Legal framework
22 Rule 21.01 of the Federal Court Rules 2011 permits a party to apply to the Court for an order that another party provide written answers to interrogatories.
23 In Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 ("Alliance Craton") at [25], Mansfield J stated:
The ultimate aim of the process of discovery of information by interrogatories is to shorten the trial and save costs. They are to enable a party to litigation to obtain discovery of material facts in order either to support or establish proof of his or her own case, or to find out what case (but not the evidence) the party has to meet; or to destroy or damage the case brought by his or her opposition: Adams v Dickeson [1974] VicRp 10; [1974] VR 77, as cited with approval in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2010] FCA 230… (at [95]).
24 Ms E Collins SC, senior counsel for the respondents, noted that interrogatories are rarely administered, citing Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337 (No 2) [2008] FCA 1451 at [32] and Alliance Craton at [27]. In the latter case, Mansfield J noted that interrogatories "are often seen as expensive and unnecessary to secure a proper disclosure of information" and that modern case management has explored more efficient and effective avenues to achieve the proper disclosure of information.
25 In Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703, Clarke J said at 707:
As a general rule it will be necessary…for the applicant to show that the provision of the answers will, or may, provide relevant information (such as admissions of facts and other material such [as] would facilitate the just and expeditious disposal of the proceedings) which the interrogating party has been unable to extract from his opponent. Because, however, of the pre-trial procedures in the court and its requirement that the parties make all admissions or concessions necessary to focus attention on the nature of the real dispute I envisage that an order will be unnecessary in many cases.
26 Generally speaking, interrogatories will not be permitted as to the contents of documents. In Becker v Smith's Newspaper Ltd (No 1) (1931) SASR 1 at 8-9, Murray CJ said relevantly:
The interpretation of a document is a matter of law, as to which interrogation is not permissible, but, before interpretation begins, it is necessary to know the meanings of any foreign words that occur in the document, or any words or symbols which are insensible in the collocation in which they stand. Such meanings, however, are a matter of fact, as to which extrinsic evidence is admissible.
27 In Sharpe v Smail (1975) 49 ALJR 130 at 133, Gibbs J stated:
Although, speaking generally, interrogatories as to the contents of a document are not allowable, it is, in my opinion, permissible to interrogate as to the meaning of symbols, ciphers and abbreviations. I agree with the view taken on this matter by Murray CJ in Becker.
28 In Norton v Hoare (No 2) [1913] HCA 58; (1913) 17 CLR 348, the High Court refused leave to appeal where the Supreme Court of Victoria had refused to order a party to answer an interrogatory as to the contents of a document. One of the relevant interrogatories asked whether the words in an identified document differed "in any and what respect from the words which were or are on the original manuscript or document". Based on the then-current Halsbury's Laws of England (vol XI, para 169, p 102), the rule stated and applied by the Court at 354 was that "Interrogatories as to the contents of a lost document are permissible but not, as a rule, of those of an existing document".
29 In Chan v Minister for Immigration & Ethnic Affairs (1983) 49 ALR 593, Dawson J refused an application for leave to administer, relevantly, an interrogatory which asked what was meant by the criteria of health and local character referred to in a specified document. His Honour said at 596:
That is an inquiry as to the meaning of a document which must speak for itself. The defendants' interpretation of the document is not relevant, even if the document itself is relevant.
30 In CTC Resources NL v Australian Stock Exchange Ltd [2001] WASC 40, Master Sanderson refused leave to administer interrogatories which sought the substance of documents which had been concealed wholly or in part. At [8], the Master stated:
It is not the case that interrogatories which relate to discovered documents are never permitted. For instance, it is permissible to administer an interrogatory seeking an admission that a letter was sent by a party answering the interrogatory: See Drew v Drew (1917) SALR 286. But general interrogatories as to the contents of particular documents are not permitted. The rationale for this rule is not difficult to understand. An interrogatory which seeks evidence about the contents of a document offends the best evidence rule. What is relevant is what the document says, not what the person answering the interrogatory says that it says: See Winterbottom v Varden & Sons Ltd (1921) SASR 364 at 366; Chan v Minister for Immigration & Ethnic Affairs (1983) 49 ALR 593.
31 An interrogatory may be objected to when it is too wide, fishing or immaterial, or if it is unfair or unreasonable in the sense that the burden of answering it far outweighs the likely benefit which may be adduced from the answer: Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795; (2010) 272 ALR 177 ("Austal Ships") at [6], 180-181. In Aspar Autobarn Co-Operative Society v Dovala Pty Ltd (1987) 16 FCR 284 at 285, Woodward J stated:
If the use of interrogatories is to be effective, the task must be approached responsibly on both sides. It should not be seen as a battle of wits, or indeed as any form of contest. It is an opportunity to assist the parties and the court to have the matter prepared for trial as quickly and as cheaply as possible. The chief obligations on the interrogator are to ask questions as clearly and concisely as possible, and to ask only those questions which really require an answer in the particular case - by way of providing information not already known or making a relevant and required admission - in order to advance the interrogator's case or help to meet the opposition's case.
32 In Alliance Craton at [36], Mansfield J explained:
In ascertaining whether interrogatories taken as a whole are oppressive, one must consider the number sought to be administered, the extent to which providing an answer imposes an unreasonable and onerous burden on the interrogated party, whether the interrogatory requires the interrogated party to form opinions, to exercise judgment or to draw conclusions, and whether the questions are repetitive: ACCC v ANZ (at [101]). If the energy, effort, time and cost required to address the interrogatories is not reasonably proportionate to the end sought to be achieved, then the interrogatories should not be administered. In making a decision, a balancing exercise must be undertaken: the benefits of narrowing and clarification of issues against the costs and the burden placed over the respondents inherent in the task of answering the written questions fully and accurately.
33 By r 21.02 of the Rules, the ordinary position is that a party would not be ordered to answer interrogatories until after discovery. However, the rules should not be applied inflexibly: see Central Practice Note: National Court Framework and Case Management (CPN-1) at para 7.3.