Thompson, Peter Anthony v Ice Creameries of Australia Pty Ltd

[1996] FCA 516

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )            No. NG 281 of 1994

BETWEEN:PETER ANTHONY THOMPSON and

ROBYN LESLEY THOMPSON

Applicants

AND:ICE CREAMERIES OF AUSTRALIA

PTY LIMITED

First Respondent

DAVID ALAN ATCHISON

Second Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:17 June 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:   This is an application, by the applicants, for leave to administer interrogatories under O 16 r 1 of the Federal Court Rules.  I was referred to some well‑known authorities as to interrogatories, particularly in this Court, including the well‑known statement by Lockhart J in WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 574. I was referred also to the judgment of Woodward J in Aspar Autobarn Co-operative Society v Dovala Pty Ltd (1987) 16 FCR 284 and to the decision of Davies J in Acacia Sportswear Pty Ltd v Segenhoe Ltd, 20 July 1994 unreported.

On the basis of those authorities, the respondents submitted that this was a case in which I would not grant leave to administer interrogatories at all.  That submission was put principally on two bases.  One was the well-known propensity of this Court, particularly in Sydney, to look with scepticism on applications for leave to interrogate; the other was  the undoubted proposition, to which Davies J referred in Acacia, that leave is rarely granted for the reason that the process of administering interrogatories is costly and time consuming, both for the Court and for litigants, unless very strictly limited.

Counsel referred also to the statement of Woodward J in Aspar, to the effect that where a trial proceeds on affidavit evidence, rather than on pleadings, and if the affidavits are carefully and responsibly prepared, there should be no need for interrogation.  This counsel said, and truly, is a case in which there is very substantial affidavit evidence.  Although there are pleadings, the case is proceeding largely on affidavits.  Counsel submitted accordingly that this was not a proper case for the grant of leave.

Accepting everything that is said in the authorities to which I have referred, it seems to me very difficult, at least in most cases and particularly in cases of any complexity, to conclude in the abstract that a case is not one for the granting of leave to administer interrogatories.  As Davies J said in Acacia:

The usual practice of the Court in Sydney is not to allow interrogatories unless the parties are agreed upon a draft or the Judge approves a draft.

And in my view, in a case of any complexity as this undoubtedly is, the matter can really be approached satisfactorily only upon the basis of a draft of the interrogatories which a party seeks leave to administer.

There is before me a list of draft interrogatories.  There is also a very helpful schedule of the respondents' objections to those draft interrogatories and counsel addressed me fully this morning both on the questions of principle and on the particular draft interrogatories.  I think I can deal with the matter satisfactorily only by looking now in detail at the particular interrogatories which the applicant seeks to administer and I shall deal with them in turn.

I begin therefore with draft interrogatory number 1.  That is an interrogatory in which answers are sought as to whether the second respondent informed the applicants orally of risks associated with the establishment of the ice cream outlet with which this case is concerned.  It also seeks information concerning investigations that the second respondent might have made or caused to be made concerning the site of the proposed outlet and the territory in which it was to be located.

The respondents' objection to that proposed interrogatory is that it relates to matter which is dealt with in some detail in affidavit material already filed: particularly, paragraphs 27 to 30, 36, 38(f) and 41 to 43 of the affidavit of David Alan Atchison dated 17 March 1995.  It may be helpful at this stage to say that I think one conclusion that ought to be drawn from the observations of Woodward J in Aspar is not so much that where a case
proceeds on affidavit interrogatories are never appropriate, but that where an issue in a case, and facts relevant to it, are dealt with in some detail in affidavit material filed in the proceedings it will rarely be appropriate to grant leave to interrogate on that matter.

In my view, the respondents' objections to interrogatory number 1 in the draft ought to be upheld on that basis.  It seems to me that that draft interrogatory seeks to cover ground which is already substantially traversed in that affidavit.

The draft interrogatory numbered 1A stands, I think, on a rather different footing.  That interrogatory refers to paragraph 8A of the defence to the applicants' further amended statement of claim.  That paragraph admits that the second respondent had available to him, as at April and May 1991, some Streets Ice Cream Pty Ltd data.  The draft interrogatory seeks precise identification of the data that the second respondent had available to him as at April and May 1991.

The objection of the respondents to that interrogatory was simply that it was one in the nature of a request for further and better particulars of a pleading.  It is undoubtedly true that the draft interrogatory falls within that category.  It is equally undoubtedly true that an interrogatory is not objectionable merely because in fact it does fall within that category: so much is clear from the statement of Lockhart J to which I have referred and the subsequent approval and adoption of that statement by other members of this Court.

There is I think a difficulty which was canvassed in argument this morning, though perhaps not exhaustively, as to those items of particulars which are properly dealt with only by way of particulars and those which may properly be dealt with by way of interrogatories.  Certainly it seems to me, at least so far as the practice of this Court is concerned, that the principle stated by Hunt J in Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221 is stated perhaps rather too narrowly. I shall allow the interrogatory numbered 1A, although it is properly characterised as an interrogatory in the nature of a request for further and better particulars.

That brings me to the rather more complicated draft interrogatory numbered 2.  That seeks, in broad terms, information as to outlets which were operating during April and May 1991 and the second respondent's knowledge and belief as to the turnover of those outlets at that time, and during the years ended 30 June 1990 and 30 June 1989; it seeks in addition information as to the facts, matters or considerations on which that knowledge and belief was based.  The interrogatory also seeks information as to the second respondent's knowledge or belief as to the annual turnover of outlets, and again as to the facts, matters or considerations on which the knowledge or belief was based.

It seems to me that that interrogatory is clearly directed to matters that are relevant to issues in the proceedings.  Although it may be said, and the respondents do say, that it deals with matter which is to some extent dealt with already in Mr Atchison's affidavit, the affidavit deals with that matter in considerably less detail than it deals with the matter to which interrogatory 1 is directed.

The respondents object to the interrogatory also on the basis that it seeks evidence and is very wide.  The fact that it may seek evidence is not in itself necessarily an objection, and in this case, though as will appear, not in some others, I am somewhat sceptical of the argument that this interrogatory is unduly wide in its terms or in what it seeks.  I can I think deal with this interrogatory only on a tentative basis as this stage, because it may be that there are matters relating, for example, to the number or location of outlets and possibly other matters which may render the interrogatory oppressive in a manner that is not at present evident to me.  In principle, however, in my view I should allow interrogatory number 2, though I am prepared to hear counsel later as to the precise form it should take.

That brings me to interrogatory number 3.  That seeks information as to the second respondent's belief as to the gross annual turnover of an outlet if established on the proposed site, and again, as to the facts, matters or circumstances on which the belief is based.

It seems to me in this case that I should uphold the respondents' objection, on the footing that it is dealt with, I should think almost as far as it can be, in paragraphs to which the respondents refer of Mr Atchison's affidavit of 17 March 1995.

The same applies in my view to paragraphs (a), (c) and (d) of draft interrogatory number 4.  For what it is worth, however, it does not seem to me to apply to paragraph (b), and if the applicants wish to administer paragraph 4(b) I would be disposed to allow it.

That brings me to an interrogatory as to which there was a good deal of discussion and argument this morning, some of it (particularly on my part I must confess) more than a little confused.  This draft interrogatory seeks the identification of projections and predictions referred to in paragraph 12 of the defence to the further amended statement of claim.

It is perhaps worth quoting that paragraph of the defence:

As to paragraph 10 of the FASOC the Respondents deny that the Applicants are entitled to rely on s 51A of the Trade Practices Act 1974, or in the alternative, to the extent that any projections or predictions were made, they were projections or predictions each Respondent: (a) honestly held; (b) believed in the truth of and that belief was based on reasonable grounds.

The draft interrogatory, as I have said, seeks identification of the projections or predictions, and also seeks once again the reasonable grounds on which it is alleged that belief and the proof of each such projection or prediction was held.

Starting on firm ground, it seems to me that as counsel for the applicants submitted, this interrogatory goes to a matter which is clearly material.  On the other hand, as counsel for the respondents said, it is, at least to the extent that it seeks identification of the projections and predictions, equally clearly an interrogatory in the nature of a request for further and better particulars.  The respondents also argued that this interrogatory is objectionable on the basis that it seeks evidence.  That, as I have said, and as I think it was conceded, is not of itself necessarily a proper basis of objection.

My conclusion as to this interrogatory is that it ought to be allowed: it is a proper interrogatory in the nature of a request for further and better particulars in that category referred to by Lockhart J.  It goes to a matter which is clearly very material and which, at least so far as anything to which I was directed is concerned, appears not to be dealt with in affidavit material.  Nor does it seem to me that there is any evident basis for suggesting that there is anything oppressive about the interrogatory.

That then brings me to interrogatory number 5.  That refers to paragraphs in Mr Atchison's affidavit in which the expression "impulse market" appears and seeks a full statement of what that expression means where used in those paragraphs.  As to this draft interrogatory, the respondents refer to three paragraphs of the affidavit in which these matters are canvassed in some detail and they complain also that the interrogatory is in the nature of cross-examination.  I think those objections should be upheld and that I should not give leave to administer interrogatory number 5.  It seems to me that the affidavit does indeed deal rather fully with this matter and that it is properly a matter for cross-examination not interrogatories.

Draft interrogatory number 6 asks whether since 1 January 1984 any of certain numbered forms of research have been conducted in respect of outlets or proposed outlets.  The research referred to relates to surveys as to the contribution of impulse sales to overall sales, research to ascertain factors which might affect sales levels and/or profitability, trade catchment analysis, pedestrian flow count and/or analysis and research or analysis to determine what type of persons or customers have made purchases.  When one looks at
the period to which the interrogatory is directed, to the rather open-ended nature of the question (that is, has any research of the kinds mentioned been conducted in respect of outlets or proposed outlets, presumably by anyone, in relation to all outlets, any outlets or any individual outlet) and when one then looks at the nature of the research referred to, it seems to me clear that that interrogatory is so wide, general and likely to be productive of considerable difficulty and expense in its answering as to justify the epithet oppressive.  I shall refuse leave to administer it.

Interrogatory number 7 depends upon the answer to number 6 and therefore falls with it.

Interrogatory number 8 falls into a different category.  The objection to it is simply an objection as to relevance.  The interrogatory reads:

Has any global marketing campaign, eg, TV, radio or other media advertising, ever been conducted in respect of GAICs.  If Yes, please state when, by whom and the nature of each such campaign.

My recollection and notes suggest that no particular argument was addressed to me by counsel for the applicants as to the relevance of that interrogatory to any matter in issue in these proceedings.  If it is relevant, its relevance must, I think, be marginal.  I am also inclined to think that although its terms are somewhat less wide and encompassing than those of number 6, it may well also be objectionable on a similar ground.  Accordingly, I shall not grant leave to administer interrogatory number 8.

That brings me to number 9.  This falls into yet another category.  It refers to statements in Mr Atchison's affidavit particularly as to two matters: first, a statement as to the nature of the businesses with which the ice cream outlets with which this case is concerned compete and, secondly, a statement that most people who sell ice cream fail.  The interrogatory is, I think, directed, clearly enough if perhaps somewhat peripherally, to matters of relevance in the proceedings.  The particular grounds of objection to it are that it is oppressive or vexatious and that it is a fishing expedition within the extended or robust sense attributed to that expression by Davies J in Acacia.

The respondents submit that the interrogatory seeks to undertake a widely ranging inquiry in the nature of cross-examination into the evidential basis of certain statements in the affidavit in circumstances where, they say, the statements are clearly largely the result of Mr Atchison's personal lengthy experience in the industry.

I think number 9 is closer to the borderline than some of the others with which I have dealt.  In the end, however, my view is that in the light of what appears in the affidavit, this interrogatory ought not to be allowed, and that there is substance in the submission of the respondent that it is indeed in the category of a fishing expedition as understood in the more robust modern sense.

That then brings me to numbers 10 and 11 which are the final two draft interrogatories and which stand or fall together, because 11 depends on an answer "yes" to number 10.  Number 10 seeks information as to the basis on which Mr Atchison states in his affidavit
that he said, or would have said, that most of the trade of an outlet such as the one with which this case is concerned is repeat trade.  Again the interrogatory seeks the facts, matters and considerations on which the belief was based.  Again it seems to me, particularly if one applies the considerations which moved both Woodward and Davies JJ in the two authorities to which I have referred, that this is an interrogatory which deals with matters that are to a considerable extent covered in the affidavit material, which is quite wide in its ambit and which is likely to require considerable trouble and expense in its answering, for, I should think, probably no very large return.  Like some of the other draft interrogatories, it seeks to obtain information of a wider class than is permissible, though of a similar kind to that which will be covered by interrogatory number 4A; 4A on the other hand is I think cast in the rather more precise form which recent authorities suggest is permissible.

In the result I give leave to administer interrogatories 1A, 4(b) and 4A.  In principle, I am prepared to give leave to administer interrogatory 2, though I am prepared to hear argument about the precise form of it.  I refuse leave to administer the other interrogatories contained in the draft.

As to costs, there were two distinct matters argued.  One was the general question, the other related to the particular interrogatories.  On the former, the applicants succeeded.  On the latter, although I accept that the number count is in the respondents' favour, I think that the interrogatories which I have given leave to administer deal with some of the more important matters which were the subject of the draft.

In all the circumstances, I think it is appropriate to make no order as to costs.

I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  24 June 1996

Heard:  17 June 1996

Place:  Sydney

Decision:  17 June 1996

Appearances: Messrs J P Hamilton QC and C J Whitelaw of counsel instructed by Minter Ellison appeared for the applicants.

Mr M C L Dicker of counsel instructed by Picone and Howes appeared for the first and second respondents.