Denis, Denis & Ladgaul Pty Ltd v McMahon & Anor [1990] QSC 226

IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON -- BETWEEN: AND: AND: AND: DELIVERED the No. 76 of 1985 DRAGO DENIS and SOPHIA DENIS First Plaintiffs LADGAUL PTY. LIMITED Second Plaintiff ROBERT DOYLE McMAHON trading under the firm name or style of R. McMAHON & ASSOCIATES First Defendant V.A.J. BYRNE AND COMPANY Second Defendant JUDGMENT - DEMACK J. twelfth day of July 1990. CATCHWORDS: Chamber summons - Further and better answers to Interrogatories - Principals to be applied - Further and better particulars distinguished COUNSEL: Mr JONES Q.C. Mr. BRITTON SOLICITORS: MESSRS GRANT & SIMPSON MESSRS REES R. & SYNDEY JONES for Applicant/Defendant for Respondent/Plaintiff for Applicant/Defendant for Respondent/Plaintiff. -- 1 of 8 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: AND: AND: AND: No. 76 of 1985 DRAGO DENIS and SOPHIA DENIS First Plaintiffs LADGAUL PTY. LIMITED Second Plaintiff ROBERT DOYLE McMAHON trading under the fiim name or style of R. McMAHON & ASSOCIATES First Defendant V.A.J. BYRNE AND COMPANY Second Defendant JUDGMENT - DEMACK J. DELIVERED the Jzv< c/fZ:- day of /,t, I, I -'- ,1 I 1990. In this action the plaintiffs sue the first defendant for professional negligence as a solicitor arising out of the sale of a business. The statement of claim runs to 15 pages. Mr and Mrs Denis (Denis) were the shareholders and directors of Ladgaul Pty. Limited (Ladgaul). Mr and Mrs Juric (Juric) and Ladgaul jointly owned land at Stanthorpe and were the shareholders in Cottonvale Distilleries Pty Ltd (Cottonvale). Denis and Juric consulted the first defendant about the business carried on by Cottonvale. -- 2 of 8 -- 2 Various written documents were prepared by the first defendant and the plaintiffs allege that out of all these transactions they suffered a loss of $180,000.00. I shall turn now to the interrogatories which the first defendant contends in this application answered or more fully answered. should have been 2G The plaintiffs have answered this interrogatory, but the first defendant's solicitor claims it is not correct. I am not able to understand how this can be the subject of an order for further answers. Briefly the interrogatory asks l the terms of the advice given by the first defendant to the plaintiffs when he drew up three documents in February, 1984. The answer is to the effect that by executing the three documents they were selling their shares in the business for $180,000.00. The fact that the solicitor's examination of the three documents does not disclose this does not prove the answer is incorrect. This is, after all, an action for professional negligence on the part of the first defendant. I shall not order any further answer to 2G. 4C and 4D Interrogatories 4C and 4D ask the value of the plaintiffs' equity (the\inJbusiness conducted by Cottonvale. The plaintiffs object to answering this on the basis that this seeks an expert opinion that they are not qualified to give. That seems to me to be correct. Even if the plaintiffs had possession of the company records, which they do not, the best they could give would be book values, which -- 3 of 8 -- 3 may bear no relationship to commercial values, particularly when the business in question was a Plum Brandy distillery. The product in storage, if any, may have become very valuable or quite worthless. I shall not order any further answer. 1 4 (a) , 1 4b, 1 4c Interrogatory 14 in its three parts asks for particulars of the skill, judgment and advice of the first defendant which the plaintiffs relied on. The plaintiffs declined to answer these questions on the basis that this was a matter for further and better particulars rather than interrogatories. In my opinion that is correct. It is true that in Green -v- Green (1912) S.R. (N.S.W.) 126, Simpson J. divided interrogatories into four categories, the first being "in the nature of a demand for further and better particulars." However in the 3rd ed. of Halsbury's Laws of England, vol. 12, p. 75 it is said, "The defendant has been refused leave to interrogate the plaintiff as to what the negligence alleged consisted of .... where this information could be obtained by means of particulars: O'Meara -v- Stone (1884) W.N. 72." That report is not available to me, but it is, in my opinion, correct. The facts which prove negligence should be alleged inthe pleadings. The pleadings "give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them." (per Lord Normand,Esso Petroleum Co. -v- Southport Corporation (1955) 3 All E.R. 864, at 868. The pleadings define the issues between the parties which the Court must -- 4 of 8 -- 4 determine. These issues are usually defined by counsel rather than by the litigant, so that they can be expressed in a way that is known to the law. Order 22, r. 1 describes the way the plaintiffs' statement of claim should be drawn, and 0.23, r.1 permits an order for further and better particulars. In my opinion, the questions asked in interrogatory 14 are properly a request for further and better particulars, and I shall not order the plaintiffs to answer these questions. 15(a), 15(b), 15(c), 15(d) These interrogatories relate to the value of Cottonvale on 1st May, 1984. The plaintiffs decline to answer them on the basis that they took no part in the business after mid March, 1984 and on the basis that the answer calls for an expert opinion which they are not qualified to give. The records of Cottonvale are accessible to the defendant by third party summons, so that there is no reason 4 to require the plaintiffs to do what the defendant can do for himself. So far as an expert opinion is concerned, I am satisfied these questions are of the same kind as those in interrogatory 4. I shall not order the plaintiffs to answer them. 16(a) and 16(b) These interrogatories ask about guarantees given by the plaintiffs. The plaintiffs say they signed many documents, but do not know if they signed guarantees. Again this is a matter where third party discovery is available to the defendant and I can see no basis for ordering the plaintiffs to seek out such documents, and -- 5 of 8 -- admit they examination 5 signed them. This is in on the sworn answers. the nature of cross- This will be done at trial. As the matter stands, the answers have been given, and I shall not order further answers. 17(a) and 17(b) These questions also relate to guarantees and the same answer is given as was given to interrogatory 16. I shall not order further answers. 18 This interrogatory asks about plaintiffs equity in Cottonvale, and the value of I shall not order further answer for the reasons stated previously. 21, 22, 23, 24, 25 and 26 the any These questions seek particulars of damages and should be treated as particulars that form part of the pleadings. They will significantly delineate the issues. I shall not order any further answers. 27(e), 28(iii) and 28(v), 29(iii), 30, 31, 32, 33(iii), 34, 35, 36 and 37 Interrogatories 27 to 38 ask many questions about paragraph 18 of the Statement of Claim, which particularises the allegation of negligence made against the defendant. The plaintiffs have answered some questions, and refused to answer others. Only some of those which have not been answered are the subject of a request for further and better answers. Generally, these questions are a request for particulars. It seems to me to be timely to recall Bowen L.J. 'swords in Ratcliffe -v- Evans (1892) 2 Q.B. 524, -- 6 of 8 -- 6 (1891-4) All E.R. Rep. 699, at p. 604:- "As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to thecircumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist on more would be the vainest pedantry." My impression of the answers that have been given to this series of interrogatories is that they do disclose the plaintiffs' case and clarify the issues. I am of the view that the questions were really a request for particulars, and that the answers provide reasonable particularity. I shall not order further answers, ahd I doubt that there should be any further particulars. 39(iii) This interrogatory raises a different issue from the others. It asks for the substance of instructions given to the first defendant, and then asks:- "How, if such instructions were followed by the Defendant, would the plaintiffs not have sufferedthe loss referred to herein?" That, of course, is not a question relating to facts, but to an opinion. Order 35, r. 1 provides, "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." It may be possible to ask this question in cross- examination, but that is doubtful as it is merely a question which asks the plaintiffs to comment upon the folly of their instructions. However in interrogatories it is not, ' ' in my opinion, a proper question because the plaintiffs' opinion -- 7 of 8 -- 7 of their instructions to the first defendant is not relevant to any issue, and is not a fact that can be admitted or denied. I shall not order any further answer to that interrogatory. The summons is dismissed with costs. -- 8 of 8 --