Taylor v Santos Ltd

[2000] SASC 305

TAYLOR V SANTOS LTD & ORS

[2000] SASC 305

RE APPLICATION FOR LEAVE TO INTERROGATE

1................ JUDGE BURLEY......... The plaintiff has applied for leave to interrogate the second, third and fourth defendants.  The application is supported by the affidavit of Mr Dugan sworn on 11 February 2000 (Document 158).  In paragraph 7, Mr Dugan has stated that some 19 evidentiary issues are likely to arise concerning the plaintiff’s civil conspiracy plea.  The plaintiff seeks evidence about these issues.  This is confirmed in the written submissions of the plaintiff.

1. There are three sets of interrogatories respectively directed to the second, third and fourth defendants.  In broad terms the interrogatories are confined to the allegation of civil conspiracy set out in paragraphs 29 to 33A of the more explicit statement of claim.

2. Paragraph 29 is as follows:

   “29... Adler, Gibson and Armstrong acting on their own behalf and on behalf of Santos entered into the following agreement, at times and places unknown to the Plaintiff, in or about August to September 1996 (the September Agreement) and/or decided upon the following course of action:

   (a).... That Gibson would withdraw his resignation as an employee and officer of Santos Europe and would resume his employment with that company;

   (b)... That Adler would procure Santos and/or Santos Europe to accept Gibson’s withdrawal of resignation;

   (c)... That Adler would remove the Plaintiff from the Guildford office and relocate him to Adelaide.

   (d)... If the Plaintiff did not agree to such relocation forthwith, the Plaintiff’s employment with Santos would be terminated.

   (e)... That they would ensure that the purchase by Santos and or Santos Europe of an asset known as the Armada Unit would not proceed.”

3. In paragraph 32 it is alleged that the September agreement was unlawful and in paragraph 33 it is alleged that the predominant purpose of the September agreement was to injure the plaintiff.

4. The first point to note is that the issues referred to by Mr Dugan in his affidavit are described as evidentiary issues rather than issues as defined by the pleadings.  It is questionable whether interrogatories about evidentiary issues may be the subject of leave.  As I understand the law, it has never been the province of interrogatories to interrogate about anticipated evidentiary disputes that may arise during the course of the trial.

5. The defendants, in opposing the grant of leave in respect of the interrogatories, complained that if leave was granted, the three defendants interrogated would have to disclose almost the entirety of their evidential case in relation to the issues relating to the alleged conspiracy without the plaintiff having done so.  There is some substance in the complaint but, in my view, it does not sufficiently characterise the nature of the objection that may be taken to interrogatories which are directed to evidentiary issues as opposed to factual issues that arise and can be defined by reference to the pleadings.

6. It can be readily seen how an admission about the interrogating party’s case might assist with the fair disposal of the action and the saving of costs: cf Pearce v Hall (1989) 52 SASR 568. It is not so clear when the interrogatory, if answered, will disclose the opponent’s evidence relating to a particular issue in the proceedings. This is particularly so, where, as in this case, the plaintiff pursues the application for leave to interrogate on the basis that he is able to establish his case on conspiracy without the need to obtain evidence on that topic from the defendants by way of interrogation.

7. The plaintiff has argued that he is nevertheless entitled to obtain information from the defendants regarding the conspiracy allegations made by him, but the submission seems to be advanced on the basis that if the questions are answered the plaintiff’s case on the question of conspiracy will be assisted.  Given that conspiracy is denied by the defendants, it does not in any way follow that if the defendants are required to answer the interrogatories, the answers given will be favourable to the plaintiff’s case.

8. It is sometimes said that a party is entitled to interrogate so as to ascertain the nature of the opponent’s case.  This must, in my view, be qualified by the principle that in order to ascertain the nature of the opponent’s case, a party may request particulars.  Be that as it may, a party is not entitled to interrogate so as to ascertain the evidence which the opponent intends to adduce at trial: Attorney-General v Gaskill (1882) 20 ChD 519 at 531; McKinley v Robinson (1888) 14 VLR 195; Cameron v Cameron (1890) 7 WN (NSW) 29; West v Conway (1923) 23 SR (NSW) 344 at 347 and Hooton v Dalby [1907] 2 KB 18 at 21. The interrogating party is entitled to obtain material facts, but not the evidence by which they are to be proved.

9. Exhibit PND4 to the affidavit of Mr Dugan of 11 February 2000 is a schedule which links the questions with the pleadings in the statement of claim.  Mr Dugan refers to the schedule at paragraph 8 of his affidavit where he says:-

   “The plaintiff wishes to interrogate Adler, Armstrong and Gibson in relation to these matters concerning the alleged conspiracy and the draft interrogatories contain questions relating only to these matters.  Annexed hereto and marked ‘PND4’ is a schedule identifying in detail the topics to which the interrogatories relate and in each case the allegations as to material facts in the pleadings to which the interrogatories relate.”

10. I set out as an example the first part of the schedule:

“TOPIC	ADLER INTERROGATORIES	ARMSTRONG INTERROGATORIES	GIBSON INTERROGATORIES	PLEADINGS
Recruitment of Gibson	1-5	1-5	1	29 32(b)(iii) 30(a)(ii) - (vi) 29
Resignation of Gibson and reasons	6-8	6-8	2-5	30(a) 30(e) 29(a)(b)
Santos Europe business develop-ment strategy	9-11	9-11	6-7	29 7.1(b)(d) 30(a)(i) 30(a)(xix),(xx)(xxi)”

1. The example given above indicates that the first five interrogatories in relation to the second and third defendants relate to the recruitment of Gibson and the first interrogatory directed to the fourth defendant relates to that topic.  However, the pleadings referred to in the “pleadings” column do not raise that topic.  The paragraphs do, however, refer to the fourth defendant, to the fact of his employment and to actions allegedly taken by him during the course of his employment.  Nevertheless, to take the first five interrogatories directed to both the second and third defendants (which are essentially the same interrogatories), the subject matter of the interrogatories, namely the recruitment of the fourth defendant, cannot be said to relate directly to any of the matters raised between paragraphs 29 and 32 of the statement of claim.  Put another way, the interrogatories are not directed to material facts which are in issue.  They are directed towards the recruitment of the fourth defendant in circumstances where it is alleged in paragraph 5 of the statement of claim and admitted by the fourth defendant in paragraph 5 of his defence, that the fourth defendant was at all material times an employee and officer of Santos Europe Ltd.  Whilst I accept that the evidential issues the subject matter of the interrogatories just referred to may well arise during the course of the trial, such evidential issues are not the proper subject of interrogatories.

2. Interrogatory 6 directed to the fourth defendant, although included in the schedule under the topic of “Santos Europe business development strategy”, obviously refers to the topic immediately above in PND4.  It is a clear example of the plaintiff seeking to delve into the defendants’ brief relating to evidence to be adduced at trial.

3. Interrogatory 9 in respect of the second and third defendants is another example of interrogating in order to elicit the defendants’ evidence.  It asks whether as at 29 July 1996 there was in existence a plan or strategy as to the pursuit of business development opportunities in the UK or Europe.  The possible bases of such a plan are set out in a series of three sub-questions.  In the schedule which is PND4, reference is made to paragraph 7.1(b)(D) of the statement of claim.  That paragraph refers to a development plan but the particulars given in relation to the assertion relate to memoranda and/or reports.  The plaintiff is therefore not seeking to interrogate about the matters raised in the pleadings and I can only conclude that whatever answers might be given by the second and third defendants, the answers will consist of evidence that they may potentially give at trial.

4. Reference is also made to paragraph 30(a)(xix), (xx), and (xxi).  These sub-paragraphs refer to development strategies but the question asked in paragraph 9 of the proposed interrogatories directed to the second and third defendants is much more general in its ambit.  One of the consequences of that generality is that evidence rather than material facts is sought.

5. Having read the three sets of interrogatories and having noted the pleadings relied upon to demonstrate the materiality of the question, I have gained the distinct impression in relation to all three sets of interrogatories that they have been prepared in order to obtain either corroboration of what the plaintiff will say in evidence at the trial or, if corroboration is not forthcoming, the respective defendants’ versions of the events.  That is not to say that the draft sets of interrogatories do not contain questions which are legitimate, in particular where the questions are directed to matters raised in respect of the defences of the three defendants.  However, the effect of the interrogatories in a general way is to ask about evidential issues in such a manner that the defendants’ brief must inevitably be disclosed to an unacceptable degree if the questions are to be answered fully.  Such interrogatories, in my view, cannot be the subject of leave.

6. For the above reasons the plaintiff’s application for leave to interrogate the second, third and fourth defendants will be refused.

7. The defendants also submitted that the interrogatories taken as a whole were oppressive and evidence was adduced by affidavit where Mr Bagot, one of the solicitors for the defendants, deposed as to his experience in legal practice in complex matters such as this.  His affidavit speaks for itself and I do not propose to set out its content in detail in these reasons.  It is sufficient for me to say that I agree with the broad thrust of the opinions expressed by Mr Bagot in relation to the work needed, time taken and personnel to be applied to the answering of the interrogatories, with perhaps the reservation that the task of answering the interrogatories may not be quite as extensive as Mr Bagot expects.  Nevertheless, the task is considerable.  However, in view of my conclusion that leave should not be granted because the interrogatories are largely directed to investigation of matters of evidence rather than material fact, it is not necessary for me to form an opinion as to whether or not the interrogatories are otherwise oppressive.  It would be somewhat of an artificial exercise to do so because the argument on oppression advanced in this case was based on the assumption that all of the interrogatories would have to be answered.  I have found to the contrary and I see no useful purpose being served by me examining the position of whether or not the interrogatories, if otherwise assumed to be legitimate, were nevertheless oppressive.

8. For the same reason, I think the opposition advanced by the defendants to answering interrogatories based on the contention that the answers to the interrogatories may have a tendency to incriminate the respective defendants, does not now need to be dealt with.