Parker v Auburn Council
[2000] NSWLEC 127
•06/22/2000
Land and Environment Court
of New South Wales
CITATION: Parker v Auburn Council [2000] NSWLEC 127 PARTIES: APPLICANT:
Margaret Parker
RESPONDENT
Auburn CouncilFILE NUMBER(S): 40285 of 1997 CORAM: Sheahan J KEY ISSUES: Practice & Procedure :- Interrogatories - appropriateness of questions - answers - level of inquiries required by officer verifying LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 90
Land & Environment Court Rules Part 6, Rule 1(2); Part 24, Rules 6 & 7CASES CITED: Adams v Dickeson [1974] VR 77 at 79;
Bank of Russian Trade, Limited v British Screen Productions, Limited (1930) 2 KB 90;
Commercial Bank of Australia Ltd v Whinefield [1920] VLR 225;
Douglas v Morning Post (1923) 39 TLR 402;
Gilchrist v R Wallace Mitchell Pty Ltd [1972] VR 481;
Grassmere Estate Co Ltd v Illingworth (1889) 15 ALT 687;
Kelly & Anor v Raymor (Illawarra) Pty Ltd (1981) 1 NSWLR 720;
Looker v Murphy (1889) 15 VLR 348;
Lyell v Kennedy (No.3) (1884) 27 Ch D 1 at 16;
May v Bowering [1928] SASR 226;
Parramatta City Council v Pestell (1972) 128 CLR 305;
Potts v Invercargill City Council [1985] 1 NZLR 609;
Sharpe v Smail (1975) 49 ALJR 130;
Spedley Securities Ltd (In Liq) v B R Yuill & Ors [No.4] (1991) 5 ACSR 758;
Stanfield Properties Ltd v National Westminster Bank plc (London & County Securities Ltd, third party) (1983) 2 All ER 249;
Sumitomo Life Realty (Aust) Ltd v Grace Bros Holdings Ltd, Coles Myer NSW Ltd & Sydney City Council (1994) 83 LGERA 46;
Tooth & Co Ltd v Lane Cove Municipal Council (No.4) (1968) 2 NSWLR 17DATES OF HEARING: 25/05/2000 DATE OF JUDGMENT:
06/22/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr T F Robertson (Barrister)
Solicitors:
Woolf Asociates
RESPONDENT:
Mr J A Ayling (Barrister)
Solicitors:
Abbott Tout
JUDGMENT:
IN THE LAND AND Matter No: 40285 of 1997
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 22 June 2000
Applicant
v
AUBURN COUNCIL
Respondent
JUDGMENT
Introduction
1. This judgment concerns the administration of interrogatories . In an earlier unpublished judgment I dealt with the questions, and the primary focus of these reasons will be the answers. However, Counsel for the Council has suggested that I repeat in this judgment my thinking on the earlier issue about the questions, and I will do so.
2. Dr Parker owns land at 138 John Street Lidcombe, adjacent to a Caltex Service Station. On 18 November 1997 she commenced these proceedings, seeking a declaration that Auburn Council’s development consent, dated 5 November 1997, allowing Wesfarmers Kleenheat Gas Pty Ltd to install a 23,000 litre underground LPG tank and dispensing equipment at the service station, is void.
3. Details of the applicant’s claim are provided in her Points of Claim, filed on 4 September 1998. Those Points of Claim deal, inter alia, with allegations regarding State Environmental Planning Policy 33, Council’s assessment of the development application under s 90 of the then Environmental Planning & Assessment Act 1979, and questions of procedural unfairness.
4. I feel bound to make comment that it seems to me that, in simple chronological terms, the prosecution of this matter leaves a lot to be desired. The cover sheet of the court file indicates that it has been before the Registrar on at least 10 occasions since I made my earlier decision on the interrogatories on 15 June 1999, and, twelve months later, there is still no finality to the interrogation process.
The Applicant’s Interrogatories
5. Pursuant to a direction, given by the Registrar, at the callover on 9 March 1999, the applicant filed and served interrogatories on or before 20 April 1999 . For completeness, those interrogatories should be set out in full:
1. In determining the subject development application, did the Respondent have regard to any information or advice in relation to the following matters:
(a) Whether the development fell within the provisions of SEPP 33;
(b) The likely future use of properties surrounding the subject development;
(c) The desirability of inclusion of a condition of consent requiring the facility operator, in the event of subsequent nearby development causing the LPG facility to no longer comply with AS1596 and the additional technical controls in the Hazardous Industry Locational Guidelines No.1 for LPG Automative Retail Outlets (‘the Guidelines’), to modify or remove the facility;
(d) The desirability of inclusion of a condition of consent requiring that only smaller, more manoeuvrable tankers be allowed to make deliveries, due to, among other things, the tanker unloading position making the tanker susceptible to impact or the tanker blocking the footpaths of the street(s) while manoeuvring or unloading;
(e) Noise from the delivery of gas by tankers;
(f) The number of persons within the population limit zone as defined in the Guidelines and AS1596;
(g) The hours of operation of the subject service station as at the date of the Council determination;
(h) Compliance with the Guidelines and AS1596 regarding sensitive uses;
(i) Availability of existing and possible LPG retail outlets nearby;
(j) The entry, exit and manoeuvring of delivery tankers.
(k) Inclusion of a condition of consent restricting the number of deliveries of LPG each week.
2. If the answer to Interrogatory 1 is yes as to any of paragraphs (a) to (k), in respect of each such paragraph:
(a) Is the information or advice contained in the report of Harley Pearman being Environmental and Technical Services Report to Council meeting held on 5 November 1997?
(b) Did that report contain all the information or advice which the Respondent had regard to in determining the application?
3. If the answer to 2(b) is no or yes as to part of the information or advice as to any of paragraphs 1(a) to (k), in respect of each such paragraph:
(a) What other information or advice did the Respondent have regard to?
(b) If that information or advice was written or partly written, please identify the writing where the advice or information is referred to or recorded.
(c) If that information or advice was oral or partly oral, please give the substance of what was said, when it was said and by whom and to whom it was said.
4. Did the Respondent make any determination as to each of the matters in paragraphs (a) to (k) of interrogatory 1?
5. If the answer to Interrogatory 4 is yes as to any of paragraphs (a) to (k), in relation to each such paragraph:
(a) What was the determination ?
(b) When did it make that determination ?
(c) What were the findings on material questions of fact made by the Respondent in the course of making that determination ?
(d) What were the reasons for that determination ?
(e) If the reasons for that determination were recorded, identify the documents where the reasons were recorded?
(f) Did the Respondent have regard to information or advice in making the determination ?
(g) If that information or advice was written or partly written, please identify the writing where the information or advice was given, and
(h) If that information or advice was oral or partly oral, please give the substance of what was said, when it was said and by whom and to whom it was said.
(I have emphasised the word “ determination ” in Interrogatories 4 and 5 for reasons which will be explained in pars 9 and 10 hereof).
6. Council’s solicitors answered the applicant’s interrogatories, on 21 May 1999 , in the following terms:
1. This is not a proper interrogatory.
2. Inapplicable.
3. Inapplicable.
4. The Respondent does not understand what is meant by the term ‘determination’.
If the word means ‘a formal and binding finding of fact expressed in written form’ the answer is no.
5. Inapplicable.
7. Council’s solicitors asked the solicitor for the applicant, in a facsimile transmission of the same date:
given the nature of the answers herewith, do you still require verification?
The earlier dispute about the interrogatories
8. On 25 May 1999 the applicant filed a Notice of Motion seeking an order:
That the Respondent be directed to answer the Interrogatories dated 20 April 1999 served by the Applicant on the Respondent and to verify its answers .
9. That Notice of Motion came on for hearing before me on 15 June 1999 , and in argument before me the respondent, through its counsel, Mr Ayling, said that it did not understand what was meant by the term “ determination ”.
10. In my judgment of 15 June 1999 I allowed the applicant to amend interrogatories 4 and 5, by inserting the term “ decision or finding ” in place of the word “ determination ”, wherever it occurred. That amendment was not opposed.
11. However, at the hearing on that date, Mr Ayling also contended that all the interrogatories were “ bad ”, and so should not be allowed, largely because they interrogated the respondent regarding the collective state of mind of the Council. Mr Ayling also claimed that the Council would have difficulty having someone verify its responses to interrogatories in that form.
12. I concluded my judgment on that day with words to the following effect (revised from my notes):
To discharge the relevant onus the applicant will need to elicit before, and/or at, the trial the sort of information she now seeks by way of the interrogatories, as they are now to be amended. I see no reason to depart from Bignold J’s reasoning in Sumitomo, and I therefore grant the applicant’s Notice of Motion as filed in the Court on 25 May 1999 and order the respondent to answer the interrogatories dated 20 April 1999, as so amended, and to verify its answers.The current position in this case, in short, is that the respondent has put the applicant to proof of the key elements of this claim, which puts its focus clearly on the decision-making and judgment-forming processes of the Council in regard to the relevant development application.
13. When the orders of 15 June 1999 were taken out on 24 June 1999, they were taken out in the following terms:
1. Paragraphs 4 and 5 of the Applicant’s Interrogatories dated 20 April 1999 have been amended by deletion of word ‘determination’ and substitution of word ‘decision or finding’.
2. Leave (sic - should be ‘relief’) be granted as sought in the Applicant’s Notice of Motion filed on 25 May 1999.
3. The question of costs be reserved.
4. Liberty be granted to restore to the Registrar’s Call-over List on seven (7) days notice.
My decision on that occasion revisited
14. The thrust of the judgment I delivered orally on 15 June 1999 is set out in par 12 above.
15. In argument about the interrogatories on that day, Mr Ayling relied upon the judgment of Street J in Tooth & Co Ltd v Lane Cove Municipal Council (No.4) (1968) 2 NSWLR 17, followed/approved by McLelland J (in the Supreme Court in Equity) in Kelly & Anor v Raymor (Illawarra) Pty Ltd (1981) 1 NSWLR 720, and by the Court of Appeal of New Zealand in Potts v Invercargill City Council [1985] 1 NZLR 609.
16. The relevant interrogatory in Tooth was in these terms:
What factors did the defendant take into account in defining the local area in respect of which the said local rate was paid and levied ?
17. Street J said (at 19-20):
I am of the view that the interrogatory should not be allowed. It is directed in its terms to ascertaining what may have been a particular mental process on the part of the defendant. The defendant, being a municipal corporation, has itself no mind. There are, of course, many occasions on which it is necessary to attribute to a municipal corporation attitudes of mind such as purpose, opinion, intention, and the like. These attitudes of mind are, however, fictional, in that they proceed upon the assumption which is made in each instance that a municipal corporation has a mind. Where a suit raises as a relevant issue the state of mind of an individual, then a properly framed interrogatory directed to the ascertainment of ingredients in that state of mind would no doubt be allowed. Where, however, the suit concerns the act of a municipal corporation it appears to me to be unreal to direct to that corporation an interrogatory upon what matters were present to its mind in relation to a particular event. The inferences drawn and conclusions reached by courts upon purpose, intention or opinion on the part of municipal corporations are drawn and reached as a result of evidence of objective facts. But the fact that in those cases decisions are made that a municipal corporation had a particular mental state does not travel to the extent of raising the fiction that the corporation has in truth a mind, the processes of which can be examined through medium of interrogatories, as is the case with a personal party.
18. McLelland J opined, in Kelly (at 722), that Street J had held in Tooth :
that interrogatories could not be directed to a corporation in terms inquiring as to the state of mind of the corporation because a corporation does not have a mind which can be investigated, notwithstanding that, by a legal fiction, attitudes of mind can be imputed to it. So much may be accepted, but it does not follow that an interrogatory may not be directed to a corporation in terms inquiring as to the actual state of mind of individuals, such as directors when they participated in a corporate act such as the adoption of a resolution, where the state of mind of those individuals is relevant to the validity of the corporate act, in proceedings where the validity of the corporate act is in issue and the state of mind of the individuals concerned is relevant to that issue.
19. The opening words of the judgment of the New Zealand Court of Appeal in Potts (at 616-7) were:
The first task in this case is to construe the special orders. Sometimes, as for example when the holding of an opinion is a necessary condition of some act by a local government corporation and the existence of the opinion is in issue, it is possible to have regard to what is said at or reported of meetings of the corporation or its committees… Sometimes it is possible and even necessary to hold that the mind of a person controlling a corporation is the mind of the corporation itself: see Tesco Supermarkets Ltd v Nattrass [1972] AC 153. But those cases do not assist here where the question is what the Council has done by its special orders. Nor is the direct evidence of the Town Clerk as to what the Council intended to do admissible. As the Council has no mind of its own it would be evidence of a fiction. Only the objective facts can point to the Council’s purpose and achievement. See on this Tooth & Co Ltd v Lane Cove Municipal Council (No.4) [1968] 2 NSWR 17.
20. It is worthy of note that Tooth was decided well before the enactment of s 90 of the EP&A Act, with all the subjective elements that it imported.
21. Bignold J dealt with the applicability of Tooth to the interrogation procedure in this court, i.e. post 1979, in the case of Sumitomo Life Realty (Aust) Ltd v Grace Bros Holdings Ltd, Coles Myer NSW Ltd & Sydney City Council (1994) 83 LGERA 46.
22. The only information we have about the actual interrogatories in Sumitomo is that they were “ directed to ” the questions:
(i) whether Council “ took into consideration a number of matters specified in s 90 of the EP&A Act ”, and
(ii) “ whether it formed specific opinions referred to in” the relevant LEP.
23. In Parramatta City Council v Pestell (1972) 128 CLR 305, the High Court had come to the conclusion, on the facts proven in that case, that the opinion formed by the Council could not reasonably have been formed by the Council.
24. In his judgment in Sumitomo , Bignold J read down the general forcefulness of Street J’s principles in Tooth , in the light of some of the interrogatories Street J had gone on to allow. Bignold J said (at p48-49):
It should be noted that the formulation of the relevant opinion by the council in Tooth & Co was an essential element in the validity of a local rate fixed under s 121: see Parramatta City Council v Pestell (1972) 128 CLR 305; 27 LGRA 72.
In my judgment a collegiate body such as the Planning Committee (constituted by s 33 of the City of Sydney Act 1988 as a corporation (subs (6)) and exercising the functions conferred upon it by subs (2) is capable of being interrogated as to its ‘state of mind’ if that be the appropriate legal description of the duty imposed upon it under s 90 of the Environmental Planning and Assessment Act: cf Parramatta City Council v Hale (1982) 47 LGRA 319 although, for my part, I would not so confine the nature and extent of that statutory duty.With the greatest respect to the reasoning of Street J, I should have thought that the allowed interrogatories (concerning the formation of the relevant opinion by the council) were just as much inquiries into the ‘state of mind’ or ‘mental process’ of the council in fixing the local rate as was the disallowed interrogatory (concerning the factors taken into account by the council in defining the local area to be the subject of the local rate).
25. On an earlier occasion (i.e. on a notice of motion in another matter, heard by me prior to 15 June 1999) I had adopted and applied Bignold J’s reasoning in Sumitomo .
26. However, no other cases have been cited to me in support of the assertion, by Mr Robertson for the applicant in the June 1999 hearing, that the principles in Sumitomo had been “ consistently followed ” in this court.
27. Nevertheless, on further consideration, following the argument before me on 25 May 2000, I can still find no reason at all to depart from the principles in Sumitomo , or from the conclusion I reached on 15 June 1999 that the interrogatories, in this case, subject to the amendment I allowed, were appropriate.
The current notice of motion
28. On 30 November 1999 the respondent filed answers to the interrogatories.
29. Those answers were accompanied by an affidavit sworn on 15 November 1999, on behalf of Council, by its General Manager, Lea Rosser, to the effect that the answers were:
true to the best of my knowledge, information and belief, based on inquiries of Councillors of the Respondent .
30. The answers filed on 30 November 1999 were in the following terms:
1. (a)-(k) unable to answer.
2. Does not arise.
3. Does not arise.
4. Unable to answer.
5. Does not arise.
31. On 27 January 2000 the Registrar, by consent, directed the respondent to file and serve a further affidavit by 7 February 2000. A further affidavit sworn by Rosser on 18 February 2000 was then filed on 28 February 2000.
32. The whole of this affidavit (omitting formal parts) is now set out:
…
2. In considering how I might provide reliable answers to the interrogatories dated 20 April 1999 I took the view that the only persons who were likely to be able to say whether or not the Respondent Council ‘had regard to’ any particular item of information or advice (whether of the nature of that referred to by Mr Pearman in his report to the meeting of 5 November 1997 or of a different nature or having a different source) were the councillors actually present and voting at the meeting of 5 November 1997.
3. I accordingly checked the Respondent’s records and noted that the Councillors present at that meeting were Councillors Borluk, Cassidy, Chantiri, Curtin, Hockley, Jones, Keegan, Lam, Moore, Saddick and Donaldson. Cr Murray was absent.
4. In the period between 21 September 1999 to 25 October 1999, I contacted each Councillor (with the exception of Cr Murray) and spoke to each personally.
5. After normal greetings I said to each words to the following effect:
‘I am ringing about a case in the Land and Environment Court in which Dr Parker is alleging that Council did not properly decide the DA by giving approval to the installation of an LPG facility at the service station at 134 John Street, Lidcombe. Council has been ordered to answer a series of questions about what was considered at the Council meeting of 5 November 1997. The records show that you were present. Can you remember the meeting?’.
6. In each case the Councillor said words to the following effect:
‘I am sorry, but I have no recollection of that meeting at all’.
7. Having received that answer to the specific questions included in the interrogatories (if it were not ‘I do not know’) would necessarily involve mental reconstruction or the drawing of inferences by him or her. I was not prepared to depose on oath as to the accuracy of any conclusion I might draw from the sum of all answers from all Councillors in such circumstances.
8. I therefore terminated the interview with each Councillor at this point.
9. The answers I have provided to the interrogatories are accordingly true to the best of my knowledge, information and belief.
33. It will assist, in understanding what follows, if I now set out, side by side, the two sets of answers to the interrogatories (remembering the amendment made, during the intervening period, to numbers 4 and 5 - see par 10 above):
Original answers Latest answers
- 1. This is not a proper interrogatory. 1. (a)-(k) unable to answer.
2. Inapplicable. 2. Does not arise.
3. Inapplicable. 3. Does not arise.
4. The Respondent does not understand what 4. Unable to answer.
is meant by the term ‘determination’. If the
word means ‘a formal and binding finding of
fact expressed in written form’ the answer is no.
5. Inapplicable. 5. Does not arise.
34. On 8 March 2000 the applicant filed a Notice of Motion seeking an order that the respondent be ordered:
to give proper answers to Interrogatories in accordance with the court’s order of 25 (sic) June 1999 .
35. That Notice of Motion was dealt with at the hearing before me on 25 May 2000 , and is the principal subject of this judgment.
The applicant’s submissions
36. The applicant objects to the answers now provided.
37. Her counsel argues that they do not comply with the provisions of the relevant Rules, and that the respondent has failed “ to make proper and sufficient inquiry as to its ‘knowledge, information and belief’ ”.
38. As Mr Robertson noted (par 6 of written submissions):
Interrogatories are mechanisms for resolving disputes of fact. By obtaining admission of material facts from the respective parties the necessary issues for which proof at trial will be required is narrowed saving the time and expense of the parties. Interrogatories assist the court and the parties to get quickly to the issues which require determination by the court: Adams v Dickeson [1974] VR 77 at 79; Spedley Securities Ltd (In Liq) v Yuill [No.4] (1991) 5 ACSR 758. It is well established that the interrogated party must answer each interrogatory and the answer must address the substance of the question asked: Lyell v Kennedy (No 3) (1884) 27 Ch D 1 at 16.
39. Part 6, Rule 1(2) of the Land & Environment Court Rules provides that Part 24 of the Supreme Court Rules forms part of this court’s rules and applies to class 4 proceedings.
40. The applicant contends that the respondent has failed to state the facts upon which it relies under Part 24 Rules 6 and 7 of the Supreme Court Rules.
41. Mr Robertson argues that interrogatories must be answered to the best of the relevant party’s knowledge, information and belief. Such knowledge includes the knowledge of employees and agents, and the answer to the interrogatory should reflect not only the knowledge of the party, but also the knowledge that the party is entitled to obtain in the course of its duties.
42. Part 24, Rule 6 of the Supreme Court Rules deals in these terms with the contents of statements which are made in answer to interrogatories:
(2) A statement in answer to interrogatories shall deal with each interrogatory specifically either -
(c) by answering the substance of the interrogatory without evasion; or
(d) by objecting to answer the interrogatory on one or more of the grounds mentioned in subrule (3) and briefly stating the facts on which the objection is based.
The grounds provided for in subrule 6(3) include where the interrogatory “ does not relate to any matter in question ” between the parties; “ is vexatious or oppressive ”; where evidence in answer to an interrogatory “ could not be adduced in these proceedings ”; and where the answer could disclose “ a protected confidence ”.
43. Part 24 Rule 7 of the Supreme Court Rules provides:
Deponent
(1) Subject to subrule (2), an affidavit verifying a statement Deponent, of a party in answer to interrogatories may be made as follows:
(a) by the party;
(b) where the party is a disable person, by his tutor;
(c) where the party is a corporation, by a member or officer of the corporation;
(d) where the party is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person, by a member or officer of the body;
(e) where the party is the Crown, an officer of the Crown suing or sued in his official capacity, by an officer of the Crown.
(2) Where the party is a person to whom any of paragraphs (c), (d) and (e) of subrule (1) applies, and the affidavit is to be served pursuant to an order, the Court may, in relation to any or all of the interrogatories -
(a) specify by name or otherwise the person to make the affidavit; or
(b) specify by description or otherwise the persons from whom the party may choose the person to make the affidavit.
(3) Subject to subrule (2), where the party is a person to whom any of paragraphs (c), (d) and (e) of subrule (1) applies, the party shall, in relation to each interrogatory, choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.
(4) In subrule (1)(e), ‘Crown’ includes not only the Crown in right of New South Wales, but also the Crown in any other capacity.
44. Mr Robertson complains also of the inadequacy of the inquiries instituted by the respondent, whose General Manager made no attempt to refresh the memory of relevant Councillors, in order to ensure that the deponent had the benefit of their “ best recollection ”, and did no more than ask of the Councillors who were present at the Council’s meeting on 5 November 1997, whether they could recall the meeting that dealt with the development consent.
45. Ms Rosser apparently made no attempt to determine whether the Council held any documents concerning the grant of consent, nor did she provide the Councillors with any documents to assist with their recollection, such as Council business papers or the Minutes of the meeting.
46. No inquiries appear to have been made of, nor were any documents supplied to, other Council officers, to elicit the necessary information.
47. Mr Robertson submits that Lea Rosser made, and then terminated, only narrow and somewhat peremptory inquiries, and then decided, in advance, that she would not believe any information that she might have elicited with further inquiry. Her answer is, in his submission, accordingly, evasive.
The respondent’s submissions
48. Mr Ayling relies on the difficulty of a deponent having to swear to what may have been in the minds of others.
49. He believes that the relevant authorities indicate that interrogatories deal only with issues of fact which are capable of “objective assessment ”.
50. Answers given “ on behalf of ” others may not be admissible at the substantive hearing - they will be only the opinion of an officer who can infer that the Councillors had in mind what appeared in the Council documents, but cannot swear that they did: “ belief ” is not “ knowledge ”.
51. He rejected any suggestion that, as the deponent of a verifying affidavit, the General Manager should not be expected to “ cross-examine ” the Councillors, and he saw no point in expecting her to canvass other Council employees.
The relevant authorities
52. Counsel for the parties helpfully referred the court to a number of relevant authorities and, in fairness to the argument between them, the cases should be dealt with at some length.
53. In Looker v Murphy (1889) 15 VLR 348, Williams J held that a defendant could not be compelled, in his answer to interrogatories, to give his opinion upon the construction of the terms of a deed, but the defendant ought “ to state distinctly whether he executed the indenture or not”. His Honour said (at 351):
I am inclined to think that the defendant ought to resort to means which are easily accessible to him, and which are certainly more this property than they are the property of the plaintiff, for the purpose of supplying evidence which will save expense and greatly facilitate proof … I think, therefore, that under the circumstances the defendant should take that trouble, and take the notes he requires and answer these interrogatories in full.
54. It is not sufficient to answer an interrogatory by reference to knowledge and belief only: Grassmere Estate Co Ltd v Illingworth (1889) 15 ALT 687. Nor is it sufficient to answer only as to belief: Douglas v Morning Post (1923) 39 TLR 402; or only as to opinion: May v Bowering [1928] SASR 226. “ Knowledge ’ includes conclusions that should reasonably be derived from other facts: Adams v Dickeson [1974] VR 77 (see pp 80-81).
55. When interrogatories are administered to a corporation they must be answered by an officer who has the necessary knowledge and information. The secretary or general manager is usually the proper officer; however, the deponent must be able to obtain whatever information is available within the corporation and be able to evaluate it: Commercial Bank of Australia Ltd v Whinefield [1920] VLR 225.
56. The corporation’s answers to the interrogatories should state that, after making all proper inquiries, the answers filed are true and correct to the best of the corporation’s knowledge, information and belief: Whinefield (at 229); Sharpe v Smail & Anor (1975) 49 ALJR 130.
57. In Bank of Russian Trade, Limited v British Screen Productions, Limited (1930) 2 KB 90, Greer LJ said (at 96):
Neither an individual nor a company is bound to institute a roving enquiry among all available sources of information for the purpose of enabling the other party to make out a case; but they are bound to answer according to their knowledge, and according to information and belief acquired or formed from personal knowledge or from information obtainable from others who are servants or agents of the party answering and have acquired the information in that capacity. Therefore in my opinion it is not sufficient for the secretary of the respondents to say in answer to these interrogatories, ‘I do not know’. He ought to have gone on to say that he had no information; and I think he ought further to have said that he had made enquiries of other officers and agents of the respondents and that, having made those enquiries, he had no information enabling him to answer further.
58. Slesser LJ noted (at 96-7):
The person interrogated is not the secretary or other proper officer, but is the Company, who can only answer through some officer. And to a representative answering for a company the words of Cotton L.J. in Southwark Water Co v Quick (1878) 3 QBD 315, 321 are appropriate: ‘The directors of a company, in answering interrogatories, must not only answer as to their individual knowledge, but in answering for the company they must get such information as they can from other servants of the company who personally have conducted the transaction in question, and they cannot properly answer interrogatories by saying they know nothing about the matter, when it is in their power to obtain information from other servants of the company who may have personal knowledge of the facts’ . To answer according to information is not the same thing as to answer according to knowledge; the former phrase is not a mere repetition of the latter, but goes further and covers information which is not within the knowledge of the person answering but must come from elsewhere. It includes information obtainable from other servants of a company. When the person making answer simply states that he does not know, he leaves the Court and the other party in doubt whether he has or has not availed himself of the information properly at his disposal; it is quite consistent with his answer that he has confined himself to his own personal knowledge, which would make the answer his answer and not that of the Company. The interrogatories therefore are not properly answered ….
59. In Gilchrist v R Wallace Mitchell Pty Ltd [1972] VR 481, the plaintiff sued a fellow employee and their employer in respect of an accident allegedly resulting from negligence in the employer’s supplying of an unsafe car. The plaintiff interrogated the company as to the events which occurred on the road at the time of the accident, and the secretary of the company, in answering the interrogatory, swore that he had no personal knowledge of the matters inquired into, that he had made all due and proper inquiries, and that “ save from information supplied by the plaintiff and the second-named defendant from which it is submitted I am not bound to answer, I am unable to answer” such interrogatories.
60. Lush J held that the company was bound to answer such interrogatories from information supplied by the two relevant employees as its servants, if the deponent believed such information to be true, but not otherwise.
61. The principles espoused by Lush J in Gilchrist , and by the British Court of Appeal in Bank of Russian Trade , were considered by Gibbs J, sitting in Chambers in an action in the original jurisdiction of the High Court, in Sharpe .
62. In Sharpe the plaintiff delivered interrogatories to the first defendant, who was the trustee of the estates of two bankrupts. In one answer the defendant said:
I have no personal knowledge of the matters enquired after. I have certain information about the said matters but I am unable to swear as to a belief in the truth of such information .
63. Gibbs J held that answer to be insufficient, and, despite their length, I should like to quote the following relevant extracts from His Honour’s judgment (at 132-3):
…[It] is desirable to advert to the further submission made on behalf of the defendant, that he is not bound to give an answer based on information which he does not believe. In support of this submission reference was made to the decision of Lush J in Gilchrist v R Wallace Mitchell Pty Ltd [1972] VLR 481. Put shortly, the question discussed in that case was whether an employer need answer interrogatories upon the basis of information given to him by a servant who happens to be the opposing party in the action, or by a servant with an interest opposed to the employer’s interests. Lush J answered this question by saying that a defendant is bound to answer from information so supplied if he believes the information to be true but not otherwise. He accepted as the starting point of his discussion that a party, or a deponent answering on behalf of a corporation, must answer to the best of his knowledge, information and belief after making enquiries of his or its servants; that, as I have already indicated, is trite law. He went on to hold that a party cannot be compelled to admit a fact which he does not believe to be true or a fact in the truth of which he has no belief, and that a deponent cannot be required to swear that he has a belief in the truth of information when he has not. He then said (at p 483):The answer given to these interrogatories is insufficient. It does not state that proper - or indeed any - enquiries have been made and it is quite consistent with the answer given that if the defendant had made enquiries he could have obtained further information which he might have believed to be true. It is well established that a party interrogated must answer to the best of his knowledge, information and belief (unless he objects to answer) and that, to use the words of Banks LJ in Douglas v Morning Post Ltd (1923), 39 TLR 402, at p 403, if he affirms as to one of these elements he must affirm as to all three. It is not enough to say that he has no knowledge, because he is bound also to answer according to information acquired from servants or agents who have gained it in that capacity, and where appropriate his answer must show that he has made all proper enquiries and that having made them he has no information enabling him to answer further: cf. Bank of Russian Trade Ltd v British Screen Productions Ltd [1930] 2KB 90; Ormond v Gunnersen [1920] VLR 402. A trustee in bankruptcy stands in the shoes of the bankrupt, and when he is sued to enforce an obligation owed by the bankrupt is under the same obligation to make discovery as the bankrupt would have been. No doubt those who were the servants of the bankrupt are not his servants, but in view of the special powers available to assist trustees administering bankrupt estates it does not follow that the trustee is absolved from making inquiries from the former servants of the bankrupt, although it might in some circumstances be oppressive to require him to do so …
‘ If these principles are correct, they dispose of the present case. The deponent must answer after considering the information supplied by the plaintiff and the second defendant. If he has a belief based on this information there is no reason why he should not state it and he must state it. But if he has none, then he is not obliged to say that he has. I do not think that he is obliged to act on the basis that, the information which he has from these two parties being the only information he has, he must find the truth within it.’
In the present case it may be surmised from what was said in argument that the first defendant or his advisers may have erroneously taken the view that he is entitled to say that he cannot swear to a belief in any information that he has obtained from Pethard because he has no knowledge of the facts and the latter has an interest adverse to his. The fact that some of the questions which have been answered … relate to matters which do not appear to be controversial and which one would have thought could be ascertained from records as well as from the oral statement of Pethard reinforces this suspicion; ….
In my judgment this reasoning of Lush J is logically compelling and I regard it as correct. But the limits of the principles which he stated should be understood. Belief is not the same as knowledge and a party cannot truthfully swear that he has no belief based on information in his possession simply because he does not know that the information is true. Although he is not bound to say that he believes what he does not, he is not entitled to treat any information that he may receive with baseless suspicion, refusing to entertain belief unless it has ripened into certain knowledge. He cannot by refusing to believe information when there is no reason to doubt its truth escape from his obligation to answer the best of his knowledge, information and belief. Moreover, the fact that information comes from a suspect source will not always be enough to render it worthy of disbelief; for example; it may be supported by other credible material.
64. In Stanfield Properties Ltd v National Westminster Bank plc (London and County Securities Ltd, third party) (1983) 2 All ER 249, Sir Robert Megarry V-C held (according to the headnote) that:
A director, liquidator or other officer of a limited company who answers interrogatories administered to the company in the course of proceedings is under a duty to make all reasonable inquiries which are likely to, or may, reveal what is known to the company relevant to the interrogatories; for the question is not what is known to the individual, but what is known to the company. In order to show that that duty has been complied with, the person answering the interrogatories should include in the answers a statement in general terms that he has attempted to discharge the duty by making diligent inquiries of all officers, servants and agents of the company who might reasonably be expected to have some knowledge relevant to the interrogatories (though he need not set out details of the inquiries made), and if such a statement is not included in the answers the party administering the interrogatories may justifiably question whether the company has complied with the duty and require that reasons be given on affidavit why relevant inquiries have not been made. … It is not a sufficient answer to say that the officer, servant or agent is no longer employed by the company, although it may well be unreasonable to expect inquiries to be made of former officers and others where they have left the company a long time ago, especially if their whereabouts are unknown.
65. Again with apologies for their length, I want to quote two extracts from what Sir Robert said in his judgment:
Interrogatories administered to a company have, of course, the special feature that as the company is an artificial person they must be answered not by the litigant but by some human being who holds a position in relation to the company which enables him to give the answers, such as a director, or, here, a liquidator. Yet throughout, the question is not what is known to the individual but what is known to the company. A director or liquidator who answers that he does not know is not answering the question; for the question is what the company knows, not merely what the director or liquidator knows. The person answering the interrogatories is accordingly bound to make all reasonable inquiries which are likely to reveal, or may reveal, what is known to the company. In order to show that this has been done, it is obviously desirable that the answers should include some statement which shows that the person swearing the answers has applied his mind to this duty and has attempted to discharge it. This, however, is all that I think is required. I do not think that there is any duty to set out the details of the inquiries made, giving the names and addresses of all persons questioned, and specifying what questions were asked, and so on. If the answers do not at least state in general terms that the person swearing to them has made diligent inquiries of all officers, servants and agents of the company who might reasonably be expected to have some knowledge relevant to the questions, the party administering the interrogatories may justifiably question whether the company has discharged its obligations in answering the questions. In particular, if any person is an obvious source of knowledge, he must be questioned. If he is not, the company should say why. (p251)
…
- I would add this. I am not laying down that answers to interrogatories by a company must always include information and explanations as to the inquiries made, though in many cases it will be convenient to include them, at least in outline. What I am saying is that a company which is interrogated and gives answers which give no indication whether there has been any attempt to tap obvious sources of information must be prepared, on inquiry made, to give explanations of reasonable amplitude and, if required, verify them by affidavit. What it should not do is to withhold this information until the matter is brought before the court and then supply the information in unverified form in the course of counsel’s submissions. A company which does this has only itself to blame if the court takes an unfavourable view of this mode of proceeding, both generally and in relation to costs. All concerned must seek to avoid the evils of unnecessary litigation and unnecessary costs; and those advising a company should never forget that the answers to interrogatories administered to the company are the answers of that company itself, using all the internal sources of the company to discover what the company collectively knows, and not merely the answers of the person, whether officer, liquidator or anyone else, who swears to the answers. (p253)
66. Cole J, when sitting in the Commercial Division of the Supreme Court of NSW, in Spedley Securities Limited (in liq) v B R Yuill & Ors (No.4) (1991) 5 ACSR 758, helpfully summarised the relevant principles applicable to interrogatories in this way (at 762):
‘The object of interrogatories is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it’ : Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation (1911) 13 CLR 101 at 111; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 at 518.
Generally speaking, a party may interrogate his opponent as to every relevant matter on which he could examine him, if he thought fit to call him as a witness at the trial: Lyell v Kennedy (1883) 8 App Cas 217 at 234; Hawkes v Schubach [1953] VLR 468 at 471; Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 at 709.
Where a company is interrogated, a responsible person must answer on behalf of the company as the alter ego of the company. In so answering, the officer of the company is obliged to have regard to his own knowledge as well as knowledge gained from inquiry of
‘other servants of the company who personally conducted the transaction or acquired the necessary knowledge in their capacity as such servants, but he is not bound to give information which has come to his or their knowledge outside the course of their employment’ : Smith Kline at 519.
Where a person is or was a director of the interrogated company, and is or was also a director of a subsidiary or associated company having business dealings with the principal company, knowledge of such director of the principal company gained in his capacity as a director of the subsidiary or associated company, or because of his dealings with or on behalf of the associated or subsidiary company is knowledge which, when answering interrogatories, the principal company is obliged to take into account, if such knowledge was knowledge which that person would have been obliged to take into account in his duties as director or employee of the interrogated company: Smith Kline at 522. As Windeyer J there said:
‘It is not only what a director learns in the boardroom, but what knowledge he brings there and must use there that counts. He may have been appointed a director simply because of his knowledge of the activities of the company. It would be different if his knowledge were of some matter which it would be outside his duty as a director to divulge to the company, as for example knowledge gained confidentially in his capacity as an officer or servant of some other, and dissociated, company maybe a rival in business … but that position is not likely to arise in the case of associated companies forming one business organisation’.
Interrogatories must be answered to the best of the company’s ‘knowledge, information and belief’ , and a company must make all proper inquiries to enable it so to answer. As Gibbs J said in Sharpe v Smail (1975) 49 ALJR 130 at 132:
‘It is well established that a party interrogated must answer to the best of his knowledge, information and belief (unless he objects to answer) and that, to use the words of Bankes LJ in Douglas v Morning Post Ltd (1923) 39 TLR 402 at 403, if he affirms as to one of these elements he must affirm as to all three. It is not enough to say that he has no knowledge, because he is bound also to answer according to information acquired from servants or agents who have gained it in that capacity, and where appropriate his answer must show that he has made all proper inquiries and that having made them he has no information enabling him to answer further’.
Such inquiries would include making inquiries of former directors of the company who had or may have had dealings or knowledge related to matters material to matters the subject of proper interrogatories. Here that would include inquiries of Messrs Maher, Jones and Gray as well as of others.
‘Moreover, the fact that information comes from a suspect source will not always be enough to render it worthy of disbelief; for example, it may be supported by other credible material’.In considering information provided or statements made by a present or former employee or director for the purpose of answering interrogatories, a company, while not obliged to swear to a belief or knowledge which it does not have, is not entitled to ‘escape from his obligation to answer to the best of his knowledge, information and belief’ , by declining to believe information where there is no reason to doubt its truth or correctness. As Gibbs J said in Sharpe v Smail at 133:
Conclusion
67. It can be seen from the above lengthy quotations how the law on interrogation has evolved over the years.
68. The principles set out by Gibbs J, Megarry V-C, and Cole J in those quotations demonstrate a consistency of view in regard to the interrogation of corporations, and I am prepared to adopt and apply those principles to Councils, and to the situation in this matter.
69. No reason has been advanced for the courts to exempt councils from the principles which have been applied to other corporations.
70. It is, therefore, clear that the respondent in this case has not (see par 30) properly addressed the applicant’s interrogatories.
71. The General Manager has indeed made some inquiries, but they are, with due respect, quite inadequate, and do not satisfy the tests the courts have been applying.
72. I do not draw from the authorities a need for her to go to the extent of “ cross-examining ” the Councillors and Council officers, in order to comply with the established principles I have set out, but the cases require more effort to answer the questions posed.
73. The admissibility of the answers, if tendered as evidence in any trial, is a matter for the trial judge, and not a matter to be prejudged in determining, at an interlocutory stage of proceedings, a dispute about the interrogation process.
74. I accept Mr Robertson’s submissions on the applicant’s behalf, and am prepared to make the order sought in the applicant’s Notice of Motion of 8 March 2000, namely an order that the respondent “ give proper answers ” to the interrogatories, as amended by my order of 15 June 1999.
75. In the hope that it will move the proceedings closer to final disposition, I will also order that the answers should be verified, filed and served not later than 28 days from today’s date, and I will set the matter down for callover within 7 days thereafter.
Costs
76. I formally reserved the question of costs on the last occasion, as there was some substance in the respondent’s concerns about at least some of the questions.
77. However, on that occasion, I made, by consent, the necessary amendment to the particular questions involved, and upheld the propriety of the applicant’s interrogatories generally.
78. The respondent should then have attended to them, as required by the well-established legal principles, as I have now collected and recounted them.
79. In those circumstances, it is appropriate that I now order that each party pay its own costs in regard to the notice of motion of 25 May 1999, but that the respondent pay the applicant’s costs of and incidental to the Notice of Motion dated 8 March 2000.
Orders
80. Accordingly, the orders of the court are:
1. The respondent is directed to give proper answers, verified on oath, to the applicant’s interrogatories, as amended on 15 June 1999.
2. Such verified answers are to be filed and served within 28 days of the date hereof, namely by 5pm Thursday 20 July 2000.
3. The parties are each ordered to pay their own costs in respect of the applicant’s notice of motion dated 25 May 1999.
4. The respondent is ordered to pay the applicant’s costs in respect of the applicant’s notice of motion dated 8 March 2000.
5. The matter will be listed for callover and further directions by the Registrar on Wednesday 26 July 2000.
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