Re John Baptist Nella; Clifford Sydney Brown; Barbara Sybil Brown and Ian William Brown v Kingia Pty Ltd; Ian David Asphar; Peter Anthony Mccomish; Robert William Waters; Hilldodd Pty Ltd; Maxwell Dodd; Maurice Howard Hill; Stanley Ronald Layton; K [1987] FCA 349 (12 October 1987)

FEDERAL COURT OF AUSTRALIA

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

COURT

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

CATCHWORDS

Practice and Procedure - application for leave to administer further interrogatories - trial 5 days away - interrogatories administered in absence of agreement re documents - practical impact on litigation rather than mere lateness the controlling factor - unfair burdens - need for sensible agreement re non-contentious documents - readiness of court to permit late interrogatories if agreement not reached for insubstantial reasons.

HEARING

PERTH
12:10:1987

Counsel for the Applicants: Mr S. Owen-Conway

Solicitors for the Applicants: Messrs. Corser & Corser

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

Solicitors for the First and Second Respondents: Dwyer Durack

Counsel for the Fourth, Fifth and Sixth Respondents: Mr D. Clyne

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

ORDER

The applicants have leave to amend the re-amended statement of claim in terms of the further substituted re-amended statement of claim annexed to the motion.

The filing and service of the substituted re-amended statement of claim be dispensed with.

The applicants are to pay the respondents' costs of the motion in any event.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This motion is brought at what can fairly be described as one minute to midnight having regard to the period that has elapsed since these proceedings were instituted and the five working days that remain to trial.

2. The motion first seeks leave to further amend the statement of claim. It seems to me that the proposed amendments do not raise any prejudice or inconvenience to the parties, and it is appropriate that they should be allowed so that the issues are properly defined at the beginning of the trial.

3. Only one of the proposed amendments was opposed, that is, the amendment to para. 14, by the insertion of a new para. (v). That introduces an issue which I think would have been subsumed in any event by the issue of the profitability of the business and the truth or falsity of the pre-purchase representations in that regard.

4. The amendment to para. 19 introduces concise particulars of negligence on the part of the various respondents. It does not plead additional material facts and the court is assured by counsel for the applicants, that no new matter is thereby introduced that has not already been included in rather more lengthy and convoluted particulars separately provided.

5. The amendments, which allege a breach of the pleaded collateral contract and damage flowing from that and from negligent mis-statement, are, it seems, introduced out of abundant caution. I think it is clear that an allegation of collateral contract and breach thereof, was being made and, of course, that damage was being claimed as a result of that and as a result of negligent mis-statements. Nothing substantially new is added to the statement of claim in that respect.

6. I am therefore prepared to allow the amendments in the terms of the minute of the amended statement of claim annexed to the notice of motion dated 8 October.

7. The second element of the motion is an application for leave to administer further interrogatories to the first respondents in terms set out in a draft annexed to the motion. As I observed in the course of argument, I have only recently given in this case a lengthy interlocutory decision on the extensive interrogatories, which were themselves a second round administered by the applicants to the various respondents. One reaches a point where one is tempted to say that enough is enough.

8. Of course, any application, however late, must be examined objectively and not disposed of merely in terms of its lateness, but rather in terms of its practical impact upon the conduct of the litigation. I am satisfied that, at this stage it would not be appropriate to give leave to administer the interrogatories which are sought. I think one can infer from their nature and character that it would impose unfair burdens on the first respondents who are endeavouring to get their case up for the trial which commences on 19 October.

9. I make this reservation. The form of most of the interrogatories seems to arise from a failure to reach agreement between the applicants and the first and second respondents as to the admission in evidence of documents which take the form of financial and associated records of the hotel business, the sale of which is the subject of the proceedings. As I indicated to Mr Le Miere, the availability of judicial resources and court time is not such that the court can afford the luxury of a full-blown adversarial tactics battle. I make no accusation when I use that phrase. But if it is not possible for the parties to reach agreement on those records and some reason which goes to the substance of the case is not disclosed in relation to such failure, then I will be prepared to entertain, even during the course of the trial, an application, if it be necessary, for leave to interrogate in order to overcome any such difficulty.

10. It seems to me that the prospects of agreement, good sense prevailing, are high, at least with respect to the minimum level that I think would be reasonably regarded as necessary for the applicant to do what it says it sets out to do, and that is agreement as to the admission of a bundle of copies of the relevant documents subject to argument as to relevance. Questions of authorship, the truth of the contents and so forth are, of course, quite distinct from any such agreement.

11. In my opinion, having regard to the lateness of the hour and the history of the proceedings, the burden it would impose upon the first respondent and the possibilities of a practical solution to the problem in any event, this is not an appropriate case in which I should give leave to administer the further interrogatories proposed by the applicants.

12. Now, in respect of interrogatories which the applicants have sought to administer to the fourth, fifth and sixth respondents, their counsel has indicated that the document which is the subject of those interrogatories is a document on which he would hope to get instructions on the weekend and may well be in a position to come to some agreement in relation to it.

13. In my opinion, in those circumstances, it is inappropriate to add to the general inconvenience and burden of costs to require that his clients answer the interrogatories which are proposed in respect of that document. Again, if there is a practical difficulty which does not relate to the substance of the case, that is a matter which can be debated in the course of the hearing.

14. So far as specific discovery is concerned, the applicants seek an order for specific discovery of copies of income tax returns for the Rosemount Unit Trust for the period 1 July 1979 to 30 June 1980 as they were lodged at the Taxation Department, complete with trading and profit and loss statement, balance sheet and any other inserts, and a copy of the original income tax return for that unit trust for the period 1 July 1980 to 30 June 1981.

15. Mr Le Miere says that all relevant documents have been discovered in that regard. The position, I think, so far as I am concerned, is that again it is far too late in the day to be seeking specific discovery of these documents. It appears from the annexures to the proposed interrogatories, that many of the relevant documents have already been discovered. I think this is a matter again where the burden that would be imposed by this very late request upon the respondents would be unfair and I am not prepared to make the order sought.

16. If, as is said, the document is vital to the applicants' case, that is a matter which ought to have been considered long before now. I will, of course, deal with any practical questions that may arise in the course of the trial with respect to the proof of that document, but again I would hope that, so far as the parties are able to, common sense will enable them to reach agreement in respect of documents of record of that kind.

17. I will make an order in terms of para. 2 of the notice of motion.

18. Costs should follow the event on the motion and the applicant should pay the respondents' costs.

19. The orders I make on the motion are:-

1. The applicants have leave to amend the re-amended

statement of claim in terms of the further
substituted re-amended statement of claim annexed
to the motion.

2. The filing and service of the substituted
re-amended statement of claim be dispensed with.

3. The applicants are to pay the respondents' costs of
the motion in any event.