IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
CIVIL CASE No. 2 OF 1995
BETW>BETWEEN:
JOHN GILBERT McCORMACK
Plaintiff
AND:
LINDSAY DAVID BARRETT
>First Defendant
<AND:
ADRIAN SINCLAIR
Second Defendant
Cora Justice Oice Oliver A. Saksak
Counsel: Mr Mark Hurley for the Plaintiff
Mr Juris Ozols for the First and Second Defendants
JUDGMENT
The Plaintiff has applied by way of a Summons issued under Order 33 of the High Court
(Civil Procedure) Rules 1964 seeking orders
requiring the Defendants to provide further
answers to interrogatories by affidavit. In support of the application the Plaintiff
relies on the affidavit of Mark James Hurley of Counsel.
I heard the application in Chambers on 4th July 1997. The Plaintiff claims that the
answers filed by the Defendants in respect
of the Plaintiff’s interrogatories have
been answered inadequately. That being so, that the Plaintiff is entitled to further
answers.
Counsel for the Defendants objected to the application. He indicated to the Court that
the Defendants would be happy to correct
typographical errors but that no further answers
to interrogatories were necessary. Mr Ozols submitted that the Defendants have
provided
sufficient answers and invited the Court to look at them as a whole, reading the answers
by the First and Second
Defendants together. I was referred to for example Interrogatories
6 and 7 which I set out below:-
"6. Look at the letter annexed hereto and marked "B", being a copy of
a letter from the Australian Securities Commission
addressed to Mr George Carter,
Principal, McCullen are Suarez Inc. Did either of the defendants or any employee of the
defendants, including Helen Thomson, see a copy of this letter any time prior to 25 April
1994.
7. If the answer to the preceding interrogatory is in the affirmative:
(a) which of the defendants or their employees saw the letter?
(b) where did they see it?
(c) who showed it to them?
(d) did they take any action as a result of seeing the letter?
(e) If yes to (d), what action did they take?"
Mr Ozols argued that these interrogatories are what is termed "Fishing
Expedition". But let me look at how the Defendants
responded. The First Defendant
answered Interrogatory 6 & 7 in one paragraph as follows:-
"6. Yes, I saw the letter annexed to the Interrogatories and marked
"B" sometime prior to 25 April 1994 in
the offices of Barrett and Sinclair. I
believe it was shown to me by either Adrian Sinclair or Helen Thomson. As a result
of
seeing that letter, I spoke to Adrian Sinclair and asked him what had been done about it,
and he advised me
that he had raised this issue with the client’s representative Mr
Michael Kennedy, who had told him that the matter
was being attended to by his
company’s Australian lawyers. Upon being told that I took no further action having
taken the view that it was a matter for McCullen and Suarez Limited to sort out between
themselves, the Australian
Securities Commission and their Australian Lawyers."
The Second Defendant responded as follows:-
"6. I recollect seeing a letter from the Australian Securities Commission.
Whether the letter I saw is the same as the one
that is annexed to the interrogatories and
marked "B" I cannot say.
7. Subject to the qualification I expressed above I say -
(a) I saw the letter referred to above during a meeting with Lindsay Barrett and
Helen Thomson on 11th April 1994.
(b) At the offices of Barrett and Sinclair
(c) Helen Thomson
(d) Yes, despite the fact that the letter to the best of my recollection was some 6
months old.
(e) I discussed it with my partner and Helen Thomson and then with Michael Kennedy of
McCullen and Suarez the following
day. When the matter was raised with Michael Kennedy he
advised that he had already addressed the issue through his Australian
lawyer, he also
stated that this type of letter was sent out by the ASC in the hundreds and that nothing
further
had come of it since their initial response to the Australian Securities
Commission and they were continuing to operate
in Australia and saw it becoming a large
market."
Mr Hurley argues that although the substance of interrogatories 6 and 7 (b) - (e) has
been answered and interrogatory 7(a) has
been partly answered, the form of the answers is
not responsive to each particular question asked. He argues that question 7(a)
has not
been complete answered as the First Defendant has not said which of the defendants’
employees saw the letter.
I have looked carefully again at the questions and answers given by both defendants. I
am inclined to agree with Mr Ozols that
I should look at the answers as a whole. As such I
find that the First Defendant in answer to question 6 says that he believed
he saw the
letter shown to him by either Adrian Sinclair or Helen Thomson. Adrian Sinclair, the
Second Defendant in his
answer confirms that answer. He says in response to question 7(a)
that he saw the letter during a meeting with Lindsay Barrett
(First Defendant) and Helen
Thomson. Interrogatory 7(c) asked who showed the letter to them and the answer we get from
the Second Defendant is "Helen Thomson". I ask myself the question: who is Helen
Thomson? The answer to Interrogatory
No.2 gives me the answer. Helen Thomson is an
employee of the defendants.
Going back to the question in Interrogatory No. 6, it is asked "Did either of
the defendants or any employee of the defendants, including Helen Thomson, see a
copy of this letter any time prior to 25 April, 1994?"
I would separate the question as follows:-
(a) Did either of the defendants see a copy of the letter? The answer to this question
is clear. From the Answers, both defendants
saw the letter. In my judgment that would have
been enough.
(b) But the Plaintiff asks an alternative thus: "Did any employee of the
defendants see a copy of the letter including Helen Thomson?" The answer to this
question is also clear. "Employee" includes Helen Thomson. From the answers of
the
Defendants, it was Helen Thomson who showed the letter to the Second Defendant. She
being an employee in the position of
Supervisor/Manager saw the letter. That in my
judgment answers the question put by the Plaintiff in question No. 6, and
for the above
reasons I conclude that the answers given by the Defendants to Interrogatories No. 6 and 7
are adequate.
Before considering the other interrogatories I need to consider the issue of the
defendants employees and whether or not the
defendants are obliged to make inquiries of
them before answering the interrogatories put to them. Mr Hurley in his submissions
made
references to Anderson -v- Bank of British Colombia [1876] UKLawRpCh 145; [1876] 2 Ch.D. 644 at 657, 659,
Welsbach Incandescent Gas Lighting Company -v- New Sunlight Incandescent Company
[1900] 2 Ch. at 10,11, and Stanfield Properties Limited -v- National Westminster Bank
Ltd [1983] 2 All ER 249.
Mr Hurley submitted also that knowledge of the defendants employee is relevant because
the defendants may be vicariously liable
as constructive trustees for conduct of their
employees in dishonestly assisting in a breach of trust. And he cited the case
of Agip
(Africa) Limited -v- Jackson [1990] Ch. 265 at 296E, affirmed on Appeal [1991] Ch.
547 at 570 D. in support of his submission. I have looked at these cases and acknowledge
the principles enunciated in those cases
on the issue as good law. But those cases were
concerned with officers or employees of defendants who were companies. In the
present case
we have a partnership.
Mr Hurley also referred the Court to the case of Bolckow, Vanghan and Company -v-
Fisher (1882) 10 Q.B. 161 to support his submission as to the general rule that a party
interrogated must make inquiries of his servants or agents if
the interrogatories relate
to a matter which they are likely to have become aware in the course of their employment.
Again
having looked at the case I acknowledge that general rule as good law but I have
doubt in my mind that Fisher and Others were
a partnership. From the facts, it seems to me
that Fisher and Others were charterers operating under a Charterparty agreement.
To
presume that they were a partnership would be a dangerous presumption and I do not wish to
take that course.
I must now look at the High Court (Civil Procedure) Rules 1964. Order 33 Rule 5 reads:
"If any party to a cause or matter be a body corporate or a joint-stock
company, whether incorporated or not, or any other body or persons, empowered by law
to sue or be sued whether in its own name or in the name of any officer or other
person, any opposite party may apply for an order allowing
him to deliver interrogatories
to any member or officer of such corporation, company, or body, and an order may be made
accordingly." (underling, mine)
At first glance it seems that this rule applies only to companies. However reading
between the lines it is my opinion that it
includes a partnership and its servants, agents
or officers.
What is a partnership? Section 1 of the Partnership Act CAP 92 defines a partnership in
these terms:
"Partnership is the relation which subsists between persons carrying on a
business (which expression shall include every trade,
occupation or profession) in common
with a view of profit, but the relationship between members of any company or association
which is:-
(a) registered as a company under the Companies Act CAP 191 or any other Act for the
time being in force relating to the registration of joint stock companies;
(b) formed or incorporated by or in pursuance of any Act of the Parliament of the
Republic of Vanuatu, is not a partnership
within the meaning of this part."
Is a partnership empowered by law to sue or be sued? The answer is yes. Section 9 of
the Partnership Act CAP 92 reads:-
"Every partner in a firm is liable jointly with the other partners for all
debts and obligations of the firm incurred while
he is a partner; and after his death his
estate is also severally liable in a due course of administration for such debts
and
obligations, so far as they remain unsatisfied, but subject to the prior payment of his
separate debts."
Section 10 of the Act reads:-
"Where by any wrongful act or omission of any partner acting in the ordinary
course of the business of the firm, or
with authority of his co-partners, loss or injury
is caused to any person not being a partner in the firm, or any penalty
is incurred the
firm is liable therefor to the same extent as the partner so acting or omitting to
act."
Section 12 of the Act reads:-
"Every partner is liable jointly with his co-partners and also severally for
everything for which the firm while he
is a partner therein becomes liable under either of
Section 10 and 11."
Section 11 provides for misappropriation of money or property received for or in
custody of the firm.
Section 4 of the Act defines a "Firm" as meaning -
"Persons who have entered into partnership with one another are for the
purposes of this Part called collectively a
firm, and the name is called the
firm-name."
From the foregoing provisions of the Act, I am satisfied that a partnership falls
within the scope of Order 33 Rule 5.
That being so, and having already acknowledged the legal principles concerning
interrogatories and inquiries administered to
defendants’ servants, agents or
employees in the cases cited by Mr. Hurley, I now accept that those principles are part
of
the law in Vanuatu, as regards discovery. I therefore rule that the First and Second
Defendants in the present case
are bound and under obligation to make inquiries of their
servants, employees, or agents past and present if the interrogatories
put to them relate
to a matter which they are likely to have become aware in the course of their employment.
If the employee, agent or servant has left the firm or there is difficulty in obtaining
inquiries of such servant, employee or
agent, it is well established that the defendants
must say so as Lindley L.J. said in the Bolckow case[1882] UKLawRpKQB 156; , 10 Q.B.D. 161, 171:
"Of course, the servant or agent may die, or may be at some place or other
where he cannot be got at; but if that be the case
let the defendants say so."
In the present case there is nothing in the Defendants Answers to Interrogatories that
show that they have done that. Therefore
I now rule that the First Defendant has not
answered Interrogatories No. 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
22 and
23 adequately. Further I rule that the second Defendant has not answered Interrogatories
No. 8, 9, 10, 12, 13, 16,
17, 18 and 19 adequately or sufficiently.
Finally Mr Ozols submitted to the Court some limiting principles upon the use of
interrogatories which are as follows:-
(a) they must relate to an issue in the cause or matter or be capable of saving costs;
(b) in particular an interrogatory should not be used to obtain an admission of fact
which can be proved by a witness who
is to be called at trial; otherwise costs will be
increased rather than saved;
(c) an interrogatory should not amount to fishing;
(d) interrogatories should not relate solely to a party’s credibility;
(e) an interrogatory will be improper if the other party is bound to
"stone-wall";
(f) interrogatories should not relate to a question which is a matter of opinion; and
(g) interrogatories should not impose too great a burden in other words, they should
not be oppressive.
Mr Ozols did not take me to each interrogatory to show which of these limitations were
violated by the Plaintiff therefore I
am not able to consider and assess each of them
individually. I note that the First Defendant has objected to answering Interrogatory
10
on the grounds that it is vexatious and oppressive. Similarly the Second Defendant has
objected to answering Interrogatories
8 and 9 on the same grounds. In view of sections 10,
11 and 12 of the Partnership Act CAP 92 it is my opinion that these reasons are not
satisfactory reasons. When wrongs are committed by firms or body corporates
the burden and
costs will be great on those alleged to have committed those wrongs and the party affected
cannot in my
opinion claim that as an excuse to escape from the requirements of the rules.
In fact in my opinion to co-operate is better
than objecting. It saves time and expenses.
For those reasons expounded above, the Summons of the Plaintiff must succeed. And the
following orders are granted:-
1) That the First Defendant answers further by affidavit to be filed within 14 days
from the date of this Order Interrogatories
8 - 23 inclusive.
2) That the Second Defendant answers further by affidavit to be filed within 14 days
from the date of this Order Interrogatories
8, 9, 10, 12, 13, 16, 17, 18 and 19.
3) That the costs of this Summons be reserved.
DATED at Port Vila, this 18th day of July 1997.
BY THE COURT
OLIVER A. SAKSAK
JUDGE
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