Richey Fishing Company Ltd v TSB Developments Pty Limited

[1999] TASSC 151

[1999] TASSC 151

CITATION:      Richey Fishing Company Ltd v TSB Developments Pty Limited & Ors [1999] TASSC 151

PARTIES:  RICHEY FISHING COMPANY LTD (ACN 009 553 520)
  v
  TSB DEVELOPMENTS PTY LIMITED (ACN 009 490 546)

BTR INDENG PTY LIMITED (ACN 004 695 916)
SOUTHCOTT PTY LIMITED (ACN 007 870 662)

TITLE OF COURT:                 SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  539/1991
DELIVERED ON:  21 December 1999
DELIVERED AT:  Hobart
HEARING DATES:                  21 December 1999
JUDGMENT OF:  The Master

CATCHWORDS:

Procedure - Interrogatories - Objection to answer - Assumption of fact in issue.
Winterbottom v Vardon & Sons Ltd [1921] SASR 364; Konings v Naylor [1964] Qd R 235, considered.
Theiss v TCN Channel 9 Pty Ltd (No 3) [1992] 1 Qd R 587, followed.
Aust Dig Procedure [67]

REPRESENTATION:

Counsel:
           Second Defendant:    F V Moore
           Third Defendant:       M J Brett
Solicitors:
           Second Defendant:    Archer Busbhy
           Third Defendant:  Page Seager

Judgment Number:  [1999] TASSC 151
Number of Paragraphs:  11

Serial No 151/1999
File No 539/1991

RICHEY FISHING COMPANY LTD (ACN 009 553 520) v TSB DEVELOPMENTS PTY LIMITED (ACN 009 490 546) and BTR INDENG PTY LIMITED
(ACN 004 695 916) and SOUTHCOTT PTY LIMITED (ACN 007 870 662)

REASONS FOR JUDGMENT  THE MASTER

21 December 1999

1. The second named defendant has objected to answering a number of interrogatories administered to it by the third named defendant and the third named defendant has applied for orders compelling answers, pursuant to the Rules of the Supreme Court, O33, r9. 

1. A ground of objection common to most of the disputed interrogatories is that the interrogatories "assume as fact matters which are in issue".  There are other grounds of objection, but the parties have asked me to rule at this stage only on this objection.

1. Counsel for the objecting party submitted that the legal principle and its justification is as follows:

1        An interrogatory is always objectionable if it assumes the existence of a fact in issue.

2This is because the requirement to make the assumption renders the interrogatory inherently unfair as it cannot be answered without the interrogated party admitting the assumed fact.

1. The authorities cited in support of the proposition were Winterbottom v Vardon & Sons Ltd [1921] SASR 364; Konings v Naylor [1964] Qd R 235; Theiss v TCN Channel 9 Pty Ltd (No 3) [1992] 1 Qd R 587.

1. In Winterbottom v Vardon (supra) Poole J considered objections to a number of interrogatories. Counsel for the second named defendant referred to a passage at 366 and 367 as follows:

"The fifth and sixth interrogatories are objected to on two grounds - (1) that they are interrogatories as to the contents of a written document; and (2) that to answers the interrogatories might incriminate the defendant.  I think the first ground of objection to answer is in each case sound.  With the second ground I will deal later.  The fifth interrogatory inquires whether it is not a fact in the issue of 'the Diggers' Gazette' of the 15th Nov 1919 there appeared the article alleged to be defamatory.  Now, a copy of the issue of a magazine or newspaper complained of (ie an original) is the best evidence of its contents, and unless the original is lost or destroyed, and that is not suggested, the interrogatory cannot be upheld.  See Stein v Tabor (1874) 31 LT 444; Fitzgibbon v Greer (1875) 9 IR CL 294.  For the same reason the objection to answer the sixth interrogatory is sound also.  This interrogatory is based on the assumption that the article is proved.  'Is the plaintiff the person intended to be referred to in the said article as Winterbottom'? etc."

1. In my view, the passage in Winterbottom v Vardon referred to is, so far as relevant to this case only, authority for the proposition that an interrogatory, the answer to which tends to prove the existence of a document, other than by the best evidence, is objectionable.  Counsel for the second named defendant placed particular reliance on the words in the passage: "This interrogatory is based on the assumption that the article is proved".  I do not think these words lend any support to counsel's proposition.  Poole J is simply pointing out that questions about a document prior to the document being proved in the ordinary way will be objectionable, (subject to recognised exceptions, following the decision in The Queen's Case (1820) Brod & Bing 284; 129 ER 976. See Cross-Examination on Documents M H McHugh QC (1985) 1 Aust Bar Review 51).

1. The case of Konings v Naylor (supra) was considered in Theiss v TCN Channel 9 Pty Ltd (No 3) (supra). The submission considered in that case is set out at 587 of the judgment as follows:

"A perusal of the form of answers so far delivered indicates that a general objection has been taken in respect of a number of interrogatories to the effect that they assume a fact not admitted on the pleadings.  Mr Callinan, who appears for the defendants, has assaulted this objection head on, asserting in effect that it is not an objection known to the law.  It is, and I think Mr Callinan conceded as much, clear that there has been a general acceptance for a very long time at the Bar that such an objection is technically sound.  However Mr Callinan says that such a perception is rooted in a misunderstanding of an earlier decision of the Court in Konings v Naylor [1964] Qd R 235 and is not reflected in any other decision. A perusal of the Australian Digest, the White Practice and Bray on Discovery certainly suggests that Mr Callinan's submission in this respect has substance. In each of those extensive and well regarded works there is no reference to any such objection as far as I have been able to discover, although Konings v Naylor is itself digested in the Australian Digest.  It is appropriate, therefore, to look at Konings v Naylor with a view to determining for what it can be said to be authority."

1. Dowsett J noted that the Full Court of the Supreme Court of Queensland had upheld an appeal from the decision of Hart J at first instance in Konings v Naylor (supra) on the ground that the judge at first instance had given leave to amend interrogatories, ordering that such amended interrogatories be answered without extending to the opposite side the opportunity to be heard as to any just objection.  Hart J had granted leave to issue further interrogatories in the course of considering whether or not an interrogatory, which assumes the existence of a fact in issue is objectionable.  His reasons are set out in detail in Theiss v TCN Channel 9 Pty Ltd (No 3) (supra) and include the following:

"Is the technical objection a ground on which I should refuse to order the defendant to answer the interrogatories?  I have come to the conclusion that it is not.  It appears from the extract from Mr Chitty's Practice of the Law that the reason for the rule as to double-barrelled questions is that counsel has no right to falsely assume or pretend that a witness had previously sworn or stated differently to the fact or that a matter had been previously proved when it had not.  In other words, the rule is one of fairness to witnesses.  In answering interrogatories, the same objection does not exist.

…

It could not be pretended that this form of question as actually asked in this interrogatory would mislead any counsel who had the duty of settling the answer."

1. At 590, Dowsett J concluded:

"I think, then that it is correct, as Mr Callinan submits, that there is no general rule prohibiting the making of assumptions in the framing of interrogatories.  I think, though, that where any such assumptions work unfairness, then that is an objection which may be taken, but the objection is based upon the fairness and not upon the assumption.  It seems to me that much of the mystery which has come to surround the administration and administering of interrogatories in recent years has been based upon a misunderstanding of Konings v Naylor and an attempt to elevate into a matter of principle what was in fact a decision based upon the facts of that case."

1. Counsel have told me that in their researches they have been unable to find any case which specifically states as a matter of principle that an interrogatory is always objectionable if it assumes the existence of a fact in issue.  The only case where the matter has been directly considered is Theiss v TCN Channel 9 Pty Ltd (No 3) (supra) and I will follow what was said in that case.  There is no general rule that an interrogatory is objectionable merely because it requires the person interrogated to assume the existence of a fact in issue.  For the interrogatory to be objectionable on this ground, there must be the added element of unfairness.  Whether unfairness arises will depend upon the facts of each case.

1. In light of my finding, I will need to consider whether or not any of the interrogatories objected to are unfair or whether other objections made are sustainable.  As I said earlier, the parties asked me to deal with the preliminary legal point without hearing argument at this stage as to fairness and the other grounds of objection.  The hearing of the application will be adjourned, to be relisted at the request of either party.  As agreed, the costs of today's proceedings are reserved.