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  • Unreported Judgment

Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd

 

[2004] QSC 63

Reported at [2004] 2 Qd R 422

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Pacific Century Production P/L v Netafim Australia P/L & Anor [2004] QSC 063

PARTIES:

PACIFIC CENTURY PRODUCTION PTY LTD
(plaintiff)
v
NETAFIM AUSTRALIA PTY LTD
(first defendant)
and
P&H RURAL SUPPLIES PTY LTD
(second defendant)

FILE NO:

BS6096 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

25 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2004

JUDGE:

Douglas J

ORDER:

order that the plaintiff have leave to deliver interrogatories in terms of the draft filed 13 January 2004. 

further order that the number of interrogatories may be greater than 30.

further order that Wayne Gillies answer the interrogatories within 21 days OF TODAY.

CATCHWORDS:

PROCEDURE – Discovery and interrogatories- Interrogatories – Who may be interrogated – Interrogation of a person who is not a party to a proceeding  to help decide whether the person is an appropriate party to the proceeding or would be an appropriate party to a proposed proceeding – Uniform Civil Procedure Rules 1999 (Qld) rule 229(1)(b)

Uniform Civil Procedure Rules (1999), r. 229(1)(b)

Buxton & Lysaught Pty Ltd v Buxton [1977] 1 NSWLR 285, referred to

Barker & Taylor Pty Ltd v Cablemakers (ACT) Pty Ltd [1982] 1 NSWLR 719, referred to

Cojuanco v Routley [1983] 1 NSWLR 723, referred to

Re Pyne [1997] 1 QdR 326, referred to

Madore v Ibrahim (2002) 203 NSR (2d) 263, referred to

Re Application of Cojuangco (1986) 4 NSWLR 513, referred to

Ranger v Suncorp General Insurance Ltd [1999] 2 QdR 433, referred to

Gregory Stewart Pty Ltd v Domira Pty Ltd (Supreme Court of Queensland, No. 7597 of 1997; Mackenzie J, 6 April 2000, unreported), referred to

Cross v Queensland Rugby Football Union Ltd [2001] QSC 173, cited

Uthmann v Ipswich City Council [1998] 1 QdR 435, referred to

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, referred to

Clarkson v DPP [1990] VR 745, 758, referred to

Airservices Australia v Transfield Pty Ltd (1999) 92 FCR 200, cited

SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271, referred to

Re Spedley Securities Ltd; ex parte Potts (1990) 2 ACSR 152, referred to

British Steel v Granada Television [1981] AC 1096, referred to

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, referred to

Orr v Diaper (1876) 4 ChD 92, referred to

Hooper v Kirella Pty Ltd (1999) 96 FCR 1, referred to

COUNSEL:

DA Quayle for the applicant

TM Forno (solicitor) for the respondent

SOLICITORS:

HW Litigation for the applicant

Minter Ellison for the respondent

  1. DOUGLAS J:  Rule 229(1)(b) of the Uniform Civil Procedure Rules (1999) (“UCPR”) permits, with the Court’s leave, the delivery of interrogatories to a person who is not a party to an action to help decide whether a person would be an appropriate party to a proposed proceeding.  The application may be made without notice to the party to be interrogated but, in this case, I ordered that the respondent, Mr Gillies, should be served with the application. 
  1. This is a novel rule that departs from the original Chancery practice permitting interrogatories to be delivered only for the examination of an opposite party, see e.g. Daniell’s Chancery Practice (7th ed., 1901) p. 1542; Buxton & Lysaught Pty Ltd v Buxton [1977] 1 NSWLR 285; Barker & Taylor Pty Ltd v Cablemakers (ACT) Pty Ltd [1982] 1 NSWLR 719 and cf. Cojuanco v Routley [1983] 1 NSWLR 723.  There is no equivalent rule elsewhere in Australia although there is a right to documentary discovery from a non-party in the Court’s auxiliary equitable jurisdiction; see Re Pyne [1997] 1 QdR 326.  A similar rule appears to exist in Nova Scotia allowing the delivery of interrogatories to potential witnesses; see Madore v Ibrahim (2002) 203 NSR (2d) 263.  Part 3 r. 1 of the New South Wales Supreme Court Rules also permits an oral examination to ascertain the identity of a person for the purpose of commencing proceedings against that person, typically in a defamation action; see, e.g., Re Application of Cojuangco (1986) 4 NSWLR 513.  There are equivalent rules in other jurisdictions; see, e.g., r. 32.03 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic.) and  O. 15A rr. 3 and 6 of the Federal Court Rules
  1. Ritchie’s Supreme Court Procedure New South Wales says of Part 3 of their Rules at [3.0.0]:

“This Part provides a limited means of preliminary discovery to enable a party to obtain information necessary to identify a potential defendant. Provisions of this kind have been held to constitute a valid exercise of the rule making power: State Bank of South Australia v Hellaby (1992) 59 SASR 304; Hooper v Kirella (1999) 96 FCR 1 at [4] & [22]; 167 ALR 358. And they complement the court's inherent discovery powers. Under the ordinary law, proceedings lie for discovery to disclose the name of a wrongdoer: Norwich Pharmacal Co v Customs and Excise Cmrs [1974] AC 133; [1973] 2 All ER 943; British Steel Corp v Granada Television Ltd [1981] AC 1096; X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC “There are differing views as to how far the inherent jurisdiction authorises wider preliminary discovery in relation to information relevant to the proposed proceedings (as distinct from information exclusively concerned with the identity of the proposed defendant): see Hooper v Kirella (1999) 96 FCR 1 at [28] & [29]; 167 ALR 358. But it will extend to orders to obtain information about the identity of trustees of the nature and location of trust property: Murphy v Murphy [1998] 3 All ER 1; [1999] 1 WLR 282; A v C [1981] QB 956; [1980] 2 All ER 347; and see the discussion in Finding out Who to Sue (1973) 89 LQR 482.”

  1. There appears to have been no previous decision on this rule in Queensland. The question to be determined then, is how should my undoubted discretion to order the delivery of such interrogatories be exercised in this case?
  1. The plaintiff (“PCP”) has already commended the proceedings in which this application is brought. The statement of claim alleges breach of a contract between the plaintiff and the first defendant (“Netafim”) for the design, management and supervision of the supply, installation and completion of an irrigation system on a mixed crop farm run by PCP. The pleading also alleges breach of another contract between PCP and the second defendant (“P&H”) to implement the design for the irrigation system by supplying, installing and commissioning a variety of equipment.
  1. The first defendant’s defence asserts that Mr Gillies, who was employed by a company related to PCP, gave Netafim’s employees instructions about the design of the system, particularly about the ability to use an area for a citrus orchard said to have been wrongly located on infertile ground and about the duplication of valves and sub-mains for an irrigation system needed for high density planting for the land. The pleading alleges those facts in attempting to seek to exculpate Netafim from liability to the plaintiff. Mr Gillies’ authority to give any such directions is challenged in the reply by PCP.
  1. Mr Gillies no longer works for PCP’s related company and is at odds with it. He is a party to separate litigation with that company in the Magistrates Court where he alleges he was wrongfully dismissed as an employee and seeks damages for breach of contract. In that claim he alleges that officers of PCP required him to swear an affidavit relevant to this action which he believed was incorrect. He alleges that he was dismissed for failing to swear that affidavit. He is also being sued in the Supreme Court for $2.9 million as damages for negligence and breach of contract as an employee of PCP’s holding company and another associated company. That claim against him is said to arise out of problems associated with the management of two annual crops of table grapes for another company.
  1. He will not speak to PCP or its solicitors about this action. PCP wishes to discover what he knows about the issues in its litigation against Netafim and P&H and may wish to make him a party to this action. Depending upon what information PCP may obtain from Mr Gillies it may also seek to join two representatives of Netafim as defendants to this proceeding, a Mr Anderson and a Mr Hall. PCP’s other employees are not aware of what (if any) oral instructions were given by Mr Gillies to Netafim or its employees, nor do they have any diary notes or correspondence of Mr Gillies dealing with those issues. The evidence from PCP is that Mr Gillies is the only person employed by it who was familiar with what passed between PCP and Netafim. PCP asserts that if Mr Gillies purported to absolve Netafim of responsibility for reasonably ensuring that the design area for the orange orchard proposed for PCP excluded infertile or unsuitable ground then he lacked authority to do so. The same is said to apply if he authorised the duplication of the valves and sub-mains for the irrigation system needed if high-density planting was to be used.
  1. PCP wishes to interrogate Mr Gillies about four issues:

(a)his and Netafims’ knowledge of the contents of a soil suitability plan said to have shown that about 145 acres of the relevant land was infertile or agronomically unsuitable for growing of citrus trees;

(b)the circumstances under which a survey plan called  the CW Edmonstone plan came to include infertile and agronomically unsuitable soil;

(c)the content of discussions between him and Mr Hall or Mr Anderson concerning the CW Edmonstone plan, particularly in relation to risk allocation between the parties in relation to infertile or agronomically unsuitable soils; and

(d)how Netafim came to provide for the duplication of existing valves and sub-mains. 

  1. It has tendered a proposed set of interrogatories that are directed to those issues. It submits that it is not limited by the provision in r. 230(1)(b) that “subject to an order of the Court, the Court may give leave to deliver interrogatories…. only if the Court is satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory.”
  1. In making that submission Mr Quayle for PCP submitted that the words “subject to an order of the Court” enlarged the discretion that otherwise would have been limited by the words in r. 230(1)(b). That approach is supported by the Court of Appeal in the judgment of Pincus JA in Ranger v Suncorp General Insurance Ltd [1999] 2 QdR 433, 434 ll. 10-16; see also Gregory Stewart Pty Ltd v Domira Pty Ltd (Supreme Court of Queensland, No. 7597 of 1997; Mackenzie J, 6 April 2000, unreported) and Cross v Queensland Rugby Football Union Ltd [2001] QSC 173 at [17] where Chesterman J said –

“The introductory words to UCPR 230 make it clear that the court may allow interrogatories in circumstances where there is likely to be available to the applicant at the trial another reasonably simple and inexpensive way proving the matter sought to be established by interrogation.  This point was accepted by Pincus JA in Ranger though his Honour went onto say that “quite special circumstances” should exist before leave will be given to deliver interrogatories where the conditions set out in rule 230(1)(b) is not satisfied.  With respect to his Honour the rule does not say that, but confers a discretion which leaves it to the good sense of the judge to decide in a particular case whether interrogatories should be allowed.  The fact that a simple and cheap alternative means of obtaining the information exists is clearly a most relevant factor in the exercise of the discretion but, beyond that, the rule does not appear to allow generalisations about the circumstances in which it will be appropriate to grant leave.” 

  1. Here there may be a way of proving the matter sought to be elicited by these interrogatories by calling Mr Gillies at the trial but that does not seem to me to be a course designed to facilitate the just and expeditious resolution of the real issues in these proceedings at a minimum of expense; see r. 5(1). Very significant expense would be incurred in preparing the matter for trial in circumstances where PCP will not know either what the evidence of one of its key witnesses is or whether he should be a party rather than a witness.
  1. Mr Quayle also submits that it is inappropriate to apply the requirement in r. 230(1)(b) to an application for non-party interrogation because such interrogatories are by definition investigatory rather than probative and, if it is a trial in respect of the issues the subject of the interrogatories, Mr Gillies’ answers may not be admissible against the proposed defendants (or all of them) as admissions. To achieve that end Mr Gillies would have to give evidence in chief.
  1. It is also argued for PCP, by analogy with Uthmann v Ipswich City Council [1998] 1 QdR 435 at 450-451 that, in these circumstances, an order should normally be made if the rules were complied with, having regard to the purpose of the procedure (in that case non-party disclosure), which is to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance the fair determination of the issue as early as possible. 
  1. The respondents’ submissions focussed on the undesirability of interrogatories being used as part of a “fishing expedition” and referred me to Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, 254 amongst other cases.  Those authorities are relevant to the traditional use of interrogatories but not so relevant to interrogatories delivered under this rule which are premised partly on their being used to help decide whether a person would be an appropriate party to a proposed proceeding – lawyers’ language, dare I say it, for a fishing expedition; cf. Clarkson v DPP [1990] VR 745, 758; Airservices Australia v Transfield Pty Ltd (1999) 92 FCR 200, 202-203 at [5]; SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271 at [19].  
  1. In that context, Mr Forno, Mr Gillies’ solicitor, also drew my attention to r 233(1)(a) which provides that a person may object to answering an interrogatory on the basis of relevance, that it does not relate to a matter in question, or likely to be in question, between the person and the interrogating party. The draft interrogatories are, in my view, potentially relevant in the sense that they relate to matters likely to be in question between the applicant and Mr Gillies. On the evidence relevant to the other proceedings in the Magistrates Court it seems that his version of events may be at odds with that of the plaintiff. If that is so there is a reasonable chance that litigation between PCP and him would be instituted making these matters ones likely to be in question between him and PCP. Rule 233(1)(a) is also only a ground for objecting to answer an interrogatory rather than a ground for refusing leave to deliver them.
  1. Mr Forno also sought to draw an analogy with a liquidator’s powers to conduct an examination under s. 596B of the Corporations Act 2001 (Cth) to support his submission that there should be a particularly stringent approach to the interpretation of r 229(1)(b).  Although the cases discussing those powers of a liquidator speak of balancing public interests in ensuring that the liquidator, in the interest of the creditors and the public, is able to collect all necessary information to carry out his public responsibility, against the public interest in justice to the examinee (see, e.g. Re Spedley Securities Ltd; ex parte Potts (1990) 2 ACSR 152, 154-155) the analogy is not complete.  Although the right to interrogate here is given to advance private interests and the public interest in the just and expeditions resolution of the real issues in litigation it is best analysed in its own statutory context. 
  1. Mr Forno also submitted that, applying a strict approach to the rule, in the ordinary case it would clearly not be appropriate for a party to be given the chance to interrogate a person under oath for the purpose of obtaining information that can later be used against that person. There is some attraction in that submission if, which is not submitted here, the answers were likely to be incriminatory; see British Steel v Granada Television [1981] AC 1096, 1175, 1178, 1202, 1203.  A major use of the analogous equitable bill of discovery, however, was to assist a person who contemplated litigation against the person from whom discovery was sought; Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, 173-174. 
  1. The argument also runs into trouble immediately one examines the form of the rule. It is not limited to the delivery of interrogatories to a non-party to help decide whether another person would be an appropriate party to a proposed action.  If that was intended it would have been simple to draft the rule to have that effect.  Mr Forno conceded as much.  Its natural meaning permits just such a course as has been taken in this application, interrogation of a non-party to help decide whether the person interrogated would be an appropriate party to a proposed proceeding. 
  1. In that context r. 229 can be contrasted with the non-party disclosure rules and the power to compel witnesses by subpoena to produce documents or to give evidence at proceedings. Those processes can sometimes have the side effect of revealing evidence that may be used against the person making non-party disclosure or the witness. That is not the intended purpose of the disclosure rules, however. Their purpose is to reveal evidence directly relevant to an allegation in issue in pleadings in an existing action; see rr. 211 and 242. The power to subpoena witnesses and documents is also only used properly by reference to the issues relevantly being contested in a proceeding. That power has been one of the standard incidents of the conduct of litigation for centuries, initially in Chancery from the fourteenth century and then extended to the common law courts by the Statute of Elizabeth 1562-1563 5 Eliz. I, c. 9 s. 12; see Wigmore on Evidence (McNaughton revision) vol. 8 pp. 62-68 §2190.  While the power may have been seen initially as one designed to create a freedom in witnesses to attend without fear of being accused of maintenance, the duty to disclose a witness’s knowledge later became accepted.  That power and the more modern regime of non-party disclosure in this jurisdiction and elsewhere support an associated public interest in facilitating the disclosure of information to advance the determination of an issue fairly and as early as possible; see again, Uthmann at 450-451.  Rule 229(1)(b) can be seen as an extension of that duty of disclosure not only because it helps to identify a potential party but also to ascertain whether the party would be an appropriate one. 
  1. Rule 229(1)(b), however, is not limited to issues already defined in existing pleadings. In that aspect it is more akin to an application for pre-action discovery to identify a defendant; see Re Pyne.  In another factual context, see Orr v Diaper (1876) 4 ChD 92 where Hall VC said at 96 that if the plaintiffs there did “not know, and cannot discover, who the persons are who have invaded their rights…. it would be a denial of justice if means could not be found in this Court to assist…”.  That jurisdiction is usefully discussed by Finn J in Airservices Australia v Transfield Pty Ltd at 203-206; [9]-[15] where his Honour examined whether the power extended beyond “identity discovery” to “information discovery”.  He concluded at 205-206, [15] that “it is fair to say (having particular regard to modern English practice) that, of the two forms of preliminary discovery allowed by O 15A, r 6's information discovery is the more innovative, but (having regard to United States practice) that it is by no means heterodox”.  See also the discussion by the Full Court in the appeal from that decision; Hooper v Kirella Pty Ltd (1999) 96 FCR 1, 9-10 at [24]-[29].
  1. In that context r. 229(1)(b) seems to me to be a power designed to enable both identity and information discovery by the use of interrogatories. The analogy between the proper use of the equitable bill of discovery and the situation of the plaintiff here is strong as it is not in a position to discover what happened, relevant to this litigation, between its former servant and the first defendant and its rights may be compromised if it proceeds to a trial with those issues, particularly the issue whether Mr Gillies should be a party, unresolved. As Finn J said about the bill of discovery in Airservices Australia v Transfield Pty Ltd at 204; [10]:

As is noted in Bray, The Principles and Practice of Discovery (1885), p 611: (i) discovery would not be compelled "for the mere gratification of curiosity": see Cardale v Watkins (1820) 5 Madd 18; (ii) it had to be material to a suit "instituted or capable of being instituted"; and (iii) its purpose was "to assist the administration of justice in the prosecution or defence of [that] suit". As to the third of these I would note that a common justification for what I will call auxiliary processes employed in equity to this day is to assist the "administration of justice" in the prosecution of a suit -- a characteristic recently emphasised by the High Court in Cardile v LED Builders Pty Ltd (1999) 73 ALJR 657 at 667; 162 ALR 294 at 308 in relation to Mareva orders against third parties.”

  1. It is also relevant to consider the submissions about the effect of r. 230(1)(b) if only to determine whether it should inhibit this application. Although it would be possible to subpoena Mr Gillies for the trial, to do so not knowing what he would say, and not being in a position to know whether he should be a defendant himself, is not a course that would be urged by many lawyers on their clients. Having regard to the likely complexity of preparation for a trial of this nature, the importance of the allegations made against Mr Gillies to the litigation as it stands at present, the plaintiff’s ignorance of what he will say and the distinct possibility that he may have to be joined as a defendant, it would be wrong to describe the ability to call him as a witness as another reasonably simple and inexpensive way of proving the matters sought to be elicited by these interrogatories and preventing them from being delivered. While the interrogatories are directed to issues relevant to the existing pleadings, which is important in encouraging me to exercise my discretion to allow them, their greater importance is not as a means of proof of those issues at any trial. The answers would not normally be admissible against the existing defendants unless Mr Gillies were called as a witness. Their real importance is in helping the plaintiff to decide whether and how to proceed with the litigation and whether Mr Gillies should be made a party to it. To permit them for that purpose seems to me to be a course designed to facilitate the just and expeditious resolution of the real issues in this case at a minimum of expense. It is an example of a proper case to permit their delivery in spite of the existence of r. 230(1)(b).
  1. In my view, therefore, PCP has established that it falls within r. 229(1)(b) and that the circumstance are such that I should exercise my discretion in its favour to give it leave to deliver interrogatories.
  1. I order that the plaintiff have leave to deliver interrogatories in terms of the draft filed 13 January 2004. I further order that the number of interrogatories may be greater than 30. I further order that Wayne Gillies answer the interrogatories within 21 days of today.
  1. I shall hear the parties as to costs.
Close

Editorial Notes

  • Published Case Name:

    Pacific Century Production P/L v Netafim Australia P/L & Anor

  • Shortened Case Name:

    Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd

  • Reported Citation:

    [2004] 2 Qd R 422

  • MNC:

    [2004] QSC 63

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    25 Mar 2004

Litigation History

Event Citation or File Date Notes
Primary Judgment [2004] 2 Qd R 422 25 Mar 2004 -

Appeal Status

No Status