Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited ACN 005 357 522

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited ACN 005 357 522 - [2010] FCA 230 - FCA 2010 case summary — Zoe

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Background 1 In this application the respondent ("ANZ") seeks a direction by notice of motion that it is not obliged to provide verified answers to interrogatories in response to a notice administered by the applicant (the "ACCC") pursuant to an order granting leave under Order 16, rule 1 of the Federal Court Rules to file and serve a notice requiring answers to interrogatories directed to those matters described in the order. 2 There are four grounds advanced in support of the application. First, ANZ contends that the ACCC failed to comply with the order within the time limited by the order. Thus, leave to file and serve the notice lapsed. The ACCC concedes that the notice was not filed and served within the time limited by the order. It was filed and served one working day late. The ACCC in the course of the ANZ's application sought further leave to administer the interrogatories the subject of the earlier notice. 3 Secondly, ANZ contends that the order contemplated leave to administer interrogatories "as to matters pleaded in the amended statement of claim, but not admitted" and most of the interrogatories, it is said, do not address matters pleaded but not admitted. 4 Thirdly, ANZ contends that most of the interrogatories are objectionable pursuant to one or more of the grounds set out in Order 16, rule 6(3) of the Federal Court Rules. Finally, ANZ contends that if leave had been sought to file and serve a notice requiring ANZ to answer interrogatories as ultimately formulated in the notice filed and served, leave would not have been granted under Order 16, rule 1 for three reasons. First, many of the interrogatories are said not to relate to any matter in question between ANZ and the ACCC requiring an answer and/or amount to fishing (Order 16, rule 6(3)(a)). Secondly, many of the interrogatories are said to be either vexatious or oppressive (Order 16, rule 6(3)(b)) and thirdly, most of the interrogatories are said not to relate to a matter pleaded in the amended statement of claim but not admitted. 5 In the principal proceeding, the ACCC seeks declarations and injunctions, an order for the payment by ANZ of a pecuniary penalty to the Commonwealth and disclosure orders, grounded on the central contention that the ANZ has contravened s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) (the "TP Act"). Although it will be necessary to examine the matters put in question by operation of the pleadings, the contravention is said to arise in this way. First, ANZ is said to have entered into an agreement with a mortgage broker in May 2004 which contained a provision that the maximum refund of commission offered by the mortgage broker to its clients (seeking to take up home loans provided by lenders) was to be no greater, in respect of services (called "loan arrangement services") provided by the broker to those clients taking up an ANZ loan product, than the amount of a loan approval fee charged by ANZ for the provision of its loan arrangement services from time to time. Secondly, the maximum refund provision of the agreement had, it is said, a substantial purpose and had or was likely to have the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, a discount, allowance, rebate or credit in relation to loan arrangement services supplied by the mortgage broker. Thirdly, the mortgage broker and ANZ were at the material time, in competition with each other in the provision of loan arrangement services and fourthly, by operation of s 45A of the TP Act, the maximum refund provision of the agreement was deemed to have the purpose and have or be likely to have the effect of substantially lessening competition, for the purposes of s 45(2)(a)(ii) of the TP Act. 6 The ACCC seeks a declaration that ANZ, by accepting loan applications submitted to it by the mortgage broker on the basis of the maximum refund provision, gave effect to a contravening provision of the agreement and thereby contravened s 45(2)(b)(ii) of the TP Act.

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The application for leave 7 In 1987, French J in Abduramanoski & Ors v Aidan Nominees Pty Ltd [1987] FCA 389 observed that the discretion conferred by Order 16, rule 1 is broad and the purpose underlying the discretion is to enable the Court to regulate the availability of the facility of interrogation [30]. His Honour also observed that "it is plainly not necessary that draft interrogatories be filed for the purpose of an application for leave under Order 16, rule 1" [33]. His Honour also noted that, however, "where they are filed and it is convenient to the parties and the Court to do so, both the question of leave and the question whether particular interrogatories are objectionable under Order 16, rule 6(3) can be dealt with contemporaneously" [33]. In expressing the views at [33], his Honour relied upon accepted practice arising under the English Rules (R.S.C. Order 31, r 1) that before the hearing of an application for leave, it is not necessary to serve the other party with a copy of the proposed interrogatories. 8 In 2007, in Lamb v Hog's Breath Company Pty Ltd (No. 3) [2007] FCA 972, French J made directions in the course of copyright proceedings, granting the applicant general leave to administer interrogatories directed to particular matters about which the applicant said it lacked clear information. Those matters were described as the particular functions of the respondent companies as members of the Hog's Breath Group of Companies in Australia; the respective roles of those companies in the use of particular works described in the statement of claim; and the ways in which the relevant works and the particular registered trade marks had been used by the respondents. Notwithstanding the scope of leave, the applicant filed and served, beyond the time limited by the order, a notice said to contain 90 separate questions. Consideration of his Honour's reasons suggests that the questions administered by the applicant went well beyond what was contemplated by the order for general leave. It also seems to me from the tenor of his Honour's reasons that his Honour thought the interests of justice were not advanced by granting general leave to administer interrogatories. 9 On 7 March 2009, his Honour, as Chief Justice of Australia, delivered an address to the annual conference of the Bar Association of Queensland on the topic The Future of Litigation: Dispute Resolution in Jurassic Park? In that address, on the topic of interrogatories, the Chief Justice at p 7, point 2, said this: Interrogatories. The Federal Court Rules required leave to interrogate. Experience with interrogatories over a period of time persuaded me of their extremely limited utility, if not total uselessness. Parties had to be reminded that interrogatories were not a form of pre‑trial cross‑examination. Applicants for leave were urged to agree all facts of which they sought admissions and to do so without resort to interrogatories unless there was a fact on which agreement could not be reached and the Court could be persuaded that it was appropriate to grant leave. Today interrogatories are something of a rarity. 10 In this case, the ACCC sought general leave to file and serve interrogatories for the examination of the respondent without first formulating the field of interrogatories to be the subject of leave. The ACCC sought general leave in these terms: MR OWBRIDGE: We would like leave, or we would seek leave, to pursue interrogatories under Order 16, rule 1. THE COURT: What is the subject matter of the interrogatory to be? MR OWBRIDGE: In essence, your Honour, it's the matters pleaded in the statement of claim, but not admitted. … MR OWBRIDGE: The purpose of the interrogatories is to obtain admissions and clarifications that we weren't able to obtain by the pleadings, and those admissions will support our case and, we believe, shorten the trial. I can take you to examples of the sorts of issues if your Honour requires. I understand my friend's attitude is that they're opposed to the leave being granted. They would prefer to receive draft interrogatories first, and have your Honour rule upon them. … THE COURT: … how many interrogatories are we talking about? How extensive is this interrogation? MR OWBRIDGE: They haven't, indeed, been drafted at the moment, your Honour. We only received their letter yesterday afternoon as to their attitude to the matter going forward. They largely address matters such as paragraph 17 of the pleading where, for example, it is alleged that certain activities are conducted by the bank, such as when one goes into a bank, one receives from a person there advice as to the available product, etc. That has not been pleaded to. As I say we don't seek to go into the reasons for it. But we do not think it's, in our submission, an unlikely matter, even from common human experience, that one goes into a bank and asks about mortgages that the various things pleaded here occur when you go into a bank and ask for it. As I say, we don't need to go into the reasons they have elected not to plead to that. But these are matters that can simply be directed as a matter of interrogatories. There is non‑admissions as to what franchisees do. Our understanding is that ANZ has and had at the material time its own franchisees. We'd like to interrogate them at least about what their own franchisees did. There is no admission and no pleading to the fact, and this is what we say as a critical matter, of the rivalry and consumption of the subject matter of the pleaded services. That is, if you get it from a bank, then you don't get it from a broker and vice versa. There is no pleading to that. We would submit that is a simple matter to establish that the goods arrive are in use [the transcript requires slight correction], and that the consumption of one means the non‑consumption of the other. As to purpose, there is - it is pleaded that their purpose was solely to enforce contractual condition against the offering of gifts. We would like to interrogate as to whether they had ever discontinued anybody else's accreditation on the basis that they'd offered a gift, and their knowledge of other people offering gifts. Your Honour, that is not exhaustive, but it is meant to be emblematic of the types of issues that we don't believe are - for whatever reason they are not pleaded to. They are not difficult matters to attend, and they are rather central to the proceeding. Your Honour would be aware of French J's, as he then was, decision in [Abduramanoski]. THE COURT: Yes. MR OWBRIDGE: There is no need to file draft interrogatories. We would submit the best course here is to grant the leave, and then if there is an interrogatory they're dissatisfied with or believe can't usefully be answered, they could then raise the matter with your Honour. There seems to be no practical saving for them to - for us to draft them and then have to fight about it now, because there may well be no fight. THE COURT: Well, your point is that the subject matter of the interrogatories is a proper subject matter; that if leave is given, you could administer them, and any interrogatory which is properly the subject of an objection, objection can be taken to it. 11 ANZ contended that the defence of the respondent "does respond to the matters pleaded" and submitted that, "In any event, I think [I can] bring this to a head. We are content to consent to the short minutes that have been proposed, namely that the applicant would have leave to issue interrogatories". 12 Therefore, orders were in these terms: 1. The applicant have leave to issue and serve by 19 June 2009 a notice requiring the respondent to answer interrogatories as to matters pleaded in the amended statement of claim, but not admitted. 2. The respondent provide verified answers to the said interrogatories within 21 days. 3. The respondent have liberty to apply on 48 hours notice in respect of the terms of the said interrogatories for costs be reserved. 13 The ACCC served on the respondent a notice to answer 41 questions which contain a series of sub‑questions (resulting in what is said to be 98 questions in all) at 4.48pm on 22 June 2009, beyond the time limited by the above order. Since leave had expired, ANZ was under no obligation to provide verified answers to the questions within 21 days or at all. The present application has become, in substance, an application for leave to administer each of the questions comprehended by the earlier notice. The ACCC supports each and every interrogatory in the notice as a proper interrogatory.

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Preferred practice 14 As a matter of general practice, I am satisfied that no good purpose is served either in a case management sense or as a vehicle for serving the public interest by granting general leave to administer interrogatories. Notwithstanding that every case turns on its own circumstances, I find it difficult to identify a class of case where best practice does not require the applicant for leave to first formulate the precise questions for which leave is sought and serve those questions in draft on the other party or parties before seeking leave, irrespective of whether a party to be interrogated supports or consents to an order granting general leave to the interrogating party. The questions, formulated in a way which is consistent with the Federal Court Rules and the authorities, should be filed in Court supported by a short affidavit. The proposed interrogatories to be the subject of a leave application can then sensibly be discussed between the parties and when the question first comes before the Court, in controversy, steps might be taken at a directions hearing to attempt to resolve that controversy before a contested hearing occurs. There is no substitute for the discipline of reducing the proposed questions to writing (electronic or otherwise) before leave is sought. I would add this observation to the remarks of the Chief Justice quoted at [9]. Leaving aside the question of interrogatories directed to economic loss whether a claim for loss of profits or diminution in the value of a capital asset, which in any event, is invariably the subject of an expert's report, interrogatories in my experience in the conduct of commercial litigation over approximately 30 years have rarely resulted in a party tendering an answer. More rarely has such an answer shortened the trial or reduced costs and even more rarely has the answer proved to be decisive on any central question of fact or issue in the litigation. The time, energy, effort and cost dedicated to addressing interrogatories and the inevitable challenge to them, is the true measure of the limited utility and lack of usefulness of interrogatories, the subject of the Chief Justice's remarks. I would however add one qualification. Properly formulated interrogatories directed to assertions of fact or perhaps facts from which inferences might be drawn about a pleaded fact in issue which elicit admissions, may possibly have the benefit of narrowing the issues and thus narrowing the scope of discovery, although that advantage may be more theoretical than real. 15 For all the reasons mentioned by the Chief Justice of Australia in his 2009 address, the practice of first drafting the interrogatories and circulating the proposed interrogatories to the relevant parties and the Court, is to be preferred. 16 In making these earlier observations, I am not suggesting for one moment that the Court was misled in anything said in support of the application for general leave. A question remains, of course, of whether the interrogatories as formulated in fact go beyond that which was contemplated in support of the application for leave as reflected in the short minutes of order. 17 Order 16, rule 1 of the Federal Court Rules provides that the Court may, in its discretion, give leave to any party to file and serve upon any other party, "within the period limited by the Court for that purpose", a notice requiring the party served to answer interrogatories "relating to any matter in question between the interrogating party and the party served" [emphasis added]. The matters in question are determined by the pleadings. It is now necessary to examine the matters in question between the parties by operation of the pleadings.

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The ACCC's position 85 The ACCC supports the interrogatories on this basis. The purpose of the interrogatories directed to "matters pleaded in the amended statement of claim, but not admitted", was, and remains, to obtain admissions and clarifications that were not obtained by the pleadings either because the defence did not specifically plead to matters pleaded by the ACCC, or because the basis for denials and non‑admissions remained unclear. An example of the first limb is said to be the pleading by the ACCC at para 17 ([27] of these reasons) of the field of loan arrangement services supplied by ANZ and the response at para 25 of the defence where ANZ fails, it is said, to specifically plead to the supply of services. An example of the second limb is the ACCC's pleading that the demand for loan arrangement services has been met by franchisees of loan providers (lenders) and ANZ's failure, it is said, to clearly plead to the role and activities of franchisees. 86 The ACCC says the basis for the denials and non‑admissions by ANZ is so unclear that the defence has been treated as a "bare traverse" putting matters pleaded in issue. An example of this is said to be ANZ's pleaded denial that it provided loan arrangement services as an answer to a pleaded contention that loan arrangement services offered by ANZ and MRPL in respect of ANZ loan products were direct substitutes for one another. The ACCC says its contention of "close competition" between MRPL and ANZ is central to its case and it was plain from the submissions in support of the leave initially that the ACCC would seek clarification of such matters. 87 The ACCC says the interrogatories relate firstly to matters pleaded and not admitted and secondly to matters going to the following categories: first, the nature of the loan arrangement services provided in respect of ANZ loans including those services provided by ANZ either directly or through third parties or by "other means" (interrogatories: 4, 6, 14, 15, 16 and 17); secondly, the boundaries, core participants and features of a market for loan arrangement services (interrogatories: 5 and 11); thirdly, the contestability and substitution of the loan arrangement services in respect of ANZ loan products supplied by the core participants in the market (interrogatories: 7, 8, 9, 10, 17, 18, 19, 20 and 21); fourthly, the nature and extent of competition between ANZ, mortgage brokers and MRPL in their respective supply of loan arrangement services in relation to ANZ loans (interrogatories: 22, 23, 24, 25, 26 and 27); and fifthly, the purpose or effect or likely effect of the relevant provision of the Maximum Refund Agreement (interrogatories: 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41). 88 Apart from the point concerning the expiration of leave, ANZ contends that many of the interrogatories go well beyond (and thus do not relate to) matters in question between the ACCC and ANZ; in other cases, the pleading is responsive; and in other cases, many of the interrogatories offend Order 16, rule 6(3). 89 Order 16, rule 3 of the Federal Court Rules is in these terms: Limitation of interrogatories by notice 3 (1) The Court may, before or after any party has been required under rule 1 to answer interrogatories, order that answers to interrogatories under rule 2 by any party shall not be required, or shall be limited to such interrogatories or classes of interrogatories, or to such of the matters in question in the proceeding, as may be specified in the order. (2) Where any party has been required under rule 1 to answer any interrogatory, the Court may order that an answer to that interrogatory shall not be required or may limit the extent to which an answer shall be required. (3) The Court may make such orders under subrules (1) and (2) as are necessary to prevent unnecessary interrogatories or unnecessary answers to interrogatories. 90 Order 16, rules 6(2), (3) and (4) are in these terms: Contents of statement … 6 (2) A statement in answer to interrogatories shall deal with each interrogatory specifically either - (a) by answering the substance of the interrogatory without evasion; or (b) by objecting to answer the interrogatory on one or more of the grounds mentioned in subrule (3) and briefly stating the facts on which the objection is based. (3) Subject to subrule (4), a party may object to answering any interrogatory on the following grounds but no other - (a) where the answering is not required by an order, that the interrogatory does not relate to any matter in question between him and the party requiring the answer; (b) that the interrogatory is vexatious or oppressive; and (c) privilege. (4) On an application under subrule 3(2) or rule 5 in respect of any interrogatory, the Court may require the applicant to specify on what grounds he objects to answering that interrogatory and may determine the sufficiency of the objection and, if the Court determines that the objection is not sufficient, the applicant shall not be entitled to object to answering that interrogatory in a statement in answer to interrogatories.

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General approach 91 I propose to deal with the question of whether each and every interrogatory is a proper interrogatory by asking these questions. First, is the interrogatory directed to a matter pleaded in the amended statement of claim but not admitted in the defence? That, fundamentally, was the proposition put in support of leave initially. Secondly, if the interrogatory is not directed to that question, is each interrogatory otherwise directed to a denial or non‑admission which is said to be unclear? If so, on either basis, the third question is whether the interrogatory is vexatious or oppressive in the sense that those terms are understood in the authorities. 92 Those questions seem to me to address the essential objective of interrogatories identified by Simpson J in Green v Green (1912) 13 SR (NSW) 126 at pp 132 and 133 (a view also adopted by Lockhart J in WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 574 (Bowen CJ agreeing at 562)) that interrogatories are characterised as questions in the nature of a demand for further and better particulars; questions directed to obtaining admissions as to facts which support the case of the interrogating party (here, the ACCC); questions directed to obtaining admissions as to facts which will destroy or damage the case of the interrogated party (here, ANZ); and, where the interrogated party is a fiduciary with an obligation to keep accounts, interrogatories may seek those accounts or a summary of them. Simpson J at p 133 also said this: I do not think the Court acts on hard and fast lines. If, for instance, the admission intended to be elicited will only afford a meagre or unsubstantial support to the plaintiff's case, while answering the interrogatory will involve the defendant in great labour and expense, I think the Court may exercise a discretion whether it will enforce an answer or not. 93 Street J (with whom Cullen CJ agreed) said (at 138): I think the true rule on the subject is as stated in The Laws of England (Vol II, p 98), that 'where an account is claimed as part of the claim in an action, or questions of account arise in the action, interrogatories as to the details of the accounts may be allowed, provided they are of sufficient importance to the party interrogating, eg, enabling him to obtain an immediate decree or order at the trial, and cause comparatively little trouble to the party interrogated, but not where the interrogatory would be oppressive.' So stated, the rule seems to me to be in complete accordance with what was said by Collins MR in White & Co v Credit Reform Association and Credit Index Limited [1905] 1 KB 653 at 659 that 'there is one general principle underlying the whole law as to interrogatories, namely, that they must not be of such a nature as to be oppressive, and to exceed the legitimate requirements of theparticular occasion.' [emphasis added] 94 In principle, an interrogatory ought only to be allowed if the end sought to be achieved by administering the question is reasonably proportionate to the effort required in answering the question. 95 The first three classes of interrogatories identified by Simpson J were discussed by the Full Court of the Supreme Court of Victoria in Adams v Dickeson [1974] VR 77. At p 79, the Court (Winneke CJ, Gillard and Nelson JJ) said this: The prime object of interrogation is to enable a party to litigation to obtain discovery of material facts in order either to support or establish proof of his own case, or to find out what case (but not the evidence) he has to meet; or to destroy or damage the case brought by his opposition. … … The prime purpose is to obtain admissions from the respective parties so as to narrow the necessary proof of the issues raised in the pleadings. In jurisdictions where there are no pleadings, their main purpose lies in obtaining particulars of the material facts being alleged against the litigant interrogating. Above all, by such method, necessary proof of material facts which may be beyond doubt, can be facilitated by admission in answers to interrogatories, thereby removing proof of such facts from the arena of dispute at the trial, so saving time and expense of the parties, and permitting the court and the parties to get immediately to the vital issue or issues requiring determination by the court. [emphasis added] 96 These passages were cited with approval by White J in Bullivant's Natural Health Products v CF Planners [1999] QSC 35 at [17] (unreported, Supreme Court of Queensland, 4 March 1999); by McDonald J in CEO of Customs v Amron [2001] VSC 373 at [52]; and by Duggan J in State of South Australia v White [2008] SASC 32 at [15]. 97 The ultimate aim of the process of discovery of information by interrogatories is to shorten the trial and save costs. Interrogatories are not a de facto written cross‑examination of the interrogated party. The interrogatories must be relevant in the sense that they relate to a matter in question framed by the pleadings (including particulars contained in the pleading). In Ring‑Grip (Australasia) Pty Ltd v H.P.M. Industries Pty Ltd [1971] NSWLR 798 at 800,the New South Wales Court of Appeal observed that it is not permissible to interrogate as to matters beyond the issues as disclosed by the pleadings and the particulars. In Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390, the phrase "relating to any matter in question" was understood to mean that the right to interrogate is not confined to the facts directly in issue but extends to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue. See also American Flange & Manufacturing Co. Inc. v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 per Myers J at 195; and Marriott v Chamberlain (1886) 17 QBD 154 per Lord Esher MR at 163. 98 In Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101, Griffiths CJ, at pp 109 and 110, considered that questions the answers to which might help, together with other facts, in establishing a body of facts from which an inference would be drawn confirmatory of an element of the cause of action was the "very object of interrogatories" and that the degree of connection between the issues in the proceeding and the subject matter of the interrogatory must not be "remote or speculative". In Tiver v Tiver [1969] SASR 40 at 50, the Full Court of the Supreme Court of South Australia considered that the paramount consideration in determining whether an interrogatory is proper must be the relevance of the inquiry to the question in dispute and whether the information sought is strictly relevant and materially important in establishing the interrogating party's case. However, the two further objectives mentioned above are also important considerations. Generally, the ACCC supports the interrogatories on the basis that they go to matters pleaded but not admitted or a lack of clarity in the basis for a non‑admission or denial. Other categories are identified at [87] of these reasons. The interrogatories must be "expressed in language of the most rigorous precision" and there is no place in interrogatories for "reading between the lines": Kupresak v Clifton Bricks (Canberra) Pty Ltd 57 ACTR 32 at p 34 per Blackburn CJ. Thus interrogatories must not be too uncertain or wide. Nor should the interrogated party or the Court be put in the position where it is required to go through the interrogatories and pick out, from a large number, those that are allowable discarding those that might be prolix, oppressive or unnecessary so as to ascertain which of them are admissible. The mere obligation to do so is itself unreasonable and can itself constitute oppression: American Flange & Manufacturing Co. Inc. v Rheem (Australia) Pty Ltd (No. 2) (supra) per Myers J. 99 As to the question of whether an interrogatory is irrelevant, fishing, vexatious or oppressive or reflects ambiguity, I adopt the brief observations of Woodward J in Aspar Autobarn Cooperative Society and Others v Dovala Pty Ltd & Others (1987) 16 FCR 284 at 287‑288 in these terms: … I believe that 'vexatious' is used in the sense illustrated by the Shorter Oxford Dictionary when it says 'Of legal actions: Instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant'. Thus an interrogatory administered for a purpose foreign to the proceeding would be vexatious, as would the traditional 'fishing' interrogatory, which seeks information on which to base claims not yet made. … The word 'oppressive' … means, I think, unfair, or unreasonable, in the sense that a good deal too much is expected of the party questioned. It may be that the details sought would take many hours to extract from records and would only be relevant to some side issue in the case. Or the question may be so ambiguous that it would be unfair to expect the party questioned to make assumptions about its meaning. Or the question may cover a wider geographic area or a longer period of time than is reasonably necessary in readying the case for trial. There are many questions which might be admissible in cross-examination, but are by their very nature inappropriate, and thus oppressive, in interrogatories. Questions going to credit or to motive are obvious examples. Thus it can be seen that the types of question which may properly be objected to as 'oppressive' are many and varied. Each contested instance will have to be resolved on the basis of the court's general impression as to what is reasonable. 100 This passage was cited with approval by French J in Nella v Kingia [1987] FCA 299 at [12] - [18] and by Cox CJ in Lowe v Marriott [1998] TASSC 111. 101 In American Flange v Rheem (supra), Myers J considered the following matters in ascertaining whether a set of interrogatories was oppressive: · The number of individual interrogatories; · The extent to which the providing an answer imposes an unreasonably onerous burden on the interrogated party; · Whether the interrogatory required the interrogated party to form opinions, exercise judgment or draw conclusions; · The repetitiveness of the questions; · Whether the questions were in truth asked for the purpose of discovering trade secrets. 102 It is now necessary to examine each of the 98 questions put by the ACCC to ANZ. Every interrogatory is the subject of objection by ANZ on the ground that leave expired. Each interrogatory will be examined in terms of the other specific objections grouped by reference to the schedule attached to the letter from Mr McPherson (ANZ) to Mr Owbridge (ACCC) dated 7 August 2009 which is also attached to the submissions of ANZ.

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Interrogatory 3 3 If yes, 3.1 what is the title of the Mortgage Division? 3.2 what are the other sections, divisions, departments, or branches (for the purpose of these interrogatories referred to as "areas") within ANZ? 3.3 what are the other functions (if any) of the Mortgage Division? 3.4 is the Mortgage Division responsible within ANZ for assessing home loan applications and, if not, which area is? 3.5 is the Mortgage Division responsible within ANZ for approving home loan applications and, if not, which area is? 3.6 is the Mortgage Division responsible within ANZ for approving or determining the means by which home loan applications may or are to be submitted to ANZ and, if not, which area is? 3.7 is the Mortgage Division responsible within ANZ for setting lending terms or the criteria for approval of loans and, if not, which area is? 3.8 can persons seeking home loans from ANZ apply directly to the Mortgage Division without the involvement of some other area or person, and if so, what is the means by which they can do this? 105 No objection is taken to 3.1. 106 As to 3.2, ANZ says the question is ambiguous and requires the bank to make assumptions about its meaning. The question is very broad. ANZ is a large public company that no doubt operates wholly owned branches in the provision of banking services and, according to the evidence, had contracts with 34 ANZ franchisees at 30 September 2004. The question invites an answer identifying the broad structural arrangements developed within the bank by ANZ in the conduct of its activities. Some of those might be well understood operational areas of banking such as managed funds, share trading, investment advice, cash management, home lending, commercial lending or many other areas or activities about which further speculation is unnecessary. I am not satisfied that the question as formulated is a proper interrogatory. 107 As to 3.3, 3.4 and 3.5, no objection is made. 108 As to 3.6, the same objection is made as the objection made to 3.2. ANZ ought to be able to say whether the Mortgage Division (if there be one) is responsible for approving or determining the means by which home loan applications may be submitted to the bank and if not a mortgage division, then the area within the bank responsible for determining that means, without making assumptions about the meaning of the question. 109 As to 3.7, no objection is made. 110 As to 3.8, the same objection is made as that taken to 3.2. The question seems to ask whether a person can seek a home loan from ANZ by applying to the Mortgage Division of the bank without engaging some other area or person (of or within the bank) and if so, what is the means by which such a person may do so. ANZ ought to be able to say whether an applicant for a home loan can apply to a section of the bank called the Mortgage Division, directly, without first lodging an application with some other organ of the bank (or person), such as a branch or another operational area of the bank handling home loan applications. As to the means of applying directly to the Mortgage Division (if that event occurs), the bank ought to be able to say whether a protocol or policy exists setting out how such an application ought to be made.

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Interrogatory 4 4 Do the means by which a person seeking a home loan product from ANZ may submit an application for a home loan product include making the application: 4.1 through a branch of ANZ? 4.2 through a franchisee or agent of ANZ and, if yes, state the terms upon which the franchisee or agent may do so? 4.3 through a mortgage broker? 4.4 through an internet site operated or maintained by ANZ? or 4.5 by any other means? 111 As to 4.1, 4.2 and 4.3 and 4.4, ANZ says each interrogatory is vexatious or factually oppressive. As to 4.2, Mr McPherson, a partner of Freehills and solicitor for ANZ, gave evidence that he was informed by Ms Glenda Waghorn, the head of ANZ's dispute resolution group, that complying with interrogatory 4.2 would require significant resources, significant time and involve substantial cost for these reasons. As at 30 September 2004, ANZ franchisees numbered about 34; the number fluctuated through time; the terms of the arrangements between ANZ and any particular franchisee were delimited by the terms of a separate contract with that franchisee and a policy and procedures manual that was regularly changed and updated from time to time. Therefore, interrogatory 4.2 requires, it is said, ANZ to state the effect of every franchise agreement and policy manual that it has had with any franchisee for an undefined period. 112 As to the period, the ACCC's pleading uses the phrase "at all material times" in pleading particular contentions and pleads particular times when other events occurred. For example, paras 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19 and 20 of the amended statement of claim adopt that phrase. Paragraph 16.4 pleads that from November 2002, AFG was the aggregator that accredited MRPL to submit loan applications to lenders for customers. Paragraphs 16.5 pleads that from February 2003, AFG was the aggregator that accredited MRPL to submit loan applications for customers for ANZ loan products. Paragraph 23 pleads MRPL's offer of refunds from November 2002 and by para 24, MRPL's offering of refunds in respect of ANZ loan products is said to have occurred from February 2003. The cancellation conduct and reaccreditation offer is said to have occurred on 25 March 2004 and 29 April 2004 respectively. Acceptance of the reaccreditation offer is said to have occurred on 10 May 2004. The material times seem to span a period from November 2002 to the end of the period during which ANZ has continued to give effect to the contended contravening conduct although the immediately relevant period seems to be November 2002 to 10 May 2004. 113 As to interrogatory 4.1, the interrogatory is a proper interrogatory. 114 Interrogatory 4.2 is oppressive. The terms upon which a franchisee or agent undertakes particular activities as an ANZ franchisee or agent is more efficiently revealed by discovery of the contracts between ANZ and its franchisees and agents, the relevant versions of the policy and procedures manual and any other relevant documents. The first two categories of documents will largely speak for themselves. 115 As to 4.3, the interrogatory is not vexatious or oppressive. 116 As to 4.4, ANZ also says the interrogatory, apart from being vexatious and oppressive, does not relate to a matter which is pleaded but not admitted. Interrogatory 4.5 is challenged on the same two grounds. The ACCC says 4.4 and 4.5 go to the nature of the loan arrangement services provided in respect of ANZ loans including those services provided either by ANZ directly or through third parties or by other means. The question asks whether an applicant for an ANZ home loan may submit such applications through an internet site operated or maintained by ANZ or by any other means (that is, a means other than the methods described in 4.1 to 4.4). 117 ANZ pleads directly to the method by which applicants might apply for an ANZ home loan (at para 4 of the General Response). At para 9 of the General Response, ANZ denies that it provides loan arrangement services. The matter is not pleaded by the ACCC and is simply the subject of a non‑admission by ANZ. However, neither interrogatory is oppressive as to the particular method of receiving home loan applications. Each interrogatory is said to go to facts which, in part, go to services provided by ANZ either as a supplier of services as pleaded or a credit supplier as asserted by ANZ. Leave will be given to administer interrogatories 4.4 and 4.5.

[58]

Interrogatory 5 5 Approximately what proportion, by value and by number, of home loan applications does ANZ: 5.1 receive; 5.2 approve by each of the means specified in answer to the previous interrogatory? 118 Interrogatory 5 requires ANZ to isolate the number of home loan applications received by it in the relevant material period (November 2002 to 10 May 2004); the number of applications approved; and the value of those loans, broken down as to receipt and approval of applications according to the means recited in interrogatories 4.1 to 4.5. 119 These matters are not matters pleaded, but not admitted. Mr McPherson says that ANZ does not keep records of loan applications that are not approved. He also says that an extremely large number of records would be relevant to such an inquiry and substantial effort would be necessary to retrieve, review and check the relevant material and provide verified answers. I suspect that ANZ would have available to it spreadsheet summary data (or statistical information capable of being drawn into a spreadsheet report) that reveals the number of home loan applications approved by it in the period November 2002 to 10 May 2004 by financial years; the value of those loans by financial years; and the percentage of the market for the acquisition of home loans throughout Australia and separately for each State, that ANZ home loans represent. The data might also indicate the reference points of entry to the bank for such approved applications, as pleaded by ANZ in its defence at paras 9(a), (b) and (c). The interrogatory as framed is too broad in requiring the answer it commands as to applications received and those ultimately approved broken down by the referenced categories across the relevant period. 120 More fundamentally, ANZ admits that it offers to supply and does in fact supply loan products including ANZ home loan products according to its lending criteria (paras 1, 2 and 3 of the General Response) sourced as pleaded at para 4. The interrogatory however is not directed to establishing that ANZ supplies home loans as that matter is not in issue on the pleadings, but rather, the interrogatory seeks an admission as to the distributed sources of applications for home loans. That fact, taken together with other facts, is said to go to a question of contended competition between ANZ, franchisees, agents or brokers in attracting applicants for home loans and the provision of pleaded services. 121 Leave ought not to be given to administer the interrogatory as framed. However, I give leave to administer an interrogatory in these terms: To the extent that ANZ is able to say by means of schedule or spreadsheet summary: (i) what was the number of home loan applications approved by ANZ and the value of those approved loans in each financial year ending 30 June 2002, 30 June 2003 and 30 June 2004; and (ii) what were the sources of those applications made to ANZ by value in each financial year.

[60]

Interrogatory 7 7 Does the Mortgage Division, or any other area and if so which, make or cause to be made any payment or credit or transfer to: 7.1 a branch or an area of ANZ which lodges a successful home loan application if there is no mortgage broker or franchisee or agent involved? 7.2 a branch or an area of ANZ which lodges a successful home loan application if there is a broker involved? 7.3 a branch or an area of ANZ which lodges a successful home loan if there is a franchisee or agent of ANZ involved? 7.4 a branch or an area of ANZ which lodges the successful home loan application if a person applies through the internet? 7.5 a branch or an area of ANZ if a successful home loan application is made through any other means specified in answer to interrogatory 4? 124 ANZ objects to the interrogatory on the basis that there are no facts pleaded in the amended statement of claim which assert a payment, credit or transfer by ANZ (or the Mortgage Division) to a branch or area of ANZ as recited in 7.1 to 7.5, and not admitted by ANZ. The ACCC says that these questions go to further elaboration of matters which are unclear as a result of ANZ's pleading. The ACCC pleads that ANZ is a supplier of loan products (para 5) and a supplier of loan arrangement services (para 8) through ANZ branches and franchisees (para 17.2). The content of those services are pleaded at para 17.3. ANZ charged borrowers a loan approval fee (para 17.4), sometimes waived (para 17.5). Interrogatory 7 addresses a possible payment, credit or transfer by the mortgage division of the bank to an ANZ branch or other area of the bank in the circumstances set out at 7.1 to 7.5, which is not a fact pleaded by the amended statement of claim. It may however relate to a matter in question. The matter in question is said to be contestability in loan arrangement services between lenders, franchisees and brokers in the loan arrangement market or rivalry and substitution between MRPL and ANZ in loan arrangement services for ANZ loan products. 125 The interrogatory is said to relate to that matter because it goes to a related fact; that is, whether the bank pays a success fee to an ANZ branch or other "area of ANZ" lodging an ultimately approved home loan application where a mortgage broker, franchisee or agent may or may not be involved or some other method of application is engaged or not. An answer to interrogatory 7 is said to aid in establishing incentives for contestability in loan arrangement services for ANZ home loans. 126 However, ANZ does not plead and presumably does not know any of the relevant facts as to whether ANZ makes a payment, credit or transfer to a branch or relevant area of ANZ in any of the circumstances reflected in 7.1 to 7.5. ANZ is seeking out facts to make a case rather than seeking admissions as to contended facts it is in a position to plead. 127 Leave ought not to be given to administer the interrogatory.

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Interrogatory 14 14 If yes to the preceding interrogatory, with respect to each person or category of person so employed: 14.1 does that person provide his or her services at a single branch or at a number of branches or are they responsible for a particular area? 14.2 is that person's title Personal Mortgage Manager and, if not, state the title of that person (herein after referred to as a Personal Mortgage Manager)? 134 ANZ objects to these questions on the basis that they do not relate to any matter pleaded against it, but not admitted. The question is broadly put and requires ANZ to identify each person or category of persons, throughout the relevant period, employed by ANZ to engage with any person who attends an ANZ branch to enquire about obtaining an ANZ home loan, and requires ANZ to say whether such an employee "deal[s] with people" (which presumably means provides advice concerning the enquiry about one or more home loan products) at a single branch or multiple branches or whether that person has responsibility for "a particular area". ANZ says the interrogatory is oppressive because in 2004 ANZ employed 6,525 people in approximately 700 branches almost all of whom, it is said, are relevant to these two questions. Some of those employees are no longer employed by ANZ. Mr McPherson says it would be an extremely onerous task to answer these questions 135 The ACCC says the interrogatory does not require ANZ to seek out information from individual employees. Rather, management is called upon to say whether ANZ had in place at the material times a structure (that is, particular officers or personnel) to respond to enquiries made at a branch or branches concerning an ANZ home loan. 136 The interrogatory as framed calls upon ANZ to answer two questions with respect to each person or category of persons so employed. The interrogatory is thus very broad. If the ACCC seeks to address a question related to a matter in question in the proceeding (that matter being whether ANZ provides services of the kind pleaded which bear the description "loan arrangement services", concerning ANZ loan products) and the interrogatory goes to a related fact concerning the structural arrangements adopted by ANZ to respond to individuals making inquiries of it concerning its home loan products, the question should address that higher level structure more precisely. 137 Leave ought not to be granted to administer interrogatory 14. Leave is granted to administer an interrogatory in these terms: If yes to [interrogatory 13], (i) did ANZ in the period November 2002 to May 2004 have in place an organisational structure by which particular bank officers (by reason of their office or position descriptions) were responsible for responding to enquiries as to ANZ home loan products and, if so, what was that organisational structure; and (ii) were such persons described by the title Personal Mortgage Manager and, if not, state the title of that person (hereinafter referred to as a Personal Mortgage Manager).

[68]

Interrogatory 15 15 Do the duties of a Personal Mortgage Manager include any of the following and, if so, which? 15.1 advising enquirers as to the features of the respective loan products available from ANZ; 15.2 advising enquirers which of ANZ's loan products are available to persons in the enquirer's circumstances; 15.3 advising the enquirer which of ANZ's loan products are best suited to the enquirer's needs. 15.4 assisting the enquirer to complete and lodge applications for the loan product selected in a matter that meets the requirements of the Mortgage Division. 15.5 acting as liaison or otherwise facilitating the transaction for the acquisition of the loan product between the enquirer and the Mortgage Division, and 15.6 submitting, or arranging for the submission, of the enquirer's application for the loan product to the Mortgage Division. 138 Interrogatory 15 is directed to matters expressly pleaded at paras 17.3.1 to 17.3.6 of the amended statement of claim setting out the advice, assistance and facilitation services supplied by ANZ, in the material period, as the content of the loan arrangement services ANZ is said to have supplied through ANZ branches and franchisees throughout Australia including Queensland. ANZ pleads a denial (para 9(b) of the General Response) that it provides "what are described as" loan arrangement services, as pleaded in para 6 of the amended statement of claim (the content of which is pleaded in paras 7.2.1 to 7.2.6). It is not immediately clear from para 9(b) of the General Response whether ANZ denies it provides services that bear the characterisation loan arrangement services or whether it denies that it does the things described at 7.2.1 to 7.2.6 which are contended to be loan arrangement services. 139 As to para 17 of the amended statement of claim which asserts that ANZ is a supplier of loan arrangement services (set out at 17.3.1 to 17.3.6) focussed specifically upon advice, assistance and facilitation services in relation to its own loan products, ANZ denies at para 25 of the defence that it is such a supplier and denies that loan arrangement services include any of the things set out at 17.3.1 to 17.3.6. It re‑asserts para 9(b) of the General Response and says it is a credit supplier that supplies loans to members of the public who meet ANZ's lending criteria. Again, it is not entirely clear whether the denials at para 25 of the defence are directed to the characterisation of the activities as "loan arrangement services" or whether ANZ denies that it engages in the conduct described at 17.3.1 to 17.3.6. There is no doubt that ANZ denies the contentions as framed. 140 Interrogatory 15 is directed to the content of the conduct itself. Whether engaging in that conduct amounts to the provision of loan arrangement services in a loan arrangement market is the subject matter of the proceedings. Interrogatory 15 is necessarily linked to interrogatory 14 which in turn relates to interrogatory 13. Although I have suggested a more appropriate mechanism for identifying the structural organisation adopted by ANZ in responding to enquiries from members of the public concerning ANZ home loan products, it seems to me that a question directed to the content of the activities that may or may not have been undertaken by ANZ in the relevant period is a proper interrogatory. 141 Leave will be granted for interrogatory 15 to be administered, save that it should be introduced in this way: Did ANZ in the period November 2002 to May 2004 respond to enquiries from persons seeking to apply for an ANZ home loan product, undertake any of the following activities and if so, which: [15.1 to 15.6]

[69]

Interrogatory 16 16 Does ANZ operate or participate in a business activity known as Mortgage Solutions? If yes, specify the nature and purpose of the business activity and the other persons involved and, in particular, whether the other persons involved: 16.1 are known as "Mobile Lenders" or have a similar name (for the purpose of these interrogatories referred to as "Mobile Lenders"); 16.2 are authorised or permitted to submit applications on behalf of others to ANZ for its home loan products; 16.3 in the course of dealing with persons seeking or enquiring as to ANZ home loan products, do any of the following and, if so, which: (i) advise the enquirer as to the features of the respective loan products available from ANZ; (ii) advise the enquirer as to which of ANZ's loan products are available to persons in the enquirer's circumstances; (iii)advise the enquirer which of ANZ's loan products are best suited to the enquirer's needs; (iv)assist the enquirer to complete and lodge applications for the loan product selected in a manner that meets the requirements of the Mortgage Division; (v) act as liaison or otherwise facilitate the transaction for the acquisition of the loan product between the enquirer and the Mortgage Division; and (vi)submit, or arrange for the submission of, the enquirer's application for the loan product to the Mortgage Division. 16.4 submit applications directly to the Mortgage Division or through a branch of ANZ or by some other means, specifying which; 16.5 are entitled to submit home loan applications to any lender other than ANZ. 142 The amended statement of claim does not plead any facts in relation to a business or entity described as Mortgage Solutions. Thus, the interrogatory does not fall into the category of a question directed to a matter pleaded in the amended statement of claim, but not admitted. Nor does the interrogatory facilitate clarification of a matter pleaded by ANZ which is unclear. The question of the role of Mortgage Solutions as a business activity and whether it is related to ANZ in any way, shape or form is simply not asserted in any part of the pleading. If it is said that ANZ undertakes certain activities by or through its participation in a business described as Mortgage Solutions, or alternatively, if it is said that Mortgage Solutions does certain things in a way which relevantly relates to ANZ, the central factual matters ought to be pleaded. It is neither necessary nor appropriate for the ACCC to plead matters of evidence going to a fact or issue in question in the proceeding. It need only plead the material facts giving rise to the cause of action and the remedial relief it seeks. The ACCC says the interrogatory goes to the pleaded facts concerning the nature of the loan arrangement services said to have been provided by ANZ either directly by it or through third parties or by other means. 143 By para 8 of the amended statement of claim, the ACCC says that loan arrangement services are provided by ANZ, agents and franchisees of ANZ (and other lenders) and other parties who are neither agents nor franchisees although they are accredited by or on behalf of lenders to submit applications for home loans (that is, brokers). By para 17, the ACCC says ANZ was a supplier of loan arrangement services to customers through branches and franchisees in relation to loan products available from ANZ. By para 18, the circumstances concerning MRPL's activity is pleaded. ANZ pleads denials of the matters at paras 8 and 17 of the amended statement of claim. 144 By this interrogatory, the ACCC seeks to obtain information about a business activity described as "Mortgage Solutions". The ACCC wants to know what it is; is ANZ engaged in it either as operator or in some other participatory way; who else is involved; what is the nature and purpose of the business activity; are the "other persons" called "mobile lenders"; are these mobile lenders authorised or permitted to submit applications on behalf of others to ANZ for its home loan products; and, in the course of dealing with persons seeking out or enquiring about ANZ home loan products, do these other persons do any of the things described at 16.3(i) to 16.3(vi) of the interrogatory. The ACCC also asks whether these other persons submit applications directly to the mortgage division of ANZ or to ANZ through an ANZ branch or by some other means (and if so, state which). At 16.5, the interrogatory calls upon ANZ to say whether such other persons are entitled to submit home loan applications on behalf of others, to any other lenders. 145 The ACCC apparently cannot say whether "Mortgage Solutions" (whatever its legal personality) is part of ANZ, an agent or franchisee of ANZ, a broker or otherwise accredited. If the role of "Mortgage Solutions" in terms of its structure, participants, role and the range of activities in which it engages, in connection with ANZ home loan products, is significant or material to the cause of action alleged in the proceedings, those matters would seem to constitute material facts that might usefully be pleaded and made the subject of a response in the defence. The sequence of interrogatories framed by interrogatory 16 seem to seek out broad information to see whether that information aids in building a case rather than seeking out information about asserted facts constituting the cause of action. In the exercise of discretion, it seems to me that leave ought not to be given to administer interrogatory 16, in all the circumstances.

[72]

Interrogatory 19 19 If a person acquired the services of: 19.1 a mortgage broker; or 19.2 Mortgage Refunds or a person associated with Mortgage Refunds, in relation to the obtaining of an ANZ home loan, was it the case that that person would then not in the usual course, obtain the home loan through a franchisee or agent of ANZ, or a participant in the Mortgage Solutions business or a Personal Mortgage Manager or other employee of ANZ engaged to deal with such persons? 149 ANZ objects to the interrogatory on the ground that it does not relate to any matter pleaded in the amended statement of claim, but not admitted. It says the question goes to a matter that is pleaded and is the subject of a denial. ANZ also objects to the question on the basis that it seeks inadmissible evidence by requiring ANZ to speculate as to a state of affairs or give a mere opinion. The interrogatory seems to ask ANZ to express a statement of its experience rather than speculate about matters. It asks whether, if a person acquired the services of a mortgage broker or MRPL in relation to obtaining an ANZ home loan, was it the bank's experience (in the relevant period, having regard to interrogatory 1) that such a person would not, in the ordinary course, "obtain the home loan" through a franchisee or agent of ANZ or through an ANZ personal mortgage manager or other employee of ANZ engaged to deal with persons making applications for home loans. The interrogatory also directs that question to another alternative, namely, through the "Mortgage Solutions business". The reference to "obtain the home loan" is presumably intended to be a reference to the acquisition of services in connection with an application for a home loan, consistent with the introduction to the interrogatory. 150 Leave ought not to be given in respect of the interrogatory as formulated although leave will be given to ask a question in these terms: Having regard to ANZ's experience of applicants for an ANZ home loan product seeking out and acquiring the services of a mortgage broker or MRPL (or a person associated with MRPL) in connection with an application made to the bank: (i) can ANZ say whether such persons lodge an application for a home loan product through a franchisee or agent of ANZ or directly to ANZ, notwithstanding that the applicant has acquired the services of mortgage broker or MRPL (or a person associated with MRPL) or whether such applicants adopt a single means of application either through a mortgage broker or MRPL or a person associated with MRPL; and (ii) if the bank can so say, what is its experience?

[73]

Interrogatory 20 20 Does ANZ: 20.1 have a preference as to; or 20.2 seek to influence, whether persons seeking to apply for its home loan products do so through: (i) a Personal Mortgage Manager or other employee of ANZ? (ii) a mortgage broker? (iii) a franchisee or agent of ANZ or a person engaged in the mortgage solutions business? (iv) any other means, and if so, specify the means. 151 ANZ objects to these questions on the basis that they do not relate to any matter pleaded in the amended statement of claim, but not admitted. The ACCC says the interrogatory is directed to the issue of contestability and substitution in the supply and acquisition of loan arrangement services in respect of ANZ loans supplied by the core participants in the market. It is difficult to see how a question going to whether ANZ had a preference as to whether applicants for ANZ home loan products ought to make applications in a particular way, or whether ANZ sought to influence the method of application, is probative of a fact pleaded or a fact from which inferences might be drawn about a pleaded fact. The contravention alleged in the amended statement of claim relies upon the operation of s 45A which, in the relevant circumstances, brings about a contravention of ss 45(2)(a)(ii) and 45(2)(b)(ii). Section 45A requires the parties to the relevant contract, arrangement or understanding to be in competition with each other. The question of competition is determined by reference to substitution possibilities within a field of rivalry and it is not clear to me that questions directed to preferences or influences of one kind or another are probative of facts related to substitution possibilities within a field of rivalry. The question of the market, the provision of the pleaded services and the functional scope of the contended market are all expressly in controversy and thus, even if the questions were relevant to a fact in issue or a fact from which inferences might be drawn about a fact in issue, these matters are central to the controversy and fall outside what was contemplated by leave. In essence, leave was supported on the footing that the question sought to extract an admission about a fact in issue thus shortening the trial, or sought clarification of a matter rendered unclear by the pleading. Interrogatory 20 does not fall into either category.

[81]

Interrogatory 28 28 State each of the substantial purposes ANZ had in: 28.1 cancelling the accreditation of the Mortgage Refund related brokers; and 28.2 restoring the accreditation of the Mortgage Refund related brokers? 161 Interrogatory 28 calls upon ANZ to state each of the substantial purposes it had in cancelling the accreditation of MRPL related brokers on 25 March 2004 by letter (para 25) and in restoring the accreditation of MRPL related brokers by means of the offer made on 29 April 2004 and accepted and signed by MRPL on 10 May 2004. Interrogatory 28 is directed to para 26 of the amended statement of claim which pleads that ANZ engaged in the cancellation conduct "for the reason that [MRPL] had offered to customers" the pleaded refunds in respect of MRPL's supply to them of loan arrangement services for ANZ loan products. The ACCC pleads the offer of re‑accreditation at para 27 and the provision or "term" of the offered agreement that the maximum refund to be offered by MRPL to its customers was to be no greater than the maximum loan approval fee that might be charged by ANZ to its customers as varied by ANZ from time to time. By para 30, that provision of the agreement (accepted on 10 May 2004) had a substantial purpose or had or was likely to have the relevant statutory effect. The pleaded purpose is said to be inferred from the terms of the maximum refund agreement. The ACCC pleads that ANZ had the alleged purpose because that purpose was held by Mr Joe Sirianni and Mr Tim Carroll, employees of ANZ. The purpose is said to have been held by other employees not presently identified. MRPL is said to have held that purpose through Mr Jason King. 162 The pleading of inferential purposes and actual purposes is the subject of a responsive pleading by which ANZ at para 32 "denies each and every allegation in paragraph 26 … and says further that the accreditation of [MRPL related brokers] was cancelled for the reasons set out in the letter [dated 25 March 2004 from ANZ] …". ANZ admits that it offered to re‑accredit MRPL related brokers upon the pleaded term and that MRPL signed a copy of the relevant letter on 10 May 2004. As to the substantial purpose pleaded at para 30 of the amended statement of claim, ANZ pleads that it "denies each and every allegation in paragraph 30 …" which, of course, pleads an express denial that its officers, either those nominated or others unidentified, held the relevant purpose or that the agreement is capable of giving rise to an inference of the contended substantial purpose. 163 Thus it can be seen that at the centre of the controversy to be resolved by the Court is this question of purpose. The interrogatory directed to ANZ calls upon it to, in effect, swear to its defence. No doubt, the time will shortly arise consequent upon discovery, when statements will be exchanged between the parties. Those statements will no doubt address each of the contentions in controversy and provide a sworn version of the relevant facts. That is the appropriate place to find a response to the contentions. 164 ANZ also objects to interrogatory 28 as it calls upon ANZ to state each of the substantial purposes it held in cancelling the accreditation of MRPL‑related brokers in circumstances where para 26 of the amended statement of claim pleads a reason for the cancellation conduct as opposed to a purpose or substantial purpose for that conduct and thus ANZ ought not, in any event, to be called upon to state a substantial purpose for conduct which is attributed to particular reasons. By para 30, the ACCC pleads a substantial purpose in relation to the re‑accreditation conduct. 165 However, it seems to me that interrogatory 28 is not a proper interrogatory for the reasons already mentioned.

[97]

General conclusion 179 The question of the objections to each of the interrogatories including the sub‑questions was heard in a lengthy contested application in which each party was represented by senior counsel. The Court was referred to 37 authorities. In resolving the challenge to the interrogatories, consideration has been given to the precise field of the controversy defined by the pleadings, the general objection based upon the expiration of general leave and the specific challenge to each and every interrogatory. The response to that objection has been considered and a view formed about each and every interrogatory. In some cases I have taken the view that an interrogatory which goes too far might be reformulated and I have suggested a reformulation. I propose to make orders giving leave to deliver some of the interrogatories and leave to deliver other interrogatories in a reformulated form. I have done so with a view to extracting some value from a lengthy argument about each of the interrogatories. 180 The interrogatories were lengthy and the notion that oppression might arise out of casting an obligation on the relevant party and the Court to closely examine almost all of the interrogatories, in the manner described above, to ascertain which of them might be admissible itself, resonates: American Flange & Manufacturing Co. Inc. v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 per Myers J. However, the issues having been argued extensively in relation to each interrogatory, the questions in issue ought to be resolved in relation to each interrogatory rather than resolving the application on the footing that the interrogatories demand an unreasonable degree of engagement by the party and the Court and are thus not proper interrogatories. 181 I will reserve the question of costs for further short written submissions. I certify that the preceding one hundred and eighty‑one (181) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

At a glance

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