Re John Baptist Nella, Clifford Sidney Brown, Barbara Sybil Brown, Ian William Brown and Kingia Pty Ltd (Cross-Claimant) v Kingia Pty Ltd, Ian David Asphar, Peter Anthony Mccomish, Robert William Waters, Hilldodd Pty Ltd, Maxwell Dodd, Maurice Ho [1987] FCA 299 (4 September 1987)

FEDERAL COURT OF AUSTRALIA

Re: JOHN BAPTIST NELLA, CLIFFORD SIDNEY BROWN, BARBARA SYBIL BROWN, IAN
WILLIAM BROWN and KINGIA PTY. LTD. (Cross-Claimant)
And: KINGIA PTY. LTD., IAN DAVID ASPHAR, PETER ANTHONY McCOMISH, ROBERT
WILLIAM WATERS, HILLDODD PTY. LTD., MAXWELL DODD, MAURICE HOWARD HILL, STANLEY
RONALD LAYTON and HILLDODD PTY. LTD. (Cross-Respondent)
No. WAG 18 of 1983
Interrogatories

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Interrogatories - objections to answer - grounds for objections - discretion to refuse order where objection not made out - interrogatory questioning one party about another's answers to interrogatories - oppressive - not to be used to cross-examine on credit or cross examine on affidavit of discovery - interrogatories as to particular documents may be permissible - general roving discovery by interrogatory not permissible - admissibility of answers by one respondent against another - interrogatory as to meaning of terms used by another respondent - interrogatory by way of request for particulars - permissible special circumstances only.

Federal Court Rules O.16 r.6

Bray - Law of Discovery and Digest pp 213-214

Cross on Evidence 3rd Australian Edition para.9.6

Aspar Autobarn Co-Operative Society v Dovala Pty Ltd (Unrep. Woodward J. 11/6/87)

Hall v Truman-Hanbury & Co. (1885) 29 ChD 307

Sygnatowicz v Sygnatowicz (1933) 1 DLR 758

Chote v Ryan (1943) OWN 646

Wise v Boxenbaum (1944) 4 DLR 199

Hartley v Saunders and Toronto General Insurance Co. (1962) 33 DLR (2d) 638

Conde v 2KY Broadcasters Pty Ltd (1982) 2 NSWLR 221

Sharpe v Smail (1975) 5 ALR 377

Derham v Amev Life Insurance Co. Ltd (1978) 20 ACTR 23

HEARING

PERTH
4:9:1987

Counsel for the Applicants: Mr R. McCormack

Solicitors for the Applicants: Messrs. Corser & Corser

Counsel for the First and Second Respondents: Mr R. Le Miere

Solicitors for the First and Second Respondents: Messrs. Dwyer Durack

Counsel for the Third, Fourth, Fifth and Sixth Respondents: Mr M.J. Harford

Solicitors for the Third, Fourth, Fifth and Sixth Respondents: Michael Whyte & Co.

ORDER

On the Applicants' motion dated 5 August 1987:

(i) as to the interrogatories administered to Ian David
Asphar the motion is dismissed;

(ii) Robert William Waters do on or before 18 September
1987 file and deliver sufficient answers to
Interrogatories 4(b)(viii), 7(a), 7(b)(i) and (ii),
11(iii)(a) insofar as it relates to the basis for his
authority, 20, 33, 34, 35(i) and (ii), 36(a), (b) and
(c) and 37(a), (b) and (c), provided that in his
answer to 4(b)(viii) he refers to such records as are
in his custody, possession or power and from which his
remuneration during the relevant period may be
calculated and if there be no such records that he so
indicate in his further answer;

(iii) Peter Anthony McComish do on or before 18 September
1987 file and deliver answers to Interrogatories 18,
31, 32, 33(i) and (ii), 34(a), (b) and (c), and 35(a),
(b) and (c);

(iv) Maxwell Dodd do on or before 18 September 1987 file
and deliver sufficient answers to Interrogatories
14(b) and (c);

(v) Stanley Ronald Layton do on or before 18 September
1987 file and deliver sufficient answers to
Interrogatories 7A(a), (b), (c) and (d), 25(ii)(a) and
(b), (iii), (iv), (v) and (vi), 26, 28(e)(ii), (iii),
(iv) and (v).

On the First and Second Respondents' Motion dated 24 August 1987:

(i) as to the interrogatories administered to the
Applicants the motion is dismissed;

(ii) the Fourth, Fifth and Sixth Respondent do on or before
18 September 1987 file and deliver answers to
Interrogatories 3, 4(a) and 4(b), 6(a) and 6(b), 7(a)
and 7(c), 11(b), 12(c) and 19.

The Applicants pay one half of the First and Second Respondents' costs on

its motion of 5 August 1987 and the balance of the costs be in the cause.

There be no order as to the costs of the First and Second Respondents' motion dated 24 August 1987.

The Applicants pay the Respondents' costs of the Applicants' motion filed 3 September 1987.

NOTE: Settlement and entry of orders is dealt with by 0.36 of
the Federal Court Rules.

DECISION

This action arises out of the sale of the Rosemount Hotel at Fitzgerald Street, North Perth in February 1981.

2. The purchasers, who are the applicants in these proceedings, say they were induced to buy the hotel by conduct on the part of the vendor and its agents which is variously stigmatised as misleading and deceptive, fraudulent, negligent and in breach of collateral contract.

3. The conduct complained of comprised, in part, the supply by the vendor's agent of two documents upon which the purchasers say they relied in agreeing to buy the hotel.

4. The documents were:-

1. A written statement of the trading results of the
hotel based upon liquor purchases and estimated
expenditure.

2. A written statement of purchases of bulk beer by
the hotel from the Swan Brewery during the period 1
January 1980 to 8 November 1980.

5. The supply of these statements is said to have given rise to six false representations of fact which are set out in para.8 of the re-amended statement of claim.

6. The action is brought by the purchasers against the vendor, Kingia Pty Ltd ("Kingia"), which was the lessee of the hotel premises and proprietor of the business. It is common ground that Kingia is a financial and/or trading corporation. Its directors, Messrs. Asphar, McComish and Waters, are joined as second respondents. They are alleged to have authorised Kingia's agent for the sale of the hotel to make the representations complained of. The agent, Hilldodd Pty Ltd, which is named as third respondent, carries on the business of hotel brokers under the name Dennis Hawcroft & Co. Its directors, Messrs. Dodd, Hill and Layton, are joined as fourth, fifth and sixth respondents respectively. They are alleged to have been directly or indirectly involved in the preparation of the written statements.

7. The action, which was instituted on 29 April 1983 and has taken an unconscionably long time to get to trial, has now reached the stage where trial dates have been fixed for 19 to 30 October 1987. Certain disputed matters in respect of interrogatories administered between the parties remain to be resolved.

8. The applicants by a motion filed 5 August 1987 seek orders compelling the provision of answers to certain of the interrogatories where the answers already given embodied objections or are said to have been insufficient.

9. Kingia and its directors have also administered interrogatories to the applicants and to the fourth, fifth and sixth respondents and seek similar orders.

General Principles

10. The obligations of a party delivering answers to interrogatories are set out in O.16 r.6 of the Federal Court Rules. In the relevant parts the rule provides:-

"(1) A statement in answer to interrogatories required
by or under this Order shall, unless the Court
otherwise orders, conform to the requirements of
this rule.

(2) A statement in answer to interrogatories shall deal
with each interrogatory specifically either -

(a) by answering the substance of the
interrogatory without evasion; or

(b) by objecting to answer the interrogatory on
one or more of the grounds mentioned in
sub-rule (3) and briefly stating the facts on
which the objection is based.

(3) Subject to sub-rule (4), a party may object to
answering any interrogatory on the following
grounds but no other:

(a) where the answering is not required by an
order, that the interrogatory does not relate
to any matter in question between him and the
party requiring the answer;

(b) that the interrogatory is vexatious or
oppressive; and

(c) privilege.

(4) On an application under sub-rule 3(2) or rule 5 in
respect of any interrogatory, the Court may require
the applicant to specify on what grounds he objects
to answering that interrogatory and may determine
the sufficiency of the objection and, if the Court
determines that the objection is not sufficient,
the applicant shall not be entitled to object to
answering that interrogatory in a statement in
answer to interrogatories."

11. The power of the Court to order answers to interrogatories is set out in rule 5:-

"5. The Court may, at any stage of the proceeding,
order any party to answer interrogatories either in
accordance with rule 2 or in accordance with such
directions as the Court may give."

12. In Aspar Autobarn Co-Operative Society v Dovala Pty Ltd (Unrep. Woodward J. 11/6/87), Woodward J. observed that the ground of objection based on relevance set out in O.16 r.3(a) may in particular cases overlap the allegation that the question is "too wide", "fishing" and "immaterial" but is easier to apply than those criteria.

13. As to the ground of objection that an interrogatory is "vexatious" his Honour adopted the definition in the Shorter Oxford Dictionary:-

"Of legal actions: Instituted without sufficient grounds
for the purpose of causing trouble or annoyance to the
defendant."

14. Interrogatories administered for purposes foreign to the proceeding would fall within that category.

15. As to the term "oppressive" which expresses the second ground of objection under O.16 r.3(b) his Honour said:-

"The word "oppressive" in ground (b) of the rule means I
think unfair or unreasonable in the sense that a good
deal too much is expected of the party questioned."

16. Examples of oppressive interrogatories given were as follows:-

(i) Interrogatories which would require many hours'
work to extract from records details relevant only
to some side issue in the case.

(ii) Any interrogatory that is so ambiguous that it
would be unfair to expect the party questioned to
make assumptions about its meaning.

(iii)Interrogatories covering a wider geographic area or
longer period of time than is reasonably necessary
in preparation for trial.

17. There are, as his Honour said, many questions which might be admissible in cross-examination but are by their very nature inappropriate and therefore oppressive in interrogatories.

"Thus it can be seen that the types of question which
may properly be objected to as "oppressive" are many and
varied. Each contested instance will have to be
resolved on the basis of the court's general impression
as to what is reasonable. In reaching a conclusion, the
court may find that the particular interrogatory or
answer takes colour from those surrounding it. Thus an
apparent attempt to pose clear and precise questions,
related directly to the particular case, should be
treated more sympathetically than one bearing the
hallmark of mass-production. Similarly a demonstrated
willingness to answer questions in a helpful way will
lend credence to a particular objection."

18. I respectfully adopt his Honour's observations. I say in addition, that the outcome of an application for an order under O.16 r.5 requiring a party to answer interrogatories will, in most cases where objection is raised depend upon the court's view of the objection.

19. It does not follow that the court has no discretion to decline to make an order where the objection raised by the party in receipt of interrogatories is not sustained.

20. The language of r.5 is consistent with the existence of such a discretion. It is not appropriate now to explore the range of circumstances in which it would operate beyond adverting to its existence.

21. I turn now to the interrogatories as administered by the applicants and in respect of which they seek orders.

Interrogatories Administered to Ian David Asphar

22. The applicants initially sought answers to two of their interrogatories, numbers 1 and 24, administered to Asphar. They do not now press interrogatory 24. Interrogatory 1 refers Asphar to the answers given to interrogatories earlier directed to Kingia, of which he is a director. Those answers were sworn on 1 November 1985 by one of Asphar's co-directors, McComish. In the answers given McComish deposed that he had caused enquiries to be made of officers, servants and agents of Kingia and that he had made enquiries of the directors, servants and agents of the company and to the best of his knowledge and belief so obtained the answers to the applicant's interrogatories.

23. Asphar is asked in interrogatory 1 whether he was consulted by McComish with respect to his answers on behalf of Kingia and whether the answers given by McComish were true to the best of his knowledge and belief.

24. This interrogatory has drawn an objection on the grounds of vexation and oppression.

25. In my opinion it is oppressive. It could be seen as requiring Asphar to make the same enquiries as McComish of the officers, servants and agents of the company before being able to respond as to the correctness of the answers given.

26. Quite apart from that aspect I have considerable doubt about the appropriateness in one set of interrogatories of questioning a party about answers given by somebody else to another set of interrogatories.

27. The potential for a costly, time consuming and ultimately wasteful proliferation of documents on the Court file is obvious. I will not make any order requiring Asphar to answer interrogatory 1.

Interrogatories Administered to Robert William Waters

28. The first interrogatory directed to Waters is in like terms to interrogatory 1 directed to Asphar. The objection is similarly formulated and for the same reasons as stated above, I make no order in respect of it.

29. By interrogatory 2, the applicants ask Waters if he or any of his co-directors "in or about November 1980 or some other occasions" provided instructions and/or had discussions with Layton of Dennis Hawcroft & Co. with respect to that firm acting as agent for the sale of the Rosemount Hotel.

30. This question was answered in the affirmative.

31. Interrogatory 3 then goes on to ask Waters to state each and every date and/or the approximate number of occasions that he met or communicated with Layton in respect of the instructions, to specify whether such contacts involved personal meetings or were by telephone and in respect of the personal meetings to say where and when they took place and the persons present. He is also required to give details of what the instructions and/or discussions involved and to "state precisely what was said by each person/s during the said discussion/s and/or giving of instruction/s". To the extent that the instructions involved documentation, he is asked to give full details of all such documents and to say in whose custody, possession or power they, or copies of them, now are and to identify them by reference to the list of documents discovered by Kingia and its directors.

32. Waters objected to this interrogatory as vexatious and oppressive and not relating to any matter in question.

33. In my opinion the interrogatory casts a wide net which may drag in all manner of irrelevant material. On its face it encompasses instructions and discussions which may have little or no relevance to the issues. I make no order in relation to it.

34. Interrogatory 4 asks whether Waters was involved in the management of the hotel during the period of its ownership. His answer is "yes". He is then asked to "state precisely the nature of (his) involvement in the management of the Rosemount Hotel during the period from 14 December 1979 until 11 March 1981".

35. In answering that interrogatory he is asked to "detail" a number of matters including, in 4(b)(viii), his "remuneration".

36. As to this, Waters' response is "I do not recall". The applicants see this as an insufficient answer. It is, I think, an insufficient answer. I would expect that Waters would have at least filed income tax returns for the period in question.

37. Pursuant to the powers given to the Court under O.16 r.5, I will order that he answer the interrogatory in accordance with the following direction:-

"That he refer to such records as are in his custody,
power or possession and from which his remuneration
during the relevant period may be calculated and if
there be no such records, that he so indicate in his
further answer."

38. Interrogatory 7 refers Waters to a bundle of documents entitled "Cash Receipts Analysis" and asks him to identify which, if any, record details relating to the management of the Rosemount Hotel.

39. In respect of each document so identified he is asked to say who prepared it, from what source material and in whose possession, custody or power such source material is now.

40. He is referred to an affidavit of discovery filed on behalf of Kingia and sworn by McComish and asked to identify the bundle referred to therein and if it does not appear therein, to explain why it was not discovered.

41. Waters says of this interrogatory that it is vexatious and oppressive.

42. I am prepared to make an order in relation to this interrogatory only insofar as it inquires after the authorship and source of the bundle of documents. I am not prepared to make such an order in relation to the other parts which in effect seek discovery of the source material and embark upon a process of cross-examination in relation to discovery already given.

43. Quite apart from the undesirability of using interrogatories to pursue questions of discovery or credit, if there ever is a case for permitting cross-examination by interrogatory on an affidavit of discovery sworn by another, this is not it.

44. In respect of interrogatory 7 therefore, I direct that Waters answer 7(a) and 7(b)(i) and (ii) only.

45. Interrogatory 11(iii)(a) refers Waters to a letter from Kingia to Dennis Hawcroft & Co. dated 8 December 1980, which apparently bears his signature. Of that letter he is asked whether his signature appears on it and if the answer is yes, to:-

"(a) provide a detailed explanation as to the
circumstances surrounding your signing the said
letter including the basis of your authority to so
sign".

46. As to this he answered that he was presented with the letter by Dennis Hawcroft & Co. for signature and signed it. He refused to answer the interrogatory on the ground that it was vexatious and oppressive.

47. The letter is an authority to sell "the balance of our lease" upon terms and conditions there set out.

48. In my opinion the requirement for a "detailed explanation as to the circumstances surrounding the signing of the letter" is oppressively wide. It is sufficient, I think, that Waters be directed to state the basis of his authority and I will so order.

49. Interrogatory 12 refers him to a letter dated 9 December 1980 from Dennis Hawcroft & Co. to himself and asks whether prior to that date he and/or his co-directors had had discussions with Layton regarding:-

(a) the conditions of sale of the hotel lease;

(b) the inability to provide trading accounts;

(c) a recent contract to supply beer to the Pagoda
Ballroom.

50. As to any discussion in relation to (a) and/or (b), questions asked in (d)(i), (ii), (iii) and (iv) seek extensive details thereof.

51. In my view these interrogatories are oppressively wide. They require Waters to search his recollection of discussions which on the face of it may encompass a range of matters not in issue on the pleadings or of such comparative unimportance as not to justify the time and expense involved in the relevant inquiry. I will not make the order sought in respect of interrogatory 12.

52. Interrogatory 13 seeks detailed information in relation to an off premises contract to supply beer to the Pagoda Ballroom. It is said to relate to the allegation in para.15 of the re-amended statement of claim that off premises sales were a significantly greater proportion of bulk barrel sales than was disclosed in the written statement supplied to the applicants.

53. This is of relevance because such sales are said to be of lower profitability than sales through the premises.

54. The interrogatory directs Waters' attention to annexure "D", a letter from Dennis Hawcroft & Co. to himself dated 9 December 1980 which refers to "your recently acquired off premises Sale to the Pagoda".

55. The interrogatory elevates that "Sale" into "the Pagoda Contract" and then seeks details of its formation and terms.

56. In my opinion the interrogatory is oppressive in its width and in the detail it seeks. While there are some portions that might be salvaged, I do not consider it appropriate in this case to engage in the kind of judicial surgery that will be necessary for that purpose.

57. Interrogatory 16 refers to answers given by the fourth, fifth and sixth respondents to interrogatories administered by the applicants on 18 August 1986. In particular it refers to answers 7, 9, 10 and 11 and asks Waters whether he provided "the information referred to therein concerning the trading performance of the Rosemount Hotel to Mr Layton".

58. I will say immediately that putting interrogatories incorporating by reference the answers to other interrogatories, is a most unsatisfactory and inconvenient way in which to proceed. To understand the question and answer it may be necessary to juggle up to 4 documents at once. The interrogatory could have been framed in a way which was self sufficient.

59. A quick perusal of the answers referred to compounds the difficulty of comprehending the interrogatory. In my opinion it is oppressive and no direction is made in respect of it.

60. Interrogatory 17 is linked to interrogatory 16 and fails for the same reason.

61. Interrogatory 18 is manifestly too wide and I uphold the objection that it is oppressive.

62. Interrogatory 19 refers Waters to answers 7, 9, 10 and 11 of Dodd's answers to interrogatories and asks whether he agrees with the statements in those answers insofar as they relate to him.

63. In para. (c) which is the only part in issue on the motion, it asks, if he does not agree with the statements or any part thereof, to state precisely why not.

64. I regard this form of interrogatory generally as unsatisfactory and in the particular case, as oppressive and will not make any order in relation to it.

65. Interrogatory 18 enquires whether Waters or any of his co-directors provided to any of the directors of Dennis Hawcroft & Co. "any documentation other than annexure B".

66. Annexure B comprises two affidavits of discovery sworn by McComish on behalf of Kingia.

67. The interrogatory goes on to ask whether Waters "issued instructions relating to the proposed sale of the Rosemount Hotel lease" and "discussed the proposed sale" with any of the directors of Dennis Hawcroft & Co.

68. It seeks in effect, discovery of any documents thrown up by the first limb of the question.

69. The interrogatory encompasses all manner of irrelevant instructions and discussions in relation to the sale. It is, to that extent, oppressive.

70. While it is not improper for a party to interrogate as to specific documents thought not to have been disclosed in the affidavit of discovery, a case must be shown to justify such enquiry and a general, roving, searching interrogatory of the kind here proposed should not be allowed - Hall v Truman-Hanbury & Co. (1885) 29 Ch.D. 307 at 320 per Cotton LJ, see also generally Bray -Law of Discovery and Digest pp 213-214.

71. I will not make the order sought in relation to interrogatory 18.

72. Interrogatory 20 seeks details of sales and purchases of beer, percentage markup and gross and net profit figures. Waters objects that it is unreasonable, unnecessary, vexatious and oppressive.

73. Counsel for Waters contended that the information had already been elicited by interrogatories directed to Kingia.

74. Interrogatories 9, 10, 11, 15, 18, 20 and 21 directed to Kingia, cover similar material. They are however framed in rather different terms and I do not consider that they are congruent.

75. More importantly perhaps, it cannot be assumed that answers given by Kingia will be evidence against another party.

76. When answers to interrogatories are tendered at trial, they may be regarded as informal admissions by the responding party - Cross on Evidence 3rd Australian Edition para. 9.6.

77. As such they cannot be used other than against the responding party unless there is some particular reason that they might be taken to bind another.

78. No case on this point was cited and my own researches have not disclosed any English or Australian decisions in point.

79. There are however a number of Canadian cases which seem to support the proposition that evidence taken in discovery against one defendant is not available for use against another - Sygnatowicz v Sygnatowicz (1933) 1 DLR 758; Chote v Ryan (1943) OWN 646; Wise v Boxenbaum (1944) 4 DLR 199 and Hartley v Saunders and Toronto General Insurance Co. (1962) 33 DLR (2d) 638.

80. It may be that the relationship between Kingia and Waters is such that the answers given on behalf of the company by Waters' co-director, McComish, will bind him also. I am not however prepared to assume that this is so. I would therefore not decline to make an order with respect to interrogatory 20 on this basis.

81. Although I have some reservation about the relevance of some of the sub-questions in this interrogatory, the general area of inquiry lies at the heart of the case. Waters was at the relevant time managing the hotel. The attack on the interrogatory does not involve an attack on the basis that it is irrelevant.

82. While it requires a detailed response, it would be surprising if at this state, the information were not fairly readily available.

83. I will therefore direct that interrogatory 20 be answered.

84. Interrogatories 25 and 26 are not pressed and I will make no order in relation to them.

85. Interrogatory 27 seeks from Waters an interpretation of the term "expenditure book" referred to in answers given by Dodd, and asks consequential questions about such document. Interrogatory 28 goes into a similar exercise with respect to cheque butts referred to in Dodd's answers.

86. It is difficult to conceive of a case in which it is permissible to interrogate one party as to the meaning of terms used in answers provided by another to other interrogatories and to then erect a superstructure of questions upon that interpretation.

87. This is not a case where it is permissible.

88. Interrogatories 27 and 28 are rightly objected to as oppressive and I decline to make any order in relation to them.

89. Interrogatories 33 to 37 seek information as to the quality and value of various classes of beer sales for different periods of the operation of the hotel between January 1980 and March 1981.

90. They also have been objected to as vexatious and oppressive. Certain elements of the interrogatories are oppresive insofar as they seek a breakdown of sales over periods not directly relevant to those covered by the representations alleged.

91. Counsel for the applicant explained that this interstitial inquiry was designed to throw up seasonal fluctuations. It was in essence, an anticipation of a possible argument that might be relied upon by the respondent to explain discrepancies between actual and represented throughputs.

92. In the event, I regard these elements of the interrogatories as oppressive, because they would involve Waters in work which may well be unnecessary or of marginal utility.

93. Similarly I am not satisfied that the questions directed to off premises sales to the Pagoda Ballroom should be the subject of an order.

94. I will therefore direct that Waters answer interrogatories 33, 34, 35(i) and (ii), 36(a), (b) and (c) and 37(a), (b) and (c).

Interrogatories administered to Peter Anthony McComish

95. Interrogatory 17 administered to McComish is in the same terms as interrogatory 18 directed to Waters and fails for the same reasons.

96. Interrogatory 18 to McComish is as interrogatory 20 to Waters. In this case I will order that the interrogatory be answered for the same reasons as support the order in relation to interrogatory 20.

97. Interrogatory 24 is not now pressed.

98. Interrogatory 29 asks about the purchase price paid by Kingia when it acquired the hotel in 1979 and the apportionment of that price to goodwill. In my opinion the question which is of dubious value, is sufficiently answered.

99. Interrogatories 31 to 35 are in the same terms as interrogatories 33 to 37 administered to Waters.

100. I have regard to the likelihood that Waters' answers will not bind McComish, and direct him to answer these interrogatories to the same extent as Waters. In this case that means he must answer interrogatories 31, 32, 33(i) and (ii), 34(a), (b) and (c) and 35(a), (b) and (c).

Interrogatories Administered to Maxwell Dodd

101. Interrogatory 3 asks whether the third-named applicant, Barbara Brown, contacted Dodd and/or other servants or agents of Dennis Hawcroft & Co. in or about February 1981 with regard to the possible purchase by the applicants of the hotel business. Dodd's answer is that the matter is not within his personal knowledge. It is plain that it must be within his knowledge whether he was contacted and to that extent he could have answered the interrogatory in a more forthcoming fashion. It goes however to matters pleaded in paras. 4 and 5 of the re-amended statement of claim which are admitted by Dodd. In the circumstances, I do not consider it appropriate to make any order in relation to this interrogatory.

102. Interrogatory 4 is dependent upon interrogatory 3 and fails for the same reason.

103. Interrogatory 14(b) asked whether certain documents referred to in a letter from Dennis Hawcroft & Co. are "the same or substantially similar" to documents annexed to the affidavit. The answer given is "yes". It is conceded that I should direct Dodd to answer interrogatory 14(b) by indicating whether the documents are the same or whether they are merely similar.

104. Interrogatories 14(c) and (d) can then be answered accordingly.

105. Interrogatory 16 refers Dodd to his affidavit of discovery and asks him to identify each document therein prepared by him and to "detail specifically your role in the negotiations and sale of the balance of the lease of the Rosemount Hotel to the Applicants".

106. This interrogatory is plainly oppressive and will be disallowed.

Interrogatories Administered to Stanley Ronald Layton

107. Interrogatory 7A asks Layton, who prepared the Estimated Trading Results document referred to in the re-amended statement of claim, to show how he arrived at the figures set out in it. In my opinion the interrogatory can and should be answered.

108. I will order accordingly.

109. Interrogatory 8 refers to interrogatories previously sworn by Layton on behalf of himself, Hill and Dodd and seeks to elicit further information from him with respect to certain of those answers. Layton objects that the interrogatory is unnecessary and "is a matter of evidence". Neither of these are referred to as grounds of objection in O.16. However I am prepared to assume that "unnecessary" is subsumed within "oppressive" in this case.

110. I have already remarked upon the undesirability of interrogating by reference to answers to a different set of interrogatories.

111. Although the earlier answers referred to are by the same deponent, their incorporation produces an interrogatory which is at best difficult to interpret and, in my opinion, oppressive.

112. Interrogatory 25 seeks to test the applicants' interpretation of various condensed and abbreviated statements in the Estimated Trading Results document.

113. It is not the subject of any objection but the answers given to paras. (ii)(a) and (b), (iii), (iv), (v) and (vi) are insufficient.

114. Interrogatory 26 refers back to answer 13 to the earlier interrogatories sworn by Layton on behalf of himself and his co-directors, and to the statement therein that the information in the Estimated Trading Results comprised estimates only from information provided, and were not representations of fact.

115. Layton is asked, in interrogatory 26, various questions about the "information provided".

116. His answer was not to raise any objection but to refer to the answer to interrogatory 11(iv) addressed to him and his co-directors.

117. It is, in my opinion, inappropriate to answer one interrogatory by reference to the answers to another set of interrogatories directed to other parties. The answer so referred to did not address all the questions raised in interrogatory 26. In the absence of any formulated grounds of objection, and in spite of some reservations about its scope and nature, I will direct that Layton answer interrogatory 26 fully and directly.

118. Interrogatories 28(e)(ii), (iii), (iv) and (v) raise the same issue as in interrogatory 14(b), (c) and (d) administered to Dodd.

119. I will direct therefore that Layton answer interrogatory 28(e)(ii) by indicating whether the document referred to is the same or whether it is merely similar to Annexure A to the interrogatory and to further answer interrogatories 28(e)(iii), (iv) and (v) accordingly.

120. The answers to interrogatories 28(h)(i), (ii) and (iii) are said to be insufficient. In my view they are too wide and of marginal utility and I am not prepared to order that they be answered further.

121. Interrogatories 30(a) and (b) are in my opinion objectionable for their width. I am not therefore prepared to order that Layton provide any further answers than those already given by him.

122. It is now necessary to consider the motion of the first and second respondents, Kingia and its directors, in relation to interrogatories administered to the applicants and the fourth, fifth and sixth respondents.

The First and Second Respondents' Interrogatories
Administered to the Applicants

123. Interrogatories 2, 3, 4, 5 and 6 ask the applicants to specify sales volumes in various classes of sale for periods which for the most part relate to the time that Kingia was operating the business. They in truth seek details of the applicants' case by way of what they will allege to have been the volumes sold.

124. To that extent these interrogatories are really by way of request for particulars.

125. In my opinion whatever may have been the position at one time, such interrogatories should not be ordered except in special circumstances. In this regard I respectfully adopt what was said by Hunt J. in Conde v 2KY Broadcasters Pty Ltd (1982) 2 NSWLR 221 at 222. No special circumstances were suggested or appear in this case. I decline to make any order in relation to these interrogatories.

The First and Second Respondents' Interrogatories
Administered to the Fourth, Fifth and Sixth Respondents

126. The fourth, fifth and sixth respondents' answer to interrogatory 3 is plainly inconsistent with their answer to interrogatory 2. It is insufficient, and I will make an order directing that it be answered fully.

127. The answer to interrogatory 4 is ambiguous in that it does not make clear whether the person identified as supplying documents to Dennis Hawcroft & Co., namely Waters, was the only such person. I will therefore direct a further and clearer answer to that question.

128. The position is the same in respect of interrogatory 6 and I will make a similar order in relation to it.

129. The answer proffered to interrogatory 7(a) is not sufficient and does not respond to the question. The information supplied should be identified, not merely referred to. As to 7(c) the answer should indicate the approximate date of supply of the information if the exact date cannot be recalled. I will therefore direct that interrogatory 7(c) be further answered. Interrogatory 7(d) is, in my opinion, sufficiently answered and no order is made in respect of it.

130. Interrogatory 11(b) should be answered to indicate an approximate date, if the precise date cannot be recalled.

131. As to interrogatory 12(c) the answer that the deponent cannot remember is not sufficient. Some inquiry should be made with a view to determining whether the fourth, fifth and sixth respondents can depose to a belief as to when the document in question was prepared. - Sharpe v Smail (1975) 5 ALR 377 at 379, Derham v Amev Life Insurance Co. Ltd (1978) 20 ACTR 23.

132. The answer to interrogatory 19, "unable to answer", is equally unsatisfactory.

133. Interrogatory 20 is unintelligible and I make no order in respect of it.

134. Interrogatories 21, 22 and 23 are by way of request for particulars and in the absence of special circumstances justifying such a request, I make no order in respect of them.