Vasiliki Milankov as Executrix of the Estate of Lazo Pavle Milankov (Dec) v DCH Legal Group (A Firm)

[2005] WASC 41

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   VASILIKI MILANKOV as Executrix of the Estate of LAZO PAVLE MILANKOV (DEC) -v- DCH LEGAL GROUP (A FIRM) & ANOR [2005] WASC 41

CORAM:   MASTER SANDERSON

HEARD:   17 NOVEMBER 2004

DELIVERED          :   23 MARCH 2005

FILE NO/S:   CIV 1747 of 2002

BETWEEN:   VASILIKI MILANKOV as Executrix of the Estate of LAZO PAVLE MILANKOV (DEC)

Plaintiff

AND

DCH LEGAL GROUP (A FIRM)
First Defendant

CHRISTINE MILANKOV
Second Defendant

Catchwords:

Practice and procedure - Application for leave to administer interrogatories - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 27 r 1

Result:

Leave refused

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett

First Defendant             :     Mr S F Popperwell

Second Defendant         :     Ms S T Burke

Solicitors:

Plaintiff:     Bennett & Co

First Defendant             :     Pynt & Partners

Second Defendant         :     Fiocco's Lawyers

Case(s) referred to in judgment(s):

Vasiliki Milankov as Executrix of the Estate of Lazo Pavle Milankov v DCH Legal Group (A firm) & Anor [2004] WASC 58

Case(s) also cited:

Austin v Austin [1905] VLR 377

Dalecoast Pty Ltd v Monisse [1999] WASCA 103

Hennessy v Wright (1890) 24 QBD 445

March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506

Marriott v Chamberlain (1886) 17 QBD 154

Potter's Sulfide Orr Treatment Ltd v Sulfide Corp Ltd (1911) 13 CLR 101

Re Strachan [1895] 1 Ch 439

Sharpe v Smail (1975) 49 ALJR 130

Stroka v Gorbal (1980) 25 SASR 356

Ugle v Western Australia [2002] WASCA 117

1. MASTER SANDERSON: This is the plaintiff's application for leave to administer interrogatories to the first and second defendants. Leave is sought under O 27 r 1 of the Rules of the Supreme Court 1971 (WA). Copies of the proposed interrogatories was lodged with the chamber summons seeking leave. While there are material differences between the two sets of interrogatories, the basic thrust of both is the same. So, in the end, the result is the same.

2. The facts in this slightly unusual case were set out in my earlier decision dealing with an application by the plaintiff for leave to inspect documents over which privilege was claimed:  Vasiliki Milankov as Executrix of the Estate of Lazo Pavle Milankov v DCH Legal Group (A firm) & Anor [2004] WASC 58. It is unnecessary for me to repeat those facts in these reasons. It is important to bear in mind that primarily what is complained of is a letter dated 29 April 1999 from the first defendant to the National Australia Bank, which was said to contain misleading and deceptive representations. It is said that this letter caused the National Australia Bank to approve the litigation funding loan.

3. As part of their defences, each of the defendants plead that they pursued the property claim prior to the National Australia Bank approving the litigation funding loan and they would have continued to pursue that claim if the funding had not been approved.  These pleas are specifically denied by par 5 of the plaintiff's reply to each of the defendants' defences.

4. The first four interrogatories directed to the first defendant are concerned with whether the defendants attempted to obtain litigation funding from a financial institution other than the National Australia Bank, and if so, which financial institutions were approached.  It is said by the plaintiff that this interrogatory is necessary to establish on what basis the defendants can say that the property claim would have been pursued if the National Australia Bank had declined to provide the litigation funding.

5. On behalf of the first defendant, it is said that the interrogatories do not relate to whether or not the second defendant would have pursued the property claim without the approval from the National Australia Bank.  It is said that the questions asked are irrelevant and too remote from the matter in issue in the action.  Much the same complaint is raised by the second defendant (as to interrogatories 13 to 15).

6. I am not satisfied that these interrogatories directed to both defendants are either necessary or appropriate.  Clearly, if either the first or the second defendant had approached alternative financial institutions either separately or in conjunction, the correspondence to those institutions would relate to a matter in issue between the parties and would be discoverable.  No such correspondence has been discovered.  That renders the interrogatories unnecessary.  Further, and perhaps more to the point, I am not satisfied that the interrogatories are directed at an issue raised on the pleadings.  As is said by the defendants, the interrogatories do not go directly to the question of whether or not the property claim would have been pursued.  Accordingly, I would not order that these interrogatories be answered.

7. Interrogatories 5 and 6 seek information about whether or not the first defendant provided assistance to any of its other clients in relation to litigation funding during the relevant period.  In my view, this is not an issue raised by the pleadings and can have no relevance to the matters in issue between the parties.  I would not allow these interrogatories.  On that basis, interrogatory 8, which is linked with interrogatory 5, also falls away.  For essentially the same reasons I am not prepared to order that interrogatory 7 be answered.  That interrogatory asks whether the first defendant acted as guarantor to any litigation funding during the relevant period.  To my mind, that is not an issue between the parties and the interrogatory is impermissible.

8. Interrogatories 9, 10, 11 and 12, and 16 through to 20, all ask for financial information about the defendants.  As I understand the plaintiff's position, it is said that if the litigation were to be pursued in the absence of litigation funding, then the financial capacity of the first defendant to carry the costs of the second defendant's litigation and the second defendant's capacity to pay the costs associated with the litigation are relevant. 

9. Once again, it is worth making the point that no discovery of the defendants' financial positions has been provided.  That must necessarily limit the nature of the case that can be put against the plaintiff's claim.  Further, I am not satisfied that any of these interrogatories deal directly with the question of whether or not the claim would have been maintained.  In my view, they are not proper interrogatories and they ought not be answered.

10. For these reasons I am satisfied that the plaintiff's application for leave to administer interrogatories ought be refused.  The plaintiff ought pay the defendants' costs of the application, including the reserved costs.