Pacific Blues (Fiji) Ltd v Levi Strauss (Australia) Pty Ltd - [2004] SASC 320

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
PACIFIC BLUES (FIJI) LTD v LEVI STRAUSS (AUSTRALIA) PTY LTD
Judgment of The Honourable Justice Anderson
5 October 2004
PROCEDURE - DISCOVERY AND INTERROGATORIES
Appellant is the manufacturer of jeans and respondent involved in the sale of jeans - dispute between parties as to contractual clause - appellant sought leave from a Master to interrogate - appeal against the order refusing leave - purpose of interrogatories discussed - whether appellant's questions were suitable as interrogatories - held: appellant seeking admissions of fact and details of evidence, questions therefore not meeting the requirements of interrogatories, questions also too widely framed and oppressive - appeal dismissed.
Barber v Nominal Defendant (1990) 153 LSJS 8; Pearce v Hall (1989) 52 SASR 568; Barbarian Motor Cycle Club Inc v Koithan and Anor (1984) 35 SASR 481, applied.

PACIFIC BLUES (FIJI) LTD v LEVI STRAUSS (AUSTRALIA) PTY LTD
[2004] SASC 320

ANDERSON J This is an appeal from a decision of a Master who refused an application by the appellant for leave to interrogate.
The appellant manufactures jeans in Fiji for sale in Australia and New Zealand. The respondent carries on business in Australia by manufacturing and selling jeans in the retail market.
One of the matters in dispute, in the litigation between the parties, is a contract which includes a clause requiring the garments manufactured by the appellant to conform to certain quality standards nominated by the respondent.
The respondent is the sole judge of whether the garments delivered to it are first quality, irregulars or unsaleable. There is a certain formula which allows a reduction in price for irregulars, and depending upon percentages in the total of the defective garments delivered, the contract price is then adjusted according to that formula.
As a result of the delivery of certain shipments of jeans, the respondent claimed, pursuant to the contract, that it was entitled to a deduction from the price which they calculated at $527,936.37
On the pleadings, certain issues are joined as to whether the clauses dealing with payment and the ability to deduct amounts were in fact terms and conditions of the contract at all; in the alternative it is said that the clauses were void and/or unenforceable because they are penalties.
This is one part of an overall dispute between the parties which is more far reaching than the brief description I have given above. There have been many arguments on the pleadings, and as the Master appealed from says, “There is a significant interlocutory history to this matter”. It is not necessary to go into that history except to relate the timing of this application.
The pleadings have been subject to previous rulings by the Master, and then subsequently on appeal on two occasions.
The first application made by the appellant for leave to interrogate was made on 17^th April 2002. After various arguments regarding the pleadings, that matter was re-agitated by the appellant issuing a notice for specific directions seeking leave to interrogate on 2^nd June 2004 but based on the April 2002 application.
There were originally 11 proposed interrogatories but I was informed during argument that interrogatories 3, 8, 9 and 11 are no longer pursued.
There has been discovery of documents, sufficient to enable the information sought in the proposed interrogatories, to be assembled by the appellant in its comprehensive letter of 16^th August 2004 which I refer to again shortly.
Interrogatories are not a substitute for proper particulars of the pleadings. See Barber v Nominal Defendant (1989) 153 LSJS 8 at 11-15 per Judge Lunn, and Pearce v Hall (1989) 52 SASR 568 at 572 per King CJ.
It is also established by the decision in Barbarian Motor Cycle Club Inc v Koithan and Anor (1984) 35 SASR 481 at 483 per King CJ, that interrogatories must be relevant, material at the pre-trial stage and necessary.
The appellant sought leave essentially on what Mr O’Brien, for the appellant, argued was the question of how and why the respondent made a classification enabling it to make deductions from the amount payable.
It is apparent from the argument both before the Master and before me that the appellant has considerable knowledge of the respondent’s case. The Master reported in his reasons that Mr O’Brien said, “We understand their case entirely. We just don’t know what the evidence is that could support it”. Whilst that may have been an overstatement, it is pretty clear to me that the appellant has spent a lot of time analysing the respondent’s documents.
In argument before me, attention was drawn to the letter written by the solicitors for the appellant to the solicitors for the respondent dated 16 August 2004.
This letter, as is clear on its face, shows a detailed analysis by the appellant, from the documents discovered by the respondent, of how the various classifications were made by the respondent. As I have indicated, it is a very detailed letter illustrating the extensive knowledge which the appellant has of the respondent’s case, but nevertheless taking the opportunity to further clarify the appellant’s case at the same time as calling for a response to the suggestions made in the letter.
The appellant in argument posed this question as the central question requiring an answer by the respondent, namely, “Were any of the garments which the defendant has classified as seconds in Table A in fact sold as firsts?”
It was put to me that what the appellant is therefore seeking from the respondent is an admission of that fact.
The learned Master took the view from the way the argument proceeded in front of him, and from the concessions made by Mr O’Brien, that the interrogatories were seeking to obtain details of the evidence. This is apparent from the interrogatories themselves, in my view. As I have indicated, it is obvious that the appellant has a good understanding of the details of the respondent’s case, but that it is lacking only in respects of how that case is to be presented, which is not the purpose of interrogatories. Whilst the topics of the interrogatories are relevant, I am not convinced that the answers are necessary or material at the pre-trial stage.
The interrogatories themselves, in my view, offend in any event for at least one of the reasons advanced by the respondent, namely, they are generally too widely framed and hence oppressive.
The appellant abandoned its argument in respect of proposed interrogatories 3, 8, 9 and 11 as I have previously indicated.
Accepting that the function of an interrogatory is not to enable a party to obtain from the opposite party either admissions or the actual evidence by which material facts are to be proved at trial, or to appraise the strength or weakness of the case before trial, it is my view that leave should not have been given.
I agree with the decision of the Master, and the appeal is dismissed