Dalescoast Pty Ltd v Monisse [1999] WASCA 103

Austin v Austin [1905] VicLawRp 56; [1905] VLR 377

Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWR 221

Hennessy v Wright (1890) 24 QBD 445

Johns v James (1897) 13 Ch D 370

Konings v Naylor [1964] Qd R 235

Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32

Marriott v Chamberlain (1886) 17 QBD 154

May v Mijatovic [2002] WASC 151; (2002) 26 WAR 95

Potter's Sulphide Ore Treatment Ltd v Sulphide Corp Ltd [1911] HCA 35; (1911) 13 CLR 101

Ryan v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396

Tobin v Dodd [2004] WASCA 288

Watt v General Televison Corporation Pty Ltd [1998] 3 VR 501

1 MASTER SANDERSON: This is the sixth defendant's application for leave to administer interrogatories. A minute of proposed interrogatories dated 22 October 2003 has been provided by the sixth defendant. Interrogatories are directed at all five of the named plaintiffs. In each case there are 13 interrogatories and in each case the interrogatories are identical. The plaintiffs oppose leave being granted.

2 To understand the nature of the application, it is necessary to say something about the nature of the dispute between the parties. This case is one of a number of actions which have arisen out of the collapse of certain finance brokers. In this action, the plaintiffs sue a company to which they loaned money (the first defendant), the guarantors (the second defendants), the finance broker and its directors (the third, fourth and fifth defendants), a firm of solicitors (the sixth defendant) and the valuer (the seventh defendant). Insofar as the case concerns the sixth defendant, the plaintiffs alleged that the sixth defendant was engaged by the plaintiffs "through the third defendant" to act as solicitors for the plaintiffs: par 35 of the statement of claim. It is said as a consequence of that engagement, the sixth defendant owed the plaintiffs certain duties: par 37 of the statement of claim. It is then alleged that the sixth defendant failed to give certain advice: par 39 of the statement of claim. The plaintiffs go on to say that if the sixth defendant had provided advice to the plaintiffs, they would not have entered into the loan: par 46 of the statement of claim. It is important in the context of this application to note that the allegation is not that the sixth defendant gave the plaintiffs advice which was wrong or misleading. Rather, it is alleged that the sixth defendant failed to give advice. The allegation against the sixth defendant is one of omission not commission.

3 The statement of claim also alleges that the plaintiffs made the loan in reliance upon representations made by other parties. For instance, the plaintiffs plead that they made the loan in reliance upon what was told to them by the third defendant: par 22 of the statement of claim. They also plead that they relied on representations made by the seventh defendant (the valuer) to the plaintiffs: see pars 48, 49 and 53 of the statement of claim. In making the application for leave, the sixth defendant sees the pleading of these other representations as matters as some significance. I will return to this issue below.

4 In their written submissions, the sixth defendant highlights seven issues between the plaintiffs and the seventh defendant. These are said to be:

(i) the existence, nature and extent of the retainer;

(ii) what advice (if any) the plaintiffs sought from the sixth defendant;

(iii) what advice (if any) the plaintiffs sought from others;

(iv) what advice (if any) the plaintiffs received from the sixth defendant;

(v) what advice (if any) the plaintiffs received from others;

(vi) the alleged reliance by the plaintiffs on the sixth defendant; and

5 With respect, I am not entirely sure that these seven matters are really in dispute between the parties. As I have indicated above, what is put against the sixth defendant by the plaintiffs is that the sixth defendant failed to offer advice to the plaintiffs. Clearly, then, the existence, nature and extent of the retainer is a relevant consideration. It will be necessary for the plaintiffs to establish that the sixth defendant was under a duty to offer certain advice; that the advice was not offered; and, that had the advice been offered, the plaintiffs would not have entered into the loan. Apart, then, from points (i) and (vi), it is difficult to see that the other matters are relevant to what is put against the sixth defendant by the plaintiffs.

6 In answer to this proposition, the sixth defendant says that a number of things emerge from their defence. They alleged that no advice was sought by the plaintiffs from the sixth defendant and to the extent the plaintiffs sought information or advice they sought it from others. Consequently, it is alleged that to the extent the plaintiffs relied on anyone in deciding to enter into the loan, reliance was placed on persons other than the sixth defendant. They also allege that the plaintiffs would have entered into the loan in any event. A reading of the defence suggests that the sixth defendant is in fact answering a slightly different case from that which is put against it by the plaintiffs. As I will explain below, that has, I think, led the sixth defendant to seek leave to administer interrogatories which are unnecessary.

7 So far as the plaintiffs are concerned, they raise a number of objections to the application. First they say that leave to administer interrogatories should only be granted if really necessary and if it is consistent with O 1 r 4B of the Rules of the Supreme Court 1971 (WA). In support of this proposition, they rely on the decision of the Full Court in Dalescoast Pty Ltd v Monisse [1999] WASCA 103. Second, they say that extensive discovery has been provided and all of the questions put by way of interrogatories can be answered by reference to the discovered documents. Thirdly, they say that witness statements will be prepared prior to trial and necessarily the position of each of the plaintiffs on the matters the subject of the interrogatories will be disclosed by those statements. They say further that each of the plaintiffs is a necessary witness at trial and the sixth defendant can be sure that they will have the opportunity to cross-examine the plaintiffs in relation to the information they seek in the interrogatories.

8 It is further submitted on behalf of the plaintiffs that the interrogatories are oppressive and burdensome. They point to the fact that the plaintiffs are elderly retirees who are only contactable by telephone and post. They say that although there are only thirteen interrogatories, each contains between two and five sub-interrogatories. In all, there are around 60 questions and the plaintiffs say that to require each of the five plaintiffs to answer all these questions is too much.

9 I should say in fairness to the sixth defendant, that if this were the only objection raised by the plaintiffs, I would have ordered the interrogatories be answered. In my view, the number of interrogatories is not unreasonable and they are not of such complexity that they would be oppressive. I accept that the plaintiffs are elderly and that contact is difficult. But that is a fact which affects the plaintiffs who are bringing this action. It should not act to the detriment of the defendants. I would refuse leave, but on other grounds.

10 There is no doubt that interrogatories still have a place in litigation conducted under a case management regime. There are times when a party is at risk of not being able to prove a fact unless interrogatories are administered and answered. For instance, a party may interrogate about a document in circumstances where, if the interrogatory is not answered it may not be possible to tender the document into evidence. But the rules recognise that the role of interrogatories is limited. In large measure, their point is lost when witness statements are prepared and exchanged before trial. The position was fully canvassed in the Dalecoast decision (supra) and the principles stated therein are not to be doubted.

11 On that basis then, I would be inclined to refuse leave to interrogate without going to the specific interrogatories. In my view, the nature of this case, the issues between the parties and the fact that the plaintiffs will inevitably provide witness statements prior to trial lead to the conclusion that, as a matter of principle, interrogatories ought not be permitted. I am not satisfied that, given the nature of the dispute, they will serve any useful purpose. I have reached that conclusion, without a consideration of the particular interrogatories the sixth defendant seeks to administer. Lest I be wrong in that conclusion I will deal with each individual interrogatory setting out specifically why I would not allow the particular interrogatory to be administered.

12 As I have said above, in each case the interrogatories are essentially identical. Interrogatory 1 is in the following terms:

"1 In relation to your statement in the amended statement of claim by paragraph 1 that you lent (together with the other plaintiffs) $121,000.00 to the first defendant (Loan) state:

(a) the date on which you agreed to lend your portion of the sum; and

(b) what documents comprise that agreement."

13 The plaintiffs say that this interrogatory is vague and unclear as it refers to an antecedent loan agreement. It is said that no antecedent loan agreement is pleaded in the statement of claim or in the sixth defendant's defence. Consequently, the plaintiffs say that the interrogatory contains an assumption of fact and that is impermissible.

14 In my view, the difficulties with interrogatory 1 are more fundamental. All of the information sought to be obtained must be available from the discovered documents. If it is not, then the discovery is inadequate or no documents exist. In my view, the interrogatory is pointless.

15 Interrogatory 2 is rather lengthy and I will not repeat it in full. It asks what advice the plaintiffs received in relation to the loan, who gave the advice and when it was given. It is to be remembered that it is the plaintiffs' allegation that the sixth defendant was under an obligation to give advice and did not do so. Who else gave the plaintiffs advice, what that advice was, when it was given and what reliance was placed on it by the plaintiffs maybe fertile ground for cross-examination, but is not, in my view, a matter about which it is proper to interrogate.

16 Interrogatory 3 seeks details of payments received subsequent to the loan and the date upon which those payments were received. The answer to this question should emerge from the discovered documents. In my view, the interrogatory is unnecessary and should not be permitted.

17 Interrogatory 4 asks whether the plaintiffs were aware that the third defendant had engaged the sixth defendant to prepare the mortgage and if the plaintiffs were so aware, then on what date they received this information. This interrogatory does not relate to a matter in issue between the parties. It is not an interrogatory which will elicit material to support the sixth defendant's case or destroy the plaintiffs' case. It is therefore irrelevant and impermissible.

18 Interrogatory 5 asks whether the plaintiffs approached the sixth defendant seeking advice and if such an approach was made, the details of that approach. With respect, the sixth defendant must already know the answer to that question. In any event, it is not the case that is put by the plaintiffs against the sixth defendant. The plaintiffs say that the sixth defendant did not give advice in circumstances where it should have done so. It does not say that the plaintiffs asked for advice and the advice was not given. The case made against the sixth defendant is that there was a positive obligation on it to offer the advice. That being so, the interrogatory is, in my view, misconceived.

19 Interrogatories 6 and 7 can be taken together. Both interrogatories ask whether anyone, on behalf of the plaintiffs, approached the sixth defendant seeking advice. The plaintiffs plead that the third defendant was the plaintiffs' agent. It is clear that, other than the documents which have been discovered, the plaintiffs do not know what advice the third defendant sought or received from the sixth defendant. But the sixth defendant must know. To that extent, the interrogatories are unnecessary and should not be permitted.

20 Interrogatory 8 seeks information as to any advice received by the plaintiffs prior to 7 August 1998 on the value of certain properties. In my view, this interrogatory is irrelevant as it does not relate to a matter in issue between the parties. Furthermore, the plaintiffs had discovered advice they received from the third defendant. That is sufficient. The interrogatory is unnecessary and ought not to be permitted.

21 Interrogatories 9 and 10 can be taken together. The sixth defendant seeks to interrogate the plaintiffs as to whether the plaintiffs were advised there was a valuation in relation to any or all of the properties the subject of documents drawn by the sixth defendant and whether they (the plaintiffs) saw any such valuation. Again, the interrogatories do not relate to a matter in issue between the plaintiffs and the sixth defendant on the pleadings. The interrogatories are impermissible.

22 Interrogatory 11 relates to a valuation. The plaintiffs are asked if they were aware of any valuation and whether they made it clear to the valuer that the valuer owed the plaintiffs "a duty in relation to the valuation". In truth, this question is not an interrogatory at all, but cross-examination. In large measure, it is based on assumptions of fact and that is not a proper basis for an interrogatory. In any event it is irrelevant. It should not be permitted.

23 Interrogatory 12 asks whether the plaintiffs entered into any loan agreement under a pooled mortgage prior to 7 August 1998. In my view, the question is irrelevant. Furthermore, there has been extensive discovery provided in relation to information sought in the interrogatory. It is, therefore, unnecessary and should not be permitted.

24 Interrogatory 13 asks whether the plaintiffs had received any advice in relation to a pooled mortgage aside from the matters the subject of this action. That interrogatory does not relate to a matter in issue between the parties. Furthermore, if any such advice was given in writing, it has been discovered. If no documents related to this question have been discovered, then the matter can be covered in cross-examination. The interrogatory is improper and ought not be permitted.

25 In summary, then, both as a matter of principle and in relation to the specific interrogatories, the sixth defendant seeks to administer, there should not be a grant of leave. Accordingly, I would dismiss this application with the sixth defendant to pay the plaintiffs' costs in any event.