Rondos & Rondos v Toolangi Certified Strawberry Runner Growers CO-OPERATIVE Ltd - [2009] SADC 134

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
RONDOS & RONDOS v TOOLANGI CERTIFIED STRAWBERRY RUNNER GROWERS CO-OPERATIVE LTD & ANOR
[2009] SADC 134
Judgment of His Honour Judge Chivell
1 December 2009
PROCEDURE - DISCOVERY AND INTERROGATORIES
Appeal from decision of Master refusing to make orders pursuant to 6R150 - application for an order that plaintiffs answer questions - whether order should be made under 6R150 - whether questions fishing - whether questions raise questions of disclosure of documents - whether questions otherwise appropriate. Appeal dismissed.
District Court Civil Rules 1987 (SA) r 57.01, r 67, r 127(1); District Court Civil Rules 2006 (SA) r 150, referred to.
Barber v Nominal Defendant & Ors (1989) 153 LSJS 8; Pearce v Hall (1989) 52 SASR 568, applied.
State of SA & Ors v White & Ors (2008) 253 LSJS 239; [2008] SASC 32; Hennessey v Wright (No 2) (1882) 24 QBD 445, considered.

RONDOS & RONDOS v TOOLANGI CERTIFIED STRAWBERRY RUNNER GROWERS CO-OPERATIVE LTD & ANOR
[2009] SADC 134

This is an appeal from a decision of a Master of this Court. The decision was published on 8 May 2009. The Master refused an application by the defendants (appellants) for an order for pre-trial examination of the plaintiffs (respondents). Rule 150 of the 2006 District Court Rules (“6R150”) gives the court power to make such an order. The Master also ordered costs, and there is also an appeal from that order.
Conclusion
After reading the respective outlines of argument and the authorities referred to, and having heard the submissions of Mr Doyle, counsel for the defendants and Mr Robertson SC, counsel for the plaintiffs, I have decided that the appeal should be dismissed. The following are my reasons for reaching that conclusion.
The nature of the action
The Master summarised the plaintiff’s claim as follows:
“The plaintiff’s claim against the defendants is for damages arising out of the supply of Selva strawberry runners for the 2003 season which, it is alleged, were defective and ridden with the disease Rhizoctonia. The plaintiff’s allege the disease caused the crop of Selva runners to fail and die during December 2003 and January 2004. It is alleged the defendants are liable for breach of various express and implied warranties, for misleading and deceptive conduct and in negligence by reason of the alleged infliction of disease and defective nature of the Selva runners. The plaintiff’s claim is for wasted expenditure for preparing their land for cultivation, including the purchase price of the runners, operating losses allegedly flowing from the failure of the Selva runners and consequential loss of their business as pleaded in paragraphs 54 and 55 of the statement of claim.”
Appeal Book p111
The defendants deny that the strawberry runners they supplied were infected with Rhizoctonia. They assert in the Defence that the soil in which the runners were planted was not adequately fumigated which left the strawberry plants open to attack by pathogens. These included Rhizoctonia and others, such as parasitic nematodes. This was particularly so, they said, since the land had been previously used for the commercial growing of potatoes.
Alternatively, the defendants plead contributory negligence by the plaintiffs in relation to their growing methods, land preparation, transport to the site, in the configuration of the beds, in the handling and planting of the runners, in their subsequent care including watering, disease prevention, application of chemicals, soil testing and plant testing, and protection from climatic conditions.
The questions sought to be asked
Without setting them all out here, the proposed questions fell into a number of broad categories:
·Question 1 sought to ascertain the existence or otherwise of records kept in compliance with a standard called SQF2000. That standard calls for the keeping of a “spray diary” which, according to the defendants’ expert agronomist, would “contain records of every pest, disease and weed spray applied”, and would provide specific information on such matters.
The plaintiffs have specifically acknowledged in open correspondence that this spray diary has been lost. Accordingly, the defendants know the answer to question 1 (this was acknowledged by Mr Doyle, and he did not press that question (see T19)).
·Questions 2 and 3 go to the information which the diary might have contained, namely the observation of pests, specifically aphids, spider mites and thrips, and the use of any and which insecticide, fungicide or herbicide. However, the questions are not as to the content of the book, but seek the plaintiffs’ answers about these topics directly;
·Questions 4 to 12 seek information about the plaintiff’s activities during the financial years from 1 July 1999 to 30 June 2005, that is, both before and after the alleged cause of action arose. Specifically, they seek information about income derived other than from growing strawberries (Q4); details of strawberry growing such as varieties grown, crop rotation, irrigation, water purchases (Q5); the ways in which any strawberries grown were sold or disposed of (Q6); whether any and if so what records were kept of any such strawberry growing, and the whereabouts of any such record and if they are no longer in possession, particulars of how, when and why (Q7 & 8) ; all details of income derived from any source (Q10); all details of expenditure by the business (Q11); whether income increased or decreased by more than $100,000 (Q12). (Q9 was withdrawn).
·Question 13 asked why the order for selva runners placed in February 2003 was reduced from 300,000 to 230,000. Mr Doyle mentioned this question as being part of the comparability inquiries in Questions 10‑12. This question was not addressed separately by either counsel before me. The Master held that it was not relevant because it did not arise on the pleadings (AB115). I see no reason to disturb that finding.
Mr Doyle argued that questions 2 and 3 are directed to the contents of a document no longer in the plaintiff’s possession, and to requests for information made by their consultant agronomist, in order to consider alternative hypotheses for the failure of the crop. Questions 4 to 12 explore the plaintiff’s claim for loss and damage; Questions 4 to 6 inquire about the comparability of the farming operation of the plaintiffs’ Lobethal property with the operation at Woodside; Questions 7 to 8 go to the existence of records; and Questions 10 to 12 seek further information about loss for the consideration of their accountant.
Applicable legal principles
There is apparently no decided authority on the application of 6R150. There is ample authority on the application Rule 57.01 of the 1987 District Court Rules (“87R57.01”). The Master accepted the submission of Mr Robertson that the wording of 6R150 is not materially different from 87R57.01. I agree with that submission. I also agree that it follows that the authorities apply with equal force to the new rule.
6R150 provides that the court may, on application by a party to an action, make an order for pre-trial examination of another party to the action. In the 1987 Rules, the requirement was that the party seeking to interrogate obtain leave of the court (see 87R127(1), which came into effect on 2 January 1989). In Barber v Nominal Defendant & Ors (1989) 153 LSJS 8, Judge Lunn outlined the history of the rule, observing that it had been made in order to curb “abuses” of the right to interrogate which had become apparent (p10). He observed:
“The effect of Rule 127(1) is to curtail this right to interrogate at least where other procedures are available to give parties such information as they should reasonably have about their opponents case without incurring the substantial costs and delays incurred in interrogation.” (ibid, p11).
His Honour pointed out that the modern requirement is that pleadings be of “sufficient particularity”, and that they provide sufficient information to the opponent such that he or she may be adequately prepared for trial. This avoids the need for interrogatories. He added:
“If a party does not receive an adequate pleading from another party, it should seek further particulars and take the steps provided by Rule 67 to enforce proper pleadings. The question whether fairness requires that a party should be given leave to interrogate under Rule 127(1) should normally only be assessed in light of the completed pleadings.” (p13).
In Pearce v Hall (1989) 52 SASR 568, the Full Supreme Court endorsed the approach taken by Judge Lunn in Barber. In particular, King CJ, with whom Mohr and Prior JJ agreed, endorsed the following points at p574:
·defendants normally do not need answers to interrogatories to plug gaps in their case, as they have the right to cross-examine the plaintiff and his witnesses before presenting their own case at trial;
·the relatively high price of interrogation is a factor which must also be weighed.
At p574 King CJ also agreed with and adopted Judge Lunn’s conclusion that:
“In view of the many other interlocutory processes and other means of obtaining evidence now generally available, it should only be in fairly exceptional circumstances that any need for interrogation should arise once these other avenues have been properly explored.”
A further principle which arises from the cases is that the questions must not constitute a “fishing” exercise. In Hennessey v Wright (No 2) (1882) 24 QBD 445, quoted by Duggan J in State of SA & Ors v White & Ors [2008] SASC 52 at p8, Lord Esher MR said:
“In other words, the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present. If that is the effect of the interrogatories, it seems to me that they come within the description of ‘fishing’ interrogatories, and on that ground cannot be allowed. The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either of complaint or defence, of which at present he knows nothing, and which will be a different case from that which he now makes, the rule against ‘fishing’ interrogatories applies.”
Finally, it is proper, although not mandatory, to have regard to the manner in which the Master’s discretion was exercised. In State of SA & Ors v White & Ors (supra), Duggan J said that “appellate courts are reluctant to interfere with the exercise of that discretion”.
Application of principles to facts of this case
It is settled law that the contents of a lost document are a proper subject for interrogation (M&S Constructions Pty Ltd v Skewes (1983-4) 34 SASR 406 at p412). However, questions 2 and 3 do not seek such information, as I have already observed.
I conclude that questions 2, 3, 4 and 5, fit, almost exactly, Lord Esher’s description of a fishing expedition. The defendants know nothing of aphids, spider mites, or thrips, or of the use of insecticides, fungicides or herbicides, or what other crops the plaintiffs may have grown, or whether crop rotation and watering issues can found a case for them. They wish to ask these questions, at the prompting of their agronomist, in case the answers might help them make a case of which they presently have no knowledge. They are fishing, and the learned Master was right to refuse leave in relation to those questions.
As to question 6, about the manner of sale of strawberries for each of the six financial years, I fail to see how the answer to this question is required to allow the defendants to adequately prepare their case. If they know nothing of the answers, the questions are fishing for the reasons stated above. If they know something, the issues can be the subject of notices to admit.
Questions 7 and 8 obviously relate to issues of disclosure of documents. If the defendants suggest that the plaintiffs have given inadequate disclosure, there are effective procedures in the rules to deal with that, including directions to give answers about documents on oath. It is inappropriate to order the plaintiff to answer questions pursuant to 6R150 in relation to such issues. Question 9 was withdrawn.
Questions 10 to 12 are also discovery issues. Mr Robertson informed me that the plaintiffs have given extensive disclosure of their financial records. If the defendants suggest that there are other records which have not been discovered, and they are relevant to the issues on the pleadings, then they should seek further disclosure. The defendants have the report of the plaintiff’s accountant, and they have the records on which it is based.
I have already dealt with Question 13. It does not arise on the pleadings.
In my view, the defendants have not shown that there is any further need to interrogate in order to have a fair opportunity to prepare their defence. If there are other issues to be raised, they should be the subject of pleadings, and if the pleadings are inadequate, further and better particulars should be sought.
Mr Robertson also submitted that the cost of answering the defendant’s questions would be prohibitive. He estimated that although there appear to be only 12 questions, they require more than 400 answers, and many questions require extensive investigation and preparation before answers can be given.
This was another issue discussed in Barber and Pearce v Hall. If it were necessary to do so, I would hold that the question posed by Judge Lunn in Barber at p 14, namely:
whether the issues upon which the interrogatories are sought are sufficiently relevant and important to justify the expense and delay involved in interrogation
should be answered in the negative.
Further, there has been nothing in the nature of “fairly exceptional circumstances”, again using the words of Judge Lunn in Barber, approved by the Full Court in Pearce v Hall, identified in this case. Mr Doyle argued that the answers would enable the defendants to properly prepare their case, in that they would put the information before their experts and be ready to cross-examine the plaintiffs’ witnesses, without the need to apply for an adjournment while the witnesses are giving evidence. I can see that this would be advantageous to the defendants, but that would apply in every case in which technical evidence is to be given. That does not make the circumstances exceptional. There is no reason why the defendants’ counsel could not be adequately briefed on the issues about which the plaintiffs’ witnesses should be cross-examined, without interrogating.
In all those circumstances, the learned Master was right to refuse to make the order sought under 6R150. She was also right to make the order for costs. I dismiss the appeals from those orders.