W v S[2004] QDC 559

HIS HONOUR: This is an interlocutory application in the course of a bitterly contested claim by Ms S under part 19 of the Property Law Act 1974.  The understanding I have of the background circumstances which the party's representatives seem content with is that during a cohabitation, the precise duration which may be the subject of contest, the parties had children. The plaintiff left the home with them and now seeks declarations and orders in relation to the property, principally the home which is described in the claim and statement of claim as the Iando Street property.

She, as I understand it, is receiving some maintenance for herself and/or the children. The principal declaration sought is that the plaintiff have it declared that the Iando Street property is held on trust for her totally. At one stage she contemplated protecting the interest she asserted by a caveat, but that thought arose too late, the property having been sold.

The defendant has presented a picture of his financial circumstances which shows that he has very little.  On the 24th of March, 2004 he filed his statement "pursuant to practice direction number 33 of 1999." That is a practice direction of the kind acknowledged in section 289(1) of the Act, however, the practice direction referred to is issued in the Supreme Court and can have no application in the District Court. There is, however, a District Court practice direction in similar terms, practice direction 9 of 1999.

It seems to be common ground that following the sale of the property and discharge of obligations to the mortgagee, real estate agents, solicitors and the like, a sum of about $140,000 was available to the defendant. The filed statement contains no explanation as to where such a sizeable amount of money might have gone; presumably it is designed to describe the defendant's circumstances at the date when he signed it, the 23rd of March, 2004.

In an attempt to discover just what might have happened to the sale proceeds, the plaintiff has elected to proceed by the device of interrogatories. The parties were before Judge Noud on the 2nd of August, 2004 and although no order appears on the file there is a State Reporting Bureau transcript of what his Honour had to say which includes the following.

"I give leave to the representatives for the plaintiff/application to interrogate the defendant/respondent along the lines of the four points of the five points mentioned on that page of the letter and I expressly reserve the rights of the defendant/respondent to object on any basis to any interrogatories that are delivered. These would include the number of interrogatories in the Uniform Civil Procedure Rules or any other valid point having regard to the law relating to answers to interrogatories."

His Honour then said,

"I propose now to dismiss the application having made the order about the interrogatories and I will make the order about the costs and then dismiss the application.  I now order that the application be dismissed and I further order that the costs of and incidental to the application be reserved and, as I say, I have made the order concerning interrogatories."

I have marked Exhibit 1 today a document dated the 2nd of August, 2004 which was placed on the Court file, obviously in connection with the hearing before his Honour.  It is described as a "Request for Interrogatories."  It is in the following terms:

"Take notice that the plaintiff requires the defendant to provide an answer to the request for interrogatories pursuant to section 231, 232 of the Uniform Civil Procedure Rules 1999 (Qld).

Take further notice in default of providing an answer to the request for interrogatories the plaintiff shall make application to the District Court pursuant to rule 236 and 237 of the Uniform Civil Procedure Rules 1999 (Queensland).

In this request for interrogatories, the "Interrogatories" means:

1. (1)
   To the extent that an item was oral:

1. (a)
   Who spoke the words constituting the item;

2. (b)
   To whom those words were spoken;

1. (c)
   On whose behalf those words were spoken (if different to the person identified in (a) above;

4. (d)
   The person on whose behalf the item was received (if different to the person identified in (b) above);

5. (e)
   The substance and effect of what was said;

6. (f)
   The date and time at which the words were spoken;

7. (g)
   The place at which the words were spoken;

8. (h)
   The manner in which the words were spoken (that is, in a personal meeting, by telephone or otherwise, specifying that manner of communication);

2. (2)
   To the extent that the item was in writing;

1. (a)
   Provide a copy of that writing;

2. (b)
   Who authored that writing;

1. (c)
   Who signed that writing (specify all signatories);

4. (d)
   Who delivered that writing;

5. (e)
   Who received or accepted that writing;

6. (f)
   On whose behalf the person referred to in (c) authored the writing (if different to the person identified (b) above);

7. (g)
   On whose behalf the person referred to in (c) writing the writing (where different to the person identified (c) above);

8. (h)
   The manner in which the writing was delivered;

9. (i)
   On whose behalf the writing was received and/or accepted (if different to the persons identified in (e) above);

10. (j)
    The words that were written (including all symbols, drawings or any other written communication contained in that writing);

11. (k)
    The dates, times and places at which the writing was authored;

12. (l)
    The dates, times and places at which the writing was signed;

13. (m)
    The dates, times and places at which the writing was received and/or accepted;

14. (n)
    The dates, times and places at which the writing was collected for delivery;

15. (o)
    The dates, times and places at which the writing was delivered (if different to the details identified at (m) above);

16. (p)
    The manner in which the writing was authored (that is, handwritten, typed, computer produced or otherwise); and

3. (3)
   To the extent to which the item was neither written nor oral, but was still communicated:

1. (a)
   he author/originator of the communication;

2. (b)
   The recipient of the communication;

1. (c)
   The substance and effect of the communications;

4. (d)
   The date, time and place at which the communication was authored/originated;

5. (e)
   The date, times and places at which the communication was received;

6. (f)
   The manner in which the communication was communicated (specifying the media by which the communication was made);

7. (g)
   Who delivered the communication (if different to the person referred to in (a) above);

8. (h)
   On whose behalf the communication was received (if different to the person referred to in (a) above);

9. (i)
   On whose behalf the communication was received (if different to the person referred to in (b) above;

10. (j)
    The manner in which the communication was delivered (if different to (f) above);

4. (4)
   If the item relates to an alleged term, condition or warranty of an alleged legally binding agreement (whether written, oral or partly written and partly oral);

2. (a)
   Whether the item was an express term, conditionor warranty of the agreement;

2. (b)
   If the item was not an express term, conditionor warranty, whether the item was an implied term, condition or warranty of the agreement;

2. (c)
   Any documents, correspondence or communicationswhich the defendant alleges form the basis for the term, condition or warranty to be a term(whether express or implied) of the agreement.

The plaintiff requests that the defendant supply the following answers to the interrogatories of the defence.

1. (1)
   Give details of all sums of money held by the defendant in cash.

2. (2)
   Give details including the names and addresses ofparties (including natural persons, corporate orbusiness entities, trusts or accounts in financialinstitutions) in receipt of the disbursements ofmonies from the defendant's ANZ Access Account statement 014696518466753 specifically the transactions carrying on 13 October, 15 October,16 October, 20 October, 21 October 2003."

Subsequently, interrogatories were provided to the defendant in a shorter one page form.  His answers, from which I think may infer what questions responded to, were filed on the 20th of August, 2004 and are as follows:

"(1) The parties who received monies from the sale of the subject property were Mr S, the RealEstate Commission for Hillsea, Perpetual Trustees Australia Limited (Mortgagor), Sabben's Solicitors for llegal conveyancing fees and Bigg's and Bigg's Purchaser's solicitors)

2. (2)
   The financial institution involved in the finance and sale of the subject property was AXA - Perpetual Trustees Australia Limited.

3. (3)
   The method by which the proceeds from sale of the subject property were receipted and distributed were by way of four (4) cheques in total being drawn and such cheques were deposited into four (4) different accounts in the Respondent's name at Suncorp Metway, Bendigo Bank, ANZ and Heritage Building Society.

4) Three (3) cheques were collected by the Respondent from Sabben's Solicitors either late Friday afternoon (10/08/03) or Monday morning (13/08/03).  Either on the weekend of 11 October 2003 or during the course of Monday 13 August 2003, the Respondent collected a cheque from the Real Estate Agent who sold the property on the Respondent's behalf.  During the day the Respondent deposited each cheque individually into accounts in the name of the Respondent with Suncorp Metway (Runaway Bay), Bendigo Bank (Paradise Point), ANZ (Benowa Gardens) and Heritage Building Society (Runaway Bay).

5. (5)
   The monies received from the sale of the subject property are not held in any current account or accounts."

The plaintiff has by those answers obtained little if any more than she had already.  What I consider an extraordinary procedure was adopted of filing an ex-parte application in reliance on rule 230 sub rule (1)(a).

I find it astounding having regard to what I would regard as essential courtesies to be adopted in litigation, while accepting that many of those which formerly applied on the basis that all practitioners were "gentlemen" or equivalent have fallen into obsolescence.  I would expect that, both parties having been represented on the 2nd of August of this year, it was imperative that they both have an opportunity to be heard when the ex parte application came on before Judge Newton, on the 1st of November 2004.

I accept that there could be special circumstances whereby a party who had already been heard on an issue such as whether interrogatories should be allowed need not be served when that issue was revisited.  It may be that a case could be made that the person desired to be interrogated may be able to take some extraordinary action to deprive interrogatories that might be permitted of usefulness.  But nothing has been suggested along those lines.

I accept from Mr Bates that on the plaintiff's side on the 1st of November 2004, the principle that a litigant proceeding ex parte, should place before the Court all relevant information was followed.

His Honour was made aware of the existence of the filed answers and I take it was aware that extraordinarily a second set of interrogatories was sought to be administered.

Is it right that what was ordered was very similar to Exhibit 1; that is right, isn’t it?

MR POPE:  In terms of how they got there, yes, but there's only two questions in Exhibit 1.  There was seven in the new set.

MR BATES:  What was brought to the attention of the Court in the draft interrogatories, may have thrown the Court in the sense that the first page, or the first page and a-half, was actually details almost as to was expected to be included in the answers.

HIS HONOUR:  Yes.

MR BATES:  And that also does contain a substantial part of what the Court actually considered.  But the further request of interrogatories, as my friend said, did number 7 and did detail what was sought.

HIS HONOUR:  We don’t actually have the interrogatories that were answered, do we?  I don’t have them, unless Ms Derek put them in?

MR POPE:   Yes.  The request is, in Ms Derrick's affidavit and it is‑‑‑‑‑

HIS HONOUR:  Yes, all right.

I set out the request for interrogatories dated 5th of August 2004, which the defendant responded to:

"REQUEST FOR INTERROGATORIES

TAKE NOTICE that the Plaintiff requires the Defendant to provide an Answer to the Request for interrogatories pursuant to Section 231 and 232 of the Uniform Civil Procedure Rules 1999 (Qld).

TAKE FURTHER NOTICE in default of providing an answer to the Request for Interrogatories the Plaintiff shall make application to the District Court pursuant to Rule 236 and 237 of the Uniform Civil Procedure Rules 1999 (Qld).

In this Request for Interrogatories, the "Interrogatories" means provision of the following details;

1. Parties who received monies from the sale of the subject property.

2. Names of the financial institutions involved in the finance and sale of the subject property.

3. The method by which the proceeds from the sale of the subject property were receipted and distributed.

4. The dates, times and place at which the sale monies were received and distributed and to who.

5. The current account or accounts where all or part of the monies received for the sale of the subject property are held.

Signed:  Short Punch & Greatorix

Description: Solicitors for the Plaintiff

Dated: 5 August 2004"

Mr Pope, for the defendant, disputes that adequate disclosure was made to Judge Newton.  He points to the failure to place before his Honour a letter of his solicitors to the plaintiff's solicitors of 9th of September 2004, which reads,

"We refer to our letter to your office dated 20 August 2004.  We note that to date you have not particularised in which way that our client has failed to answer the interrogatories as delivered for an on behalf of your client".

And the response of 21st of September, which was as follows:

"We refer to the correspondence dated 9 September 2003 and confirm that our previous correspondence has outlined the particulars sought pursuant to practice direction 33 of 1999 and provisions of the Property Law Act 1974 (Qld).  Again, we confirm that discussions were held at the District Court Application between Patrick Bates of our office and an agent of your office as to the response that would be provided pursuant to the interrogatories handed up to the Court.  To date, the Defendant's Response to the Request for Interrogatories has not been attended to as discussed.

In light of the above, we will be taking appropriate steps to have this issue rectified and seek costs on an indemnity basis for your clients failure to respond to our Request for Interrogatories.

Should you have any queries, please contact the writer on the below number."

I find it hard to see that things would have been any different had those matters been put before his Honour.  Essentially, as it appears to me, a mistake was made on the plaintiff's side in interrogating in terms of the document of the 5th of August 2004.

It may well be that, if asked to proceed by way of assisting the plaintiff to overcome a slip or error in transmitting interrogatories similar in effect to Exhibit 1 or an expanded version of it, which is what is now desired, the Court would have been willing to assist.

It is difficult to avoid the impression that the defendant is taking advantage of the opportunities for gamesmanship that the situation offers.  It is difficult to avoid the suspicion that he has been "cagey", to adopt one expression, in responding to the requirements of items (v), (vi) and (vii), at least, of the practice direction.

In respect of the first two, he has used the expression, "not applicable", when I think what is called for, if it be the case, is a direct statement that there is nothing in that respect.

In so far as (vii) is concerned, nothing is said about cash held as such by the defendant or by someone else on his behalf.  I do not think there can be the slightest doubt that cash is property or financial resources.

In short, the economy which has been adopted in the statement filed the 24th of March, 2004, has been too great and I regard the defendant as not having complied with the practice direction.  The Court is entitled to be mindful that $140,000 or so seems to have disappeared.

That makes it open to the Court to order that the defendant comply and the circumstances are such that in my opinion what he ought to comply with is the new practice direction which has repealed and replaced number 9 of 1999.

If that is done, it seems to me the applicant will have, if not everything she is interested in, as much as she is entitled to under the guidelines which exist in the Act and the new practice direction (number 5 of 2004) in litigation of this kind.

It may be that the notion of interrogatories was in some way accepted by the parties on the 2nd of August.  Speaking for myself, I think that it is important in litigation of the present kind, in which the parties will not usually have money to waste on costs, to avoid steps such as interrogatories, which are complicated and costly - and in line with the clear philosophy of the UCPR are regarded as a luxury and perhaps even out of date.

Rule 230 is specific that where there are other ways of getting at the information sought, interrogatories are not appropriate.  Here, I think there are other ways and those may be effectively summed-up in terms of simply securing compliance with paragraphs 5 and 12 of the new practice direction, the latter of which picks up the former (where an applicant's obligations are described).

What is useful about 5 is that it requires a statement of not only "the property and financial resources of the parties at the time of the commencement, during and upon the termination of the de facto relationship" but also "any disposal of property or change in property or financial resources which has occurred since termination of the de facto relationship" - which seems to be a convenient description of what the plaintiff is after.

I accept from Mr Bates that these are circumstances of the kind dealt with Chesterman J in Cross v. Queensland Rugby Football Union Limited [2001] QSC 173 which was a completely different type of case.  No one has identified any authorities which bear on the appropriateness of interrogatories in part 19 proceedings.

I accept that it is the defendant who knows what has happened but he will hopefully, accept that he is obliged to disclose it by way of compliance with the new practice direction.  If he does not, and without justification, then he may find that he is made the subject of adverse costs orders, even under the restrictive regime of section 341.

His present application is brought under rule 667(2), which provides that the Court may set aside an order at any time if, "(a) The order was made in the absence of a party".

For reasons indicated already, I do not regard it as incumbent on the defendant today to show that on the merits the order of the 1st of November 2004 ought not to have been made.  My approach is that it simply ought not to have been applied for on an ex-parte basis.

So, the Court's orders will be, that pursuant to rule 667(2)(a), the order of this Court made on the 1st of November 2004 should be set aside.

I will hear the parties in respect of costs.

My provisional view is that the plaintiff ought to be ordered to pay the defendant's costs of the application, not on an indemnity basis as sought, perhaps inspired by the letter last quoted, but on the standard basis, that order for costs not to be enforceable until compliance by the defendant with the following order which is that the defendant file a further statement supplementing‑‑‑‑‑

MR POPE:   Might I suggest, your Honour, a new statement?

HIS HONOUR:  All right.

MR POPE:   It will be tidier.

HIS HONOUR:  All right.

The further order will be that the defendant file a statement in compliance with rules 5 and 12 of the District Court of Queensland practice direction number 5 of 2004.

Now, how long should I allow for that?

MR POPE:   Fourteen days will be plenty of time.

HIS HONOUR:  Within 14 days.

Now, do you want to say anything else about the costs, Mr Bates?

MR BATES:   Briefly, your Honour.  The first application for interrogatories and the subsequent application for interrogatories was brought about by the defendant's failure to comply with‑‑‑‑‑

HIS HONOUR:  Well, those costs are reserved by Judge Noud, weren’t they?

MR BATES:   They are, but‑‑‑‑‑

HIS HONOUR:  So, you might get those, especially now that I've grasped the nettle and made an order for costs; assuming I do, it's probably the first one that's been made in the claim, is it?

MR BATES:   Your Honour, that's as I am aware.  However, it doesn’t take away from that this course of action has been caused by the defendant's failure, which your Honour has ordered and has acknowledged to comply with the requirements of the practice direction and the act.  And but for that failure to comply, it wouldn't be here today.

HIS HONOUR:  Well, I understand that you've picked up a deficiency in the follow up statement which I haven't mentioned yet, which was the existence of another bank account.

The weakness of the former practice direction has been revealed by the present circumstances.  It requires parties to disclose what they've got when they sign the statement.  It doesn’t require them to account for things that they might've done in the period leading up to the signing of the statement, does it?

MR BATES:   I submit that the practice direction 33, section 3 of that does provide the wide discretion to the plaintiff to require the compliance with it and at least contribute a gain reserved in this matter.   This - the necessity for the defendant to provide the new statement of financial circumstances pursuant to direction 5 of 2004, is a necessary mechanical part of the proceedings and as such should be complied with and the plaintiff should not be prejudiced by the defendant's course of action today.

HIS HONOUR:  The new practice direction has only come in in the last month or something.  It's very new.  Look, you persuaded Judge Noud and I don't know that you had much resistance, that it was a good idea to have interrogatories to fill in the gaps that were hampering your preparation.  But then you deliver the wrong interrogatories.

MR BATES:   Delivered the wrong - there was no delivery of the wrong interrogatories‑‑‑‑‑

HIS HONOUR:  But that one page document, that came from you.

MR BATES:   That was what was ordered by the Court to be delivered, your Honour.  That's the four out of five points, of the letter.  That is why - just to put it‑‑‑‑‑

HIS HONOUR:  It's very easy to be wise after the event, but in retrospect one could say that you should have jumped up and said to Judge Noud, "That's useless".

MR BATES:   Well, your Honour, that's why the draft was put in, but being a solicitor at the bar table, I would be very concerned if I started telling a Judge what to do‑‑‑‑‑

HIS HONOUR:  I've got sympathy for you there.  But‑‑‑‑‑

MR BATES:   So, in that sense, if you can - if your Honour can envisage at the time of the 2nd of August application, there's a course of action taken by the plaintiff by the filing of the draft request for interrogatories which were to seeing this information provided.  The Judge at that instance decided that he would impose or he would grant the leave to file the interrogatories pursuant to the rule 444 letter.  I can't - the plaintiff couldn't do anything about that, your Honour.  That's saying the presiding Judge at that date made the decision on and gave appropriate orders for.

Those requests were answered as my friend has indicated and the plaintiff's position is that they weren’t adequate and that's why again, we're here today, your Honour.

So, if that takes some different slant as to the way your Honour approaches this matter, because that is quite a significant fact in which - I mean there's been no - there's been no bungle as far as delivering an interrogatory, so, I can assure, and I don’t think my firm would take any issue with that.

HIS HONOUR:  Well, why couldn't you have come back on notice saying that the interrogatories Judge Noud fortuitously described were - well, not what was intended?

MR BATES:   Well, it was what was intended by the Court, your Honour, but it clearly wasn’t what was being sought by the plaintiff.

HIS HONOUR:  But if you want to fix it up then, I think you bring along the full cast.  Well, that's where I disagree with you.  That's what's getting you into strife, that you approach the Court ex parte.  Call me old fashioned but I don’t think that's nice.

MR BATES:   It is a procedure that's available.  It's a legitimate procedure.  It's not sharp practice.  It's a matter of getting things rolling and not allowing failures to comply which your Honour has said this afternoon, failure to comply with practice directions and also provisions of the Property Law Act.  This has been going on since May.

HIS HONOUR:  Yes.

MR BATES:   At some stage the Court has to provide a person who has the obligation to advance the matter to take action which would expedite it in the spirit of rule 5 of the Uniform Civil Procedure laws, the actual matter being resolved.  That's what the - that's what the plaintiff has done, is getting into the bottom of the matter and has taken the affirmative and positive action.

HIS HONOUR:  Although you might bridle under the orders that I'm making and you haven't talked me out of them, Mr Bates,  the Court's gone some distance today to advance the matter by giving you an order for what I think is equivalent to what you're after anyway.

MR BATES:   And that may help your Honour consider the issue of costs and what's been achieved here today is first of all compliance by the defendant of the obligation it's had since the commencement of the action.  It's taken three applications for that to occur.  It's now occurred that the plaintiff should not be prejudiced by a cost brought against them for the defendant complying with their statutory obligations.

HIS HONOUR:  Well, the way I see it, Mr Bates, another day in Court has been rendered necessary because the defendant wasn’t invited to be before Judge Newton. 

MR BATES:   There was no orders as to costs in that application at all, so‑‑‑‑‑

HIS HONOUR:  I know.

MR BATES:   ‑‑‑‑‑there's been no prejudice to the - to my friend's client.

HIS HONOUR:  Right.  There's some prejudice, if they only get standard costs.  When indemnity costs or something more is going to have to be paid by the defendant to the solicitors, there is a cost to him.  It may be substantial.

MR POPE:   Does your Honour wish to hear from me any further?

HIS HONOUR:  Well, do you want to try and talk me into indemnity costs?

MR POPE:   Well‑‑‑‑‑

HIS HONOUR:  I've ordered that.  I'm not sure whether it was in Southport last week or whether it was in Brisbane the week before, but I have ordered indemnity costs under section 341. That was in a case where a party had agreed to do something by a certain time in a consent order and then didn’t do it.  It was necessary to go back to Court to make him or her do it.

MR POPE:   In this case, your Honour, I told Judge Noud it was an appropriate case for interrogatories.  I said precisely, "I don't know where the money is.  Mr Bates can't possibly know".  Number 4 say, "the dates, times and places of which the sale moneys are received and distributed and to who".  Now, I could've done that interrogatory in one second.

HIS HONOUR:  What's this leading to?

MR POPE:   Seven hundred and four says when it's the negligence of the solicitors we can get indemnity costs.  And they were a hopeless set of interrogatories, particularly when they were told what to do.  And we're here for that reason.

HIS HONOUR:  Yes.

MR BATES: Your Honour, and again, that's why the draft set of interrogatories was handed up.  There can be no blame on the solicitors.

HIS HONOUR:  I think Mr Pope's complaining about you, your revised interrogatories, aren't you, Mr Pope?

MR POPE:   Yes, yes.  We have a big fight about those, your Honour.  I can tell you.

HIS HONOUR:  Let me make it clear, all I'm doing is setting aside Judge Newton's order, Mr Bates.  I'm not deciding that you cannot interrogate.  I'm just setting aside the order that entitles you to and I'm providing what I hope is an alternative way of getting the same information.  But if you make the judgment that it's in your client's interests to apply for those or different interrogatories to be permitted, you're free to take the risk and approach another Judge.  I haven't gone into the rights and wrongs of those interrogatories.