Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 3] - [2009] WASC 148

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD -v- ANDERSON FORMRITE PTY LTD [No 3] [2009] WASC 148

CORAM: HASLUCK J

HEARD: 21 MAY 2009

DELIVERED : 21 MAY 2009

FILE NO/S: CIV 2446 of 2002

BETWEEN: RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 004 304 447)
Plaintiff
AND
ANDERSON FORMRITE PTY LTD (ACN 097 507 652)
First Defendant
WARREN PERRY ANDERSON
Second Defendant

Catchwords:

Practice and procedure - Application for defendants to serve further and better answers to interrogatories - Whether questions of mixed law and fact in interrogatories - Whether sufficient basis for defendants not to answer interrogatories - Order for further and better answers to interrogatories

Legislation:

Nil

Result:

Order for further and better answers to interrogatories

Category: B

Representation:

Counsel:

Plaintiff:     Mr M Cuerden
First Defendant              :     Mr C S Williams
Second Defendant         :     Mr C S Williams

Solicitors:

Plaintiff:     Dwyer Durack
First Defendant              :     Solomon Brothers
Second Defendant         :     Solomon Brothers

Case(s) referred to in judgment(s):

Commissioner for Railways v South Queensland Transport Pty Ltd [1950] QWN 45
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite [No 2] [2008] WASC 204
Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASC 179

HASLUCK J:

Introduction

This is an application made by Rapid Metal Developments (Australia) Pty Ltd as plaintiff for further and better answers to interrogatories. For convenience I will refer to the plaintiff as Rapid and to the first defendant as Anderson Formrite.
I must begin by noting that the matter the subject of the litigation is listed for trial for six weeks commencing 27 July 2009 before myself as the trial Judge appointed for that purpose; that is to say in about two months time. It is therefore important that interlocutory procedures be completed promptly.
I am of the view that it is necessary for me to speak at some length in dealing with this application as my observations may be a necessary point of reference at some later stage if any issue arises as to compliance with orders that are made as consequence of the hearing this morning.

The application

By letter dated 29 April 2009, enclosing a minute of proposed orders of the same date, the plaintiff applied for orders that Anderson Formrite file and serve further and better answers to certain interrogatories within seven days. I will come to the details in that regard shortly.
However, for the sake of completeness, and having regard to the purpose I mentioned a moment ago, it is necessary to note that there has been an extensive prior history bearing upon the application presently before me. On 23 September 2008 after hearing lengthy argument her Honour Justice Johnson of this Court granted Rapid leave to administer interrogatories which were then duly administered on 2 October 2008.
I note in passing that in the course of her judgment her Honour set out at some length the legal principles bearing upon the requirement to answer interrogatories of the kind then foreshadowed and in due course administered to Anderson Formrite. There is no need for me to repeat her Honour's reasoning in its entirety other than to indicate that I agree with the tenor of it both in general terms and as to the form of the particular interrogatories.
It will be useful now, having regard to what I said earlier, to endeavour to draw out briefly some of the salient points made in her Honour's judgment because her observations set the scene for my own approach to the present application.
Her Honour's judgment is reported as Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite [No 2] [2008] WASC 204, being a decision handed down on 23 September 2008. Her Honour described the parties and said this:
The proposed interrogatories relate to allegations made in a statement of claim filed by the first defendant in action number NSD 1272 of 2007 commenced against Baulderstone Hornibrook Pty Ltd in the Federal Court. Both the action in the Supreme Court of Western Australia and the Federal Court action relate to the construction of 240 St George's Terrace Perth, known as the Woodside building. The building and head contractor on that project was Baulderstone. Anderson Formrite was the Formrite subcontractor. Rapid had contracted with Anderson Formrite to supply the formwork. Ultimately Baulderstone terminated the formwork subcontract and Rapid terminated the agreement to supply the formwork. The action in this Court concerns a dispute between Rapid and Anderson Formrite in relation to the formwork Rapid supplied to Anderson Formrite for use in the building's construction. Rapid is suing Anderson Formrite for moneys it claims are due to it under the agreement to design and supply the formwork. Anderson Formrite defends the action and counterclaims on the basis that Rapid engaged in misleading or deceptive conduct, was negligent and breached the contract for the design and supply of the formwork.
Justice Johnson noted that the sole basis for the proposed interrogatories was said to be the inconsistency between Anderson Formrite's pleaded position in this action and its position as pleaded in the Federal Court action. Put shortly, the interrogatories are directed at establishing the veracity of the allegations made in the Federal Court action.
Anderson Formrite submitted that the proposition that there are inconsistencies between the pleadings in the two actions was misconceived and thus it opposed the application.
As I have indicated, her Honour canvassed the authorities bearing upon an application concerning leave to administer interrogatories at some length. I take account of what she said but for present purposes I will simply pick up that passage at [10] of her judgment in which she is referring to the Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASC 179 case and the observations made by Murray J in that case:
The process fundamentally is concerned to obtain answers which may then under the Rules be introduced as evidence in the proof of the interrogator's case effectively by way of admission. The expense of proof may thereby be saved and indeed such a mode of proof may be employed when no other is in fact available. It follows that to be admissible in evidence the answers to interrogatories must be of a kind which would be admissible in evidence if a witness were called to prove that fact. From that all else flows. The answer to an interrogatory must state facts without evasion and the state of mind, an intention or knowledge is a matter of fact and may be interrogated upon where relevant.
I pause there to make an observation of my own which follows from her Honour's reasoning: that if some question of law or mixed fact or law were put to the person to whom the interrogatory was directed then, in such a case, an answer purporting to answer the subject question would have scant probative force and might well be inadmissible. It follows that, in my view, it could be a basis of objection to a certain question that it brings with it a matter of law or mixed fact or law.
However, that having been said, it is important to construe the nature of a question and to recognise that certain questions may proceed from a premise or a basis of assumed fact. Thus, notwithstanding that there might be some element of legal assumption underlying the question, the interrogatory in question may nonetheless be productive of an answer going simply to a statement or matter of fact. I will return to this aspect of the matter in hand in due course.
In the meantime, let me now return to Johnson J's judgment and pick up some other facets of it which appear to bear upon what is before me. Her Honour said this:
Counsel for Rapid submitted that there are three broad issues raised in the interrogatories and identified the interrogatory relevant to each issue. First, the cause of Anderson Formrite's loss covered by interrogatory 1(a) to 1(g); secondly, what happened to the equipment Anderson Formrite hired or purchased from Rapid, interrogatories 1(h) (i), 4, 5, 6, 7(a) and (b); thirdly, whether Anderson Formrite admitted that it is indebted to Rapid and if so in what amount, interrogatory 7(c) and (d). [19]
Her Honour canvassed issues bearing upon the cause of Anderson Formrite's loss at some length and dealt also with the matter of equipment loss. She dealt also with the question of whether Anderson Formrite admitted that it was indebted to Rapid and if so in what amount.
She referred also (commencing at [36] and following) to an issue raised by Anderson Formrite in opposing the application that it would be oppressive for it to provide answers to the interrogatories. I pause here to say that issues of this kind bear upon certain matters in controversy today. However, it is important to understand that it is an issue that was considered very carefully by Johnson J.
Her Honour made observations at [38] to the effect that in her view it was far from self‑evident that it would be a difficult and time‑consuming exercise for Anderson Formrite to answer the proposed interrogatories. They relate solely to what are said to be inconsistencies between the pleadings in this Court and the pleadings in the Federal Court. They number only seven and are directed to three discrete issues being those issues I mentioned a moment ago. She went on to point out that as a result of her decision in relation to the third area of alleged inconsistency the interrogatories were now directed to two discrete issues only. She then said this:
They are therefore neither large in number and nor could they be said to create an undue burden on the party required to answer them when they are considered in the context of the counterclaim, the amount of damages sought and the heads of damages to which they specifically relate. Further, the interrogatories relate to matters that are within the knowledge of Anderson Formrite and the certification of the Federal Court statement of claim indicates that the evidence is identifiable and available. [38]
She then observed:
In any event it must be kept in mind that any admissions made by Anderson Formrite have the potential to reduce the issues for trial, either by reducing the need for or scope of cross-examination on issues which may be admitted or by unnecessary or false issues falling away. [39]
I must also take account of certain observations made by her Honour at [48] to the effect that with respect to the second area of inconsistency raised in the interrogatories it was, in her view, directly relevant to Rapid's claim for Anderson Formrite to identify which of the goods it says were taken possession of by Rapid and which were converted by Baulderstone. She went on to observe that they were all matters of fact which will require proof at trial.
It was said on behalf of Anderson Formrite that this information was already within the knowledge of Rapid. Her Honour observed that administering interrogatories is not limited to the purpose of obtaining information not already known. There were apparent inconsistencies on the pleadings which Rapid was entitled to have clarified. That clarification may save time in evidence later but the fact that it may not does not render improper interrogatories addressing that issue.
Her Honour went on then to observe:
It was also submitted by counsel for Anderson Formrite that given the legal and factual questions involved in attributing causation it is manifestly unfair to require a party to swear to the truth of a conclusory statement about causation. [50]
She added:
However, it has been held that a state of mind or knowledge is a matter of fact which may be interrogated upon: Seidler v John Fairfax & Sons Ltd [1983] 2 SNWLR 390, 384. The interrogatories in question really address Anderson Formrite's state of mind as well as its knowledge of specific events from which flowed a particular result. It is that aspect of the pleading to which the primary question is principally directed.
Importantly, she then observed:
The subsequent questions refer specifically to matters of fact.
Her Honour observed later that in the Tipperary Developments case Murray J granted the plaintiff leave to interrogate the defendant as to the truthfulness of a pleaded allegation of the defendant in its statement of claim in a Federal Court proceeding. She observed also that on her understanding of the authorities:
The fact that a matter can be proved in another way or can be proved at trial by oral evidence is not a proper basis on which to oppose the issue of interrogatories.
Her Honour then concluded:
It is consistent with modern principles of case flow management and the orderly management of commercial litigation that a litigant who runs inconsistent positions in different Courts be required to confirm what its true case is.
She said that she was unconvinced by the arguments advanced by Anderson Formrite in opposition to the grant of leave. For the reasons to which she had referred, she proceeded to grant leave to administer interrogatories 1 to 6 of the proposed interrogatories.
I pause here simply to say again that by and large most of the issues concerning the interrogatories had been canvassed at length and fully considered by her Honour in this previous decision. As I have said, I concur with the reasoning provided by her in that decision. Thus, some of what I have to say this morning and the conclusions I have come to, reflect and can be derived from Johnson J's reasoning. My observations are, in a sense, simply an extension of her Honour's reasoning as applied to the particularity of the issues raised by the present application.

Procedural steps

To complete my summary of the procedural history, insofar as it bears upon the matter presently before me, I note that on 19 January 2009 I made an order requiring Anderson Formrite to answer interrogatories the subject of the Rapid notice dated 2 October 2008. Anderson Formrite then purported to serve responses to the interrogatories. Those responses were said to be insufficient with the result that on 25 February 2009 Rapid applied for further orders.
On 27 February 2009 I summarised the nature of the dispute between the parties and made further orders. I spoke at some length in giving a ruling on that occasion. There is no need for me to repeat what I said on that occasion. It is on the transcript. It includes my summary of the dispute between the parties, being the summary I provided earlier. I was not persuaded that Rapid was in a position to enter judgment pursuant to what was said to be an earlier springing order.
Importantly, for present purposes, the various orders made on 27 February 2009 included an order that:
The plaintiff's application for judgment against the first defendant with costs is dismissed with costs being in the cause and the plaintiff's application for further and better answers will be adjourned sine die.
I do not intend to traverse everything that I said at the previous hearing because it is on the record. However, because discussion before me on that occasion was lengthy, it is worth noting that I did make some observations about whether there were questions of mixed law and fact in some of the subject questions and thus in the answers provided by Mr Anderson as the sole or principal director of Anderson Formrite.
I gave an indication (although I was not minded to make a finite decision at the time) that certain of the questions might be said to have raised matters of mixed fact and law. On the other hand, I indicated, tentatively, that there were other questions that appeared to be more specifically directed to matters of fact, such as questions 1(d), 4(a), 6 and 7.
I mention this discussion by way of background because it seems that the solicitors for Rapid took account of my observations. As I will demonstrate in a moment, the issue concerning whether answers must be provided to questions arguably raising issues of law or mixed law and fact was reduced by confining the request for further and better answers to the particular questions I mentioned a moment ago.
It was against this background, and particularly the presence of the orders made on 27 February 2009, that both parties can be regarded as being fully aware that the opportunity was open for the solicitors for the plaintiff to renew their application for further and better answers. It was obviously contemplated there would be a process of conferral to see whether the matters in issue could be further reduced.
I need not trace all history of the attempts by the plaintiff to confer. The details are mentioned in a letter from the solicitors for the plaintiff dated 29 April 2009. To my mind it is sufficient to say that there was clearly a genuine attempt on Rapid's side to confer in regard to this matter but the attempt did not produce an outcome or any sign that Anderson Formrite was prepared to provide further and better answers.

The 29 April letter

The next step in the matter was the receipt of the letter from Rapid's solicitors dated 29 April 2009 (mentioned earlier) in which orders were sought for further and better discovery with three categories of controversy being identified. I note in passing that in the case management era in respect of a matter which is well on its way to trial a comparatively informal approach to the Court of this kind is now regarded as consistent with the current practice.
The three categories of controversy are identified with particularity at the top of page 3 of what I will continue to refer to as the subject or 29 April letter.
At paragraph (a) of the subject letter on that page it is said that Anderson Formrite should provide further and better answers to the specified interrogatories with reference being made to the nature of the inquiries underlying the answers. The interrogatories in question are 1(b)(i), 1(b)(ii), 1(b)(iii), 1(i), 3(e)(i), 3(e)(ii) and 3(e)(iii).
It is said in paragraph (b) of the letter that there should be further and better answers in respect of the interrogatories mentioned in that paragraph so as to affirm that the answer is provided to the best of the knowledge, information and belief of the deponent rather than speaking simply of the belief of the deponent, being the form of the present answer. Some of the discussion in that regard is reflected in the ruling I made on 27 February 2009.
It is said in paragraph (c) of the subject letter that in relation to interrogatories 1(d), 4(a), 6 and 7 Anderson Formrite is obliged to provide a fuller response. This was because it had been said by the defendant that Anderson Formrite was not obliged to provide a fuller response because those interrogatories involved matters of mixed fact and law or law alone and Anderson Formrite should therefore not be required to answer these interrogatories.
The stance of Rapid in that regard, as expressed in paragraph (c) of the subject letter was that Anderson Formrite should be required to answer them.
To some extent, the area of controversy concerning categories (a) and (b) in the subject letter has been narrowed. This is because there was some degree of concession made by counsel for Anderson Formrite in regard to those two categories. For that reason, I will put those two categories of dispute to one side for the moment and return to them later.
Let me therefore now turn to paragraph (c) of the letter and focus upon the contentious issue as to whether the questions are directed to matters of mixed fact and law and as to whether there is a sufficient basis for the defendant Anderson Formrite to rest on the form of answer presently given.

The category (c) issues

It will be useful to reduce the issue as to each question to its essentials because, as matters stand, there is some difficulty in threading a way through all the documents to come to the essence of the question and the answer. The nature of the subject interrogatories is that one has to refer to various documents in order to make sense of them. Accordingly I will begin by reducing the question to be answered to its essence in each case.

The controversy in this category relates to four interrogatories, being questions 1(d), 4(a), 6 and 7.
Interrogatory 1(d) is directed to par 25 of the amended statement of claim filed by Anderson Formrite in the Federal Court action NSV 1272 of 2007. It is pleaded by Anderson Formrite in par 25 that by reason of matters referred to in the pleading Anderson Formrite has suffered loss and damage with various particulars then being provided. It is said in par 25(i) that the labour engaged through Workforce One was inefficient, incompetent and imposed upon Anderson Formrite with the result that the company was forced to pay fees and charges which were grossly excessive.
It is said further that the labour by reason of its incompetence and indifference caused Anderson Formrite to fail to meet time deadlines contained in the contract between Anderson Formrite and Baulderstone. More particularly it is said in par 25(iii) of the particulars of the alleged loss and damage that Anderson Formrite was required to borrow $1,055,000 from Baulderstone to pay the excessive charges for the workers engaged through Workforce One and incurred interest and cost relating to that loan which it would otherwise not have incurred.
It was in that context that interrogatory 1(d) asked whether the allegations in subpar (iii) were true. The answer provided by the deponent Mr Anderson in the document called 'First defendant's answers and objections to plaintiff's interrogatories' dated February 2009 was as follows:
I believe the allegations to be true. Anderson Formrite otherwise objects to answering interrogatory 1(d) on the grounds that the allegations in particular (iii) to para 25 of the statement of claim is not a statement of fact only but includes conclusions of mixed fact and law or law which will be determined by the trial Judge in the Federal Court action.
As I have indicated, I have previously expressed a tentative or provisional view that this was essentially a question directed to a matter of fact. It would produce a factual answer concerning the subject loan if properly and fully answered. Having heard further argument this morning I am of the view that that is the correct characterisation of this matter.
It seems to me that the question goes essentially to matters of fact. An answer provided to the question may raise issues which are ultimately the subject of cross‑examination. Moreover, the probative force of an answer given may be a matter for discussion and debate at the trial. The weight to be attributed to the answer or similar answers may have to be resolved at the trial.
I pause here to observe that the answer provided is presently couched in the form, 'I believe the allegations to be true'. As will appear later, and as appears to be conceded by counsel for the defendant, an answer in that form as to belief is not sufficient. It is necessary for a deponent to refer to the nature of the inquiries made and to what is the position to the best of his or her knowledge, information and belief. That is a matter which must be attended to and will become the subject of a ruling when I turn to the two other categories of controversy in due course.
I note in passing that it was for this reason that I referred at some length to the observations of Johnson J in earlier discussion. Her Honour cited those authorities which bear on the question of whether assertions as to knowledge or belief or the state of mind of a party may be relevant. There are decided cases, including the Tipperary case, which make it clear that in certain circumstances questions going to information and belief and state of mind can be relevant.
I turn now to disputed interrogatory 4(a) again in this category (c) of the plaintiff's subject letter of 29 April.
Interrogatory 4 was directed to subpar 38.3 of the subject statement of claim. It was pleaded by Anderson Formrite in par 38.3 that as at 17 May 2002 Anderson Formrite had supplied Baulderstone materials to the value of $2,160,582.84 plus the value of the materials supplied by Rapid which Baulderstone was bound to pay for but which had not been paid for by the respondent.
Interrogatory 4(a) asks whether the allegation in par 38.3 that Anderson Formrite had supplied Baulderstone with the materials supplied by the plaintiff was true.
The answer provided by Mr Anderson on behalf of Anderson Formrite was to this effect:
4(a)I believe the allegations to be true. Anderson Formrite otherwise objects to answering interrogatory 4(a) on the ground that the allegations in para 38.3 of the statement of claim is not a statement of fact only but includes conclusions of mixed fact and law or law which will be determined by the trial Judge in the Federal Court action.
As to whether a fuller or further and better answer should be provided my ruling is that a further and better answer is required. I do not accede to the defendant's position that this is a matter of mixed fact and law.
I am persuaded by the position expressed by counsel for the plaintiff that the nature of the interrogatory and the way in which it is couched is to separate out any question of law and present what is essentially a factual query. So I am not prepared to uphold the defendant's objection in regard to that interrogatory and I will order that it be answered.
Interrogatory 6 required the deponent to refer to par 41 of the statement of claim and state whether the allegation therein that the respondent Baulderstone took possession of all of the goods is true. Paragraph 41 of the statement of claim was to this effect:
On or shortly after 17 May 2002 the respondent Baulderstone intentionally took possession of all of the goods and contrary to a written direction given by Anderson Formrite to Baulderstone the latter and/or by its contractors acting at Baulderstone's direction used all of or some of the goods to perform the work.
I note in passing that in the earlier par 40 of the statement of claim it was said that the goods in question were goods owned or leased by Anderson Formrite and particulars of them would be provided in a separate schedule prior to the trial. I understand in general terms this is equipment which supports the formwork table, scaffolding and props and the like.
The answer provided to interrogatory 6 by Mr Anderson as the deponent on behalf of Anderson Formrite was as follows:
I believe the allegations to be true. Anderson Formrite otherwise objects to answering interrogatory 6 on the grounds that the allegations in paragraph 41 of the statement of claim is not a statement of fact only but includes conclusions of mixed fact and law or law which will be determined by the trial Judge in the Federal Court action.
In my view a further and better answer must be provided for much the same reasons as I gave a moment ago. I am persuaded by what is put to me by counsel for the plaintiff that the form in which the question is expressed is to separate out any potential question of law and to put what is essentially a factual question going to the fact or matter of possession. I rule that that answer is to be the subject of a further and better answer.
Interrogatory 7 required the deponent to refer to par 43 of the statement of claim. Paragraph 43 was to the effect that:
By reason of the facts pleaded in paras 40, 41 and 42 Anderson Formrite has suffered loss and damage; that is essentially that by reason of Baulderstone taking and converting certain goods owned or leased by Anderson Formrite which were on the site loss and damage has been suffered.
Particulars were provided. Those particulars included an assertion in par 43(i):
The goods either remain in the possession of Baulderstone or have been disposed of by Baulderstone.
There is a further assertion in par 43(ii) that:
By the use of the goods pleaded in paragraph 41 the goods or some of the goods were destroyed or damaged.
Interrogatory 7 asks whether the allegation in par 43(i) was true - that is interrogatory 7(a) - and further whether the allegation in par 43(ii) was true. That is interrogatory 7(b). The answer and objection to interrogatory 7 was in these terms:
I believe the allegations to be true. Anderson Formrite otherwise objects to answering interrogatory 7 on the grounds that the allegations in paragraph 43 of the statement of claim is not a statement of fact only but includes conclusions of mixed fact and law or law which will be determined by the trial Judge in the Federal Court action.
Again, as to this matter, for much the same reasons as I gave previously, I conclude that a further and better answer is required. I am of the view that any potential question of law or legal issue has been separated out and the question goes essentially to a matter of fact bearing on the whereabouts of the goods and whether they have been disposed of. I will require that a further and better answer be required as to both parts of interrogatory 7.
The position in summary, then, is that I accede to the plaintiff's application for further and better answers in respect of each of the four category (c) questions mentioned in the subject letter.
Let me now return to the other two categories.

The other categories

The issue concerning the interrogatories referred to in par (a) of the letter is whether further information should be provided bearing upon the inquiries made when answering.
The defendant said in answer to the apparent controversy in subpar (a) that the defendants did not object to the making of orders requiring the filing of further and better answers that provide more detail of the inquiries made by the first defendant. However, there was some qualification to that appearing in par 4 of the defendant's submissions where it was said:
The defendants opposed the making of orders requiring further and better answers to interrogatories 1(b) and 3(e) except to the extent of the inquiries made and results of those inquiries. The answers that have already been provided on oath state that the information is not personally known to any person and if after making proper inquiries the precise information cannot be obtained, then there is no further answer that can be given.
Counsel for the plaintiff apprehended, having regard to this submission, that, although there was an apparent concession that a further and better answer was to be made in each case, the answer might be confined only to providing at slightly greater length information as to the nature of the inquiries made but without going to the substance of the information.
The plaintiff's letter of 29 April 2009 contains a submission which, in my view, sets out exactly, the nature of the obligation upon the party answering and the appropriate form of the response:
It is necessary for the answers to swear to facts which demonstrate that the law as inquiry has been carried out, Sharpe v Smail (1975) 5 ALR 377‑379.
Reliance was also placed on Commissioner for Railways v South Queensland Transport Pty Ltd [1950] QWN 45. According to that case, the appropriate response must set out certain details:
(1)The personal knowledge of the deponent and whether to the best of his knowledge, information and belief any director, officer, servant or agent of the company acting in the course of their office or employment with the company and in their capacity as director, officer, servant or agent of the company and not accidentally has or has applied any such knowledge;
(2)That inquiries have been made by the deponent of the directors, officers, servants and agents of the company as to what knowledge they have acquired in the course of their offices or employment and in their capacity as director, officer, servant or agent of the company and not accidentally as to the matters inquired into in the interrogatories and whether he is able to obtain any information whatever and that the said directors, servants or agents informing him in the course of their offices or employment with the company in the capacity of and of such directors, officers, servants or agents whether they possessed any knowledge whatever of the matter inquired into in the said interrogatories and certain inquiries that he has not bound to and has not made.
It therefore seems to me, having regard to those cases and other authorities, that a full answer is required both as to the inquiries made and as to the information obtained pursuant to the requirement of frankness and a precise presentation of the defendant's position. All of this is the subject of citation in Seaman Civil Procedure at par 27.5.8 through to par 27.6.5. It is said:
It is necessary for the answer to swear to facts which demonstrate that the law as to inquiry has been carried out. … The answers are not merely the chosen deponent's answers but the answers of the company which bind it as an admission. The deponent must state the information available to him.
I am therefore of the view that further and better answers are required in respect of the interrogatories the subject of subpar (a) in the subject letter, with such answers going both to the inquiries made and to the information obtained.
In arriving at that conclusion, I am conscious that issues of possible difficulty and oppression were referred to by counsel for the defendant. As to that, I pause simply to remind myself again that much of this was canvassed before Johnson J many months ago in the decision I referred to earlier. In a sense the defendant has been clearly on notice for a considerable period of time that rulings might be made which produce a result of the kind I have just indicated. In the case management era one has to assume that a party will have prepared itself accordingly to deal with such rulings, bearing in mind especially that Johnson J had ruled that there was not likely to be any oppression.
I take account also of the fact that I have been informed by counsel that the trial of the Federal Court action, which was to have been heard in March, has been adjourned to 24 July 2009. The likelihood is, and there does not appear to be a real dispute about this, that the history of the work of Anderson Formrite related to the site at 240 St George's Terrace Perth has been under notice in recent times and will continue to be so. The company must have been assembling documents and information relevant to its work on the site.
It is true, of course, that the issues in the Federal Court action cannot be treated as a mirror image of the issues raised by the pleadings in this action. However, the reality is that the history of what took place on the subject site is under notice. I can assume that Anderson Formrite, having had ample notice of the issues raised by the interrogatories as far back as September 2008, is or should be in a position to respond within the time frame that I will come to shortly.

Category (b)

As to the interrogatories specified in par (b) of the letter I consider that further and better answers are to be provided in a form which deposes to the answer being provided to the best of the deponent's knowledge, information and belief. That is the usual and fair requirement arising from the decided cases that I mentioned a moment ago. It is perhaps timely to note that this appears to be conceded in par 1 of the defendant's submissions dated 19 May 2009. It was said in that passage that, 'The defendants do not oppose the making of orders requiring the filing of further and better answers to interrogatories 1(a), 1(d), 1(e), 1(f), 1(g), 2(c), 3(d), 3(f), 4(a), 6 and 7,' making it clear that the answers are given to the best of the deponent's knowledge, information and belief.
There is, however, a further and more particular issue as to that category being the issue raised by par 5 of the defendant's submissions:
The defendants oppose the making of orders requiring further and better answers to interrogatory 1(e) except to the extent of the inquiries made and the results of those inquiries. The plaintiff's bald assertion that the actual amounts must be known to the first and second defendants is not supported by the evidence.
This was addressed specifically by counsel on both sides. The contentious answer given by the deponent was to this effect:
I believe the allegation to be true. The loan amount was approximately $1 million and the balance of approximately $50,000 represented interest and costs.
It does seem to me that this answer is expressed in a form that is too broad. I can see no persuasive reason why the defendant should not be required to make a further and better answer setting out precisely, as a matter of fact, whether the loan was for a specific amount and providing any other figures that bear upon the issue. The assertion that the deponent simply believed it was approximately $1 million to my mind is not sufficiently specific and is too vague. I rule accordingly. That particular interrogatory falls within my earlier ruling that a further and better and more precise answer must be given.

Conclusion

These rulings establish that I am acceding to the plaintiff's application by letter dated 29 April 2009 for further and better answers. As I look at the plaintiff's minute of proposed orders I am minded to make an order in terms of par 1 subject to time limits and other matters which are to be determined in a moment. I have in mind also that this matter should in any event be brought on before me at a directions hearing some days after the prescribed time limit has expired. I will also hear from counsel as to the question of costs.
Let me conclude by saying this: I have spoken at length because it is obvious from everything I have said in the course of that ruling and in the course of hearing this morning that as the matter is coming closer to trial it is absolutely essential that the parties comply and comply promptly with orders made.
There is a provision in the rules for a springing order to be made if there be a lack of compliance. This may result in the defence of a party being struck out if it be thought that the lack of compliance is due to prevarication or contumacious behaviour. It is for that reason that I have spoken at length to endeavour to set out as clearly as I can exactly what I regard the obligations of the defendant to be in the light of the observations I have made and in the light of the orders I am about to make. In other words, without being censorious, I am simply emphasising the need for expedition and exactness pursuant to the precepts of the case management era now that this matter is so close to trial. Out of fairness to both parties, and especially out of fairness to the defendant as the party obliged to comply with the orders, it has to be said that there may well be severe consequences if there be some lack of expedition on the part of one party or the other in attending to any orders that are made in the course of the lead‑up to trial.
The orders to be made pursuant to the rulings are as follows:
1.Within 14 days the first defendant by its director Warren Perry Anderson file and serve further and better answers verified by affidavit to interrogatories 1(a), (b), (d), (e), (f), (g), 2(c), 3(d), 3(e), 3(f), 4(a), 6 and 7(a) and (b) of the plaintiff's interrogatories administered by notice to the plaintiff dated 2 October 2008 and 19 January 2009 in accordance with the reasons for decision delivered by Hasluck J on 21 May 2009.
2.The first defendant pay the costs of the application for further and better answers to be fixed at $1,500.
3.There is to be a further directions hearing at 10.30 am in chambers before Hasluck J on 10 June 2009.
4.The directions made on 27February 2009 be amended so that:
(a)Direction 4 be amended so that it reads: 'By 12 June 2009 the parties provide each other with signed and dated written instrument of the proposed evidence in chief of each witness (save expert witnesses) to be called by them on any issue upon which they carry the burden of proof'.
(b)Direction 11 be amended so that it reads: 'No later than 29 May 2009 each party will advise each other party in writing which of the specified documents may be tendered by consent, and whether the authenticity of any of the remaining documents (specifying which) is disputed and give reasons in writing as to why consent to tender the remaining documents is withheld'.
(c) Direction 12 be amended so that it reads: 'No later than 6 June 2009 the defendants will deliver to the plaintiff a copy of each of the documents which the party intends to tender'.
(d)Direction 13 be amended so that it reads 'No later than 25 June 2009 the plaintiff:
(i)will deliver to the listing coordinator, duly indexed and paginated, a bundler of clear legible copies of documents to be tendered at the trial by the parties (the Document Bundle). The index will indicate the identity of the party who will tender each document and which documents are to be tendered by consent;
(ii)will serve on the defendants a document bundle'.