Sheahan v Slattery (No 2)

[2006] NSWSC 711

CITATION:	Sheahan v Slattery (No 2) [2006] NSWSC 711 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/07/06
JUDGMENT DATE :	13 July 2006
JUDGMENT OF:	Gzell J
DECISION:	Defendant ordered to answer interrogatories confined to the origin of documents.
CATCHWORDS:	PROCEDURE - Discovery and interrogatories - Whether defendant should be ordered to answer interrogatories on the origin of documents where no guarantee he would call witnesses to be cross examined and plaintiff's case limited to documents
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
PARTIES:	John Sheahan - Plaintiff John Joseph Slattery - Defendant
FILE NUMBER(S):	SC 5573/02
COUNSEL:	Mr GC Lindsay SC/ Ms J Thornton - Plaintiff Mr D Stack - Defendant
SOLICITORS:	Eakin McCaffery Cox Solicitors - Plaintiff Kemp Strang Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 13 JULY 2006

5573/02 JOHN SHEAHAN v JOHN JOSEPH SLATTERY (NO 2)

EX TEMPORE JUDGMENT

1 An application has been made for leave to interrogate the defendant. The Uniform Civil Procedure Rules 2005, r 22.4 provides that an order that a party answer specified interrogatories is not to be made unless the Court is satisfied that the order is necessary at the time it is made.

2 There is a peculiarity in the orders that have been made for the management of this case in that the defendant is to serve all affidavits upon which he intends to rely on the second day after the close of the plaintiff’s case. The plaintiff’s case, I am informed, is to be a documentary one.

3 The specific interrogatories that are sought to be administered deal, in large measure, in establishing the origins of certain documents. It was submitted on behalf of the defendant that these matters can be elicited in cross-examination. There is no guarantee, however, because of the order to which I have referred, that the defendant will file affidavits and if that course is adopted, there will be no opportunity for the plaintiff to cross-examine.

4 The application is no doubt brought before the Court under the liberty to apply that I have granted. There is no notice of motion, nor affidavit in support. I am prepared to deal with the application in the absence of those documents.

5 In my view, because of the uncertainty as to whether or not the plaintiff will have the opportunity of cross-examining with respect to the origins of documents, it is appropriate that I make an order to allow interrogation with respect to the origin of documents. If there are any other interrogatories that are not within that category, I will give leave to the defendant to move to have such individual interrogatories that fall outside that category removed from the interrogation.

6 On another issue, both parties are of the view that a bundle of documents should be prepared. The matter is set down to commence on Thursday 24 August 2006.

7 I direct the plaintiff to serve the interrogatories in the form of the draft interrogatories attached to the letter from the plaintiff’s solicitors to the defendant’s solicitors of 5 July 2006 by no later than 4.00 pm on Friday 14 July 2006. I give leave to the defendant to move in the ECM Court to have struck out any interrogatory that is not addressed to the origins of specified documents. I direct the defendant to provide answers to the interrogatories by no later than 4.00 pm on Friday 28 July 2006. I order that the answers to the interrogatories be on oath.

8 I direct the plaintiff to prepare and serve upon the defendant a bundle of documents two weeks before the commencement date of the trial. I direct the defendant to supplement the bundle of documents, if he wishes to do so, and to serve the augmented bundle on the plaintiff and give notice to the plaintiff of any objections to the documents inserted by the plaintiff seven days before the date for commencement of the trial. I direct the plaintiff to deliver the bundle of documents to my Associate and give notice to the defendant of any objections to the documents inserted by the defendant two days before the commencement of the trial.

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20/07/2006 - Enter judgment date. - Paragraph(s) Judgment date.