Shop Distributive and Allied Employees* Association v Karellas Investments Pty Ltd

[2007] FCA 959

FEDERAL COURT OF AUSTRALIA

Shop Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd [2007] FCA 959

PRACTICE AND PROCEDURE – principles relating to the administration of interrogatories

Workplace Relations Act 1996 (Cth) s 341(1) and s 401(1)

Environment Protection Authority v Caltex Refining Co. Pty. Limited (1993) 178 CLR 477

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION v KARELLAS INVESTMENTS PTY LTD (ACN 008 547 911)
NSD 768 OF 2007

GRAHAM J
22 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 768 OF 2007

BETWEEN:	SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION Applicant
AND:	KARELLAS INVESTMENTS PTY LTD (ACN 008 547 911) Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	22 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT:

1.Grants leave to the applicant to administer interrogatories upon the respondent in the form of the interrogatories initialled by Graham J, dated this day and placed with the papers, as amended, on or before 25 June 2007.

2.Directs the respondent to file and serve verified answers to those interrogatories on or before 13 July 2007.

3.Makes no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 768 OF 2007

BETWEEN:	SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION Applicant
AND:	KARELLAS INVESTMENTS PTY LTD (ACN 008 547 911) Respondent

JUDGE:	GRAHAM J
DATE:	22 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In these proceedings the applicant asserts that the respondent contravened s 341(1) and/or s 401(1) of the Workplace Relations Act 1996 (Cth). The proceedings have been fixed for hearing on 27 July 2007. On the last occasion the matter was before the Court, namely, 8 June 2007, an application was made by the applicant for leave to administer certain identified interrogatories. The application for leave to administer those interrogatories was fixed for hearing today.

   Principles relating to the administration of interrogatories

2. For interrogatories to be allowed they must be relevant.  Relevant interrogatories will be those which:  

   (a)       seek particulars of the other party’s case;
   (b)       determine what other parties should be joined;

   (c)relate to facts which tend to support the interrogator’s case or impeach the case of the party being interrogated and in either case may be tendered. 

3. Interrogatories may be expressed in a leading form but they must be admissible if asked by the interrogator in his case. 

4. Interrogatories should be drawn so as to admit answers which are not evasive albeit truthful. 

5. Interrogatories cannot be used as a means of obtaining the evidence of the other party or the names of his witnesses and normally cannot be used to seek the identity of persons. 

6. Interrogatories may be directed to facts directly in issue and also other facts from which those facts may be inferred. 

7. Interrogatories must be answered on knowledge, information and belief.

8. A person interrogated is bound to answer according to his own knowledge and also according to the knowledge of those for whose knowledge he is responsible.  Accordingly, a party interrogated must answer interrogatories by reference to the party’s knowledge or the party’s acquired knowledge which arises from information provided which leads to a belief. 

9. If a party has no knowledge or no information capable of leading to the formation of a belief, the party must say so.  If the party states that he has no information capable of leading to the formation of a belief in circumstances where he has information but does not accept it, then he must state the reasons why he is unable to form a belief or has not formed a belief. 

10. Corporate parties such as the respondent in this case are required to verify answers to interrogatories through the mouth of the person with the most proximate knowledge of the facts and matters upon which interrogation is made.  That person is bound before verifying the answers to the interrogatories to ensure that the company, that is to say, he or she on behalf of the company, has made detailed inquiries of all servants and agents to enable the best possible answers to be given to the interrogatories in question.

    Application of principles

11. In this case exception was taken to two aspects of the interrogatories which were proposed.  One matter which was not pressed in the result was the question of the meaning of the word ‘employees’ which the applicant had proposed to use, it being suggested by the respondent that it may not understand what was meant by the use of the word ‘employees’.  The second matter relied upon was that the interrogatories which were originally proposed sought the identity of particular employees of the respondent, which was plainly impermissible.  Whilst it was suggested that the interrogatories should be disallowed on the basis that they constituted a fishing exercise I have some difficulty with the categorisation of the interrogatories proposed in that way in the circumstances of this case.

12. After consideration of the arguments that were advanced the applicant came back to the Court after a short adjournment with a proposed reformulation of the interrogatories which it desired to administer.  Those interrogatories have themselves been the subject of some debate and alteration has been made to them to reflect the wishes of the applicant in the light of the observations of the respondent in relation to the reformulation. 

13. Each interrogatory in its revised form included sub-questions (iii) and (iv) which were directed at imposing upon the respondent a guessing exercise and not directed at the provision of matters of belief as required by the principles which I have earlier summarised.  It is impermissible that those sub-questions be allowed.

14. As to the remaining interrogatories, identified as 1(i) and 1(ii) and 2(i) and 2(ii), they are in my opinion proper interrogatories to be administered in the circumstances of this case. 

15. Whilst on the last occasion the respondent urged the view that it was not a party that could be burdened with an obligation to answer interrogatories in matters of this nature, that argument is no longer pressed and plainly rightly so.  In the light of the judgment of Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining Co. Pty. Limited (1993) 178 CLR 477 at 504-505 it is clear that in proceedings for the contravention of an Act such as the Workplace Relations Act, where there are contraventions alleged of civil remedy provisions, a corporate respondent is not entitled to claim any privilege against exposure to a civil penalty.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       26 June 2007

Counsel for the Applicant:	A G Rogers by way of direct client access
Counsel for the Respondent:	P J Newall and M J Easton
Solicitor for the Respondent:	Greenstein Shakenovsky
Date of Hearing:	22 June 2007
Date of Judgment:	22 June 2007