SZOMBATHY v The Public Trustee as Executor of the estate of Margit Lidia SZOMBATHY (Dec)
[2000] WASC 202
•22 AUGUST 2000
SZOMBATHY -v- THE PUBLIC TRUSTEE as Executor of the estate of MARGIT LIDIA SZOMBATHY (DEC) & ORS [2000] WASC 202
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 202 | |
| Case No: | CIV:1063/1998 | 11 AUGUST 2000 | |
| Coram: | MASTER SANDERSON | 22/08/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | LAJOS SZOMBATHY THE PUBLIC TRUSTEE as Executor of the estate of MARGIT LIDIA SZOMBATHY (DEC) ERZSIKE ILDIKO SZOMBATHY MARIKA ANIKO SZOMBATHY IBOLYA ENIKO SZOMBATHY MARGARET EMESE SZOMBATHY ANDRAS SZOMBATHY KATALIN SZOMBATHY |
Catchwords: | Practice and procedure Application seeking further and better answers to interrogatories Turns on its own facts |
Legislation: | Inheritance (Family & Dependants' Provision) Act 1972, s 6(1) Rules of the Supreme Court, O 27 r 1(1) |
Case References: | Bondelmonte v Blanckensee [1989] WAR 305 Dalecoast Pty Ltd v Monisse & Ors [1999] WASCA 103 Hawkes v Schubach [1953] VLR 469 In the estate of Bruski (1983) 35 SASR 86 Marriott v Chamberlain [1886] 17 QBD 154 Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] 13 CLR 101 Sharpe v Smail (1975) 49 ALJR 130 Mulley v Manifold (1959) 103 CLR 341 Re Greenhalgh [1982] Qd R 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Estate of MARGIT LIDIA SZOMBATHY (DEC)
BETWEEN : LAJOS SZOMBATHY
- Plaintiff
AND
THE PUBLIC TRUSTEE as Executor of the estate of MARGIT LIDIA SZOMBATHY (DEC)
First Defendant
ERZSIKE ILDIKO SZOMBATHY
MARIKA ANIKO SZOMBATHY
IBOLYA ENIKO SZOMBATHY
MARGARET EMESE SZOMBATHY
Second Defendants
ANDRAS SZOMBATHY
Third Defendant
(Page 2)
- KATALIN SZOMBATHY
Fourth Defendant
Catchwords:
Practice and procedure - Application seeking further and better answers to interrogatories - Turns on its own facts
Legislation:
Inheritance (Family & Dependants' Provision) Act 1972, s 6(1)
Rules of the Supreme Court, O 27 r 1(1)
Result:
Application refused
Representation:
Counsel:
Plaintiff : Mr A J Klein
First Defendant : No appearance
Second Defendants : No appearance
Third Defendant : Mr A J N Aristei
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Stephen Browne
First Defendant : No appearance
Second Defendants : No appearance
Third Defendant : Tolson & Co
Fourth Defendant : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305
Dalecoast Pty Ltd v Monisse & Ors [1999] WASCA 103
Hawkes v Schubach [1953] VLR 469
In the estate of Bruski (1983) 35 SASR 86
Marriott v Chamberlain [1886] 17 QBD 154
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] 13 CLR 101
Sharpe v Smail (1975) 49 ALJR 130
Case(s) also cited:
Mulley v Manifold (1959) 103 CLR 341
Re Greenhalgh [1982] Qd R 99
(Page 4)
1 MASTER SANDERSON: This is the third defendant's application to compel further and better answers to interrogatories delivered to the plaintiff. Pursuant to O 27 r 1(1) leave is required before interrogatories can be administered. In this case the grant of leave was not opposed by the plaintiff and an order was made accordingly. The plaintiff's claim is brought under the provisions of the Inheritance (Family & Dependants' Provision) Act 1972. The question of the grant of leave to administer interrogatories in Inheritance Act applications is not a matter presently before the court. However, I do harbour doubts as to whether or not interrogatories are appropriate in such actions: see In the estate of Bruski (1983) 35 SASR 86; Dalecoast Pty Ltd v Monisse & Ors [1999] WASCA 103 per Owen J at 5.
2 The interrogatories originally delivered to the plaintiff were 75 in number. Some of the interrogatories were broken down into a series of sub-questions, but it was not suggested they were in any way oppressive. The third defendant also issued what are referred to as "supplementary interrogatories". These interrogatories were eight in number. It would appear that no objection was taken to the delivery of these supplementary interrogatories, although they were not the subject of any grant of leave. In any event, the parties proceeded on the basis that all interrogatories were properly delivered and that the only issue was whether the plaintiff had properly declined to answer certain of the interrogatories.
3 In relation to interrogatories 2, 4, 5, 14, 15, 16, 19, 20, 21, 23, 24, 25, 29(a) and (c), 30, 32, 35 of the original list and 6 of the supplementary list, the plaintiff has declined to answer each of the interrogatories on the grounds that it seeks hearsay evidence. The nature of the questions put can be illustrated by reference to interrogatory 14. It reads as follows:
"14. In relation to paragraph 58.18 of the said affidavit, state what arrangements were made by your wife to have the Deceased placed into the Swan Cottages. Give details of any verbal or written communications made, and if so, to whom and over what period."
- To this interrogatory there appears the following answer:
"This interrogatory is objectionable on the grounds that it seeks hearsay evidence."
(Page 5)
- "The law with regard to interrogatories is now very sweeping ... (with certain exceptions) it seems to me that pretty much that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue."
- This statement of principle was adopted by the High Court in Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] 13 CLR 101 and reaffirmed in Sharpe v Smail (1975) 49 ALJR 130. A party to whom an interrogatory is directed must answer the interrogatory from his or her own knowledge. But a party is not obliged to make inquiries to obtain the information beyond his or her servants or agents. In Hawkes v Schubach [1953] VLR 469, Barry J put the position as follows (at 472):
"As a general rule, therefore, a party may be interrogated as to his own knowledge and he may also be interrogated as to his information and belief obtained from persons, such as servants or agents, with whom he is, in connection with the particular transaction or event that gives rise to the litigation, in such legal relationship that he is entitled to ascertain their knowledge. He is not bound, however, to enquire or to answer as to knowledge which his servants or agents may have happened to acquire outside the course of their employment by him. The familiar phrase, that a party must answer from information, knowledge, and belief, is to be understood in the light of these principles. A party must answer proper interrogatories from his own knowledge and also from information and belief derived from his servants or agents in the course of their relationship with him, when he has, or can obtain, that information from them. But where the plaintiff's case rests on an allegation that it was the conduct of the defendant, combined with the subsequent conduct, in his absence, of another person who was not the defendant's servant or agent, which caused the damage the defendant can be required to answer only from his own knowledge, and he is not bound to make enquiries nor is he bound to answer from information that may have come to him from after the event."
(Page 6)
- relevant to the action between the parties can be used to put any question which could be put in examination-in-chief. Interrogatories cannot be used of course to cross-examine, nor to fish, nor to attack credit. In answering a question when giving evidence-in-chief, a witness cannot properly give hearsay evidence. Equally, hearsay evidence cannot be given through an answer to an interrogatory.
6 Although I have some hesitation about the way the objection to answering the interrogatories is framed, in my view, objection is properly taken. Using question 14 as an example, it is clear that the plaintiff is being asked about what was done by his wife. It is not unreasonable to suppose that the plaintiff's knowledge of what his wife did is based upon what he was told by her. That would certainly be the case with respect to any verbal communications relating to the deceased being admitted to the Swan Cottage Homes. In relation to written communications, if these communications have not been discovered then it will be necessary for the plaintiff to make enquiries of his wife. Given that they do not stand in a relationship of agency or master and servant, it is not incumbent upon the plaintiff to make such enquiries. The interrogatory is bad and I would not order a further and better answer.
7 The same reasoning applies to all of the other interrogatories where objection is taken on the grounds of hearsay. In relation to interrogatory 23, there is a further objection that the interrogatory amounts to cross-examination. In my view, that objection is properly taken and would provide a further ground for not answering that interrogatory. In relation to interrogatory 35, objection is taken on the ground that the interrogatory "does not make sense". In my view, that objection is properly taken.
8 The plaintiff objects to answering interrogatories 1, 3, 18, 19 and 28 in the original list and question 8 in the supplementary list on the grounds that the material sought has been provided elsewhere. To illustrate this point, question 18 is in the following terms:
"18. In relation to paragraph 58.21 of the said affidavit, state the approximate date when your wife stopped visiting your parents, as stated therein."
- The answer given to this interrogatory is as follows:
"A18. The information sought in interrogatory 18 has already been provided at paragraph 58.18 of my affidavit sworn 6 April 2000 where I state 'my parents moved to the Swan
(Page 7)
- Cottages on 26 April 1999' and I also state at paragraph 58.21 'my wife stopped visiting my parents after approximately 7 months'."
9 In my view, the plaintiff's response is entirely appropriate and unanswerable. The plaintiff has covered, in the affidavit material, precisely the question put by the interrogatory. I would not order further and better answers of any of these questions.
10 With respect to questions 11, 13, 26, 33(b) and (c) and 38 of the interrogatories and questions 2, 4, 6 and 7 of the supplementary interrogatories, it is said that these are irrelevant and not related to a matter in issue between the parties. Further, it is said that question 17 and 39 of the initial interrogatories relate to paragraphs of the plaintiff's affidavit which have now been struck out. This latter contention is clearly correct and so answers will not be ordered in relation to questions 17 and 39. Interrogatory 11 provides an example of the nature of the questions asked and the basis of the plaintiff's objection. The interrogatory reads:
"11. Give details of the employees (whether temporary, casual or permanent) and any contractors that work for the business from the period of its transfer to you until the end of 1996, and the estimated annual wages paid towards such employees and contractors."
11 As I mentioned above, this is an application brought under the Inheritance (Family & Dependants' Provision) Act 1972. To establish an entitlement under the Act, the plaintiff must first establish that the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the plaintiff. If this jurisdictional question is answered in the plaintiff's favour then the court must determine, as an exercise of discretion, what provision should be made for the plaintiff, taking into account the relevant facts as they exist at the time of the making of the order: see Bondelmonte v Blanckensee [1989] WAR 305 per Malcolm CJ at 307. Formulated in that way, it can be seen that interrogatory 11 is clearly irrelevant to the matters at issue between the parties. It may be that the financial position of the plaintiff at the date of death of the deceased is a relevant consideration in determining whether or not the deceased made proper provision for the plaintiff in her will. But that is a matter which the plaintiff must establish. Questions as to who was employed by the plaintiff are irrelevant.
(Page 8)
12 Objection is taken to interrogatories 23 and 41 through to 48 on the basis that they amount to cross-examination. As a general rule, interrogatories may not be asked which are mere cross-examination: see Sharp v Smail (supra) at 133. Question 23 provides an example of the plaintiff's complaint. The interrogatory relates to an affidavit sworn by the third defendant on 14 July 1998. The question posed is as follows:
"23. In relation to paragraph 42 of the said affidavit [that is the third defendant's affidavit of 14 July 1998], state to what extent you accept the contents of that paragraph, if you disagree with any parts of that paragraph, please state the basis of your disagreement."
13 It is difficult to imagine a clearer case of cross-examination of a party. The plaintiff should not be required to answer these interrogatories.
14 A very similar complaint is raised in relation to paragraphs 41 - 48, 49 - 54, 55 - 62, 63 - 67 and 68 - 75. In relation to each of these interrogatories the plaintiff is asked to look at the evidence of a deponent and answer a series of questions in relation to that evidence. This amounts to cross-examination of the plaintiff by way of interrogatory and it is not proper. I would not order the plaintiff to answer any of these questions.
15 There are a variety of complaints made in relation to the other interrogatories which have not been answered. In each case I am satisfied that the objection made by the plaintiff is a proper objection and I would not order that the interrogatories be answered. I would dismiss the third defendant's summons.
16 I will hear the parties as to the form of orders.
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