Graham Brown t/as Graham Brown Transport v Pickles Auctions Pty Limited

[2011] NSWSC 558

Supreme Court

New South Wales

Medium Neutral Citation:	Graham Brown t/as Graham Brown Transport v Pickles Auctions Pty Limited [2011] NSWSC 558
Hearing dates:	8 June 2011
Decision date:	08 June 2011
Jurisdiction:	Equity Division - Commercial List
Before:	Einstein J
Decision:	Stand over application before the list judge on 15 July 2011
Catchwords:	Interrogatories
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Vanacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46
Category:	Procedural and other rulings
Parties:	Graham Brown t/as Graham Brown Transport (Plaintiff) Pickles Auctions Pty Limited (Defendant)
Representation:	Ms Finnerty (Plaintiff) Ms Beck (Defendant) Peter Cornock & Associates (Plaintiff) Stockman & Evans (Defendant)
File Number(s):	2010/345144

Judgment

The matter before this Court

1. The proceedings before the Court are brought by the plaintiff trading as Graham Brown Transport and concern events which occurred at a particular auction apparently conducted by the defendant, Pickles Auctions Pty Limited.

1. The proceedings have been case managed by the List Judge at a number of directions hearings. Relatively early in the life of the proceedings the Court ordered that the defendant provide verified answers to particular interrogatories which answers were served on or about 6 May 2011.

1. Following an unsuccessful mediation, at a further directions hearing the plaintiff informed the defendant that it intended to seek orders for relief to issue a second set of interrogatories. However, the plaintiff did not provide a copy of the interrogatories, nor an affidavit and did not issue a notice of motion.

1. It is common ground that neither the plaintiff nor the defendant had yet put up their evidence in chief and that the proceedings have been fixed for hearing on an estimate of 1 day on 21 July 2011. In that regard the Court has directed that the plaintiff serve all of its evidence on which it intends to rely by 24 June 2011.

1. The Court has ordered that the defendant is to serve its evidence on which it intends to rely by 8 July 2011.

1. The current position with respect to the filing of evidence in reply require such evidence to be served by 18 July. As will be apparent from what follows the Court now varies the date for the plaintiff to serve its evidence in reply, which date will now be 15 July 2011.

1. The List Judge further fixed the proceedings for 8 June 2011 for argument on the plaintiff's endeavour to seek leave to administer interrogatories.

1. Following argument the Court determined to stand over the plaintiff's application to 15 July 2011.

1. There were a number of reasons for the Courts decision, the most important being as follows :

(1)   In Vanacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46 Campbell J observed that under Uniform Civil Procedure Rule 22.1(4), the Court was not to make an order for interrogatories unless the Court was satisfied that the order was necessary at the time it was made. His Honour declined to make such an order as the plaintiff's evidence in chief had not been put on, remarking that it was premature for any interrogatories at all to be delivered at the time in question.

(2)   Additionally in the affidavit of Mr Evans dated 9 June 2011 which was before the Court today, the deponent deposed that the plaintiff's proposed interrogatories were sent to his firm after close of business on 6 June 2011. The deponent further made clear that no affidavit had accompanied the interrogatories which were numbered 19 in total. He further deposed that no reason for the necessity of the further interrogatories had been addressed by the plaintiff. He deposed that no new circumstances had arisen which would warrant the further expense and delay that would be imposed by the plaintiff serving further interrogatories.

1. A principle matter which occupied the Courts time was the endeavour to do whatever was possible to ensure that the current hearing date would not be discarded.

Decision

1. The principled exercise of the Court's discretion is:

(1)   to stand over the plaintiff's application until 15 July 2011;

(2)   to require that the defendant have available before the List Judge on 15 July 2011 answers to the plaintiff's interrogatories which answers are to be kept confidential to the defendant's side of the record unless the Court orders otherwise;

(3)   to vary the order made by the List Judge such that the plaintiff is now to serve its evidence in reply by 15 July 2011;

(4)   for the plaintiff to pay the defendant's costs of today.

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