BETWEEN : INTERNATIONAL LAND DEVELOPMENTS PTY LTD t/as KEY WEST REALTY (ACN 009 124 743)

Civil practice and procedure - Interrogatories - Leave to administer - Legitimate forensic purpose

Application for leave to administer interrogatories granted

1 (This judgment was delivered extemporaneously on 17 April 2008 and has been edited from the transcript.)

2 The plaintiff applies for leave to administer interrogatories in terms of an amended minute dated 10 April 2008 and the defendant opposes the grant of that leave. It is fair to observe that the enthusiasm of the courts for the administration of interrogatories has diminished significantly in recent years and that is the explanation for the introduction in 1996 of the requirement that interrogatories only be administered with leave: O 27 r 1(1) Rules of the Supreme Court 1971 (WA).

3 A significant component of that lack of enthusiasm for interrogatories was the appreciation that in many cases in the past, interrogatories were used to serve very distant and remote forensic purposes. They were often administered in large numbers, creating a burden upon the party required to answer them, and then at trial served little or no forensic purpose.

4 The purpose of the requirement that leave be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose and also that the burden of answering them be proportionate to the forensic purpose to be served. The range of forensic purposes that can be served by the administration of interrogatories is not closed. It includes gathering information in relation to events which are outside the knowledge of a party and which can be assumed to be within the knowledge of the party to whom the interrogatories are administered. That is a legitimate forensic purpose because it assists the administration of justice by enabling a party to adduce evidence of facts that are not within their ordinary knowledge. However, that forensic purpose is subject to the principles that have been established with respect to fishing: see Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345 and Parnell v Walter (1890) 24 QBD 441 at 448 (per Lord Esher, MR).

5 Another legitimate forensic purpose that can be served by the administration of interrogatories is the shortening of trials by obtaining admissions that can be used to avoid leading protracted and detailed evidence on issues that are not controversial.

6 In this case, a number of objections have been taken to the interrogatories to be administered. It is said that they are so remote from the matters in issue as to serve no legitimate forensic purpose. It is also said that, to the extent that they ask only questions going to the defendant's knowledge, they are irrelevant. That is another reason it is said they serve no legitimate forensic purpose.

7 In order to evaluate that submission, it is necessary to look briefly at the way in which the plaintiff puts its case against the defendant. The plaintiff alleges that, pursuant to an agreement, the defendant undertook to pay the plaintiff a commission on the sale of a property if a person introduced by the plaintiff to the property during the period of the agency later contracts to buy the property or procures another person or entity to buy the property or otherwise becomes a legal or beneficial owner of the property.

8 In this case, the plaintiff asserts that it introduced persons to the property during the period of the agency and that later those persons introduced others who bought the property or, alternatively, those persons who were introduced by the plaintiff themselves have acquired a beneficial interest in the property. These are matters that are inherently likely to be outside the knowledge of the plaintiff. All that the plaintiff is likely to know is the identity of the persons it introduced to the property. The issues raised by the second limb of the plaintiff's claim, that is the alleged subsequent introduction of others or the acquisition of the property by entities in which those persons who were introduced have an interest, are issues which are inherently likely to be outside the knowledge of the plaintiff. This is therefore one of those cases in which there is a legitimate forensic purpose to be served by the administration of interrogatories directed at relevant matters that would not ordinarily be within the knowledge of the party seeking leave to administer the interrogatories.

9 In relation to the complaint that the interrogatories are directed to the knowledge of the defendant, it seems to me that that complaint is insubstantial because, of course, the person to whom interrogatories are administered can only ever answer to the best of their knowledge in any event. If the interrogatories are answered by the defendant to the effect that it knows that, for example, Mr Pollick has an interest in one of the entities which has acquired an interest in the land, then that would certainly serve a legitimate forensic purpose.

10 The interrogatories that are directed to the knowledge of the defendant of the persons who are said to have been introduced to the property also seem to me to be forensically relevant, given the circumstance that the defendant appears to be one of the parties to a joint venture which now owns the land.

11 Again it seems to me that answers on that topic serve a legitimate forensic purpose by setting a relevant evidentiary context for the evaluation of evidence at trial that may be more direct.

12 In respect of the proposed interrogatories directed to documents and directed to obtaining admissions with respect to the execution of those documents, obviously those interrogatories serve the legitimate forensic purpose of enabling the plaintiff to tender the documents at trial if answers are given to the effect that the documents were executed, without more detailed evidence having to be led.

13 I have also given consideration to a more detailed list of prospective objections to the interrogatories which has been identified in written submissions filed on behalf of the defendant. The defendant accepts that it is not the usual practice to consider detailed objections to interrogatories at the time leave is sought and that the proper course is to leave the determination of objections until the interrogatories have either been answered or objected to.

14 However, in this case the defendant says that a consideration of the list of objections as a whole leads to the conclusion that no appropriate forensic purpose would be served by the administration of the interrogatories because it is said so many of them are in objectionable form. I do not agree with that submission. I do not at this stage purport to foreclose the defendant from advancing any of those objections in relation to the interrogatories but I am satisfied that the overwhelming bulk of the interrogatories that are proposed to be administered are in proper form and should be answered.

15 So for those various reasons, it seems to me that this is one of those cases in which the administration of the interrogatories would serve a legitimate forensic purpose, and I will grant the leave sought.