Equuscorp Pty Ltd & Rural Finance Pty Ltd v Glengallan Investments Pty Ltd & Ors [1999] QSC 99

35751 IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: AND: BETWEEN: AND: AND: BETWEEN: AND: AND: EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) GLENGALLAN INVESTMENTS PTY LTD EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) HGT INVESTMENTS PTY LTD EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) BARRY THORNTON No. 1688 of 1991 First Plaintiff Second Plaintiff Defendant No. 1689 of 1991 First Plaintiff Second Plaintiff Defendant No. 1690 of 1991 First Plaintiff Second Plaintiff Defendant -- 1 of 10 -- BETWEEN: AND: AND: BETWEEN: AND: AND: BETWEEN: AND: AND: EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) BRIAN JAMES PRENDERGAST EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) CYRIL ANDERSON EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) EDWIN THOMAS COLD REASONS FOR JUDGMENT - MOYNffiAN J. Judgment delivered 5 May 1999 No. 1691 of 1991 First Plaintiff Second Plaintiff Defendant No. 1692 of 1991 First Plaintiff Second Plaintiff Defendant No. 9485 of 1998 First Plaintiff Second Plaintiff Defendant -- 2 of 10 -- CATCHWORDS: APPLICATION TO STRIKE OUT INTERROGATORIES delivered by the plaintiffs/respondents in each of the six actions - subject to 0.35 RSC as it was prior to 1 May 1994 - whether interrogatories oppressive and unnecessary. Counsel: Solicitors: Hearing Date: Alexander v. Fitzpatrick [1981] QdR 359. American Flange & Manufacturing Co Inc v. Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193. Hughes v. Western Australian Cricket Association (Inc) and Drs (1986) ATPR ,-r40-726. Mr D. Cooper S.c. for the Applicants. Mr S. Couper Q.C. for the Respondents. Lees Marshall Warnick for the Applicants. Gadens Lawyers for the Respondents. 16 March 1999 -- 3 of 10 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: AND: BETWEEN: AND: AND: BETWEEN: AND: AND: EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) GLENGALLAN INVESTMENTS PTY LTD EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) HGT INVESTMENTS PTY LTD EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) BARRY THORNTON No. 1688 of 1991 First Plaintiff Second Plaintiff Defendant No. 1689 of 1991 First Plaintiff Second Plaintiff Defendant No. 1690 of 1991 First Plaintiff Second Plaintiff Defendant -- 4 of 10 -- BETWEEN: AND: AND: BETWEEN: AND: AND: BETWEEN: AND: AND: EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) BRIAN JAMES PRENDERGAST EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) CYRIL ANDERSON EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) RURAL FINANCE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) EDWIN THOMAS COLD REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 5 May 1999 No. 1691 of 1991 First Plaintiff Second Plaintiff Defendant No. 1692 of 1991 First Plaintiff Second Plaintiff Defendant No. 9485 of 1998 First Plaintiff Second Plaintiff Defendant -- 5 of 10 -- 3 The defendant applies to strike out interrogatories delivered by the plaintiffs in each of these six actions. It was accepted that the affidavit of documents in each case was filed prior to 1 May 1994 and that hence the interrogatories were delivered and these applications are to be dealt with under 0.35 of the Rules of the Supreme Court as it stood prior to 1 May 19941. The nature of the jurisdiction the applications seek to enliven and the considerations bearing on its exercise are considered by Master Weld in Alexander v. Fitzpatrick 2. !/ .2 These actions, with one exception, have been managed as a group on the supervised case list constituted by Practice Direction 15 of 1996 since 20 March 1998. The exception is the action in which Mr Codd is a defendant. That has been managed as part of the group since 11 1\ I September 1998, after it had been transferred to this Court from the District Court. 3 In each of the actions the first plaintiff claims to recover as assignee of the second plaintiff a loan allegedly made by the second plaintiff to each defendant pursuant to a loan agreement entered into on or about 30 June 1989. Although some of the defendants are corporations and some natural persons, the issues between the plaintiffs and each defendant are essentially the same. Barry Thornton, the defendant in action no. 1690 of 1991, is a director and effective controller of Glengallan Investments Pty Ltd, the defendant in action no. 1688 of 1991. 4 Each defendant denies that there was a loan or alternatively sets up that liability is limited as a consequence of the written loan agreement being varied by a separate oral "operative agreement". The resolution of the issues raised in respect of this depend on the recollection of 0.35 r.35 RSC 2 [1981] Qd.R. 359 -- 6 of 10 -- 4 witnesses of conversations which took place now over nine years ago. There are other issues as to the validity of the notices of assignment by the second plaintiff to the first and as to a further agreement made between 13 and 19 December 1989. 5 There is evidence that those originally involved in the second defendant's affairs are not cooperative and that those involved in its subsequent administration and management are not knowledgeable of the events surrounding the transactions in issue in the actions. 6 The history of the actions up to 21 October 1997, and considerations bearing on the need for their expeditious determination are outlined in reasons for judgment that I published on 5 1\ February 1998. I won't repeat it here. 7 Following the determination of the matters dealt with by the reasons published on 5 February 1998, orders were made in each action that the actions be heard and tried together. It was further ordered that evidence received in anyone of the actions be evidence in any or all of the others to the extent to which it was relevant. A direction was made for unchallenged affidavit evidence to be admissible in respect to a specific topic. An order was made in terms of standard form Order 8 Annexure B to Practice Direction 15 of 1996. This provides a mechanism for the identification of disputed documents in the court bundle so they can be dealt with. 8 Prior to the delivery of the interrogatories, when seeking the intervention of the Court to facilitate the actions being disposed of or to seek directions in respect of the issues canvassed by the interrogatories, there was no application to list the actions as commercial causes under -- 7 of 10 -- 5 Part 18 of the Supreme Court Act 1995 3, see in particular s.283(2)(b) and (e), or to invoke 0.40, r.56 RSC. 9 Finally, it should be noted that on 11 September 1998 it was ordered that interrogatories be delivered by 11 October 1998, that answers be delivered within 21 days of delivery of interrogatories and that the parties certify actions as ready for trial within seven days from the receipt of answers to interrogatories. 10 Against this background the plaintiffs delivered separate sets of interrogatories, the subject of these applications, in each action on 9 December 1998. There are variations from one set of interrogatories to another (the sets range from 23 to 49 pages) and each has multiple and differing annexures. 11 I accept, without having attempted to verify it, the applicants' count that the interrogatories contain in excess of 1,740 separate questions, for the examination of the defendants. It is clear that because, for example, interrogatories typically relate to a number of specific categories, to "each conversation" in respect of a specified period (often months) and ask a number of questions in respect of each category or conversation, there will be multiple answers to a single question. This is compounded when it is appreciated that a number of questions refer not only to an identified document "loan agreement" but also to "a document of that kind". Such considerations mean that it is the fact that "the end product of the possible permutations may be said in truth to be legion,,4. 3 The Court's practice is to manage commercial causes in the context of the supervised case list. 4 Alexanderv. Fitzpatrick [1981] Qd.R. 359 @ 359. -- 8 of 10 -- 6 12 The respondents point to the applicants' solicitor having informed the Court on 11 February 1999, in the course of the supervised case list review, that draft answers to interrogatories had been prepared and were awaiting settlement by counsel. It is fair to say that the applicants' representatives expressed concern about the volume of the interrogatories and the likelihood of objections being raised. It appears that the applicants' counsel had returned to chambers shortly prior to a review of 11 February 1999, and on that date the time for answers was extended to 10 March 1999. Orders were made that any further interlocutory application by either party in respect of interrogatories or their answers be made by 26 March 1999. In a letter of8 March 1999, the applicants' solicitors informed the respondents that counsel had advised that the interrogatories were objectionable in their entirety and these applications were subsequently I' ! brought. I don't regard anything which occurred as precluding the applicants from bringing these applications or as providing any comfort to the respondents in terms of the difficulties involved in answering the interrogatories. 13 The interrogatories are prolix and vexatious in the demands they impose. They convey a distinct impression that they are directed not so much to enabling the interrogators to support their case or retard their opponents, but as to seeing whether they have a case. 14 I don't doubt that amongst the questions asked by these interrogatories there may be questions which might properly be the subject of interrogatories. On the other hand the interrogatories are not restricted to interrogation in respect of issues arising on the pleadings from the perspective of the plaintiffs having no knowledge of events or to facilitate the proof of such matters. For example, asking whether the operative agreement had terms other than those relied on and pleaded. Put shortly, the interrogatories are fishing. -- 9 of 10 -- 15 16 7 I don't doubt that the interrogatories can be combed through and justified questions identified. The Court is, however, not required to engage in such an exercise 5. The considerations being those I have identified in each case, the interrogatories should be struck out as oppressive and unnecessary. 5 American Flange & Manufacturing Co. Inc. v. Rheem (Australia) Pty Ltd (No.2) [1965] NSWR 193 at 196; and Hughes v. Western Australia Cricket Association (Inc.) and Ors. (1986) ATPR ~40-726. -- 10 of 10 --