Whitcombe, C.J., v Bouldercombe Brickworks Pty Ltd

[1988] FCA 345

WDGMENT No. 3?.?/...?%3 ...".,

IN TKE FEDERAL COURT OF AUSTRALIA	)
9UEENSLAND DISTRICT REGISTRY	) QLD G157 of 1987

DIVISION GENERAL 1

BETWEEN: COLIN JOHN WITCOMBE and KAREN MAY WHITCOMBE

Applicants

AND:  BOULDERCOMBE BRICKWORKS PTY LTJJ

First Respondent

AND:  RUSSELL WILSON ANDERSON

Second Respondent

DATE OF ORDER:	2 1 JUNE 1988
WHEFE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. in relatlon to the notlce of motlon flled 3 1 May

1988, the appllcants make further answers verlfied

by affldavlt in accordance wlth Order 16 rule 7 ,

complylng In partlcular	wlth the requlrements of
rule 6 sub-rules ( 2 ) and	( 3 ) ;

2. the applicants file and serve the further answers

mentloned In Order 1 on or before 19 July	1988;
Order 36 of the Federal Court Rules.

3.	Orders no. 4 and 5	made on 7 December 1987 be	sec
aslde;

4 . the matter be set down for renew and further

directlons on Tuesday, 9 August 1988 at 9.30 a.m.;

5.    the costs of and incidental to the notlce of motlon

be taxed and paid by the appllcants to the

respondents, other than the costs of the affldavlt

of Mr Cahlll .

NOTE:	Settlement and entry	of orders is dealt wlth In
IN THE FED=	COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	)	QLD G157 of 1987
GENERAL DIVISION	)

BETWEEN:  COLIN JOHN WHITCOMBE and KAREN MAY WHITCOMBE

Applicants

AND:  BOULDERCOMBE BRICKWORKS PTY LTD

First Respondent

AND:  RUSSELL WILSON ANDERSON

Second Respondent

PINCUS J. 21 JUNE 1988

EX TEMPORE REASONS FOR JUDGMENT

T h l s is a clam for damages and interest by proceedings

instituted In thls Court on 18 August 1987. The statement of

claim was filed on that day and It ls, in summary, as follows,

omittmg allegations of a formal kind and those whlch are, f o r

present purposes, of lesser signiflcance.

It says that there was a contract for sale of a prime

mover under which the vendors agreed to grant, as It is put, the

rlght to carry certaln goods, condltlonally upon the applicants

entering m t o a leasing agreement in respect of the prlme mover. It goes on to say that there were representatlons as to the

conditions upon which the work would be done: that is, the

availabillty of the work, the amounts likely to be earned, and

L .

matters of that sort.	These representations are alleged to	have
been fraudulent and also	to have been made in breach of 5.52	of

the Trade Practices Act 1974.

There were sought by the respondents particulars of the

statement of	claim, or rather, certain aspects	of	it, and the
particulars do not,	so far as	I have been	able to see, make it

clear in what respect the statute is said to have been breached.

I mention that, although it is by the way, because it is

sometlmes thought that 5 - 5 2 glves a remedy in any case where a

prediction or a promise is made which is unfulfilled, That IS so

only in certain clrcumstances. It 1 s not clear to me that the

appllcants have pleaded what are the circumstances which falslfled

the representatlons made: for example, that there was no

intention at the tlme of carrylng out the promise, or no capaclty

to do so. The mere fact that promlses are broken or predlctlons

unfulfilled does not In ltself mean they were mlsleading.

The aspect of the matter wlth whlch I have to deal

presently is not that whlch	I have just mentioned, but the matter
of some answers to interrogatories. By	an order of the Court made
on 7 December 1987 leave	was given to the respondents to deliver

interrogatories. That was done and only certain of the answers

are complamed of. It is unnecessary for present purposes to set

out the questions and the answers in issue, and it may be

sufficient to glve as an example the first one. The question

numbered 2(b) is:

"If 'yes' to the foregoing Interrogatory, state with

particularity which of the Companies and/or

busmesses part of the J.M. Kelly Group provided

income to the appllcants, and in each case,	how
much income was	so earned."

The answer is as follows:

"In answer to Interrogatory No. 2(b) we say that we

object to answer this Interrogatory on the grounds

that it does not relate to any matter In question

between the Applicants and elther Respondent, the Interrogatory is vague, ambiguous, oppressive and

that the Interrogatory 1s fishing."

The question is not self-sufflcient, because its full

comprehension requires reference	to the foregolng interrogatory,
number 2(a), which sets out a list	of enterprises and asks whether
the appllcants earned lncome from work done for them.	The answer
given to that was yes.

Now, in the course of explaining the reasons for the

refusal to answer, It was sald from the bar table, among other

thlngs, that the appllcants did not know for whom work was done,

that the work in question was done, insofar as they were

concerned, for Bouldercombe Brlckworks, and that they were unfamillar wlth the arrangements wlthln the Kelly group.

The questlon of the proprlety of that answer requires

some reference to the rules. Order 16, rule 6 , sub-rule (1)

requires in substance that an answer, unless the Court otherwise

orders, conform to the requirements of that rule. Sub-rule ( 2 )

requires that the answer:

'I... deal with each interrogatory speclfically

elther -

(a) by answering the substance the of

interrogatory without evasion; or

(b) by objecting to answer the interrogatory on

one or more of the grounds mentioned in

sub-rule ( 3 ) and briefly stating the facts on

which the ob~ectlon 1 s based."

Sub-rule ( 3 ) reads as follows:

"Subject to sub-rule ( 4 ) , a party may object to

answering any interrogatory on the following

grounds but no other

(a) where the answering 1 s not requlred by an

order, that the lnterrogatory does not relate

to any matter in questlon between	h m and the
party requiring the answer;

(b) that the lnterrogatory 1 s vexatlous or

oppressive; and

(c) privllege."

It 1 s not necessary to set out sub-rule ( 4 ) in full. It is enough

to say	that It	empowers the Court to requlre the appllcant to
speclfy on what grounds	he ob~ects to answers,	in certam

clrcumstances. One of the concerns whlch I have had in

determming the matter 1 s that, as 1 s candidly admltted, the

answer whlch I have read out does not comply with rule 6; nor	do
any of the other answers.

Mr Galloway for the respondents has, not unnaturally,

pointed this out and relied upon It.	He	also relied upon the
clrcumstance that, as appears to	be the case, some of the	reasons

for declining to answer are factual reasons and have not been set

out as required but stated from the bar table.

One of the reasons for the present policy of the rules,

in the form in which they have been smce S.R. 61 of 1986, is to

prevent or minimize dlsputes of the sort which has come before me

today. Slnce the lnsertlon of that Statutory Rule requiring leave

to dellver interrogatories, the practice has become, as I

understand it, not to glve leave automatically, s o to speak, but to requlre some good reason for the delivery of interrogatorles.

It has been found that the dellvery and answer	of them sometimes
produces dlsagreements about mere technicalitles	whlch waste time

and money. The contents of rule 6, to whlch I have made

reference, seem to me deslgned to lessen thls evil by restrlctmg the grounds upon which interrogatorles may be oblected to, and by

requlrlng that the facts baslng the ob~ectlon will be set out.

I have, In the course of hearing the matter, been

somewhat troubled as to how to proceed, because It 1 s of course

undeslrable that the t m e and the money spent on thls hearing be

wasted.	It would, as It seems to me, be wlthln my discretion	to
ignore the failure to comply	wlth	the	rules, to act upon the

statements made by counsel for the appllcants (who, I have every

confldence, makes	them responsibly) and to determlne the matter in
that way.

I have, however, and not wlthout some hesitation and

regret, arrived at the conclusion that it would be unfalr to the

respondents, and irregular, to proceed In the fashion lust

mentioned. The rules sometlmes rub one way and sometimes another.

It is in the power of the Court, in this situation and others, to

overlook non-compllance with the rules and proceed in some less

formal fashion	than the rules require.	The	rule in questlon,
however, seems to me one	of central importance In Order	16.	It
glves	the person asking the	interrogatories valuable	rights,

namely that the party answering is restricted In the ob~ections

which he can take, and, perhaps just as important, that he must

set out in the statement answering the interrogatories the facts on which any objectlon taken is based. Here the answers do not

conflne themselves to the objections allowed by the rules, and	do
not set out the facts upon	which the objections taken are based.

It 1 s a plty to have to do so, but I can see no proper

course other than to require the rule to be complled wlth. It may

be that, on reconslderation of the matter, counsel for the

applicants mlght abandon hls ob~ectlons and simply draft answers

to the questlons as best	he can saying, where	that 1 s the case, or
rather the appllcants do not know	the answer. It may be that	he

wlll perslst In the ob~ectlons; that 1 s a matter for hlm.

I make the order which I am about to make wlth a

consclousness that It may In the end resolve nothing of substance

but simply achleve a compliance	with the rules, and that the whole
matter may be back before me.	That is to be regretted, but I do

not see any alternative If these rules are to be respected. I think I have no general licence to ignore them, that they should prima facie be obeyed, and there is no partlcular reason in this

case for overlooking their havlng been utterly dlsregarded.

I will therefore order as to the notice of motion:

(1) that the applicants make further answers verlfled by

affidavit in accordance with rule 7, complying in particular

with the requirements of rule 6 sub-rules ( 2 ) and ( 3 ) ;

( 2 ) that the costs of and incldental to the application heard

today be taxed and paid by the applicants to the respondents,

other than the costs	of the affldavit of Mr Cahlll,	which
seems to me unnecessarily	to dupllcate material which	I
already have.

I also propose, sub~ect to anything counsel may have to

say to the contrary, to set aside orders no. 4 and 5 made by me on

7 December 1987. Order no. 4 was that the matter be set down for

hearing on a date to be fixed by the Registrar on hls belng

satisfled that it was ready for trlal; order no. 5 related to

exchange of statements.

At the time when I made that order It seemed to me

likely that a convenlent course was to let the matter go to trial

without any further review. I am satlsfied, havlng more knowledge

of the matter than I then had, that that is not an approprlate

course, and	it will be necessary for me to revlew the matter
agaln.

I will order that the further answers whlch I have

mentioned be filed and served on or before 19 July 1988. I

. I

. .

E

will bring the matter back before me on Tuesday, 9 August,	which
will give time for consideration of the answers and so forth,	and
I wlll set it down for 9.30 a.m.