BETWEEN : RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 004 304 447)

Interrogatories - Leave to administer - Inconsistency in pleadings in separate actions

Fair Trading Act 1987 (WA)

1 JOHNSON J: The plaintiff, Rapid Metal Developments (Australia) Pty Ltd (RMD), seeks leave to administer interrogatories to the first defendant, Anderson Formrite Pty Ltd (Anderson Formrite). Because the application is an interlocutory application and the action has been entered for a hearing, but for the first defendant's consent given at the hearing it would also have been necessary for the plaintiff to obtain leave to make the application.

2 The proposed interrogatories relate to allegations made in a statement of claim filed by the first defendant in action No NSD 1272 of 2007 commenced against Baulderstone Hornibrook Pty Ltd (Baulderstone) in the Federal Court (the Federal Court action).

3 Both the action in this court and the Federal Court action relate to the construction of 240 St Georges Terrace, Perth, known as the Woodside building. The builder and head contractor on that project was Baulderstone. Anderson Formrite was the formwork subcontractor. RMD had contracted with Anderson Formrite to supply the formwork. Ultimately, Baulderstone terminated the formwork subcontract and RMD terminated the agreement to supply the formwork.

4 The action in this court concerns a dispute between RMD and Anderson Formrite in relation to the formwork RMD supplied to Anderson Formrite for use in the building's construction. RMD is suing Anderson Formrite for moneys it claims are due to it under the agreement for it to design and supply the formwork. Anderson Formrite defends the action and counterclaims on the basis that RMD engaged in misleading or deceptive conduct, was negligent and breached the contract for the design and supply of the formwork. The claim against the second defendant is as guarantor of Anderson Formrite's liability to RMD.

5 In the Federal Court action Anderson Formrite claims that Baulderstone illegitimately required it to use incompetent and inefficient labour sourced from Workforce One, that Baulderstone has failed to pay Anderson Formrite all moneys owing upon Baulderstone's termination of the formwork subcontract and that Baulderstone has converted certain equipment which is owned or leased by Anderson Formrite. Under O 11 r 1B of the Rules of the Federal Court (Cth), the statement of claim includes a certification that there is factual and legal material available to Anderson Formrite's solicitors that provides a proper basis for each allegation in the pleading.

6 The sole basis for the proposed interrogatories is said to be the inconsistency between Anderson Formrite's pleaded position in this action and its position as pleaded in the Federal Court action. The interrogatories are directed at establishing the veracity of the allegations made in the Federal Court action.

7 Anderson Formrite submits that the proposition that there are inconsistencies between the pleadings in the two actions is misconceived and opposes the application.

8 Order 27 r 1(1) of the Rules of the Supreme Court 1971 (WA) provides that any party may, with the leave of the court, serve notice on any other party requiring him to answer specified interrogatories relating to any matter in question between the party interrogating and the party served. Under r 9, at the trial of a cause, a party may tender as evidence part or the whole of any answer to interrogatories. Indeed, one of the fundamental purposes of interrogatories is to prove some material fact necessary to the client's cause of action or defence by tendering the interrogatory and the sworn answer of the opponent, so diminishing the burden of proof: Attorney-General v Gaskill (1882) 20 Ch D 519, 528.

9 In Attorney-General v Gaskill, Cotton LJ stated at 528 that a party has a right to interrogate with a view to obtaining an admission from his opponent of everything which is material and relevant to the issue raised on the pleadings. His Honour observed at 528 - 529:

It was said in argument that it is not discovery where the Plaintiff himself already knows the fact, but that is a mere play on the word 'discovery'. Discovery is not limited to giving the Plaintiff a knowledge of that which he does not already know, but includes the getting an admission of anything which he has to prove on any issue which is raised between him and the Defendant. To say that the pleadings have raised the issues, and that therefore the interrogatories should not be allowed is an entire fallacy. The object of the pleadings is to ascertain what the issues are, the object of interrogatories is not to lean what the issues are, but to see whether the party who interrogates cannot obtain an admission from his opponent which will make the burden of proof easier than it otherwise would have been.

10 In Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASC 179 Murray J commenced his consideration of an application to administer interrogatories with his understanding of the purpose of interrogation. His Honour said:

Fundamentally, it is concerned to obtain answers which may then, under the Rules, be introduced as evidence in the proof of the interrogator's case effectively by way of admission. Expense of proof may thereby be saved and indeed such a mode of proof may be employed where no other is in fact available. It follows that to be admissible in evidence the answers to interrogatories must be of a kind which would be admissible in evidence if a witness were called to prove that fact: Mitchell v Tsiros (No1) [1982] VicRp 18; [1982] VR 191, Spedley Securities Ltd v Yuill (1991) 5 ACSR 758, 762.

From that all else flows. The answer to an interrogatory must state the facts without evasion, but a state of mind, an intention or knowledge, is a matter of fact and may be interrogated upon where relevant: Seidler v John Fairfax and Sons Ltd [1983] 2 NSWLR 390 at 384. [12] - [13]

11 In Ugle v State of Western Australia [2002] WASCA 117 the Full Court observed that the right to interrogate is not confined to 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 facts directly in issue: Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd [1911] HCA 35; (1911) 13 CLR 101, 112 [18]. The Full Court explained that interrogatories do not relate to a matter in question unless they can fairly be said to be material to support a party's case or to destroy that of his opponent: Hennessey v Wright [1890] 24 QBD 445, 447 [18].

12 The Full Court also referred at [7] - [8] to the reliance by the Master, at first instance, on the reasons of Owen J in Dalecoast Pty Ltd v Monisse [1999] WASCA 103 at [5] - [6] where his Honour said:

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 means that a party will seldom go to trial not knowing what documents it has to prove strictly. 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 leave regime is administered with case management principles in mind. Considerable thought needs to be given to whether it is really necessary to administer interrogatories consistent with the principles enshrined in O 1 r 4v. If they are considered necessary great thought must go into 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...

13 Their Honours further observed that, in that passage, Owen J was not suggesting that leave should not be given where the interrogatories were necessary to assist a plaintiff to prove his case: [8]. The Full Court also made the following comment:

In this case, although it was contended that witness statements would eventually be supplied to the appellant (plaintiff) pursuant to the Rules of the Court, it is necessary that a plaintiff be in a position to prove his case before he or she proceeds with it. This court was informed that statements of witnesses are not supplied to parties to an action until sometimes fairly close to the hearing date. It is a consideration in the granting of leave to administer interrogatories that witness statements may not provide the evidence which a plaintiff needs and which he could obtain by answers to interrogatories. [18] - [19]

14 In International Land Developments Pty Ltd t/as Key West Realty v Diamo Nominees Pty Ltd [2008] WASC 152 Martin CJ referred to the difficulties encountered in the past and the reasons behind the changes in the regime for interrogatories. He explained that a significant component of the 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: [3]. His Honour added:

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 the 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).

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. [4] - [5]

15 The subject matter of this application for leave relates to matters pleaded in another action. In Tipperary Developments Pty Ltd v State of Western Australia Murray J granted the plaintiff leave to interrogate the defendant as to the truthfulness of a pleaded allegation in its statement of claim in a Federal Court proceeding. Murray J observed:

Finally in this regard, objection is taken to interrogatories 180 and 181. They ask a series of questions about litigation in the Federal Court in respect of which the defendant was the applicant: see State of Western Australia v Wardley Australia Ltd [1991] FCA 314; (1991) 30 FCR 245. The questions asked are about the State's pleading in its statement of claim and in respect of each matter pleaded, to which interrogatory 181 refers, a question about the nature of the pleading is followed by one asking whether the pleaded fact is true. Speaking generally, the question appears to relate to the solvency of Rothwells.

As I understand the position, admissions of fact made in a pleading may, generally speaking, be tendered in evidence against the party for whom the fact was pleaded. That was touched on in argument, but not developed to any extent. In particular, it was not submitted for the defendant that such evidence would be inadmissible for any reason and therefore that it would be oppressive to require answers to these interrogatories. On the other hand, the fact that such admissions might be proved by tendering the pleading seems to me not to provide a valid ground of objection to another otherwise proper interrogatory. [52] - [53]

16 In this action RMD seeks leave to interrogate Anderson Formrite as to the veracity of allegations which Anderson Formrite has pleaded in the Federal Court proceedings and which are said to be inconsistent with its pleaded position in the Supreme Court proceedings. To the extent the first defendant admits that its allegations in the Federal Court action are correct, the plaintiff seeks leave to interrogate as to the details of the allegations.

17 For example, RMD has expressly pleaded in its reply that if Anderson Formrite suffered loss as a result of the delay in carrying out the works under its contract with Baulderstone, it was caused by inefficiencies of Anderson Formrite's workforce. As counsel for RMD points out, that, in substance, is what Anderson Formrite has now itself alleged in its statement of claim in the Federal Court proceedings.

18 Anderson Formrite opposes leave being granted on the basis that the proposed interrogatories are not the proper subject matter for the administering of interrogatories and, in particular, are 'mere cross-examination' and matters for trial. Counsel for Anderson Formrite relies on the decision in Attorney-General v Gaskill (1882) Ch D 519, 528

19 Counsel for RMD submitted that there are three broad issues raised in the interrogatories and identified the interrogatory relevant to each issue:

(1) the cause of Anderson Formrite's loss: Interrogatory 1(a)-(g);

(2) what happened to the equipment Anderson Formrite hired or purchased from RMD: Interrogatories 1(h), (i), 4, 5, 6, 7(a) and (b); and

(3) whether Anderson Formrite admitted that it is indebted to RMD and if so, in what amount: Interrogatory 7(c) and (d).

21 In pars 34 -38 of Anderson Formrite's defence and counterclaim, it is alleged that Baulderstone terminated the formwork contract by reason of the delay by RMD in carrying out the works and failing to comply with the programme for carrying out the works. The delays and lack of productivity are alleged to have been caused by RMD's breaches of the agreement, or negligence, or contravention of the Trade Practices Act 1974 (Cth) (TP Act), and/or the Fair Trading Act 1987 (WA) (FT Act). It is also alleged that in about April and May 2002 Baulderstone deducted an amount of $1,060,632 from progress payments due by Baulderstone to Anderson Formrite on account of liquidated damages, or alternatively damages for alleged breaches of the Formwork contract by Anderson Formrite by reason of delays in completing the work which Anderson Formrite attributes to RMD. It is further pleaded that on or about 13 May 2002 Baulderstone called up bank guarantees provided by Anderson Formrite in the amount of $625,000 on account of liquidated damages or alternatively damages, for the same reasons which Anderson Formrite again attributes to RMD. Anderson Formrite also pleads that it has been charged by Baulderstone, and had deducted from payments due under the formwork contract, amounts totalling $145,000 for liquidated damages, or alternatively for damages for breaches of the formwork contract, by reason of delays in failing to complete the Knoxville substratum works, again said to have been caused by RMD's breaches of the agreement, negligence, contravention of the TP Act, or the FT Act. Finally, it is pleaded that RMD is liable to pay Anderson Formrite $1,830,632. Anderson Formrite's plea that it has suffered loss and damage as a result of RMD's actions includes additional labour costs of $1.4 million approximately: see par 62 particular (b).

22 In its reply to these counterclaims, RMD pleads at par 31A that if Anderson Formrite suffered loss by reason of delays in carrying out the works under the formwork contract, such delay and lack of productivity were caused by inefficiencies of Anderson Formrite's workforce or by industrial disputation by members of that workforce and not by any act or omission of RMD.

23 In Anderson Formrite's rejoinder, par 31A of the reply is not expressly referred to but is incorporated in the general denial contained in par 5. Therefore, although there is no specific pleading, there is, on the pleadings, a denial that the loss was caused by the labour force. There is no reference to there being concurrent causes.

24 In the Federal Court action statement of claim, Anderson Formrite pleads that Baulderstone made it a condition of the award of the tender for the formwork that Anderson Formrite engage Workforce One to supply labour required to perform the formwork: par 11, par 18. Paragraph 25 of the statement of claim sets out, in the particulars to Anderson Formrite's allegation of loss and damage, a number of allegations concerning the labour force which are the subject of RMD's interrogatories. They are:

(i) That the labour, because of its incompetence and indifference, caused Anderson Formrite to fail to meet time deadlines contained in the contract between Anderson Formrite and Baulderstone.

(ii) The rates charged by Workforce One were approximately 30% higher than prevailing award rates.

(iii) Anderson Formrite was required to borrow $1,050,000 from Baulderstone to pay the excessive charges for the workers.

(iv) By reason of being required to utilise the unnecessary inefficient incompetent labour, Anderson Formrite was required to pay unnecessary redundancies when it attempted to rid itself of the labour.

(v) That on termination by Baulderstone of the formwork contract, Baulderstone took equipment leased by Anderson Formrite from RMD and that RMD has sued Anderson Formrite for the value of that equipment and/or lease charges relating to that equipment on the basis of an alleged indebtedness in the amount of $3,183,986.60.

25 Counsel for RMD submitted that it is apparent from this reference to the pleadings that Anderson Formrite sues RMD by counterclaim and then sues Baulderstone for the same loss.

26 In par 36 of the statement of claim in the action in this court, Anderson Formrite pleads that Baulderstone called up bank guarantees provided by Anderson Formrite in the amount of $625,000 on account of liquidated damages, or alternatively on account of damages for alleged breaches of the formwork contract by Anderson Formrite which are said to be caused by RMD's breaches of the agreement, negligence, and/or contraventions of the TP Act and the FT Act. In par 36 of the statement of claim in the Federal Court action, Anderson Formrite pleads that Baulderstone wrongfully drew down two performance bonds provided by the applicant in the total sum of $617,250 despite Anderson Formrite not being indebted to Baulderstone or otherwise liable to suffer the payment of that sum. It is submitted that this is a reference to the same act with respect to the same security. Therefore, it is said, in the Federal Court, Anderson Formrite alleges it was wrongfully drawn down. If so, it is repayable by Baulderstone and no loss has been suffered. There would then be no claim against RMD unless Baulderstone had no capacity to repay the sum. Yet, in the amended defence and counterclaim, Anderson Formrite alleges that, as a result of RMD's contract, it has suffered loss and damage: par 62.

27 In par 47(b) of the defence and counterclaim in this action, it is alleged that in or about May 2002 RMD retook possession of all equipment hired by RMD to Anderson Formrite. In par 47(c) Anderson Formrite alleges that at the same date RMD entered into an agreement with Baulderstone for the provision of formwork for the Woodside building. In par 47(d) it is alleged that RMD utilised the equipment referred to in par 47(b) in providing the formwork for Baulderstone. Whether only specific items of formwork or the whole of the formwork was utilised is not clarified.

28 Paragraph 48 pleads that in or about November 2002, RMD seized possession of the Trueform timber joists and in or about August 2002 RMD seized possession of the Rapidshor equipment. In par 49 Anderson Formrite alleges that RMD is utilising the Trueform and Rapidshor equipment in providing the formwork to Baulderstone as referred to in par 47(d). It is not clarified whether this equipment was the same equipment referred to in par 47 or only part of that equipment.

29 In its reply, RMD admits it retook possession of some equipment hired by Anderson Formrite but alleges that certain items identified on an annexed list were not returned. The allegation in par 47(d) is denied by RMD but an admission is made that some of the equipment has been utilised in providing formwork for Baulderstone. Essentially, RMD admits they retook possession of some of the equipment but not all of it. RMD's position is set out in pars 33 - 38 of the reply. In particular, in par 34 RMD admitted it took possession of some Truform timber joists which had been abandoned by Anderson Formrite and denies it took possession of any Rapidshor equipment. In par 35 RMD pleads that it sold the seized Truform and credited the moneys to the account held by RMD. There is no plea made in the rejoinder with respect to these allegations.

30 In the Federal Court statement of claim, in par 40 Anderson Formrite alleges that on 17 May 2002 certain goods which were the property of Anderson Formrite and certain other goods of which Anderson Formrite was lessee and which were in Anderson Formrite's possession were located on the site of the Woodside building. It is said that particulars of the goods will be provided in a separate schedule before trial. According to par 41, on or shortly after 17 May 2002 Baulderstone took possession of all the goods and used all or some of the goods to perform further works. Anderson Formrite alleges that Baulderstone has converted the goods: par 42.

31 Counsel for RMD identifies this as an inconsistency in that Anderson Formrite alleges as against RMD that RMD retook possession of all equipment hired by RMD to Anderson Formrite but alleges as against Baulderstone that Baulderstone took possession of the equipment. There is a further allegation that RMD took possession of the Trueform timber joists and the Rapidshor equipment. RMD's position is that it seized some of the equipment. As against Baulderstone, Anderson Formrite alleges that Baulderstone took possession of goods on the site but does not specifically indicate which goods. There is then a plea that Baulderstone took possession of all the goods and used all or some of them to perform other works and hence converted them.

(3) Whether Anderson Formrite admitted that it is indebted to RMD and if so, in what amount

32 In par 43 of the Federal Court statement of claim Anderson Formrite alleges that, by reason of the facts pleaded in pars 40, 41 and 42, it has suffered loss and damage. In par 43(iv) it states that by reason of the conversion of those goods which were leased by the applicant, the applicant has paid to or become indebted to the lessors of those leased goods and is alleged to owe RMD $3,183,986.60 plus interest accruing at the rate of 18% per annum.

33 The sum of $3,183,986.60 is the amount claimed by RMD from Anderson Formrite and set out in the prayer for relief in the statement of claim in the action in this court. Counsel maintains that it is entitled to ask whether it is one of the lessors to whom Anderson Formrite has become indebted.

34 The wording of par 43(iv) is somewhat ambiguous. It does say that, by reason of the conversion, the applicant has paid to or become indebted to the lessors of the goods. However, it then states that it is 'alleged' to owe the stated amount. In my view, the pleading does not contain a statement that Anderson Formrite is indebted to RMD in that or any other amount. It says that it is alleged to owe such an amount. I consider the pleading should be read as containing a statement that Anderson Formrite is alleged to owe the sum to RMD and, if it does, then its indebtedness is alleged to have arisen from Baulderstone's conduct. In those circumstances, it would not be appropriate to require Anderson Formrite to answer a question about whether it is indebted to the lessors and, if so, do those lessors include RMD and, if so, in what amount. Essentially, RMD by interrogating is requiring the defendant in an action to admit a claim which has been denied on the pleadings. In my view, that should not be done where the statement of inconsistent fact said to justify the question is ambiguous.

35 Consequently, it is necessary only to consider whether leave should be granted to RMD to administer interrogatories 1 - 6.

36 One issue raised by Anderson Formrite in opposing the application is that it would be oppressive for it to provide answers to the interrogatories. It is said that it is self-evident that answering some of the proposed interrogatories will be a difficult and time consuming exercise and that Anderson Formrite should not be put to that difficulty and expense without good reason being shown for leave to administer the proposed interrogatories.

37 On the other hand, counsel for RMD submits that there can be no suggestion that the proposed interrogatories in this case fall within the mischief referred to by the Chief Justice in International Land Developments Pty Ltd t/as Key West Realty v Diamo Nominees Pty Ltd, nor would they impose any undue burden on Anderson Formrite. It was said that the proposed interrogatories relate solely to alleged inconsistencies, they number only seven and are directed to three discrete issues.

38 In my view, it is far from self-evident that it would be a difficult and time consuming exercise for Anderson Formrite to answer the proposed interrogatories. The proposed interrogatories do relate solely to what are said to be inconsistencies between the pleading in this court and the pleading in the Federal Court. They do number only seven and are directed to three discrete issues. Indeed, as a result of my decision in relation to the third area of alleged inconsistency, they are now directed only to two discrete issues. They are, therefore, neither large in number and nor could they be said to create an undue burden on the party required to answer them when considered in the context of the counterclaim, the amount of damages sought and the heads of damages to which they specifically relate. Further, the interrogatories relate to matters that are within the knowledge of Anderson Formrite and the certification of the Federal Court statement of claim indicates that the evidence is identifiable and available: Rules of the Federal Court (Cth) O 11 r 1B.

39 In any event, it must be kept in mind that any admissions made by Anderson Formrite have the potential to reduce the issues for trial, either by reducing the need for, or scope of, cross-examination on issues which may be admitted, or by unnecessary or false issues falling away.

40 Counsel for Anderson Formrite also relies on several interrelated reasons for opposing the application to administer the interrogatories. They are:

(a) The content of the proposed interrogatories is not proper subject matter for the administering of interrogatories;

(c) The proposed interrogatories are mere cross-examination; and

(d) No legitimate forensic purpose will be served by the administering of the interrogatories.

41 Anderson Formrite maintains that there is no inconsistency in asserting that two distinct factors were causes of an event or of the suffering of a loss. Reliance is placed on the principle that claims for damages for the causes of action in this claim will be successful upon the claimant establishing that the defendant's conduct was a cause of the loss and damage suffered, not the sole cause of that loss and damage: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109, 121 - 222 [33] per Gleeson CJ, 128 [57] per Gaudron, Gummow and JJ, 144 [112] per McHugh J and 175 [210] and [211] per Callinan J. The principle of concurrent causes has been applied in misleading and deceptive conduct cases (Townsend v Roussety [2007] WASCA 40; (2007) 33 WAR 321, 362 [101] per Buss JA with whom Wheeler and McLure JJA agreed), in contract cases (Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142, 154 - 155 per Stephen J) as well as in cases of negligence (Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 7 per Deane, Dawson, Toohey and Gaudron JJ).

42 Counsel for RMD submitted that there is an issue on the pleadings as to whether workforce problems were a cause and the relevant interrogatory attempts to identify the scope of the contribution of workforce problems to the loss alleged by Anderson Formrite against RMD. As counsel observed, in some cases, in attempting to establish a particular fact as causative, a plaintiff will seek to draw inferences. If the defendant can point to another cause it can prevent the inference from being drawn. Counsel for RMD also submitted that the application of the principle of concurrent causes, including whether the causes were in fact concurrent, is itself an issue for trial.

43 Further, it was submitted by counsel for RMD that the principle of concurrent causes assumes a single indivisible loss which is not necessarily the case. An example was given of a different or discrete loss such as the labour costs of $1.4 million. It was said that if problems with the formwork caused termination and loss of profits it does not necessarily follow that RMD is responsible for all the costs. Labour costs, in particular, were said to be a discrete component of loss.

44 It is apparent from the particularisation of the loss and damage pleaded in par 62 of the amended defence and counterclaim that it is made up of a number of different components or heads of damage. For example, one component of the loss and damage alleged to have been suffered by Anderson Formrite is identified as additional labour costs of approximately $1.4 million: par 62(b). Further, in the prayer for relief, Anderson Formrite makes a specific claim for $1,830,632 as referred to in par 38. Paragraph 38 alleges that as a result of the matters pleaded in pars 35 - 37, the plaintiff is liable to pay that amount. It is apparent from pars 35 - 37 that the figure is made up of three components. The first is an amount deducted by Baulderstone from progress payments due to Anderson Formrite for alleged breaches of the formwork contract by reason of delays in completing the works. A second amount is the amount of bank guarantees provided by Anderson Formrite called up by Baulderstone on account of damages for breaches of the formwork contract caused by reason of delays in completing the works. The third and final amount is the amount Anderson Formrite was charged by Baulderstone and deducted from payments due to Anderson Formrite under the formwork contract for damages for alleged breaches of the formwork contract by reason of delays in failing to complete a specific aspect of the works.

45 It can be seen that separate and distinct losses are pleaded and it may well be the case that there could be separate causes for specific losses pleaded in the counterclaim.

46 Now, in my opinion, the fact that RMD has chosen to also interrogate as to the details of the allegations, if admitted, strengthens RMD's application. That is because the interrogatories not only seek an admission of certain facts, they seeks to determine the parameters of the admissions made. In circumstances where Anderson Formrite alleges that the principle of joint causation means there is no inconsistency in the pleadings, RMD is also seeking to establish matters relevant to causation. For example, RMD seeks to establish whether the matter pleaded in the Federal Court proceedings is said to also be causative of the loss or causative of only a part or a component of the loss pleaded. The fact that the interrogator does not at this point know the answer, does not, in my view, make the exercise a fishing expedition, as was submitted on behalf of Anderson Formrite.

47 I am persuaded that there are inconsistencies between the pleadings in the two actions. I readily accept the principle that two distinct factors may cause an event or the suffering of loss and that, in order for a claim to be successful, a plaintiff need only establish that the conduct alleged was a cause of the loss and damage suffered, and not the sole cause. However, in my view, the application of that principle is not a complete answer to the application to administer interrogatories which address the truth of a pleaded cause of loss and which address whether, and if so the extent to which, the pleaded cause of loss contributed to any particular component of the loss suffered. I also accept the submission of RMD's counsel that the application of the principle of concurrent causes, and whether the causes were in fact concurrent, is itself an issue for trial.

48 With respect to the second area of inconsistency raised in the interrogatories it is, in my view, directly relevant to RMD's claim for Anderson Formrite to identify which of the goods it says were taken possession of by RMD and which were converted by Baulderstone. They are all matters of fact which will require proof at trial. It was said on behalf of Anderson Formrite that this information is already within the knowledge of RMD. However, administering interrogatories is not limited to the purpose of obtaining information not already known. There are apparent inconsistencies on the pleadings which RMD is entitled to have clarified. That clarification may save time and evidence later but the fact that it may not does not render improper an interrogatories addressing that issue.

49 Anderson Formrite also opposes leave being granted on the basis that the proposed interrogatories are not the proper subject matter for the administering of interrogatories and, in particular, are 'mere cross-examination' and matters for trial. In support, counsel for Anderson Formrite relies on the decision in Sharpe v Smail (1975) 5 ALR 377, 381 per Gibbs J. In Sharpe v Smail Gibbs J disallowed two paragraphs of an interrogatory on the basis they were cross-examination. The interrogatory in question related to the content of a document. Objection was taken to the interrogatory on the basis that the document itself was the best evidence of its contents. However, as some of the paragraphs of the interrogatory inquired as to the meaning of certain expressions in a ledger and statement of account, Gibbs J concluded that the objection was misconceived. His Honour considered that, although speaking generally, interrogatories as to the contents of a document are not allowable, it was permissible to interrogate as to the meaning of symbols, ciphers and abbreviations: at 381. The content of the two paragraphs of the interrogatory which were disallowed as 'mere cross-examination' is not set out in the judgment. Other than the fact that they were directed to the content of a document the nature of the questions are unknown. In those circumstances, it cannot be said that the comment made by Gibbs J is authority for the proposition that any question asked in an interrogatory which could also be asked in cross-examination should be disallowed. Such a conclusion would be at odds with the statements made in the authorities referred to above. In my view, there is no substance to this aspect of the objection taken by Anderson Formrite.

50 It was also submitted by counsel for Anderson Formrite that, given the legal and factual questions involved in attributing causation, it is manifestly unfair to require a party to swear to the truth of a conclusory statement about causation. However, it has been held that a state of mind or knowledge is a matter of fact which may be interrogated upon: Seidler v John Fairfax and Sons Ltd [1983] 2 NSWLR 390, 384. The interrogatories in question really address Anderson Formrite's state of mind as well as its knowledge of specific events from which flowed a particular result. It is that aspect of the pleading to which the primary question is principally directed. The subsequent questions refer specifically to matters of fact.

51 As to the proposition that the interrogatories do not address a proper subject matter, on behalf of RMD it is said that Anderson Formrite's statement of principle is incorrect and states in unduly restrictive terms the requirement of relevance. As Rules of the Supreme Court O 27 r 1(1) states, interrogatories may relate to any matter in question between the parties. As was made clear in Ugle, at [18], the right to interrogate is not confined to 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 facts directly in issue. The interrogatories will relate to a matter in question if they can fairly be said to be material to support a party's case or to destroy that of his or her opponent.

52 In this case, RMD has expressly pleaded in its reply that if Anderson Formrite suffered loss as a result of the delay in carrying out the works under its contract with Baulderstone, it was caused by inefficiencies of Anderson Formrite's workforce. As counsel for RMD points out, that, in substance, is what Anderson Formrite has now itself alleged in its statement of claim in the Federal Court proceedings and yet no admission is made to that effect in the proceedings in this court.

53 In Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASC 179 Murray J granted the plaintiff leave to interrogate the defendant as to the truthfulness of a pleaded allegation of the defendant in its statement of claim in a Federal Court proceeding. Murray J observed at [52] - [53]:

Finally in this regard, objection is taken to interrogatories 180 and 181. They ask a series of questions about litigation in the Federal Court in respect of which the defendant was the applicant: see State of WA v Wardley Australia Ltd [1991] FCA 314; (1991) 30 FCR 245. The questions asked are about the State's pleading in its statement of claim and in respect of each matter pleaded, to which interrogatory 181 refers, a question about the nature of the pleading is followed by one asking whether the pleaded fact is true. Speaking generally, the question appears to relate to the solvency of Rothwells.

As I understand the position, admissions of fact made in a pleading may, generally speaking, be tendered in evidence against the party for whom the fact was pleaded. That was touched on in argument, but not developed to any extent. In particular, it was not submitted for the defendant that such evidence would be inadmissible for any reason and therefore that it would be oppressive to require answers to these interrogatories. On the other hand, the fact that such admissions might be proved by tendering the pleading seems to me not to provide a valid ground of objection to another otherwise proper interrogatory.

54 Counsel for Anderson Formrite submitted that the judgment in Tipperary does not make any blanket statement to the effect that any such interrogatories are permissible and that, instead, particular interrogatories relating to particular matters arising from a pleading were allowed. It was further said that the form and content of those interrogatories, and the particular pleaded allegation to which they relate, are not set out within the judgment. Consequently, counsel maintained, the decision provides no support for the present application.

55 I do not accept that submission. It is the case that specific interrogatories were identified without reference to their content and that the particular pleading to which each interrogatory was said to relate was not identified. However, the issue to which the questions were addressed was identified by Murray J as being the solvency of Rothwells. In this case the pleadings in question all relate to the issue of the loss allegedly suffered by Anderson Formrite and its cause. Further, in Tipperary, as in this case, a question about the nature of the pleading is followed by one asking whether the pleaded fact is true. In Tipperary, unlike the case in this court, it was not submitted for the defendant that such evidence would be inadmissible for any reason and therefore that it would be oppressive to require answers to these interrogatories. I have already set out my reasons for forming the view that it would not be oppressive to answer these interrogatories. It appears to me that Anderson Formrite is not submitting that the evidence would be inadmissible, it simply asserts that leave should not be granted which, as I understand the submission, is not based on any allegation of inadmissibility. Murray J also rejected, as a ground of objection, the fact that such admissions might be proved by tendering the pleading. No such objection was raised in this case. Putting these issues to one side, as they may be for the reasons I have mentioned, the fact remains that his Honour considered interrogatories of this type, questioning the truth of a pleading in another action, to be quite appropriate.

56 Counsel for Anderson Formrite further submitted, relying on the decision in Attorney-General v Gaskill, that the questions cannot, and would not, fulfil the purpose of interrogatories, being to prove some material fact necessary to a party's cause of action or defence. It was further said that the questions would not fulfil even the wider purpose relied on by RMD of seeking material to support a party's case or destroy that of their opponent. However, the basis of this submission was the proposition that there is no inconsistency between the statements made by Anderson Formrite in the defence and counterclaim in this action and the statement of claim in the Federal Court action. For the reasons to which I have already referred, I do not accept that proposition. I consider that a question which determines the cause of a component of the loss as being attributable to an entity other than RMD, complies both with the purpose of proving some material fact and of potentially destroying at least some component of the claim of Anderson Formrite.

57 On behalf of Anderson Formrite it is also said that the potential for reduction of issues at trial is illusory. Again, this submission is dependent on the primary submission that no inconsistency exists and therefore no reduction of issues results. However, in this case, if the answer provided addresses a particular head of damage, RMD would not be required to do more than tender the interrogatory to successfully defend that aspect of the claim or component of the loss. At the very least, it would not be necessary to prove certain factual matters.

58 Finally, it is said on behalf of Anderson Formrite that all of the matters the subject of the proposed interrogatories are matters for evidence at trial. It was submitted that Anderson Formrite's witnesses can be cross-examined, in accordance with the rules of evidence, about the subject matter of the proposed interrogatories. According to counsel, RMD simply seeks to conduct a portion of the trial of this action by way of administering unnecessary interrogatories, which will achieve nothing. On my understanding of the authorities, the fact that a matter can be proved in another way or can be proved at trial by oral evidence, is not a proper basis on which to oppose the issue of interrogatories. At the hearing of this application, counsel for Anderson Formrite indicated that it was not necessary to obtain an answer as to what happened to certain components of the formwork because that was a matter within RMD's own knowledge. It was also said that some of the information could be addressed by way of a notice to admit. In my view, these submissions overlook the purpose behind administering interrogatories. The decision of Cotton LJ in Attorney-General v Gaskill at 528 emphasises that interrogatories are not limited to obtaining information not already known. An acceptable purpose is simply to obtain an admission of anything which has to be proved thereby making the burden of proof easier. In the same vein, the purpose of administering interrogatories is not limited to obtaining admissions of matters which cannot otherwise be proved. Simply obtaining an admission so that a fact does not require any further proof, is a sufficient reason.

59 It is consistent with modern principles of case flow management and the orderly management of commercial litigation that a litigant who runs inconsistent positions in different courts be required to confirm what its true case is. I am unconvinced by the arguments put forward in opposition to the grant of leave and, for the reasons to which I have referred, I would grant leave to administer interrogatories 1 - 6 of the proposed interrogatories.