of any breach of the restraint clause and further, it is not pleaded that the respondent has failed to mitigate his loss. Therefore, as the learned Master put it - "the interrogatory (74) is irrelevant." I totally agree. I cannot see any error in the learned Master treating the others in this bracket in the same way - either not material, or irrelevant or oppressive. I too would refuse the orders sought for further and better answers on any of these interrogatories. 42. I have now dealt with all the interrogatories that were actually argued on this appeal (see paragraph 2 of the Notice of Appeal from the Master - document No. 128). The result of my determination of the appeal is that I would not set aside nor vary any order made by the learned Master on the appellants' application of the 24th June 1991 (document no. 121). I would therefore dismiss the appeal.