Wilson v Tetley & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1 The plaintiff conducts a business of breeding Murray Grey cattle. The defendant was engaged to attend to the culling of cattle for sale, the general health and well-being of the cattle by administering drenches, inoculations, vaccinations and the like and the preparation of cattle for showing. The plaintiff conducted an embryo flush programme with respect to his herd, involving the selection of an appropriate female cow, the administration of drugs to the chosen cow to produce a large number of eggs for insemination and fertilisation, the artificial insemination of the cow when she was ready with the semen of the bull and arranging and causing to be carried out by a qualified technician the flushing of the eggs from the cow. 2 The defendant was required to select cows for artificial breeding, prepare them for the embryo flush to be administered by another, to choose the bulls and record the identity of the bulls whose semen had been used to artificially inseminate the selected cow and to attend upon the embryo flush technician. 3 There is evidence before me that the identity of the sire is critical to the process, as without this information embryos are either valueless or almost valueless, whereas a well-chosen sire with good pedigree with a dam of good pedigree could make an embryo worth up to $3000 or thereabouts. 4 With respect to the last flush programme carried out in December 2002 with the flush effected in January 2003, the defendant failed to record the identity of the bull from which the semen was taken with respect to two cows called Queen Lylia and Grey Dame. The defendant has refused to provide that information on request and the certificates in relation to the embryos in question do not contain the name of the sire, with the consequence that in a market such as that to take place at the Wodonga Exhibition Centre on April 3, the embryos are valueless. 5 The plaintiff comes before me on a summons seeking an order that the defendant answer on oath the following interrogatories, namely: (a) What was the name of the sire whose semen was used to artificially inseminate the Murray Grey cow Kaltara Grey Dame BJO R809 on or about 20-23 January 2003?

(b) What was the name of the sire whose semen was used to artificially inseminate the Murray Grey cow Newhaven Park Queen Lylia AU N72 on or about 20-23 January 2003 and other relief. 6 It is submitted that I may grant an order in those terms as a mandatory injunction. The summons also seeks damages. 7 In my view it is inappropriate in these circumstances to grant the relief claimed on that basis. I take the view that the embryos are not so unique as to give rise to protection on the basis of that uniqueness. It was proposed that the embryos in question be sold at the show that I have mentioned. Nor do I think that the mandatory injunction should be granted in circumstances where I am of the view that damages are an adequate remedy. 8 It is submitted that there is an inability to precisely determine the level of damages because the market for embryos from a particular cow inseminated by a particular bull is seasonal and for that reason it is impossible to determine the amount of damages in question. That is not a matter which makes damages an unsuitable remedy. There is always a degree of speculation in the process by which a court comes to its determination of damages. 9 Secondly, it was put to me that the order could be justified on the basis that it was property choate and tangible which was properly the subject of a suit in detinue. I reject that submission. The problem that faces the plaintiff is that the information has not been reduced to writing, in which case proceedings could be taken in relation to the information as it had been transformed to property. I take the view that the information sought does not answer the description of property; compare the position with know-how. 10 It was then put to me that there is a misuse of confidential information by a failure to record or to provide that information. In my view that does not constitute a misuse of information and on the evidence currently before me there is no suggestion that the defendant intends to use the information in relation to the identity of the sire. 11 I have been referred to Murphy v Murphy (1998) 1 WLR 282 in which a plaintiff who had issued proceedings against two companies asserting against them his beneficial ownership of all the shares in the family company transferred by him into earlier settlements was held entitled to ask the trustees for information as to the nature and value of the trust property. Neuberger J said that he considered the plaintiff could, in principle, justify invoking the equitable jurisdiction so far as the names and addresses of the trustees of the defendant's 1965 settlement were concerned. His Honour referred to A v C [1981] QB 956 at 959 where Robert Goff J said: "Now these cases provide ample authority that, in an action in which the plaintiff seeks to trace property which in equity belongs to him, the court not only has jurisdiction to grant an injunction restraining the disposal of that property; it may in addition, at the interlocutory stages of the action, make orders designed to ascertain the whereabouts of that property. In particular, it may order a bank (whether or not party to the proceedings) to give discovery of documents in relation to the bank account of a defendant who is alleged to have defrauded the plaintiff of his assets; and it may make orders for interrogatories to be answered by the defendants or their employees or director." 12 In the instant circumstances, however, there is no obligation of trust, nor the tracing of trust property. What is sought is information which has been retained by the defendant. The cases in question do not assist in my resolution of this issue. 13 The Courts of Equity in their auxiliary jurisdiction granted interlocutory relief in cases commenced at common law in the form of interrogatories. The matter is now contained in Supreme Court Rules 1970. Pt 24 r 5(1)(b) empowers the Court at any stage to order any party to serve on any other party a statement in accordance with r 6 verified by affidavit in answer to interrogatories specified or referred to in the order. Pt 24 r 5 (2), however, requires the Court not to make such an order unless satisfied that it is necessary at the time when the order is made. 14 Necessity has been considered in a number of cases. After taking into account the interests of both parties, the question is whether the administration of interrogatories is reasonably necessary for disposing fairly of the case or is necessary in the interests of a fair trial: Boyle v Downs [1979] 1 NSWLR 192 at 205, Yamazaki v Mustaca [1999] NSWSC 1083. 15 On the material before me the plaintiff has a cause of action for damages for breach of contract. The interrogatories are not aimed at obtaining an admission of fact to support the plaintiff's claim for damages, nor to obtain an admission of fact which would damage the defence to such a claim. The interrogatories are aimed at obviating the necessary for expensive litigation by obtaining an answer which would give value to the embryos in question. In a sense, the interrogatories are aimed at rendering the suit unnecessary or at least reducing its impact. I do not regard that circumstance as qualifying the administration of interrogatories necessary in terms of the statute. 16 The summons seeks in the alternative an order that the defendant attend before the Court or an officer of the Court to be orally examined. Pt 24 r 8(1)(b) enables the Court to order a person to be orally examined in circumstances where a party fails to answer an interrogatory sufficiently. I would not at this stage of the proceedings grant an order in that form. 17 Finally, the summons seeks in the further alternative an order that the defendant produce any document or thing in his possession, custody or power relating to the identity of the sires in question. There is no evidence before me that such document exists and I decline, on the material tendered by the plaintiff, to make that order. 18 I dismiss paragraphs 1, 2 and 3 of the summons. I will reserve the question of costs.

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