Pearce v Button

[1986] FCA 6

Re: ATOCHEM S.A.
And: JOHN NORMAN BUTTON, MINISTER OF STATE FOR INDUSTRY AND COMMERCE
No. G166 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.

CATCHWORDS

PRACTICE AND PROCEDURE - Interrogatories - Directions as to administration of interrogatories not pre-determining that there is no objection to answers being required to particular interrogatories - Oppressiveness of interrogatories - Requirement of precision - Inappropriateness of interrogatories in ADJR application where s. 13 statement can be obtained and further and better particulars secured under s. 13(7) - Fishing interrogatories - Interrogatories as to names of individuals and contents of documents - Claim of privilege under Census and Statistics Act 1905.

Administrative Decisions (Judicial Review) Act 1977, s. 13

Federal Court Rules, Order 16 Rules 1 and 3

Census and Statistics Act 1905

Peek v. Ray (1894) 3 Ch. D. 282

Kupresak v. Clifton Bricks (Canberra) Pty. Ltd. (1984) 75 F.L.R. 172

Lloyd v. Costigan (1983) 62 A.L.R. 284

Cumming v. Matheson (1970) 92 W.N. (NSW) 339

W.A. Pines Pty. Ltd. v. Bannerman (1980) 30 A.L.R. 559

Conde v. 2KY Broadcasters Pty. Ltd. (1982) 2 N.S.W.L.R. 221

Barbarian Motor Cycle Club Incorporated v. Koithan (1984) 35 S.A.S.R. 481

HEARING

SYDNEY

#DATE 7:3:1986

ORDER

The directions given on 22 March 1985 as varies on 14 June 1985 concerning the administration of interrogatories and furnishing of verified answers thereto be vacated.

Interrogatories numbered 2(iii)(b), 3, 4, 6, 7, 13, 14 and 15 are not required to be answered.

The applicant is directed to file and serve within 14 days a re-draft of its Notice to Answer Interrogatories if it desires to administer interrogatories having regard to the Court's rulings and in that event the time for answering the interrogatories in such re-drafted Notice shall be 28 days after service unless a further application be made in relation to these times or the form of the interrogatories in any such Notice. If Interrogatories 9 and 10 are included in any such Notice, they are required to be answered.

The applicant pay three-quarters of the respondent Minister's costs of the motion.

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

JUDGE1

By this Notice of Motion the respondent seeks orders that he not be required to answer certain interrogatories included in a Notice to Answer Interrogatories delivered on behalf of the applicant. The Application, in which the interrogatories are sought to be administered, challenges, under the Administrative Decisions (Judicial Review) Act 1977, the decision of the respondent that s. 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to polyvinyl chloride general purpose homopolymer (not including paste or emulsion grades) exported from France to Australia after 4 April 1984, the export price of which is less than the amount of normal value. The grounds of the application embraced denial of natural justice, non-observance of procedures required by law, and claims that the decision was not authorised by the relevant enactment, that it involved an error of law and was contrary to law, that there was no evidence or other material to justify the decision and that the making of the decision was an improper exercise of the power conferred by the enactment (as to which reliance was placed on s. 5(2)(a), (b), (f), (g) and (j) of the Administrative Decisions (Judicial Review) Act). A statement under s. 13 of the Administrative Decisions (Judicial Review) Act has been furnished by the respondent. That statement refers to a Dumping Report, upon which the respondent placed reliance, and various other documents. Discovery has also been given.

1. A preliminary objection taken to the motion was to the effect that, although the disputed interrogatories were contained in a document headed "Notice to Answer Interrogatories", they had been required to be answered by an order of the Court, and were not reliant upon Rule 1 of Order 16. I do not think this objection is valid. At a directions hearing on 22 March 1985, short minutes were handed up by consent and orders were made accordingly, which included the following:
   
   

"1. Applicant to administer interrogatories on or before 19 April 1985.

2. Respondent to give verified answers to interrogatories on or before 17 May 1985."

1. Interrogatories not having been administered by the date directed, on 14 June 1985, at a further directions hearing, Lockhart J. said:
   
   

"I vary the directions made by consent on 22 March 1985 as follows. The respondent is directed to give verified answers to interrogatories on or before 5 July next. . . . Any party is at liberty to apply on 3 days notice . . .

1. It seems to me that quite clearly there was no order to answer any particular interrogatories. When the original order was made the Notice to Answer Interrogatories had not even been served, or so far as appears drafted, and I do not think the later order can be construed as intended to have any more binding effect than the original order: it simply varied a date specified in that order. If the varied order were to be construed strictly, as an order to answer the particular interrogatories referred to in it, it would not even apply to the present interrogatories which do not answer the description of interrogatories administered on or before 19 April 1985.

2. Accordingly, I think the position is that a notice requiring answers to specified interrogatories has been served under Order 16 Rule 1, and an application has been made to the Court seeking an order under Rule 3 that certain answers shall not be required. The motion must therefore be considered upon its merits.

3. If I had been of a different view as to the effect of what was previously ordered, I should still have considered it open to the respondent to move as he has done. For an order allowing interrogatories to be administered should not (at least generally) be construed as pre-determining that there is no objection to answers being required to particular interrogatories: Peek v. Ray (1894) 3 Ch D 282 at 286-7.

4. The Notice to Answer Interrogatories is prefaced by a note in the following terms:
   
   

"Note: Whenever in these interrogatories the usual particulars are requested of any act fact matter or thing, say whether the same was wholly or partly oral, written or to be implied.

To the extent to which it was oral, state between what actual person (sic) it took place, state the place and date of its occurrence and state the capacity in which each of the actual persons was acting and give the substance of what was said and state by whom it was said. To the extent to which it was written, identify the document or documents constituting the same and say where they may be inspected. If lost or unavailable for inspection, give the substance thereof. To the extent to which it was to be implied, give the like particulars to those requested above of each act fact matter and thing from which such implication arises."

1. While a drafting device of this kind may, in an appropriate case, be a useful and convenient mechanism to employ, it can be a source of confusion and tend to require unnecessarily prolix answers, if the draftsman fails to apply his mind with care to each particular interrogatory it may purport to enlarge. In some cases it may inappropriately sacrifice, to brevity and the convenience of the interrogator, necessary clarity and ease of comprehension on the part of the person interrogated. In the present case, the first interrogatory to which objection is taken illustrates this point. That interrogatory, omitting immaterial parts, reads as follows:
   
   

"2. Did the Minister or any Officer of his Department (and if so stating who):

. . .

(iii) form any conclusion concerning . . .

(b) the profits derived by the Applicant from the sale or transfer of caustic soda; and if so give the usual particulars of . . . such . . . conclusion?"

1. It is apparent that "the usual particulars" cannot be fitted comfortably into the framework of this interrogatory. To the extent that the interrogatory must be regarded as expanded by the preliminary note, it requires in language which lacks precision that the respondent give consideration to what might be a large number of individual conclusions, of more or less tentative or definitive character, reached by more or less junior or senior officers, having more or less direct connection with the subject matter of enquiry. The interrogatory covers any conclusion, not merely as to what the specified profits were at some particular time or over some particular period but, without specifying time or period, or the nature of the conclusion, any conclusion concerning the profits derived at any time. It is objected that this interrogatory is oppressively wide, and I agree. Counsel for the applicant seeks to justify it as bearing upon the determination of the cost of production or manufacture of the relevant goods. The technical answer to this is that the question is too vaguely general, and that this defect is exacerbated by the preliminary note to the interrogatories. Interrogatories, as Blackburn C.J. said in Kupresak v. Clifton Bricks (Canberra) Pty. Ltd. (1984) 75 FLR 172 at 174:
   
   

"(S)hould be expressed in language of the most rigorous precision. . . . There is no place in interrogatories and answers for 'reading between the lines', adopting a liberal construction, or seeking the author's intention rather than the meaning the words bear on their face. Unless this principle is kept in mind, interrogatories may easily become an unjustifiable cause of expense and delay."

1. The broader answer to the applicant's submission is that its application, being brought under the Administrative Decisions (Judicial Review) Act, is not one in which it is entitled to ask the Court to review the Minister's findings of fact. The case is limited to the questions of law which arise within the framework of the Administrative Decisions (Judicial Review) Act. Furthermore, that Act provides its own machinery for ascertaining conclusions which formed part of the reasons for the determination in question. Sub-secs. (4A) and (7) of s. 13 should not be overlooked. Under sub-s. (7), further and better particulars can be obtained of a s. 13 statement, if it is deficient (cf. Conde v. 2KY Broadcasters Pty. Ltd. (1982) 2 NSWLR 221). This is not, of course, to say that interrogatories are automatically excluded, but the scope for their proper use may well be limited in such a case. This was pointed out by the Full Court in Lloyd v. Costigan (1983) 62 ALR 284 at 293, where it was stated in the joint judgment:
   
   

"A person aggrieved by a decision of a Commissioner has the rights given by the Act, s 5. He may request reasons under s 13. We are satisfied that, if the request is refused or not complied with, the court has power to order reasons to be given, certainly once there are proceedings commenced to review a decision. Such a construction plainly accords with the intent of the legislation. A person aggrieved may apply for an order of review on any of the grounds specified in the Act. If he does so, the onus of proving his case rests upon the applicant. He may have his statement under s 13, but the procedures of discovery and interrogatories will often be inappropriate. Generally, at least, the information to which a person is entitled under that Act is intended to be obtained in the manner which the Act prescribes."

See also the comments of King C.J., speaking for the Full Court of the Supreme Court of South Australia in Barbarian Motor Cycle Club Incorporated v. Koithan (1984) 35 SASR 481 at 484-5.

1. Having regard to the form of the interrogatory, the burdensome detail it would require the Respondent to fossick out, and the availability of the provisions of s. 13 as the remedy specifically provided by the legislature to meet such a case, I do not think the Respondent should be required to answer this interrogatory.

2. A related topic is the subject of Interrogatory 3, which is also objected to. That interrogatory reads as follows:
   
   

"Did the Minister or any Officer of his Department (if so stating who):

(i) make any inquiry;

(ii) obtain any information;

(iii) form any conclusion,

as to:

(a) the break-even cost;

(b) the costs of production;

(c) the profitability or otherwise of the transfer price of any of the following:

chlorine, ethylene, salt brine, the by-products resulting from the cracking process of naphtha?

If yes to any of the preceding parts of this interrogatory, give the usual particulars of each such inquiry, information and conclusion and give the usual particulars of each act fact matter and thing by reason of which each such conclusion was reached."

1. It will be apparent that this interrogatory involves the same problems, and in addition seeks to interrogate, in the expanded form provided by the preliminary note, concerning the making of any enquiry or the obtaining of any information by any officer, however junior or however casual the enquiry or unimportant the information, whenever the enquiry or information can be described as an enquiry or information "as to" any of the various broad topics mentioned. It is not limited to the obtaining of information which actually showed a particular cost referred to in the question nor is it limited as to time or place. In my view, this interrogatory is also one that should not be required to be answered. It exemplifies the problem of the unreasonable use of interrogatories discussed by King C.J. (ubi cit. supra).

2. In the course of argument, counsel for the Minister said that there was no objection to answering a question as to whether each of the three species of costs referred to was taken into account and, if so, the manner in which it was taken into account. It may be that a corresponding question could appropriately be framed to deal with the subject matter of interrogatory 2(iii)(b).

3. Interrogatory 4 was also challenged. It is in the following terms:
   
   

"Did the Respondent or any person on his behalf (stating who) inform the Applicant at any and if so what time that it would require the costs of production of VCM, chlorine or ethylene prior to 24th January, 1984 and if so give the usual particulars of each such informing?"

It is objected that the words "prior to 24 January 1984" leave the period covered by this interrogatory inappropriately vague. Similarly, the reference to "any . . . time" is unnecessarily wide. There is further an objection to "fishing". An objection to fishing interrogatories is concerned with interrogatories which seek information upon some topic, not in furtherance of a party's case, but in the hope that something will emerge which can be seized upon to create a new case. See W.A. Pines Pty. Ltd. v. Bannerman (1980) 30 ALR 559 at 574-6; and see Lloyd v. Costigan (supra) at p 292. I do not think this particular interrogatory should be so characterised, since I would assume that the applicant does know whether it has been given the particular information referred to, and its counsel has indicated that it desires to assert that it was not, as part of its case that it was denied natural justice. However, I do not think an answer to Interrogatory 4 should be insisted upon whilst the interrogatory remains in its present form. I think it is unnecessarily burdensome and travels beyond the purpose counsel asserted, seeking as it does an answer unlimited as to time. I also think the reference to "the usual particulars" seeks details which ought not to be ordered to be given. There is a general rule according to which interrogatories concerning the doing of relevant things should not be widened to require identification of the individuals who did the things: Cumming v. Matheson (1970) 92 WN (NSW) 339 at 345. In that case Hope J. held that interrogatories could be directed to the nature of the sources of information the receipt of which was relevant to the questions in issue, but he held that the identity of the person who communicated the information could not be asked. Counsel in the present case suggested that the details sought were necessary to avoid evasion, but Hope J. in Cumming's Case expressly ruled (at p. 345) that "interrogatories cannot be sought the purpose of which is simply to enable the interrogating party to check the evidence".

1. Objection is also taken to Interrogatory 6, which reads as follows:
   
   

"Did the Respondent or any person on his behalf (stating who):

(i) make any inquiry;

(ii) obtain any information;

(iii) form any conclusion,

concerning any of the following matters:

(a) the domestic selling prices of PVC in France for periods other than the third quarter of 1983;

(b) the domestic selling prices of PVC in France in respect of the third quarter of 1983;

(c) the costs of production of PVC in France in respect of any period other than the third quarter of 1983;

(d) the costs of production of PVC in France in respect of the third quarter of 1983;

(e) the costs of production of PVC by the Applicant in respect of any period other than the third quarter of 1983;

(f) the costs of production of PVC by the Applicant in respect of the third quarter of 1983;

(g) the costs necessarily incurred in the sale of PVC in France by the Applicant,

and if yes to any of the preceding part of this interrogatory, give the usual particulars of each such inquiry information and conclusion and give the usual particulars of each act fact matter and thing by reason of which each such conclusion was held?"

It will be apparent that Interrogatory 6 raises problems which I have already discussed. It does not refer to "any officer", but it does refer to "any person", on behalf of the respondent, and it seeks "the usual particulars" of enquiries, information and conclusions. As I have already indicated, I think such an interrogatory is both confusing and oppressively wide. Whether the particular matters referred to in the interrogatory were or were not taken into account in the decision is something one would expect to be ascertainable from the documents and, to the extent that this is so, and bearing in mind that a s. 13 statement has been made and a Dumping Report prepared, which is referred to in that statement, I would not think that an interrogatory is appropriate which really seeks particulars contained in the documents. See Cumming v. Matheson (supra) at p 346; Sharpe v. Smail (1975) 5 ALR 377 at 381; Norton v. Hoare (No. 2) (1913) 17 CLR 348 at 354; and Hall v. Truman Hanbury & Co. (1885) 29 Ch D 307 at 320-1. However, it may be that answers to paragraphs (a) to (g) inclusive of this interrogatory would reveal matters not revealed in the documents, and counsel for the respondent indicated that there would not be any objection to a re-framed question which simply sought to know whether the matters referred to in those paragraphs were taken into account in the decision, provided that there is added a specification of relevant periods. The reason for the proviso is obvious since the interrogatory, as framed, is virtually unlimited in time, except as regards paragraphs (b), (d) and (f).

1. Interrogatory 7 is of the same nature as 6, and similarly objectionable. In addition to matters already referred to, each seeks "the usual particulars" of "each act fact matter and thing" by reason of which any person, however junior, making inquiry on behalf of the Minister, formed any conclusion, however tentative. If some provisional conclusion was produced by an inquiry by a junior officer in France into several dozen details, the implications of this interrogatory seem to me to compel a finding that it is oppressive.

1. I leave aside for the moment interrogatories 9 and 10, which raise a separate issue.

2. Interrogatories 13 and 14 read as follows:
   
   

"13. Upon what dates did the Respondent or any person on his behalf or any Officer of his Department receive:

(i) a communication;

(ii) a visit;

(iii) information,

from ICI Australia Operations Limited or any person purporting to act on its behalf? Give the usual particulars of each such communication, visit and information.

14. Upon what dates did the Respondent or any person on his behalf or any Officer of his Department receive:

(i) a communication;

(ii) a visit;

(iii) information,

from B.F. Goodrich Chemical Limited or any person purporting to act on its behalf? Give the usual particulars of each such communication, visit and information."

1. It was conceded that these are too wide, and counsel for the Applicant suggested they should be read as if after the words "upon what date" there were inserted in each "between 1 July 1983 and 28 March 1984", and after the word "behalf" where lastly appearing in each there were inserted "in relation to the importation of PVC to Australia".

2. But it seems to me the interrogatories would still be too wide, even if so amended. Contrary to the law as stated in Cumming v. Matheson (supra), they would require identification of each employee involved, and they would cover events of a kind wholly irrelevant to any issue, such as a visit during which nothing material occurred, or a visit together with a representative of the Applicant; and they would cover written communications already dealt with upon discovery of documents. It seems to me an appropriate interrogatory, dealing with the subject counsel's submissions were concerned with, would be limited to an inquiry whether any representation was received from the named companies by the Minister, or the officers responsible for the Dumping Report, or any recommendation accepted by the Minister in reaching the decision in question, the substance of which was not referred to the Applicant for its comment, and (if there was any such representation) an inquiry as to the substance of it and when it was received.

3. Interrogatory 15 must fall with interrogatories 13 and 14.

4. Interrogatories 9 and 10 read as follows:
   
   

"9. How many tonnes of PVC were imported from any source to Australia during the period from 1st January, 1983 to 28th March, 1984?

10. How many tonnes of PVC were imported from France to Australia between 1st January, 1983 and 28th March, 1984."

1. The objection taken is that these interrogatories, if upheld, would require the Respondent to divulge information which is privileged under s. 19(1) of the Census and Statistics Act 1905, which reads as follows:
   
   

"19. (1) A person who is, or has been, the Statistician or an officer shall not,

except

(a) in accordance with a determination; or

(b) for the purposes of this Act,

either directly or indirectly, divulge or communicate any information furnished in pursuance of this Act to any person (other than the person from whom the information was obtained)."

There are several answers to this contention. In the first place, the evidence fell short of satisfying me that the information sought is not in the possession of the Respondent completely untrammelled by anything in the Act referred to. In the next place, s. 19 is directed to the obligation of secrecy of the Australian Statistician and his officers, except where information is divulged "for the purposes of (the) Act". The purposes of that Act include publication and dissemination of the results of compilation and analysis of statistical information (see s. 12). It has not been shown that any officer of the Respondent is bound by s. 19, nor that the particular information sought by interrogatories 9 and 10 would fall within the prohibition, rather than the exception, provided by that section. S. 19 is concerned, at least primarily, with the raw data collected by the Statistician, release of which might offend against the privacy or other legitimate interests of persons involved in the matters recorded. Accordingly, the objection raised to interrogatories 9 and 10 fails.

1. In the light of the rulings I have made, I think the appropriate order is to vacate the directions previously given concerning interrogatories, and to direct the Applicant, if it wishes to administer interrogatories within the Court's rulings, in respect of the matters sought to be interrogated upon in its Notice, to file and serve within 14 days a fresh Notice to Answer Interrogatories under Order 16 Rule 1, and to order that the time for answering be 28 days after service, unless a further application be made in relation to these times or the form of the interrogatories in any such notice. As the Respondent Minister has substantially succeeded, I order the Applicant to pay three-quarters of the Respondent's costs of the motion.