Bullivant's Natural Health Products Pty Ltd v C F Planners Pty Ltd & Ors [1999] QSC 35

( ) ( IN THE SUPREME COURT OF QUEENSLAND No. 450 of 1992 Brisbane Before White J [[Bullivant's Natural Health Products Pty Ltd v C F Planners Pty Limited]] BETWEEN: BULLIVANT'S NATURAL HEALTH PRODUCTS PTY LTD (ACN 010 008 616) AND: C F PLANNERS PTY LIMITED (ACN 006 887 225) Plaintiff First Defendant MAURICE BERNARD BYRNE and ROBIN O'HAIR Second Defendants BERIMAH PTY LTD (ACN 005 905 895), THE NEWS VENDING INSTITUTE INCORPORATED and W HOLDINGS PTY LTD (ACN 005 936 265) Third Defendants DAVID VAUGHAN BULLIVANT BY ORIGINAL ACTION AND BETWEEN: ROBIN O'HAIR BULLIVANT'S NATURAL HEALTH PRODUCTS PTY LTD (ACN 010 008 616) Third Party Plaintiff Defendant [1999] QSC 35 -- 1 of 21 -- ( ) ( (" REASONS FOR JUDGMENT - WHITE J Judgment delivered 4 March 1999 CATCHWORDS: Particulars - Interrogatories - pre 1 May 1994 Rules 0.35 - grounds of objection - relating only to defendant's own case. Counsel: Mr S Doyle SC and Mr D Clothier for Solicitors: Hearing Dates: applicant/plaintiff Mr A Blow QC for respondent/2nd named 2nd defendant redchip lawyers for applicants No solicitor for respondent 18 February and written submissions received 18,24 and 25 February 1999. -- 2 of 21 -- IN THE SUPREME COURT OF QUEENSLAND No. 450 of 1992 Brisbane Before White J [Bullivant's Natural Health Products Pty Ltd v C F Planners Pty Limited] BETWEEN: AND: BULLIVANT'S NATURAL HEALTH PRODUCTS PTY LTD (ACN 010 008 616) C F PLANNERS PTY LIMITED (ACN 006 887 225) Plaintiff First Defendant MAURICE BERNARD BYRNE and ROBIN O'HAIR Second Defendants BERIMAH PTY LTD (ACN 005 905 895), THE NEWS VENDING INSTITUTE INCORPORATED and W HOLDINGS PTY LTD (ACN 005 936 265) Third Defendants DAVID VAUGHAN BULLIVANT BY ORIGINAL ACTION AND BETWEEN: ROBIN O'HAIR BULLIVANT'S NATURAL HEALTH PRODUCTS PTY LTD (ACN 010 008 616) Third Party Plaintiff Defendant (\ c; -- 3 of 21 -- 2 REASONS FOR JUDGMENT - WHITE J Judgment delivered 4 March 1999 . There are two summonses before the court which were set down for hearing on 18 February together with a summons concerning consolidation. Because only the latter was able to be considered on that day, counsel agreed that the outstanding applications would be dealt with by way of written submissions. 2. The applications are: • A summons by the plaintiff ("Bullivant' s") challenging the adequacy of further and better particulars provided by the second named second defendant ("Dr O'Hair") and the adequacy of his answers to interrogatories and those of the first named second defendant ("Mr Byrne"). • A summons by the Third Party ("Mr Bullivant") challenging the adequacy of Dr O'Hair's particulars to the third party statement of claim. I. e The summons, insofar as it relates to Mr Bryne, has been adjourned since he was unable to be present or represented at the hearing. The issues in this action have been set out in my reasons for judgment in the consolidation I\ application delivered on 24 February 1999 and I will incorporate much of that summary in these reasons. I. Bullivant's commenced proceedings against, inter alia, Dr o 'Hair by writ dated 30 March 1992. The statement of claim was delivered on 22 October 1992 and an amended statement of claim on 11 April 1996 containing relatively minor amendments for which leave was given by Mackenzie J on 30 November 1998. The first defendant ("CF Planners") carried on the business of giving financial advice. Mr Byrne was a director of that company. Bullivant's alleges that: -- 4 of 21 -- 6. 3 • Dr O'Hair and Mr Byrne on behalf ofC F Planners made certain false, negligent and/or misleading representations in 1991 with respect to the taxation consequences ofBullivant's entering into certain insurance policies with Tower Life Australia Limited [the first defendant in action no. 322 of 1996 in which Dr O'Hair is the plaintiff and which, by virtue of the orders made on 24 February, is now consolidated as third party proceedings in this action] and a service contract with Mr Bullivant, its principal and the third party. • As a consequence of the representations Bullivant's entered into the policies with Tower Life and a service contract with Mr Bullivant. It paid $2.6M in premiums to Tower Life and incurred other costs and expenses associated with borrowings and loss of the use of money expended. Bullivant's obtained a partial refund from Tower Life of the premiums of approximately $1.3M. The Deputy Commissioner of Taxation gave a ruling allowing as a deduction the first year's premium. C F Planners was Bullivant's agent in effecting the Tower Life policies and in C breach of its fiduciary obligations failed to disclose a commission of approximately _/ • $l.lM (a small commission only was allegedly disclosed) to be payable by Tower Life to it or at C F Planners' direction to Mr Byrne and Dr O'Hair and each were knowingly involved in the breach of duty. On 23 November 1992 Dr O'Hair delivered a defence and counterclaim to the action. By this pleading: • He denied acting on behalf of C FPlanners at any time vis-a.-vis Bullivant's. • He denied having made any of the representations set out in the statement of claim. • He alleged that he was to be paid a set fee by the second named third defendant whether or not Bullivant's entered into any agreement with C F Planners, para 4( d). The fee was to be paid: "In respect of 0 'Hair' s expression of an opinion as to whether it was likely the plaintiffs ability to attract external capital on favourable terms - debt or equity - when its audited account showed about TWENTYFIVE MILLION DOLLARS ($25,000,000) in goodwill and D V Bullivant [the third party] was described by the plaintiff as its principal "strength" and "opportunity", would be enhanced if he were to be tied to the plaintiff, such goodwill consisting of numerous brands and product registrations backed by D V Bullivant's qualifications," para 4(e). • He denied that there was any reliance on any representations made by him because Bullivant's took other advice. Cl -- 5 of 21 -- . 4 • He alleged that the premiums were allowed as a tax deduction by way of a ruling requested by Bullivant's (pleaded by Bullivant's). • He alleged that the policy was terminated prior to the receipt of the taxation ruling. • He alleged that there was no loss suffered by Bullivant's. By his counterclaim Dr O'Hair alleges that Bullivant's through Mr Bullivant made false, negligent and/or misleading representations concerning the academic qualifications of Mr Bullivant, the business, the level of goodwill and the amount of income of the company. Dr \ O'Hair alleges that he relied upon those representations in giving his "opinion" referred to in paragraph 4( e) and as a consequence has been sued and has thereby suffered loss and damage. Particulars of the opinion referred to in paragraph 4(e) of the defence and counterclaim have been sought on several occasions without success. On a plain reading of the pleading that opinion (whatever it was) in respect of the subject matter described in paragraph 4(e) is not the same as the representations and/or advice alleged to have been given by Dr O'Hair to Bullivant's in Bullivant's statement of claim. On 20 November 1992 Dr O'Hair issued a third party notice against Mr Bullivant. The major allegation against Mr Bullivant is that he falsely represented his qualifications to Dr O'Hair in the field of alternative medicine. Dr O'Hair pleads that Mr Bullivant falsely represented these qualifications to Dr O'Hair: " ... in order to induce 0 'Hair to render a favourable opinion, which 0 'Hair so did, so as to justify to the insurance underwriters the appropriateness of the policy to him, establish valid commercial reasons for the plaintiff effecting the policy with the third party as a major commercial beneficiary of the arrangements, and to make it easier for the plaintiff to seek funds from bankers and other financiers by strengthening the value of the goodwill figure in the accounts," para 5. Relying on the representations as to academic qualifications "O'Hair expressed the aforesaid opinion" (para 8). The opinion is not set forth and although sought has not been provided by Dr -- 6 of 21 -- 5 O'Hair. Dr O'Hair alleges that as a consequence of these fraudulent and/or negligent misrepresentations he has been sued by Bullivant's and has suffered loss and damage. Essentially what Dr O'Hair seeks is an indemnity against any claims which Bullivant's may successfully litigate against him. 9. Mr Byrne delivered his defence on 22 June 1993. It is relatively straightforward and requires no further comment. Discovery was given by Bullivant's on 26 March 1993, by Mr Byrne on 8 September 1993 and by Dr O'Hair on 20 August 1993. Bullivant's delivered a request for particulars to Dr O'Hair in respect of his defence and counterclaim on 8 December 1992 which were provided on 9 February 1993. A further request was delivered on 10 April 1996 together with interrogatories. Correspondence in respect of the provision of the particulars and c· answers to interrogatories ensued. On 30 November last year Mackenzie J ordered by consent that Dr O'Hair (and Mr Byrne) file and serve the particulars and answers to interrogatories by 4 December 1998. Those orders were complied with late (no issue is taken) towards the end of December. These summonses challenge the adequacy of those particulars and answers. The Particulars 10. Paragraphs 18(c). 19 and 4(e) c.!No submissions have been made as to why further and better particulars of the above paragraphs in the defence and counterclaim of Dr O'Hair ought not be given. In that circumstance it is unnecessary to canvass them in detail and orders will be made. 11. Paragraphs 4(d) Particulars have been sought of the agreement referred to by Dr 0 'Hair in paragraph 4( d) of his defence and counterclaim whereby he was to be paid a fee by the second named third defendant, The News Vending Institute Incorporated, rendering an opinion concerning Bullivant's capacity to attract external funding. -- 7 of 21 -- 2. 6 In paragraph 4(c) Dr O'Hair denied that he was present at a meeting on 13 June 1991 and at the meeting of 28 June 1991 at which Bullivant's alleges certain representations said to be misleading and deceptive were made on behalfofC F Planners. Dr O'Hair alleges that he was present on behalf of the second named third defendant only. Mr Blow QC submits that since the reference to an agreement with that company and a fee to be paid to Dr O'Hair does not traverse any allegation made in the statement of claim it is surplusage. Dr O'Hair proposes to delete the words "and says further that he was present on behalf of the second named third defendant" from paragraph 4(c) and the whole of paragraph 4(d) and therefore contends that no order ought to be made to provide particulars. In their reply, Mr Doyle SC and Mr Clothier do not oppose that course. Paragraph 18(d) In the counterclaim (para 15(c)) Dr O'Hair alleges that it was represented to him by Bullivant's that "[t]he accounts had been audited so that the goodwill (viz brand names and product registrations) figure expressed therein was a true and accurate reflection of the goodwill ( \ ofthe plaintiff s business and complied with the Australian accounting standards". In paragraph 18(d) these representations were alleged to be misleading or deceptive in that the "accounts were not audited in accordance with Australian accounting standards so that the figure stated therein for goodwill was erroneous in terms of those standards". The request seeks particulars of the: "amount for goodwill which, it is alleged, ought to have been stated in the accounts in terms of the Australian accounting standards". 5. Mr Blow QC submits that this is an attempt to have Dr O'Hair advance a contention additional to and separate from the case he has pleaded. That is to say, as I apprehend the argument, that Dr O?Hair does not advance a positive figure as part of his case, merely that whatever it was, it was erroneous. That must mean, in the context of his pleading, that he would -- 8 of 21 -- 16. 17. 18. 7 not have given the advice which he gave had a different figure, whatever it was, been provided. Without knowing the error alleged with some exactitude it will not be possible to know what part, if any, the alleged misrepresentation due to the non application of the Australian Standards to the audit has played and how it may have affected the advice given. This particular ought to be provided. Particulars of the Statement of Claim against the Third Party There is no opposition to answering these requests for particulars and it will be so ordered. The Answers to Interrogatories At the outset it is useful to recall the purpose of interrogatories. In its broadest sense, it is part of the discovery process and its purpose was described by the Full Court in Adams v Dickeson [1974] V R 77 at 79: "The prime object of interrogation is to enable the party to litigation to obtain discovery of material facts in order either to support or establish proof of his own case, or to find out what case (but not the evidence) he has to meet; or to destroy or damage the case brought by his opposition .... The prime purpose is to obtain admissions from the respective parties so as to narrow the necessary proof of the issues raised in the pleadings. In jurisdictions where there are no pleadings, their main purpose lies in obtaining particulars of the material facts being alleged against the litigant interrogating. Above all, by such method, necessary proof of material facts which may be beyond doubt, can be facilitated by admission in answers to interrogatories, thereby removing proof of such facts from the arena of dispute at the trial, so saving time and expense of the parties, and permitting the court and the parties to get immediately to the vital issue or issues requiring determination by the court." Simpson, Bailey and Evans, Discovery and Interrogatories 2nd (1990) note: "The function of interrogatories is to enable a party to obtain from the opposite party particular information as to facts material to the questions in dispute between them and for the purpose of securing admissions about such facts. A party may interrogate about matters which go to support his own case or which destroy or impeach his opponent's case", p.98. C) -- 9 of 21 -- 9. 8 This action was commenced by writ in 1992. The new rules with respect to discovery came into effect on 1 May 1994 and apply to all actions unless the affidavit of discovery had been delivered prior to that date. That is the case here and accordingly the provisions of 0.35 in operation prior to 1 May 1994 govern this action both in respect of discovery and interrogatories. The rules with respect to interrogatories are significantly different under the former 0.35. Interrogatories may be delivered without leave and subject to no numerical limitation, save only the limitation of a claim that the number is oppressive, contrary to the regime applying after 1 • May 1994. Former 0.35 r.l establishes that the test as to whether an interrogatory need be answered is relevance: ') "Interrogatories which do not relate to any matters in question in the cause shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness." The form {)fthe interrogatories is to be in the Form in the First Schedule to the Rules with such variations as circumstances may require, 0.35 r.3. Form 143 gives guidance as to the way in which interrogatories ought to be framed, that is, by asking specific questions, for example "Did ( not etc", "Has not etc". By former 0.35 r.6 the affidavit in answer to the interrogatories is to be in the Form in the First Schedule with such variations as the circumstances may require. The objections which may be taken to answering any interrogatory are set out in former 0.35 r.7: "An objection to answering any interrogatory, whether on the ground that it is scandalous or irrelevant, or was not delivered bona fide for the purpose of the cause, or that the matters enquired into are not sufficiently material at that stage of the cause, or on any other ground, may be taken in the affidavit." The order does not exhaustively list the proper grounds of objection but any other ground must be based on authority. The present 0.35 r.24 permits as grounds of objection only those set forth, namely that the interrogatory is irrelevant, vexatious or oppressive or subject to privilege. Order -- 10 of 21 -- 9 35 r.23 now requires that an answer must be given directly and without evasion or resort to technicality which makes plain what was a trend away from permitting trivial technicalities to carry the day when the interrogatory was otherwise appropriate. Observations by Woodward J in Aspar Autobam Co-operative Society v Dovala Pty Ltd (1987) 74 ALR 550 at 552 reflect that approach: "If the use of interrogatories is to be effective, the task must be approached responsibly on both sides. It should not be seen as a battle of wits, or indeed as any form of contest. It is an opportunity to assist the parties and the court to have the matter prepared for trial as quickly and as cheaply as possible. The chief obligations on the interrogator are to ask questions as clearly and concisely as possible, and to ask only those questions which really require an answer in the particular case - by way of providing information not already known or making a relevant and required admission - in order to advance the interrogator's case or to help to meet the opposition's case. Excessive reliance on precedents and the word processor provides the most common cause of unnecessary and badly framed interrogatories. So far as persons interrogated are concerned, it is my view that they also have a responsibility, to the court and to their opponents, to do their best to answer interrogatories in an open and helpful way, not in a clever or grudging way. Thus I believe they and their advisors should not avoid answering a question which is relevant but contains an obvious typing error. If the intention is clear enough, it should be answered - with an appropriate reference to the error. If the nature of the error is not reasonably clear, then of course the interrogatory cannot be answered. Where an interrogatory is largely unobjectionable, but goes too far in some aspects, so as to make that portion of it oppressive or irrelevant, then I believe the reply should answer the unobjectionable part (provided it is reasonably severable) and object to going further - not object to answering the whole interrogatory." After discussing Blackburn CJ's comments in Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32 at 34 his Honour added at p.553: "In the result, I believe that expense and delay is often caused by practitioners taking clever or pedantic objections to interrogatories which could, in fact, be answered without difficulty." Dowsett J in Thiess v TCN Channel Nine Pty Limited (No.3) [1992] 1 Qd R 587 found much to commend in those observations at p.590. In Fischer v City Hotels Pty Ltd (1970) 92 -- 11 of 21 -- ~l. ( \ ) 10 WN(NSW) 322 Helsham J observed at p.326: "Questions fairly seeking, in truth and substance, information so as to enable appreciation of the opponent's case, or so as to throw up and confine the real issues and matters that must be proved by evidence, should be allowed, whether or not they can be said to fall into one of the now familiar categories, categories which seem to be in danger of becoming accepted more as principles than as useful guidelines for the use of this adjunct of litigation." With some exceptions Dr Q'Hair has responded to many of the questions by reference to all the standard objections such as, "vague and merely frivolous, vexatious, oppressive and otherwise not proper interrogatories", with the addition of "fishing" on occasions. Mr Blow QC in his written submissions has focussed on the relevance of the questions in the context of the pleadings. Interrogatories No.3 and 4 Paragraphs 6, 13 and 12 of the statement of claim refer to meetings held between the parties and/or their representatives on 7, 13 and 28 June 1991. There is no allegation that Dr Q'Hair was present at the meeting on 7 June but it is alleged that he was present at a meeting on 13 June which he denies and on 28 June which he agrees he attended. Interrogatory no.3 asks: "Did you have any communication with the Plaintiff or any officer or employee of the Plaintiff in the period 14 June 1991 to 27 June 1991 (inclusive) concerning any matter relevant to this action?" Mr Blow QC submits that it is merely a "fishing interrogatory" as defined in Simpson at 102, that it is not in respect of any matter raised by the pleadings and is an attempt to restrict the interrogatories by the deponent's own judgment of relevance which is an oppressive way of seeking to obtain material to be used as credit at trial. The reply to these objections is that because the question confines itself to matters relevant to the action it must, therefore, be relevant. The learned authors of Simpson, discussing the concept of the "fishing" interrogatory at pp.l01-2, make this observation at p.102: -- 12 of 21 -- 23. 24. 25. 11 "Thus when a party sought to conduct discovery into matters beyond the matters raised by the pleadings or by the cases of the respective parties such discovery was regarded as objectionable as seeking to "fish" out a case. That is to say, the interrogatory was put merely in the hope of finding something to assist the party interrogating to make out some case." There is no allegation that any communication occurred between any officer or employee of Bullivant's and Dr O'Hair between the stated dates. Neither is there any assertion in the defence and counterclaim to that end. On the face of the pleadings it is difficult to see how it is relevant. If officers or employees of Bullivant' s have given instructions that some communication occurred during this period then precise questions ought to be asked, if not it is hard to avoid the conclusion that the question is irrelevant. It is oppressive to require the person interrogated to confine the question and thereby make it relevant by reference to the person interrogated's own judgment as to relevance. Interrogatory no.4 seeks the nature of the communications. The interrogatories are objectionable as not being relevant to the matters in issue and are bad as to formbeing too vague and thereby oppressive, American Flange & Manufacturing Inc v Rheem (Aust) Pty Ltd (No.2) [1965] NSWR 194. Interrogatory No.5 This interrogatory asks certain questions about document "A" exhibited to the interrogatories. The document is dated 6 November 1990 on the letterhead of Morgan McConnah (Aust) Pty Ltd. It is addressed to Mr Byrne, C F Planners and signed above the words "Dr O'Hair". It makes reference to "our arrangement" and the writer's entitlement to commission in respect to the use of the writer's ideas "in order to get tax deductibility for the interest in order to fund the product regardless of whether I am involved in selling it or not". At the end of the document appears the words "I agree to the above terms" and is signed "Maurice Byrne". Dr O'Hair compendiously with interrogatories nos. 3,4, and 6-9 made a "rolled-up" c:' () -- 13 of 21 -- ( 12 objection to answering this interrogatory. Mr Blow QC submits that the document relates to an arrangement which on its face has nothing to do with the transaction the subject of these proceedings. The issue of Dr Q'Hair's capacity in attending the meeting or meetings referred to in the pleadings and the question of the commission suggests that questions about that arrangement referred to in the document are relevant to the matters in issue between the parties. The questions must be answered. Interrogatory No.6 Questions are asked in respect of a document of some 3 pages marked "B" headed "Natural Health Products Meeting held at Redcliffe Premises at 3 p.m. on Thursday, 13 June 1991" which refers to Mr Bryne inter alia as being present. At the end of the document the following appears in hand writing: "I, Maurice Byrne, of C F Planners Pty Ltd confirm that this project is within my 22.5% arrangement with Dr R Q'Hair and that we currently intend to write a $2.3M annual premium 20 year SCI contract", the date 16 June 1991 appears and a signature "M Byrne". The questions relate to matters pertaining to the document and, so far as concerns Dr Q'Hair, the arrangement referred to in the handwritten memorandum at the end of the document. The objection taken by Mr Blow QC is that this is irrelevant since the liability of Dr Q'Hair and Mr Byrne is individual. The interrogatory, as Mr Doyle SC has submitted, is directed towards Mr Byrne's and Dr Q'Hair's knowledge of the events of the meeting of 13 June 1991 as conveyed by the notes and recording, inter alia, discussions on tax planning. It is relevant to the issue of the scope of the duty of care alleged to have been owed by Dr Q'Hair to Bullivant's. The handwritten memorandum at the foot of the notes goes to the question of Dr Q'Hair's knowledge of the payment of commission to C F Planners which is relevant to the allegation that he knowingly participated in C F Planner's breach of duty by accepting an undisclosed commission. -- 14 of 21 -- 27. 28. 29. 13 Dr O'Hair need only answer those of the interrogatories which are within his knowledge since some of the questions relate exclusively to Mr Byrne. Interrogatory No.7 This interrogatory concerns questions about a document marked "c" to which Dr O'Hair has given a "rolled-up" objection. The document consists of handwritten notes of 7 pages, bearing date 17 June 1991. The name "Robin O'Hare" appears at the beginning with two other names which have been mentioned in the pleadings. There is a reference to "SCI contract" and it contains the names of persons associated with Bullivant's mentioned in the pleadings. Mr Blow QC submits that the interrogatory does not relate to any matter in issue in the proceedings. It is a document dated between two of the meetings alleged to have taken place, it refers to Dr O'Hair (albeit misspelt) and other persons mentioned in the statement of claim. It makes reference to SCI contracts. Service Contract Insurance with Tower Life is referred to in the pleadings as being the subject matter of discussions between the parties. As Lord Esher MR observed in Marriott v Chamberlain (1886) 17 QBD 154 at 163: "The right to interrogate is not confined to facts directly in issue, but extends to any facts the existence or non-existence or which is relevant to the existence or non-existence of the facts directly in issue." That seems to be the case here. The further objection is taken that an interrogatory may not be asked relating solely to a party's own case. It is not clear as to what aspect of Dr O'Hair's case these questions relate to. Mr Doyle SC and Mr Clothier contend that that principle has been abolished by s.14(2) of the Evidence Act (1977). That sub-section appears to relate only to documentary discovery: "The rule of law whereby, in any civil proceeding, a party to the proceeding cannot be compelled to produce any document relating solely to his own case and in no way tending to impeach that case or support the case of any opposing party is hereby abrogated." c (. ",-) -- 15 of 21 -- 14 Simpson describes the privilege at p.85: " ... it is well established that privilege is accorded to documents which relate solely to the case of the party giving discovery, and which do not relate to or tend to prove or support the opponent's case. This protection applies to both an answer to an interrogatory and the production of any documents that have been discovered. " The learned authors go on to observe that the privilege has been the subject of adverse comment and in some jurisdiction has been fettered and in others abolished. They note that in Queensland "the right to claim privilege from production in civil proceedings on this ground has been abrogated". See also Cross Evidence, Aust. Ed. p.25345. Whatever the status of that rule in view of the limited scope of s.14(2) of the Evidence Act, the subject matter of the interrogatory is ) relevant to the case between the parties. Dr O'Hair must answer those parts of the interrogatory which relate to him. Interrogatory 12 This interrogatory concerns a document marked "F". It is headed "curriculum vitae" relating to Dr O'Hair. It is a document of one page only. In the statement of claim Bullivant's alleges that Dr O'Hair or a representative of C F Planners handed to Bullivant's a curriculum vitae relating to Dr O'Hair in which he was represented to be a barrister, an expert in taxation law, business and finance. Part of the particulars in the statement of claim appear on the document. It is more than likely that the second page of the document has inadvertently been omitted from the document's exhibited to the interrogatories. The interrogator asks questions about the provision of the document to Bullivant's and other associated questions. Dr O'Hair's response is not temperate. He maintains that the document exhibited is not the document which was discovered by Bullivant's and adds: "The short answer to your question is that the document of which you ask questions is not a document which is at issue in the case, accordingly, it is irrelevant and I object to answering question in respect of it." -- 16 of 21 -- 15 Dr 0 'Hair exhibits to his affidavit filed by leave on 18 February what he deposes is the document which was discovered by the Bullivant's. It has imposed at the head what appears to be the corporate logo ofC F Planners Pty Ltd and Mr Byrne's name, address and telephone numbers. It is not unreasonable to infer that Mr Byrne's card was at one stage fixed to the top before the document was photocopied. Dr O'Hair's relationship with C F Planners is in issue. By his affidavit he denies the relevance of the document exhibited to the interrogatories. A straightforward answer setting out the objection would have been sufficient but the meaning is plain and there is no need for him to answer the questions in respect of that document. Interrogatory No. 13(b) 31. This interrogatory asks questions about the meeting of 28 June 1991 referred to in c.: paragraph 12 of the statement of claim and which Dr O'Hair agrees that he attended. Bullivant's seeks an answer to 13(b). Number 13(a) asks whether Dr O'Hair attended the meeting at the request of any person. Number 13(b) asks detailed questions of whether the question was made orally or in writing, to identify the writing and where the request was oral who were the parties, (~/ , when did that request take place and what was said and by whom. Dr O'Hair's answer is that the request was orally advised to him by a clerk and he does not know what form it took, who were the parties to it, except to say that he was not one. Mr Blow QC's submissions more coherently identify that after more than 7 years there is no insufficiency shown in the answer "the identity of clerks who answered telephone calls all these years later is hardly likely to be remembered by any witness". From the submissions in reply I infer that Bullivant' s accept that the answer is sufficient. There will be no order for further and better answers. Interrogatories No. 13(e), (D and (i) 32. These questions ask whether any discussion took place at the meeting on 28 June 1991 in respect to the matters set out in a document "G" and, in respect of those matters, what was said -- 17 of 21 -- .13. 34. 16 and by whom. The final interrogatory of that group 13 (i) asks "save as is set out in answer to interrogatories 13(t), (g) and (h), in relation to the matters the subject ofthis action, what was said at the meeting and by whom?" The document "G", excluding the cover sheet, is of 12 pages. It is headed "Concept" and concerns Mr Bullivant and, apparently, proposals for tax minimisation. Dr O'Hair objects to answering all three interrogatories on the grounds that they are vague and fishing as well as the standard objections to which I have referred. Mr Blow QC submits that the document goes "far beyond the matters in issue between the parties". He submits that, as an .. example, there is a description of stock variances and plant scrappings which are not referred to in the pleadings. He further submits that it is of no relevance what might have been said by a \ representative ofBullivant's at the meeting in respect of Dr O'Hair's alleged representation. To the extent that the interrogatories are seeking details of the misrepresentations alleged in the counterclaim against Mr Bullivant he submits the interrogatories do not advance Bullivant's case and did not detract from Dr O'Hair's case. It might well be contended that apart from trivial/social matters, prima facie everything said at the meeting on 28 June 1991 is relevant to the issue of the alleged misrepresentations because their characterisation as misleading and deceptive statements will be dependent on all the surrounding circumstances including what was said by others, the weight and importance of what was said by Dr O'Hair and Mr Bullivant in the context of the meeting as a whole. Interrogatory 13(e) taken in isolation is vague but when seen with interrogatory (c), namely, was the document "G" presented at the meeting to the plaintiff (Bullivant's) and (d) who presented that document to Bullivant's, the questions in contention assume a sharper focus. Interrogatory 13(e) calls for a "yes" or "no" answer and must be answered. Interrogatory 13(t) is oppressive because it is too widely drawn. Interrogatory 13(i) suffers from the same ailment only to a greater degree. They need not be answered. -- 18 of 21 -- 17 Interrogatories Nos 14 - 17 35. Interrogatory no.14 relates to paragraph 4( d) of Dr 0 'Hair' s defence. Since leave is to be sought to delete that sub-paragraph to which no objection is apparently taken there is no need to answer that question. 36. Interrogatory no.l5 concerns the opinion which is referred to in paragraph 4(e) of the defence. It is submitted to relate only to Dr O'Hait's defence and in no way advances Bullivant's claim or detracts from Dr O'Hair's defence. The issue of what advice Dr O'Hair was retained to c.give and what advice he actually gave is a central issue to the action. He must answer that question. 37. Interrogatory no.16 relates to paragraph 11 ofthe defence and counterclaim which alleges that the representations (about Mr Bullivant's qualifications, products, accounts and income) were made by Bullivant's in order to induce Dr 0 'Hair to express the opinion set out in paragraph 4(e). The interrogatory asks about the Alternative Medicine Book referred to by Dr O'Hair in his defence and counterclaim. It is relevant to Bullivant's claim to know what information Dr 0 'Hair had when he gave the advice upon which he is sued. This question must be answered. 38. Interrogatory no. 17 refers to paragraph 13 of the defence and counterclaim. This must be a reference to paragraph 14 relating to the provision of extracts from the audited accounts. It asks whether a copy of the extract of the audited accounts was provided to Dr O'Hair and if so by whom and if he read them prior to 28 June 1991. It is Dr O'Hair's contention that he was misled by the audited accounts in giving the advice that he did. It is relevant to the issue of whether the advice given was misleading and or deceptive. Dr O'Hair must answer that question. Interrogatories Nos 22 and 23 39. These questions relate to commission and are no longer pressed by Bullivant's. The answers need not be given to these questions. -- 19 of 21 -- w. l2. B. 18 Interrogatory No.25 This interrogatory refers to document "H" addressed to the manager of Tower Life dated 11 July 1991 signed by the corporate name of the second named third defendant with a copy to Mr Byrne. It relates to Bullivant's and states that at Mr Byrne's request the company was preparing the agency document for a 22.5% share of the commission on this transaction. Dr O'Hair declined to answer this interrogatory on the ground that it related to his own case and adds the other bundle of objections. The issue of commission is relevant. If this is a document in respect of which Dr O'Hair can answer no questions then he must depose to that fact. Time in which to give Particulars and Answer Interrogatories " Bullivant's seeks to have the particulars and interrogatories answered within 7 days of any order requiring Dr O'Hair to do so. Mr Blow QC has submitted that a period of28 days ought to be allowed. There is no explanation offered apart from the extent of the detail as to why it is necessary to have such a length of time but the action has preceded at such a pace that it is unlikely to cause any hardship to anyone in allowing the time which is required. Guillotine Order Bullivant's seek an order that if the particulars are not provided and the interrogatories are not answered within the time stipulated in the order that Dr O'Hair's defence and counterclaim be struck out with leave to enter judgment with damages to be assessed. Such an order is sought on the grounds that Dr O'Hair is a barrister of this court, has had the requests and interrogatories for a long time and has taken objections which, for the most part, are obstructive and made for the purpose of delay only. Although the responses to both the requests for particulars and the interrogatories are, in most instances without proper basis, and look, if I might use the expression, pugnacious, by retaining Mr Blow QC whose submissions, with respect, have been of assistance, suggests that -- 20 of 21 -- 19 Dr O'Hair is co-operating in the preparation of this matter for trial. Accordingly, I am not persuaded at this stage of the proceedings that a guillotine order is appropriate. 44. The formal orders are: 1. Dr Q'Hair provide further and better particulars of paragraphs 4(e), 18(c), 18(d) and 19 of his defence and counterclaim in response to the plaintiffs request dated 10 April 1996 within 28 days of the delivery of this judgment. 2. Dr Q'Hair provide further and better answers to interrogatories No.5, 6, 7, 13(e), 15, 16, 17 and 25 within 28 days of the delivery of this judgment. 3. Dr Q'Hair provide further and better particulars of his third party statement of (-', claim in accordance with the third party's request dated 10 April 1996 within 28 \ .- days of delivery of this judgment. 45. I will hear submissions as to costs. ( --,--- -- 21 of 21 --