Webb, J. v Yarralumla Investments Pty Ltd

[1986] FCA 424

“Not for Distribution”

42T

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	)

DIVISION GENERAL )

QLD. G36 of 1983

BETWEEN : JEFFXEY IAN WEBB AND

MAUREEN VERE WEBB Applicants

AND :	YARRALUMLA INVESTMENT PTY.
LIMITED First Respondent
AND:	R.B. FOSTER PTY. LTD. AND
HARRY LONDY Second Respondents
AND:	YARRALUMLA INVESTMENTS PTY. LTD. Cross Appllcant
AND:	JEFFREY IAN WEBB Flrst Cross-Respondent
AND:	MAUREEN VERE WEBB Second Cross-Responden‘
AND:	VERE PAULINE O’MALLEY Third Cross-Respondent

N.S.W. G150 of 1984

BETWEEN : VERE PAULINE O’MALLEY Appllcant

AND:	ADLEY INVESTMENTS PTY. LIMITEX	Flrst Respondent
AND :	R.B. FOSTER PTY. LIMITED	Second Respondent

AND	:	HARRY LONDY	Third Respondent
AND:	ADLEY INVESTMENTS PTY. LTD.	Cross Claimant
AND :	VERE PAULINE O’MALLEY	Cross Respondent

DATE OF HEARING:	4 September 1986
DATE JUDGMENT DELIVERED:	4 September 1986
COUNSEL :
. for the applicants	Bradfield & Co.
Mr. R.G. Forster Instructed by

Mr. G.A. Thompson instructed by

. for the second and-third ~ .-

respondents L Cooper Grace & Ward

S. A. LYONS

ASSOCIATE TO PINCUS J.

4 September 1986

IN THE FDERAL COURT OF AUSTRALIA	)
NEW SOUTH WLES DISTRICT REGISTRY	)

GENERAL DIVISION 1

QLD. G36 of 1983

BEIWEEN: JEFFREY IAN WEBB AND

MAUREEN VERE PIEBB Applicants

AND: YARRALUMLA INVESTMENT PTY.

LIMITED First Respondent

AND: R.B. FOSTER PTY. LTD. AND

Respondents Second LONDY HARRY

AND: YARRALUMLA INVESTMENTS PTY. LTD. Cross Applicant

AND: JFSFREY IAN WEBB	Flrst Cross-Respondent
AND: MAUREEN VERE WEBB	Second Cross-Respondent

AND: VERE PAULINE O'MALLEY Third Cross-Respondent

N.S.W. G150 OF 1984

BETWEEN: VERE PAULINE O'MALLEY Applicant

AND: ADLEY INVESTMENTS PTY. LIMITED Flrst Respondent

AND: R.B. FOSTER PTY. LIMITED	Second Respondent
AND: HARRY LONDY	Third Respondent

AND: ADLEY INVESTMENTS PTY. LTD. Cross Claimant

AND: VERE PAULINE O'MALLEY Cross Respondent

MINUTES OF ORDER

JUDGE MAKING J. PINCUS ORDER:

DATE OF ORDER: 4 SEPTEMBER 1986

MADE: SYDNEY	WHERE
In the matter of NSW G150/84, the court orders, with respect to
the interrogatories contained in the notice to answer
Interrogatories filed on 6 march, 1986, that:

1.	Interrogatories numbered 1, 2 ( a ) ,	3 ,	4 ( a ) ,	2 3	and 2 4 be
answered.

2. The remaining interrogatories contained in the said notice not be answered.

3 . The costs be reserved to the trial ~udge with this

intimation:

That the appllcant pay the costs of today's hearlng whatever

the outcome of the trial unless it emerges at the trlal that

the third respondent glves a version of events, so far as the

conversations are concerned, substantially at variance wlth

that which hls counsel invited the Court o see as likely to

be given.

In the matter of Qld. G36f83 . the Court orders, with respect to

the interrogatories contained in the Notice to Answer

Interrogatorles filed on 14 March, 1986, that:

1. Interrogatorles numbered 1, 2 ( a ) , 3, 4 ( a ) , 2 3 , 2 4 , 69(c),

6 9 ( e ) , 6 9 ( f ) be answered.

2. The remalnlng Interrogatories contained In the sald notice not be answered.

3. The costs be reserved to the trlal judge with thls

intmatlon:

That the appllcant pay the costs of today's hearing whatever

the outcome of the trial unless It emerges at the trlal that

the thlrd respondent gives a version of events, so far as the

conversations are concerned, substantially at variance wlth

that which hls counsel lnvlted the Court to see as llkely to

be given.

NOTE:

Settlement and entry of orders 1 s dealt wlth in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	)
GENERAL DIVISION	)

QLD. G36 of 1983

BETWEEN:	JEFFREY IAN WEBB AND
MAUREEN VERE WEBB Applicants

AND:	YARRALUMLA INVESTMENT PTY.
LIMITED First Respondent
AND :	R.B. FOSTER PTY. LTD. AND
HARRY LONDY Second Respondents
AND:	YARRALUMLA INVESTMENTS PTY. LTD. Cross Applicant
AND :	JEFFREY IAN WEBB First Cross-Respondent
AND:	MAUREEN VERE E B B Second Cross-Respondent
AND:	VERE PAULINE O‘MALLEY Third Cross-Respondent

N.S.W. G150 of 1984

BETWEEN : VERE PAULINE O’MALLEY Appllcant

AND :	ADLEY INVESTMENTS PTY. LIMITED	First Respondent
AND :	R.B. FOSTER PTY. LIMITED	Second Respondent
AND:	HARRY LONDY	Thlrd Respondent
AND:	ADLEY INVESTMENTS PTY. LTD.	Cross Clalmant
AND :	VERE PAULINE O’MALLEY	Cross Respondent

PINCUS J. 4 September 1986

EX TEMPORE REASONS FOR JUDGMENT

Thls is an appllcation for further and better answers to

interrogatories. In the course of discussion it has emerged that

the r spondents have no serious ob~ection to answering

interrogatories numbers 1, 2(a), 3 and 4(a) and there will be an

2.

order in favour of the application in respect of those

interrogatories each of which was objected to.

The next group of interrogatoires in issue is numbers 5

to 11. That group concerns the activities of a Mr. I.M. Hinton,

who seems, on the applicant's case, to have had a conversation

with the applicant about the purchase of Queensland property.

There is no allegation that Mr. Hinton made any misstatement, but

I am assured and accept that the appllcant will lead evidence that

a contact with Mr. Hinton was ( s o to speak) part of the

background. Accepting that, it seems to me clear enough that Mr.

Hinton's connection with the matter is not sufflclently

slgnif lcant warrant to forcing the answer these of

Interrogatories.

The next group, mterrogatories numbers 12, 13 and 14,

concerns the means whereby the applicant came to travel to

Maroochydore and whether her fare was pald and matters of that

sort. It seems to me to fall with the Hlnton interrogatorles, as

belng not sufflciently close to the r al question in the case, but

merely peripheral, and I will not make any order about that.

The next group with which I will deal at this stage is

mterrogatories 29 and 30, which concern the questlon whether the

respondent made documents available to the applicant. There is

nothing about this in the pleading and I am not told anythlng from

the bar table to suggest that this is a significant issue m the

case. I do not think I should order those interrogatories to be

answered.

3 .

The next group is numbers 31 to 3 4 , which are concerned

with the activities of a Mr. H.W. Baker, said to be a solicitor

who acted in the matter. Mr. Baker does receive a mention in the

pleading, at par.11, but apart from the fact that he acted as a

solicitor (it is sald) for the applicant, seems to have had no

role In the matter of a particularly relevant kind. In

partlcular, it is not said that he made any misrepresentations or

dld anything directly relevant to any of the claims made agalnst

the respondents, and	I	will not order those lnterrogatories to be
answered.

The next group I deal with in thls phase of the reasons

1s interrogatories numbers 57, 58, 59 and 60, which are In the

same category as and fall wlth lnterrogatorles 29 and 30.

Interrogatorles 61 to 64 are concerned wlth a Mr. Hlckman, a

sollcltor, who also is mentloned In the pleading and sald in

par.2l(a) to be a man who had had past connectlons with the

respondent. The allegatlon is that the respondents should have

told the applicant of Mr. Hickman's posltlon. The case for

requirmg these lnterrogatorles to be answered 1s stronger than

that relatlng to Mr. Baker, because at least Mr. Baker figures as

one of the actors In an allegatlon leadlng directly to llabillty.

Examination of the interrogatorles in question, however,

convinces me that It would not be fair to require them to be

answered. They ask about conversatlons with Mr. Hlckman in

considerable detail and the past connection of the applicant with

Mr. Hickman in, also, some detail. I can see that, as to the

latter point, the applicant might gain some legitimate advantage

. 4.

from the information about past connections, but par.Zl(a) in that

respect does not really seem to lead anywhere. That is, it says

that the respondent should have mentioned a past connection with

Hickman, but does not say that Hickman did anything improper or

failed to carry out his duty. The unpromising nature of the case

made about him is a factor in influencing me to determine, as I

do, that those interrogatorles should not be answered either.

The remaining lnterrogatories are numbers 15 to 28, 35

to 56 and 65 to 70. These all have in common that they ask about

conversations of which the applicant complains or about the

absence of conversations, of which absence the appllcant

complains. It has been argued by Mr. Forster for the applicant

that, desplte admissions made about these conversations in the

pleading, the respondents, in partlcular the third respondent, is

not sufflciently tled to a case and that the appllcant mlght

suffer some signlficant dlsadvantage at the trial for that reason.

I can see the force of that contentlon and It has

induced me to come to the view that interrogatories numbers 2 3 and

24, which are partlcularly pertinent, should be answered. I say

they are particularly pertinent because the applicant alleges in

par.lO(d) of the statement of claim that it was sald that all the

units in the bulldlng in question, with the exception of the

relevant one had been sold. That seems to me to be a falsiflable

allegatlon; that is, it 1s a statement of fact and not of opmion,

in contrast to much of what the applicant pleads. The bald denial

of the subparagraph by the respondents appears to me to leave

. 5.

still some room to manoeuvre, which	could unfairly prejudice the
applicant.

I have been conslderably troubled by the question

whether any further interrogatories about conversations should be

answered. Mr. Forster has argued cogently that the applicant will

gain a substantial advantage from having more detail as to what

the respondent's case 1s about these conversatlons. He says that

it may turn out at the trial that Mr. Londy admlts havmg sald

something quite like the allegatlon.

Whereas I can see the force of that, my view is that

prma facle a case based upon misleading statements should not be

conducted in such a way as to requlre the respondent to answer

questions about alleged conversatlons in detall, if he has pleaded responslvely, unless there are some special clrcumstances. Here I thlnk I should apply that general princlple aqalnst the appllcant.

I remam unconvlnced that the case 1 s one In whlch obtalnlng the

further answers sought wlll slgnificantly advance the plaintiff's

case. In adopting that view I am, as I have mentioned durlng the

course o f argument, somewhat influenced by the (in general) rather

pufflnq, speculative or arqumentatlve nature of the alleged

misrepresentatlons relied on, the sole xceptlon to that

description really being 10(d).

Interrogatories 65 to 70 are rn a speclal category,

because they relate to an allegation in the statement of clam of

failure to disclose information. It is true that in some

circumstances the terms of 5.52 of the Trade Practices Act may be

6.

held to catch such failures. I must say, however, that the

implication in par.21 of the pleading that the respondent Harry

Londy, who is not said to be a lawyer, had some obligation to

advise the applicant about the	law seems to me rather startling
and unpromising.

Mr. Thompson for the respondents says that the defence

necessarily implies, as to par.21, that the matters said in the

defence to be ones of which the respondents had no knowledge were

also ones upon which no information was supplied. I am not quite

convlnced that that lmplication is necessarily to be made, but it

seems clear enough that, if the respondents were to advance the

case that (having no knowledge) they nevertheless purported to

Inform the applicant about these matters, that would be a

surprislng outcome.

It seems to me rather a plty that the matter has taken

thls course. A carefully drawn and bona fide collectlon of

Interrogatories has been dellvered and in the result, for various

reasons, I have held that very few of them are necessary. It

would perhaps have been better If the very expenslve process which

has taken place could by some means have been avoided. However, I

can only apply the view I have, whlch 1 s that the interrogatories

which should be answered are those mentioned in these reasons

namely, 1, 2(a), 3, 4(a), 23 and 24.	The rest need not be
answered.

I have had some difficulty in determining what to do

about costs. The most important reason for the applicant's

7.

I .-

failure as to most of the important interrogatories is what might

be described as antlcipation as to the course of events at the

trial. It has to be admitted that if, contrary to any reasonable

expectation, the third respondent turns out not really to have

pleaded responsively or in such a way as to make the nature of his

case clear, then the anticipations expressed by my reasons will

turn out to be wrong. I am not sure how to guard against that

possibility, but think that the way to do it is make no f m a l

order as to costs, but to record that in my view the applicant

should pay the costs of today's hearing, whatever the outcome of

the trial, unless it emerges at the trlal that the thlrd

respondent glves a version of events, s o far as the conversatlons

are concerned, substantlally at varlance wlth that which hls

counsel lnvited me to see as llkely to be glven. That is, the

formal order wlll be the costs wlll be reserved to the trlal

Judge, but wlth the intimatlon I have mentioned.