Practice and procedure - Interrogatories - Refusal of Master to grant leave to administer further interrogatories - Further interrogatories should have been included in first interrogatories - Alternative means of proving documents available - No injustice or undermining of Case Management principles in Master's refusal.

Rules of the Supreme Court, O 63A, O 26, O 30 r 5, O 30 r 4, O 30 r 2

First Respondent (First-Named Third Defendant) : Mr F G Leslie

Second Respondent (First Defendant) : Mr F G Leslie

Third Respondent (Second Defendant) : Mr F G Leslie

Fifth Respondents (Fourth Defendants) : Mr F G Leslie

First Respondent (First-Named Third Defendant) : Wilson & Atkinson

Second Respondent (First Defendant) : Wilson & Atkinson

Third Respondent (Second Defendant) : Wilson & Atkinson

Fifth Respondents (Fourth Defendants) : Wilson & Atkinson

Cahill v Queensland Housing Commission (No 2) [1964] QWN 48

Cropper v Smith (1884) 26 Ch D 700

Goding v Queensland Newspapers Pty Ltd [1965] HCA 33; (1965) 113 CLR 170

Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566

Kerrisk v The North Queensland Newspaper Co Ltd [1992] 2 Qd R 398

Lyell v Kennedy (No 3) (1884) 27 Ch D 1

Singh v Crafter & Anor, unreported; FCt SCt of WA; Library No 920299; 28 May 1992

Sutton v AJ Thompson Pty Ltd (in liq) (1987) 73 ALR 233

Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

1 MALCOLM CJ: In my opinion this application for leave to appeal should be dismissed for the reasons to be published by Templeman J.

2 OWEN J: I have seen the reasons for judgment to be published by Templeman J. I agree with his Honour's reasons and with the conclusion that the application for leave to appeal should be refused. I wish to add a brief comment of my own.

3 On 7 November 1997 the applicant became aware of certain documents ("the discovered documents") as a result of further and better discovery given by the respondents. On 21 November 1997 the applicant delivered a minute of proposed interrogatories which did not canvass matters going to poof of the discovered documents. Leave to interrogate in terms of the minute was sought and obtained on 4 December 1997. By a somewhat tortuous path answers to interrogatories were finally provided on 21 January 1999. Before that process had been completed the applicant determined to interrogate further. The applicant contends that the main purpose of the further interrogatories was to facilitate proof of the discovered documents but, as Templeman J has pointed out, the questions are far wider than that. The Acting Master declined to grant leave to administer further interrogatories and it is this decision that is the subject of the application for leave to appeal.

4 I agree with Templeman J that there are means other than by way of interrogatories by which the applicant may be able to achieve its stated object of facilitating proof of the discovered documents. Those means start with a properly drawn notice to admit facts. It may be somewhat more cumbersome but if so it is a result of insufficient attention having been paid to the framing of the initial set of questions. That leads me to the general point I wish to make.

5 It is often the case that the benefit to be obtained from delivering interrogatories is far outweighed by the inconvenience and expense to the other party in having to answer them. As a mechanism for understanding the case which a party has to meet they have, at least to some extent, been replaced by the pre-trial exchange of witness statements which is ordered in most cases. The standard form of pre-trial documents orders mean that a party will seldom go to trial not knowing what documents it has to prove strictly.

6 These are developments that have occurred in recent times and the present regulatory framework for interrogatories has to be seen against that background. In the 1996 amendments to the Rules of the Supreme Court there was a significant change to the regime for interrogatories. It is now necessary to obtain leave before any interrogatories are administered. The old law concerning leave to administer a second or subsequent set of interrogatories has to be viewed accordingly. The leave regime is administered with case management principles in mind. Considerable thought needs to be given to whether it really is necessary to administer interrogatories consistent with the principles enshrined in O 1 r 4B. If they are considered necessary, great thought must go in to the framing of them so that they achieve the object for which they are designed without putting the other party to unnecessary trouble and expense. They must cover the ground that the party concerned wants to cover. It follows that a second or subsequent set of interrogatories should be very much the exception rather than the rule and cogent reasons must be advanced in support of an application for leave .

7 In my view no error of law has been demonstrated and nor has it been shown that the Acting Master erred in the way the he exercised his discretion in this matter.

8 TEMPLEMAN J: This is an application pursuant to O 63A of the Rules of the Supreme Court for leave to appeal against the decision of an Acting Master of this Court who, on 18 February 1999, refused to grant leave to the applicant to administer further interrogatories to the first respondent, who is one of the third defendants in the action. It will be convenient to refer to the first respondent as Mr Monisse.

9 The applicant, which is the plaintiff in the action, issued its writ on 20 December 1996. The applicant claims that by agreements made between it and the first defendants in 1994 and 1996, it became the franchisee for the whole of Western Australia, except certain designated shires, for products sold by the first defendant for the removal of graffiti.

10 The applicant then alleges that in breach of the agreements and fiduciary duties said to arise from them, the first defendant granted rights to exploit its products in the applicant's exclusive area to the second defendant.

11 The applicant alleges also that before it entered into the relevant agreements, the first defendant represented that it had the exclusive right to sell or authorise the sale of the relevant products. It is alleged that the representation was false and that it constituted misleading and deceptive conduct.

12 It is alleged further, that the third defendants, who are a firm of accountants of which Mr Monisse was a partner, were knowingly concerned in making the false representations. The basis for that allegation is set out in particulars of the statement of claim where it is said that the third defendants stipulated the amount of goodwill to be included in one of the agreements and that the amount of the goodwill was calculated "...on the basis of the representation ... being made".

13 In furtherance of its claim, the applicant sought to administer interrogatories to all the defendants. On 4 December 1997 leave to interrogate was granted by a Case Management Registrar. However, all of the defendants objected to the interrogatories, principally on the basis that they were "oppressive and/or irrelevant and/or are fishing for evidence".

14 The applicant then applied to the Acting Principal Registrar for orders requiring the defendants to answer the interrogatories. That application was successful: and on 9 August 1998 Mr Monisse provided answers to interrogatories on behalf of all the defendants.

15 The applicant was not satisfied with these answers. On 9 September 1998 it applied for further and better answers. The application was heard by a Master. On 9 November 1998 he made an order in those terms.

16 After obtaining extensions of time, Mr Monisse filed further answers to interrogatories on 21 January 1999.

17 But even before Mr Monisse had filed the further answers, the applicant had decided to seek leave to administer additional interrogatories. These were directed to documents which had been disclosed by the defendants on further discovery on 7 November 1997, before the applicant had sought leave to administer its first set of interrogatories.

18 Although the second set of interrogatories seeks to elicit admissions about the authorship of the discovered documents, far wider questions are asked. For example, there are several questions concerning the purposes for which documents were prepared and the nature of the work carried out by the relevant defendant in relation to the matters referred to in the documents. Indeed, the interrogatories explore much of the applicant's case against the third defendants.

19 The applicant's application for leave to administer the second set of interrogatories was heard and dismissed on 18 February 1999 by the Acting Master. In his reasons, given ex tempore, the learned Acting Master asked the obvious question: why had these interrogatories not been administered on the first occasion? The learned Acting Master noted that the question was answered to a certain extent by the applicant's outline of submissions. It was there said that:

1. The interrogatories would save considerable time and expense at trial in that the documents could be proved by tendering the answers to interrogatories. It was said that the only other way for the applicant to prove the documents would be to call Mr Monisse, thereby depriving the applicant of the right to cross-examine him. Alternatively, it was said, the applicant would be at risk of a no-case submission made on behalf of the third defendants.

2. The applicant had sought to have the documents admitted, apparently in a letter dated 10 November 1998. It was said that no reply had been received to that request.

3. The applicant had attempted to prove the matters sought to be proved by the second set of interrogatories, in the original interrogatories. It was said that one crucial answer in particular was "largely non-responsive".

20 As to the last point, the learned Acting Master took the view, which I consider to be entirely justified, that the second set of interrogatories went well beyond the crucial interrogatory in the first set. Further, the learned Acting Master regarded as unsatisfactory the fact that an explanation for the late application to administer the second set of interrogatories had not been given on affidavit. Again, I consider that he was equally justified in taking that view.

21 Ultimately, in the exercise of his discretion, the learned Acting Master took a number of matters into account in dismissing the application. He said that the applicant could use O 30 for the purpose of obtaining admissions which would enable it to tender the documents on which it wished to rely. Further, the learned Acting Master noted that a substantial amount of time would be realised to answer the second set of interrogatories: that 13 months had elapsed since interrogatories were first sought and that case management principles did not require further interrogatories to be administered. That course would be unlikely to save court time or reduce the ambit of the litigation.

22 The principles upon which this Court should act in determining whether to grant leave to appeal from an interlocutory order are well established. They are set out conveniently in the judgment of Malcolm CJ in The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 54. There, citing his earlier judgment in Wilson v Metaxas [1989] WAR 285, 294, the learned Chief Justice said that in general:

"it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed...The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case...."

23 As I understood it, the basis on which the applicant submits that the learned Acting Master's decision was wrong, is that he misconstrued O 30 r 5.

24 Order 30 r 4 and r 5 contain a scheme which is designed to promote admissions as to the authenticity of documents and to require their production. The effect of r 4 is that when discovery is given pursuant to O 26, the party on whom the list of documents is served is deemed to admit that if a document is described in the list as an original document, it is in fact original and that it was "printed, written, signed or executed as it purports to have been": and that if a document is described in the list as a copy, it is a true copy.

25 The rule goes on to provide that the party who serves a list of documents is himself deemed to have been served with a notice requiring him to produce at the trial such of the documents specified in the list as are in his possession, custody or power.

26 Order 30 r 4 therefore makes it unnecessary for a party who gives discovery to serve a notice requiring the opposing party to admit authenticity: and it makes it unnecessary for the person to whom discovery is given to serve a notice requiring the production of the discovered documents.

27 Order 30 r 5 is intended to apply in cases where discovery has not been given in accordance with O 26. In that case, a person giving discovery who seeks to have the opposing party admit the authenticity of the discovered documents must serve a notice pursuant to r 5(1). And the opposing party must serve a notice under r 5(3) if he requires the documents to be produced at trial.

28 It is provided expressly in r 4 that the deemed admission of authenticity is to be without prejudice to the right of the party on whom the list has been served to object to the admission in evidence of any document referred to in that list. This point is noted in the commentary to Seaman on Civil Procedure par 30.4.1 where it is said that:

"The deemed admission which results from a failure to give notice disputing authenticity does not enable the opponent to prove the document but merely facilitates the chain of proof."

29 That comment is made in the context of a party giving discovery pursuant to O 26. For example, if a defendant gives discovery of a document described in his list as an original document, and the plaintiff does not dispute the authenticity of that document, that failure alone does not enable the defendant to prove the document. But the rule has nothing to say about the ability of the applicant to tender the document by simply calling for its production.

30 In the present case, if discovery was given pursuant to O 26, then O 30 r 5 has no application. If the further discovery which prompted the second set of interrogatories was not given pursuant to O 26, then O 30 r 5 would enable the defendants in the action to serve on the applicant a notice requiring it to admit the authenticity of the discovered documents. And it would enable the applicant to serve on the defendants a notice to produce the relevant documents. Again, however, such a notice would not enable the plaintiff to tender the document in evidence after having called for its production.

31 In these circumstances, I accept the submission by counsel for the applicant, that O 30 r 5 would not enable the applicant to achieve its objective of tendering during the course of its case, certain of the documents discovered by the defendants.

32 However, that is not the end of the matter. Although it was submitted that the learned Acting Master had based his decision, at least in part, on the utility to the applicant of O 30 r 5, that is not in fact the case. The learned Acting Master referred only to O 30: he did not refer to a particular rule. I have no doubt that he had in mind O 30 r 2 which enables a party to serve on an opposing party a notice requiring him to admit a fact or facts specified in the notice. Such a procedure would, I think, serve the plaintiff's purpose. I respectfully agree with the statement in par 30.5.1 of Seaman that:

"There is no reason why a properly drawn notice under rule 2 should not produce admissions which will facilitate proof of a document."

33 That being so, I am not persuaded that the learned Acting Master was wrong or that his decision was attended with sufficient doubt to justify the grant of leave to appeal: indeed, I think his decision was correct. In any event, I do not think that substantial injustice would be done by leaving the decision unreversed. As I understand it, the applicant wishes to make out a prima facie case against the third defendants by tendering the relevant documents and seeking to have inferences drawn from them. If inferences unfavourable to the defendants may be drawn from the documents, then no doubt Mr Monisse or one of his partners will give evidence and be subjected to cross-examination on behalf of the applicant. The defendants either will, or they will not, admit that the relevant documents are theirs. If they are not prepared to make that admission in answer to a properly drawn notice pursuant to O 30 r 2, then the applicant must prove the documents in the same way as the prosecution would be required to prove them in a criminal trial against an accused person. This could be done, for example, by handwriting or other forensic evidence. If the applicant was thus put to additional expense, it is likely that the defendants would be ordered to pay the relevant costs.

34 For these reasons, I would decline to grant the applicant leave to appeal and would dismiss the application.