Kintyre Holdings Pty Ltd v Barwood Parker Pty Ltd & Anor [1988] FCA 362

Federal Court of Australia|1988-06-09|Before: French J

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION 1

BETWE EN: KINTYRE HOLDINGS PTY LTD Applicant and BARWOOD PARKER PTY LTD

The function of the court at this stage is to decide whether or not it should give leave to interrogate, there being no particular objections raised by the respondents to any of the interrogatories. Nor do the respondents object to the grant of leave in respect of the draft which has been filed and served on

it to that which is necessary for the fair and expeditious

disposition of the proceedings. I am prepared to grant leave to the applicant to interrogate in terms of interrogatory 1. I am not prepared to grant leave to interrogate in respect of interrogatory 2 which, it seems to me, is, in substance, a request

for particulars of an anticipated amendment to the defence.

I will give leave to interrogate in terms of interrogatory 3 and interrogatory 4(a) and 4(b) down to and including (iii), but I will not give leave to interrogate in terms of 4(b)(iv) which is again, in substance, a _ request for particulars the answer to which can establish little more than what the respondent asserts as distinct from the fact. I will

grant leave to interrogate in terms of interrogatory 5.

I am not satisfied that interrogatories 6 to9 will advance the fair and expeditious hearing of the case. The question of the normal or usual practice of the Water Authority of Western Australia is a question best answered by that Authority or perhaps by somebody with wide ranging experience of its practices, but, at this stage, it seems to me that the question contained in interrogatory 6 and the subsidiary questions would, if properly answered, impose upon the respondents an obligation to make inquiry of the Water Authority and, ultimately, to put on oath the responses that they had from that Authority. In my opinion, such

Interrogatory 10, however, although expressed to be conditional on an affirmative answer to interrogatory 9, can stand

by itself and does go to relevant issues concerning the

respondents' awareness of requirements, or possible requirements, which might be imposed by the Water Authority. I am prepared to grant leave to interrogate in terms of interrogatory 10 subject to the deletion of the reference to an affirmative answer to interrogatory 9. I would not have thought there is any difficulty in redrafting that and, as Mr Mullins has agreed in the course of

argument, that question can be severed from the preceding four

I grant leave also to interrogate in terms of 11 and 12. I am not satisfied that interrogatories 13, 14, 15 or 16 will serve such a useful purpose as to warrant the grant of leave and I

The result, therefore, is that I will give leave to the applicant to interrogate in terms of 1; 3; 4(a) and 4(b)(i), (ii) and (iii); 5; 10 (subject to the deletion of the reference to an

I think that I will not need to hear from Mr Mullins in respect of his interests. It seems to me that the respondents are going to have to attend to the defence before they can seek leave to interrogate and the applicant would need to know more precisely what their case is than the defence presently indicates. On my reading of it, it seems to be pretty well a general traverse of the allegations in the statement of claim. That is not to say

that it will not be open to the respondents, although it would

have to be done promptly, to seek leave to interrogate on issues properly raised in the defence but at the moment I am not inclined to grant leave to interrogate on any of the matters proposed in the draft because it seems to me that they do not go to issues raised in the defence and apart from that there are other

Leave will be declined in respect of the respondents'

I certify that this and the preceding three (3) pages are a true copy of the Ex tempore Reasons for Judgment of his

Solicitors for the Applicant: Messrs. Northmore Hale Davy & Leake

Solicitors for the Respondents: Messrs. Phillips Fox

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Cited By (3)