FEDERAL COURT OF AUSTRALIA

 

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited ACN 005 357 522 [2010] FCA 230

Citation:		Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited ACN 005 357 522 [2010] FCA 230
Parties:		AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522
File number(s):		QUD252 of 2007
Judges:		GREENWOOD J
Date of judgment:		16 March 2010
Catchwords:		PRACTICE AND PROCEDURE – consideration of the utility of interrogatories – consideration of best practice to be adopted in relation to giving leave to file and serve a notice requiring answers to interrogatories – consideration of the remarks of the Chief Justice of Australia on the topic of interrogatories in his address of 7 March 2009 – consideration of the principles governing the role of interrogatories and grounds of objection to interrogatories – consideration of 41 interrogatories together with sub‑questions constituting 98 interrogatories in all
Legislation:		Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii); 45(2)(b)(ii) Federal Court Rules, Order 16, r 1, r 3 and r 6(2), r 6(3) and r 6(4)
Cases cited:		Abduramanoski & Ors v Aidan Nominees Pty Ltd [1987] FCA 389 Lamb v Hog’s Breath Company Pty Ltd (No. 3) [2007] FCA 972 Green v Green (1912) 13 SR (NSW) 126 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 Adams v Dickeson [1974] VR 77 Bullivant’s Natural Health Products v CF Planners [1999] QSC 35 CEO of Customs v Amron [2001] VSC 373 State of South Australia v White [2008] SASC 32 Ring‑Grip (Australasia) Pty Ltd v H.P.M. Industries Pty Ltd [1971] NSWLR 798 Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 American Flange & Manufacturing Co. Inc. v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 Marriott v Chamberlain (1886) 17 QBD 154 Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 Kupresak v Clifton Bricks (Canberra) Pty Ltd 57 ACTR 32 Aspar Autobarn Cooperative Society and Others v Dovala Pty Ltd & Others (1987) 16 FCR 284 Nella v Kingia [1987] FCA 299 Lowe v Marriott [1998] TASSC 111
Date of hearing:	10 August 2009
Date of last submissions:	31 August 2009
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	181
Counsel for the Applicant:	Mr S Couper QC with Ms M Brennan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr P O’Shea SC with Dr M Collins
Solicitor for the Respondent:	Freehills

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD252 of 2007

 

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 Respondent

 

JUDGE:	GREENWOOD J
DATE OF ORDER:	16 MARCH 2010
WHERE MADE:	BRISBANE

 

THE COURT ORDERS THAT:

 

1.                  The applicant has leave to issue and serve by 26 March 2010 a notice requiring the respondent to answer interrogatories numbered 1, 2, 3.1, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 4.3, 4.4, 4.5, 11, 12 and 13 of the notice to answer interrogatories filed 22 June 2009.

2.                  The applicant has leave to issue and serve by 26 March 2010 a notice requiring the respondent to answer interrogatories formulated in accordance with paras [110], [121], [123], [137], [140], [143] and [146] of the reasons for judgment published 16 March 2010.

3.                  The costs of and incidental to the respondent’s notice of motion issued 13 July 2009 and the applicant’s application for further leave to deliver interrogatories as framed by the notice to answer interrogatories dated 22 June 2009 are reserved.

4.                  Each of the parties are to file short submissions on the question of costs within 14 days.

5.                  The principal application will be listed for a directions hearing on a date to be notified by the Court within the next two weeks. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD252 of 2007

 

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 Respondent

 

JUDGE:	GREENWOOD J
DATE:	16 MARCH 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Background

1                     In this application the respondent (“ANZ”) seeks a direction by notice of motion that it is not obliged to provide verified answers to interrogatories in response to a notice administered by the applicant (the “ACCC”) pursuant to an order granting leave under Order 16, rule 1 of the Federal Court Rules to file and serve a notice requiring answers to interrogatories directed to those matters described in the order. 

2                     There are four grounds advanced in support of the application.  First, ANZ contends that the ACCC failed to comply with the order within the time limited by the order.  Thus, leave to file and serve the notice lapsed.  The ACCC concedes that the notice was not filed and served within the time limited by the order.  It was filed and served one working day late.  The ACCC in the course of the ANZ’s application sought further leave to administer the interrogatories the subject of the earlier notice. 

3                     Secondly, ANZ contends that the order contemplated leave to administer interrogatories “as to matters pleaded in the amended statement of claim, but not admitted” and most of the interrogatories, it is said, do not address matters pleaded but not admitted. 

4                     Thirdly, ANZ contends that most of the interrogatories are objectionable pursuant to one or more of the grounds set out in Order 16, rule 6(3) of the Federal Court Rules.  Finally, ANZ contends that if leave had been sought to file and serve a notice requiring ANZ to answer interrogatories as ultimately formulated in the notice filed and served, leave would not have been granted under Order 16, rule 1 for three reasons.  First, many of the interrogatories are said not to relate to any matter in question between ANZ and the ACCC requiring an answer and/or amount to fishing (Order 16, rule 6(3)(a)).  Secondly, many of the interrogatories are said to be either vexatious or oppressive (Order 16, rule 6(3)(b)) and thirdly, most of the interrogatories are said not to relate to a matter pleaded in the amended statement of claim but not admitted. 

5                     In the principal proceeding, the ACCC seeks declarations and injunctions, an order for the payment by ANZ of a pecuniary penalty to the Commonwealth and disclosure orders, grounded on the central contention that the ANZ has contravened s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) (the “TP Act”).  Although it will be necessary to examine the matters put in question by operation of the pleadings, the contravention is said to arise in this way.  First, ANZ is said to have entered into an agreement with a mortgage broker in May 2004 which contained a provision that the maximum refund of commission offered by the mortgage broker to its clients (seeking to take up home loans provided by lenders) was to be no greater, in respect of services (called “loan arrangement services”) provided by the broker to those clients taking up an ANZ loan product, than the amount of a loan approval fee charged by ANZ for the provision of its loan arrangement services from time to time.  Secondly, the maximum refund provision of the agreement had, it is said, a substantial purpose and had or was likely to have the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, a discount, allowance, rebate or credit in relation to loan arrangement services supplied by the mortgage broker.  Thirdly, the mortgage broker and ANZ were at the material time, in competition with each other in the provision of loan arrangement services and fourthly, by operation of s 45A of the TP Act, the maximum refund provision of the agreement was deemed to have the purpose and have or be likely to have the effect of substantially lessening competition, for the purposes of s 45(2)(a)(ii) of the TP Act. 

6                     The ACCC seeks a declaration that ANZ, by accepting loan applications submitted to it by the mortgage broker on the basis of the maximum refund provision, gave effect to a contravening provision of the agreement and thereby contravened s 45(2)(b)(ii) of the TP Act. 

The application for leave

7                     In 1987, French J in Abduramanoski & Ors v Aidan Nominees Pty Ltd [1987] FCA 389 observed that the discretion conferred by Order 16, rule 1 is broad and the purpose underlying the discretion is to enable the Court to regulate the availability of the facility of interrogation [30].  His Honour also observed that “it is plainly not necessary that draft interrogatories be filed for the purpose of an application for leave under Order 16, rule 1” [33].  His Honour also noted that, however, “where they are filed and it is convenient to the parties and the Court to do so, both the question of leave and the question whether particular interrogatories are objectionable under Order 16, rule 6(3) can be dealt with contemporaneously” [33].  In expressing the views at [33], his Honour relied upon accepted practice arising under the English Rules (R.S.C. Order 31, r 1) that before the hearing of an application for leave, it is not necessary to serve the other party with a copy of the proposed interrogatories. 

8                     In 2007, in Lamb v Hog’s Breath Company Pty Ltd (No. 3) [2007] FCA 972, French J made directions in the course of copyright proceedings, granting the applicant general leave to administer interrogatories directed to particular matters about which the applicant said it lacked clear information.  Those matters were described as the particular functions of the respondent companies as members of the Hog’s Breath Group of Companies in Australia; the respective roles of those companies in the use of particular works described in the statement of claim; and the ways in which the relevant works and the particular registered trade marks had been used by the respondents.  Notwithstanding the scope of leave, the applicant filed and served, beyond the time limited by the order, a notice said to contain 90 separate questions.  Consideration of his Honour’s reasons suggests that the questions administered by the applicant went well beyond what was contemplated by the order for general leave.  It also seems to me from the tenor of his Honour’s reasons that his Honour thought the interests of justice were not advanced by granting general leave to administer interrogatories. 

9                     On 7 March 2009, his Honour, as Chief Justice of Australia, delivered an address to the annual conference of the Bar Association of Queensland on the topic The Future of Litigation:  Dispute Resolution in Jurassic Park?  In that address, on the topic of interrogatories, the Chief Justice at p 7, point 2, said this:

Interrogatories.  The Federal Court Rules required leave to interrogate.  Experience with interrogatories over a period of time persuaded me of their extremely limited utility, if not total uselessness.  Parties had to be reminded that interrogatories were not a form of pre‑trial cross‑examination.  Applicants for leave were urged to agree all facts of which they sought admissions and to do so without resort to interrogatories unless there was a fact on which agreement could not be reached and the Court could be persuaded that it was appropriate to grant leave.  Today interrogatories are something of a rarity. 

10                  In this case, the ACCC sought general leave to file and serve interrogatories for the examination of the respondent without first formulating the field of interrogatories to be the subject of leave.  The ACCC sought general leave in these terms:

MR OWBRIDGE:        We would like leave, or we would seek leave, to pursue interrogatories under Order 16, rule 1. 

THE COURT:              What is the subject matter of the interrogatory to be?

MR OWBRIDGE:        In essence, your Honour, it’s the matters pleaded in the statement of claim, but not admitted. 

…

MR OWBRIDGE:        The purpose of the interrogatories is to obtain admissions and clarifications that we weren’t able to obtain by the pleadings, and those admissions will support our case and, we believe, shorten the trial.  I can take you to examples of the sorts of issues if your Honour requires.  I understand my friend’s attitude is that they’re opposed to the leave being granted.  They would prefer to receive draft interrogatories first, and have your Honour rule upon them. 

…

THE COURT:              … how many interrogatories are we talking about?  How extensive is this interrogation? 

MR OWBRIDGE:        They haven’t, indeed, been drafted at the moment, your Honour.  We only received their letter yesterday afternoon as to their attitude to the matter going forward.  They largely address matters such as paragraph 17 of the pleading where, for example, it is alleged that certain activities are conducted by the bank, such as when one goes into a bank, one receives from a person there advice as to the available product, etc.  That has not been pleaded to.  As I say we don’t seek to go into the reasons for it.  But we do not think it’s, in our submission, an unlikely matter, even from common human experience, that one goes into a bank and asks about mortgages that the various things pleaded here occur when you go into a bank and ask for it. 

As I say, we don’t need to go into the reasons they have elected not to plead to that.  But these are matters that can simply be directed as a matter of interrogatories.  There is non‑admissions as to what franchisees do.  Our understanding is that ANZ has and had at the material time its own franchisees.  We’d like to interrogate them at least about what their own franchisees did.  There is no admission and no pleading to the fact, and this is what we say as a critical matter, of the rivalry and consumption of the subject matter of the pleaded services.  That is, if you get it from a bank, then you don’t get it from a broker and vice versa.  There is no pleading to that.  We would submit that is a simple matter to establish that the goods arrive are in use [the transcript requires slight correction], and that the consumption of one means the non‑consumption of the other. 

As to purpose, there is – it is pleaded that their purpose was solely to enforce contractual condition against the offering of gifts.  We would like to interrogate as to whether they had ever discontinued anybody else’s accreditation on the basis that they’d offered a gift, and their knowledge of other people offering gifts.  Your Honour, that is not exhaustive, but it is meant to be emblematic of the types of issues that we don’t believe are – for whatever reason they are not pleaded to.  They are not difficult matters to attend, and they are rather central to the proceeding.  Your Honour would be aware of French J’s, as he then was, decision in [Abduramanoski]. 

THE COURT:              Yes.

MR OWBRIDGE:        There is no need to file draft interrogatories.  We would submit the best course here is to grant the leave, and then if there is an interrogatory they’re dissatisfied with or believe can’t usefully be answered, they could then raise the matter with your Honour.  There seems to be no practical saving for them to – for us to draft them and then have to fight about it now, because there may well be no fight. 

THE COURT:              Well, your point is that the subject matter of the interrogatories is a proper subject matter; that if leave is given, you could administer them, and any interrogatory which is properly the subject of an objection, objection can be taken to it. 

11                  ANZ contended that the defence of the respondent “does respond to the matters pleaded” and submitted that, “In any event, I think [I can] bring this to a head.  We are content to consent to the short minutes that have been proposed, namely that the applicant would have leave to issue interrogatories”. 

12                  Therefore, orders were in these terms:

1.         The applicant have leave to issue and serve by 19 June 2009 a notice requiring the respondent to answer interrogatories as to matters pleaded in the amended statement of claim, but not admitted. 

2.         The respondent provide verified answers to the said interrogatories within 21 days. 

3.         The respondent have liberty to apply on 48 hours notice in respect of the terms of the said interrogatories for costs be reserved. 

13                  The ACCC served on the respondent a notice to answer 41 questions which contain a series of sub‑questions (resulting in what is said to be 98 questions in all) at 4.48pm on 22 June 2009, beyond the time limited by the above order.  Since leave had expired, ANZ was under no obligation to provide verified answers to the questions within 21 days or at all.  The present application has become, in substance, an application for leave to administer each of the questions comprehended by the earlier notice.  The ACCC supports each and every interrogatory in the notice as a proper interrogatory. 

Preferred practice

14                  As a matter of general practice, I am satisfied that no good purpose is served either in a case management sense or as a vehicle for serving the public interest by granting general leave to administer interrogatories.  Notwithstanding that every case turns on its own circumstances, I find it difficult to identify a class of case where best practice does not require the applicant for leave to first formulate the precise questions for which leave is sought and serve those questions in draft on the other party or parties before seeking leave, irrespective of whether a party to be interrogated supports or consents to an order granting general leave to the interrogating party.  The questions, formulated in a way which is consistent with the Federal Court Rules and the authorities, should be filed in Court supported by a short affidavit.  The proposed interrogatories to be the subject of a leave application can then sensibly be discussed between the parties and when the question first comes before the Court, in controversy, steps might be taken at a directions hearing to attempt to resolve that controversy before a contested hearing occurs.  There is no substitute for the discipline of reducing the proposed questions to writing (electronic or otherwise) before leave is sought.  I would add this observation to the remarks of the Chief Justice quoted at [9].  Leaving aside the question of interrogatories directed to economic loss whether a claim for loss of profits or diminution in the value of a capital asset, which in any event, is invariably the subject of an expert’s report, interrogatories in my experience in the conduct of commercial litigation over approximately 30 years have rarely resulted in a party tendering an answer.  More rarely has such an answer shortened the trial or reduced costs and even more rarely has the answer proved to be decisive on any central question of fact or issue in the litigation.  The time, energy, effort and cost dedicated to addressing interrogatories and the inevitable challenge to them, is the true measure of the limited utility and lack of usefulness of interrogatories, the subject of the Chief Justice’s remarks.  I would however add one qualification.  Properly formulated interrogatories directed to assertions of fact or perhaps facts from which inferences might be drawn about a pleaded fact in issue which elicit admissions, may possibly have the benefit of narrowing the issues and thus narrowing the scope of discovery, although that advantage may be more theoretical than real. 

15                  For all the reasons mentioned by the Chief Justice of Australia in his 2009 address, the practice of first drafting the interrogatories and circulating the proposed interrogatories to the relevant parties and the Court, is to be preferred. 

16                  In making these earlier observations, I am not suggesting for one moment that the Court was misled in anything said in support of the application for general leave.  A question remains, of course, of whether the interrogatories as formulated in fact go beyond that which was contemplated in support of the application for leave as reflected in the short minutes of order. 

17                  Order 16, rule 1 of the Federal Court Rules provides that the Court may, in its discretion, give leave to any party to file and serve upon any other party, “within the period limited by the Court for that purpose”, a notice requiring the party served to answer interrogatories “relating to any matter in question between the interrogating party and the party served” [emphasis added].  The matters in question are determined by the pleadings.  It is now necessary to examine the matters in question between the parties by operation of the pleadings. 

The amended statement of claim

18                  By the amended statement of claim the ACCC says this. 

Demand

19                  At all relevant times there has been a demand from persons throughout Australia seeking to acquire residential properties, for residential property loans to enable the purchase of those properties (loan products):  para 4.  Loan products are supplied by loan providers (which for ease of reference I will describe as “lenders”) including ANZ, other identified banks and other classes of lender:  para 5.  There has also been a demand from persons throughout Australia seeking to acquire loan products, for services to assist them (described in the pleading as “customers”) in choosing and acquiring loan products.  These services are described as “loan arrangement services”:  para 6. 

Loan arrangement services

20                  Loan arrangement services are characterised by certain features.  They are supplied in relation to the loan products of one or more lenders:  para 7.1.  The services are comprised of six features:  advice as to the respective features of available loan products; advice as to which loan products were available to persons in the customer’s circumstances; advice as to which loan products best suit the customer’s needs; assistance to complete and lodge applications in the manner that meets the requirements of a lender; facilitation or liaison in the loan transaction between the customer and those sections or divisions of a lender responsible for providing the loan product; and submission of an application for a loan product, for a customer, to a lender, or the relevant section or division of the lender:  paras 7.2.1 to 7.2.6. 

Meeting demand

21                  The demand for loan arrangement services has been met by lenders including ANZ; agents and franchisees of lenders (described in the pleading as “franchisees”); and persons (described in the pleading as “brokers”) who are neither agents nor franchisees but who are accredited by, or for or on behalf of, one or more lenders, to submit loan applications on behalf of customers directly to those lenders:  para 8. 

22                  When lenders supply loan arrangement services, they generally only supply those services in relation to their own products or those of associated companies:  para 9.  When franchisees provide loan arrangement services they generally only supply those services in relation to the products of their [franchisor] lender or their [principal]:  para 10.  When brokers supply loan arrangement services, they generally supply those services in relation to all loan products of those lenders for which they are accredited:  para 13. 

Competition in loan arrangement services

23                  Lenders, franchisees and brokers have been in competition with each other throughout Australia to supply loan arrangement services to the public:  para 14.  There is an Australia‑wide market for the supply of loan arrangement services to the public by lenders, franchisees and brokers (described as the “loan arrangement market”):  para 15. 

Remuneration in the market

24                  When franchisees supply loan arrangement services they are generally remunerated by the lender upon the customer acquiring a loan product:  para 11. 

25                  When brokers supply loan arrangement services they are generally remunerated directly by the customer; or directly by the lender if the customer acquires the loan product of that lender; or indirectly by the lender (if the customer acquires the loan product of that lender), through an entity which contracts with a lender to accredit brokers to prepare and submit loan applications on behalf of customers for the lender’s loan products directly to the lender and the accrediting entity manages the brokers by ensuring, among other things, that brokers comply with the lender’s standard procedures and requirements in submitting a loan application.  Such an entity is described as an “aggregator”:  para 12. 

26                  Australian Finance Group Ltd (“AFG”) was an aggregator with contracts with lenders for its accredited member brokers to submit loan applications on behalf of customers, for the lender’s loan products.  From November 2002 AFG was the aggregator through which Mortgage Refunds Pty Ltd (“MRPL”) was accredited to submit loan applications to lenders on behalf of customers and from February 2003, AFG was the aggregator through which MRPL was accredited to submit loan applications for ANZ loan products.  AFG was remunerated by retaining a proportion of the commission payable by the lender to the broker who provided loan arrangement services to the customer:  para 16. 

ANZ’s loan arrangement services

27                  ANZ is a lender.  It supplied loan arrangement services to customers through ANZ branches and franchises in Australia including Queensland.  Those services included advice concerning the features of its loan products; advice concerning which of its loan products were available to persons in  the customer’s circumstances; advice concerning which of its loan products best suited the customer’s needs; assistance to customers to complete and lodge applications for a loan product; facilitation of transactions for the acquisition of a loan product; and submission of an application for a loan product to the division of ANZ responsible for providing loan products:  para 17.

The price of ANZ’s loan arrangement services

28                  ANZ charged customers who used its loan arrangement services to acquire an ANZ loan product, a direct payment known as an establishment fee or loan approval fee:  para 17.4.  From time to time, ANZ waived that fee:  para 17.5. 

MRPL’s loan arrangement services and pricing

29                  MRPL was a broker.  It supplied loan arrangement services to the public in Australia and particularly Queensland.  From February 2003 those services included loan arrangement services relating to loan products of ANZ.  Those services included all of the services said to be provided by ANZ although, in MRPL’s case, not confined to ANZ loan products:  para 18.  MRPL was not a supplier of loan products; it was authorised, by contract with AFG, to submit loan applications to lenders and supply loan arrangement services in respect of those products; and was remunerated for the supply of its loan arrangement services by commission paid by a lender, through AFG, if a customer acquired the loan product of that lender:  paras 18.4, 18.5 and 18.6. 

30                  MRPL was accredited by ANZ, through AFG, from February 2003 to submit loan applications to ANZ for ANZ loan products; was paid commission for its services by ANZ, through AFG, if its customers acquired ANZ loan products; and was not a franchisee of ANZ:  paras 18.7, 18.8 and 18.9. 

Rivalry

31                  ANZ and MRPL offered loan arrangement services for ANZ loan products to customers:  para 19.1. 

32                  MRPL sought to compete for customers for its loan arrangement services by distinguishing its service offering from that available from other providers including ANZ:  para 19.2.  ANZ also sought to compete for customers for its loan arrangement services by distinguishing its service offering from that available from other providers including brokers:  para 19.3. 

33                  The loan arrangement services offered by ANZ and MRPL in respect of ANZ loan products were direct substitutes for one another and ANZ and MRPL were thus rivals in offering loan arrangement services:  paras 19.4 and 19.5. 

34                  A customer who acquired loan arrangement services from ANZ so as to acquire an ANZ loan product did not also acquire those loan arrangement services from MRPL in respect of that ANZ loan product, and vice versa:  para 19.6. 

ANZ and MRPL “in competition” with each other

35                  By reason of the matters pleaded in paras 17, 18 and 19 of the amended statement of claim as described, ANZ was said to be in competition with MRPL to supply loan arrangement services:  para 20.  Alternatively, by reason of those matters, ANZ was said to be in competition with MRPL to supply loan arrangement services in respect of ANZ loan products.  The market is pleaded as an Australia‑wide market or alternatively a market in Queensland and functionally described as the loan arrangement market:  paras 21 and 22. 

MRPL’s refund practice

36                  From November 2002 MRPL offered its customers a refund of part of the commission it received from a lender when a customer acquired a loan product from that lender through the provision of MRPL’s loan arrangement services:  para 23.  The amount of the refund is particularised at points 1, 2 and 3 of para 23. 

37                  From February 2003 MRPL offered its customers the particularised refund in para 23 in respect of its supply of loan arrangement services for ANZ loan products:  para 24. 

ANZ’s cancellation

38                  On 25 March 2004 ANZ, by letter to AFG, cancelled the accreditation of MRPL to submit loan applications to ANZ in respect of ANZ loan products:  para 25. 

ANZ’s Purpose

39                  ANZ engaged in the cancellation conduct for the reason that MRPL had offered to customers the refund described at [36] in respect of its supply to them of loan arrangement services for ANZ loan products:  para 26. 

The Re‑accreditation Agreement

40                  On 29 April 2004 ANZ, by letter to MRPL, offered to enter into an agreement to re‑accredit MRPL in the submission of loan applications to ANZ for ANZ loan products:  para 27.  It was a term of the proposed agreement that “the maximum refund allowed to be offered to customers by [MRPL] in respect of its supply to them of loan arrangement services for ANZ loan products, was to be no greater than the maximum loan approval fee that might be charged by ANZ to customers, as varied by ANZ from time to time”:  para 28.  On or about 10 May 2004, MRPL signed and entered into the maximum refund agreement with ANZ:  para 29. 

The s 45A character of the provision

41                  The maximum refund agreement contained a provision that had the purpose or a substantial purpose of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of a discount, allowance, rebate or credit in relation to the loan arrangement services supplied or to be supplied by MRPL in competition with ANZ in the loan arrangement market and by operation of s 45A of the TP Act, the provision is deemed to have the purpose of substantially lessening competition for the supply of loan arrangement services in the market in Australia, giving rise to a contravention of s 45(2)(a)(ii) of the TP Act:  para 30.  Further or in the alternative, the provision had or was likely to have the effect contemplated by s 45A of the TP Act also giving rise to a deemed contravention of s 45(2)(a)(ii):  para 30. 

Particulars of the purpose contemplated by s 45A

42                  Paragraph 30 is supported by these particulars:

1.         The purpose is inferred from the terms of the maximum refund agreement. 

2.         It is alleged that ANZ had the alleged purpose.  The persons who held that purpose include its employees Joe Sirianni and Tim Carroll.

3.         It is alleged that [MRPL] had the alleged purpose.  The persons who held that purpose include Jason King.

4.         The amount was fixed in that a maximum was specified and the amount of refund due to the customer would, but for the arrangement, have exceeded the specified amount.

5.         The amount was controlled in that it was able to be varied in the future but only with the consent of the ANZ.

6.         The price was maintained in that the maximum refund was held constant subject to the further direction of the ANZ. 

Giving effect

43                  From 10 May 2004, ANZ gave effect to the maximum refund agreement by accepting loan applications submitted by MRPL in respect of ANZ loan products and paying commission in accordance with the impugned provision, giving rise to a contravention of s 45(2)(b)(ii).  Between April 2004 and May 2006, there were approximately 22 applications submitted by MRPL to ANZ and since May 2004 commission was paid by ANZ to MRPL in respect of at least eight loan products acquired by customers. 

44                  Throughout the amended statement of claim there are references to events occurring “at all material times”.  In describing the contentions in the pleading, I have not adopted that phrase where it repeatedly occurs.  However, the pleading seeks to link contentions to a time said to be material although the respondent says that the relevant time is not properly identified. 

The defence

45                  The defence filed by ANZ consists of a statement of position by way of a Part 1 General Response and a Part 2 pleading to particular paragraphs of the amended statement of claim. 

46                  By way of general response, ANZ says this. 

ANZ’s relevant supply side business

47                  ANZ is a bank and credit supplier which offers to supply loans to members of the public in the form of various ANZ loan products which include ANZ home loan products.  Those loans are made pursuant to a contract with an applicant seeking to acquire a residential property.  The loan is supported by a mortgage over that property.  The loans are used primarily for the acquisition of residential property or the refinancing of loans used for such acquisitions.  ANZ home loan products are offered to applicants who satisfy the internal lending criteria or credit policies for the relevant ANZ home loan product.  Those criteria concern the type of security required to support the loan; the income and employment qualifications required of applicants; and, information and documents required by ANZ to verify representations made by the applicant:  paras 2 and 3. 

Mortgage brokers

48                  In the course of its business as a credit supplier, current or potential customers of ANZ apply directly to it for ANZ loan products including ANZ home loan products.  Mortgage brokers accredited directly by ANZ acting for and on behalf of customers of the broker also apply to ANZ for ANZ loan products on behalf of those customers, including ANZ home loan products.  In addition, mortgage brokers accredited by an ANZ‑approved aggregator, have introduced customers to ANZ seeking the acquisition of ANZ loan products including ANZ home loan products:  para 4(a), (b) and (c). 

Aggregators

49                  ANZ‑approved aggregators carry on business independently of ANZ.  Such aggregators introduce to ANZ customers seeking credit, either directly or by third party mortgage brokers nominated by the ANZ‑approved aggregator and accredited by ANZ.  The agreement between the aggregator and ANZ confers the right on the aggregator to nominate mortgage brokers who might seek accreditation from ANZ and casts an obligation on the aggregator to ensure that accredited mortgage brokers comply with all terms set by ANZ regarding the marketing and sale of ANZ home loan products:  para 5. 

Broking services

50                  ANZ‑accredited mortgage brokers provide “broking services” to their customers.  Those services involve the provision of advice and services to assist customers to identify an appropriate or preferable credit supplier or suppliers (which may or may not include ANZ) and loan products suitable for the needs of that customer (which may or may not include an ANZ loan product or an ANZ home loan product).  Mortgage brokers, as part of their broking services, otherwise represent their customers’ interests in dealing with credit suppliers to whom any loan application is made:  para 6. 

Fees

51                  Where ANZ supplies an ANZ loan product (including an ANZ home loan product) to a customer as a result of an introduction by an ANZ approved and accredited mortgage broker, ANZ pays a fee to the ANZ‑approved aggregator irrespective of what broking services might have been provided, in fact, by the mortgage broker to its customer.  The fee is calculated, initially, as a percentage of the amount of credit supplied to the broker’s customer by ANZ and then a periodic fee described as a “trailer fee” calculated as a percentage of the outstanding balance owing by the customer to ANZ at the relevant periods:  para 7. 

52                  In such circumstances, ANZ also pays a fee to the mortgage broker calculated in the same way:  para 8. 

The core general contention

53                  The core contention in the General Response is this.  By para 9, ANZ says that it is a supplier of credit and in particular a supplier of ANZ loan products and ANZ home loan products.  It says it does not provide broking services or those services described in the amended statement of claim as “loan arrangement services”:  para 9(b).  ANZ says that ANZ approved mortgage brokers do not offer to supply or supply credit and in particular, they do not provide loans in the form of ANZ loan products or ANZ home loan products:  para 9(a).  Thus, it follows, it is said, that ANZ is not and has not at any time been in competition with providers of either broking services or loan arrangement services:  para 9(c). 

54                  ANZ pleads at para 9(d) the conclusionary proposition that “in the premises the basis for the claims made in the amended statement of claim is denied”. 

55                  Part 2 of the defence then responds to particular paragraphs of the ACCC’s pleading, in particular respects. 

Part 2 responses - demand

56                  ANZ admits that there is a demand for residential property loans from persons seeking to acquire residential properties and that it, other banks and the other identified lenders supply such loan products:  paras 12 and 13.  ANZ admits that there has been a demand from persons throughout Australia seeking to acquire loan products for broking services (as described by it in para 6 of the general response [50]) but otherwise does not admit that there has been a demand for “loan arrangement services”:  paras 14(b) and 16(a). 

Loan arrangement services - ANZ

57                  ANZ says that it is not a supplier of loan arrangement services as defined:  para 15(c); has not offered to supply or supplied loan arrangement services:  para 16(b); and the pleading of the content of such services (at para 7) is general and embarrassing:  para 15. 

Meeting a demand for loan arrangement services – franchisees and brokers

58                  As to meeting the pleaded demand for loan arrangement services, ANZ says it does not know and does not admit that franchisees or brokers (as defined by the ACCC’s pleading) offer to supply or supply loan arrangement services.  Apart from the circumstances relating to mortgage brokers accredited by ANZ (directly or in connection with an ANZ‑approved aggregator), ANZ does not admit that brokers accredited by one or more other lenders submit loan applications on behalf of customers to lenders:  para 16. 

59                  The allegations as to the method of meeting the demand for loan arrangement services are otherwise denied:  para 16. 

Other lenders

60                  ANZ denies that it or other lenders provide loan arrangement services:  para 17(a).  ANZ reasserts the central contention set out in para 9(b) of the general response ([53]):  para 17(b).  As to the general practice of lenders recited at para 9 of the ACCC’s pleading, ANZ says that the relevant matters have not been pleaded and the pleading is embarrassing:  para 17(c).

Franchisees generally

61                  As to the general position adopted by franchisees in providing loan arrangement services, ANZ says that it does not know whether and cannot admit that franchisees provide loan arrangement services.  It says that knowledge of those matters is beyond ANZ’s knowledge and the pleading is otherwise embarrassing and lacks particularity:  para 18.  ANZ adopts the same position in response to the assertion at para 11 of the amended statement of claim that franchisees when they supply loan arrangement services are generally remunerated by the loan provider upon the customer acquiring a loan product:  para 19. 

Brokers provide broking services

62                  ANZ does not admit that brokers as defined by the amended pleading provide loan arrangement services.  ANZ asserts the position it pleads at para 4(b) and (c) [48].  It says ANZ‑approved mortgage brokers provide broking services (as defined by ANZ).  Those brokers are accredited in the manner previously described and are remunerated in the manner described at [51] and [52].  Otherwise, ANZ says it cannot plead to and does not admit the contentions as to the general remuneration of brokers as it only has knowledge of the remuneration arrangements for ANZ‑approved mortgage brokers:  para 20. 

63                  As to the pleading (para 13) that when brokers supply loan arrangement services they generally supply those services in relation to all loan products for lenders for which they are accredited, ANZ does not admit that brokers supply loan arrangement services and says that ANZ‑approved mortgage brokers provide broking services in terms of para 6 of the general response [50] and otherwise ANZ does not admit the contention:  para 21. 

Competition in loan arrangement services

64                  As to the contention that lenders, franchisees and brokers have been in competition with each other to supply loan arrangement services to the public throughout Australia, ANZ denies the allegation, reasserts the general response and relies upon the particular responses at paras 16 to 21 described at [56] and [58] to [63].  Otherwise, ANZ does not admit the allegations as to competition as between loan providers, franchisees and brokers as the matter is beyond its direct knowledge:  para 22.  ANZ does not admit that there is a “loan arrangement market” as alleged in para 15 of the ACCC’s pleading:  para 23. 

AFG

65                  As to AFG, ANZ admits that AFG was an ANZ‑approved aggregator pursuant to written contracts dated 7 July 2001 and 16 March 2006.  ANZ admits that pursuant to those contracts, AFG was required to ensure that all applications from AFG’s clients and from clients of mortgage brokers nominated by AFG and accredited through AFG to introduce customers to ANZ for ANZ loan products, were in the correct form and complied with ANZ’s approved manual.  AFG was otherwise obliged to ensure that relevant parties were fully informed of and observed ANZ’s practices and procedures for marketing ANZ loan products:  para 24(b) and (c).  ANZ otherwise does not admit those paragraphs. 

66                  ANZ admits that from February 2003, AFG was the ANZ‑approved aggregator through which mortgage brokers, who were employees or agents of MRPL, were accredited to submit loan applications on behalf of customers for ANZ loan products including ANZ home loan products.  ANZ does not admit that from November 2002, AFG was the aggregator through which MRPL was accredited to submit loan applications for loan providers’ loan products:  para 24(f). 

AFG remuneration

67                  As to the remuneration payable to AFG, the fees are determined by schedule 2 of the AFG contracts.  ANZ denies the characterisation of the fees set out in para 16.6 of the ACCC’s pleading and otherwise says that it has no knowledge of the basis upon which AFG was remunerated by other loan providers:  para 24(g). 

ANZ’s relevant activities

68                  As to the characterisation of ANZ’s relevant activities pleaded in para 17, ANZ admits that it is a loan provider; denies that it is a supplier of loan arrangement services to customers through ANZ branches and franchises in Australia including Queensland and denies that it supplied loan arrangement services as described in the ACCC’s pleading [27]:  para 25(a) and (b). 

69                  ANZ denies that it charged customers a fee for use of its loan arrangement services and says that it charged some but not all customers to whom it supplied ANZ loan products (including ANZ home loan products) a loan approval fee, solely in consideration for ANZ assessing and approving the customer’s application for the relevant loan product and from time to time, ANZ waived the fee:  para 25(c) and (d). 

MRPL

70                  As to MRPL, ANZ admits that mortgage brokers who were employees or agents of MRPL and who had been accredited by ANZ, via AFG, to introduce customers to ANZ seeking credit, provided broking services (as defined by ANZ) to those customers in respect of applications to ANZ for ANZ loan products including ANZ home loan products over a period from February 2003 to 16 February 2006:  para 26(a).  Otherwise, ANZ does not know and does not admit what activities MRPL engaged in with respect to other loan providers or in relation to loan products other than ANZ loan products:  para 26(b), (c) and (e). 

71                  ANZ admits that from February 2003 until 27 September 2007 it accredited, through AFG, a number of individuals (brokers) related to MRPL:  para 26(f). 

MRPL’s remuneration

72                  As to the remuneration paid or payable to MRPL, ANZ says that it paid remuneration to AFG in accordance with the AFG contracts (schedule 2) and ANZ does not know how (if at all) AFG disbursed commissions paid to it by ANZ in respect of customers who were supplied ANZ loan products as a result of an introduction by an individual broker related to MRPL:  para 26(g). 

73                  ANZ admits that MRPL was not an agent or franchisee of ANZ:  para 26(h).

Service competition, substitution and rivalry

74                  As to the contention that both ANZ and MRPL offered loan arrangement services in respect of ANZ loan products to customers, ANZ relies upon the general response that it did not offer such services and asserts that mortgage brokers who were employees or agents of MRPL provided broking services in connection with ANZ loan products in the period February 2003 to February 2006:  para 27(a). 

75                  As to competition for customers for loan arrangement services by MRPL and ANZ, ANZ reasserts its denial that it offered to supply or supplied loan arrangement services and otherwise says that it is not able to plead to either paras 19.2 or 19.3:  para 27(b) and (c). 

76                  ANZ denies the competition conclusions at paras 20, 21 and 22 of the ACCC’s pleading:  para 28. 

MRPL’s refund practice

77                  As to the conduct, ANZ admits that from February 2003 until 16 February 2006 MRPL publicised an offer of the kind identified in para 23 [36] of the ACCC’s pleading but otherwise does not admit para 23:  para 29.  Although an offer of that kind was published, ANZ does not admit that MRPL offered customers the refunds described in para 23 of the pleading in respect of the supply to customers of loan arrangement services (as defined) by MRPL in connection with ANZ loan products:  para 30. 

ANZ’s cancellation

78                  ANZ says that it cancelled the accreditation of MRPL related brokers (individuals) who had been accredited by ANZ as at 25 March 2004, and not MRPL.  ANZ admits that it did so by letter to AFG dated 25 March 2004. 

ANZ’s purpose

79                  By para 32, ANZ denies each and every allegation in para 26 of the ACCC’s pleading which contended that ANZ’s cancellation conduct was engaged in for the reason that MRPL had offered customers a refund of part of the commission it received (in respect of its supply to the customer of loan arrangement services for ANZ loan products) when a customer took up an ANZ loan product.  ANZ says that the cancellation of accreditation was for the reasons set out in a letter dated 25 March 2004.  

Re-accreditation Agreement

80                  ANZ admits that by letter on or about 29 April 2004, ANZ offered to enter into an agreement to re‑accredit MRPL‑related brokers whose accreditation had been cancelled on 25 March 2004 and that it did so on the basis that the maximum refund that could be provided to the customer in respect of an ANZ loan product was to be no greater than ANZ’s applicable loan approval fee.  Otherwise, ANZ denies the formulation of the offer set out in para 28 of the ACCC’s pleading:  para 34. 

81                  ANZ admits that on 10 May 2004 MRPL signed and returned to ANZ a copy of the Letter of Offer of 29 April 2004. 

The s 45A character of the provision

82                  ANZ denies that the terms and conditions set out in the re‑accreditation letter contained a provision that had the purpose or a substantial purpose or had or was likely to have the effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of a discount, allowance, rebate or credit in relation to loan arrangement services supplied or to be supplied by MRPL in competition with ANZ in the loan arrangement market.  ANZ therefore denies that by operation of s 45A of the TP Act, the maximum refund provision is deemed to have the purpose, or to have or be likely to have the effect, of substantially lessening competition for the supply of loan arrangement services in a market in Australia. 

The particulars

83                  By the denial of para 30 of the amended statement of claim containing allegations of purpose and effect, ANZ denies each of the particulars of purpose set out in that paragraph:  para 36.

Giving effect

84                  As to giving effect to the maximum refund agreement as alleged, ANZ admits that from 10 May 2004 it accepted loan applications submitted by MRPL‑related brokers on behalf of customers for ANZ loan products and that it paid fees to AFG in accordance with the terms of the AFG contracts in respect of ANZ loan products.  ANZ does not admit, because it does not know, whether MRPL or MRPL‑related brokers acted in accordance with the terms of the letter dated 29 April 2004.  Otherwise, the allegations are denied as are the contraventions of s 45(2)(a)(ii) and s 45(2)(b)(ii) of the TP Act. 

The ACCC’s position

 

85                  The ACCC supports the interrogatories on this basis.  The purpose of the interrogatories directed to “matters pleaded in the amended statement of claim, but not admitted”, was, and remains, to obtain admissions and clarifications that were not obtained by the pleadings either because the defence did not specifically plead to matters pleaded by the ACCC, or because the basis for denials and non‑admissions remained unclear.  An example of the first limb is said to be the pleading by the ACCC at para 17 ([27] of these reasons) of the field of loan arrangement services supplied by ANZ and the response at para 25 of the defence where ANZ fails, it is said, to specifically plead to the supply of services.  An example of the second limb is the ACCC’s pleading that the demand for loan arrangement services has been met by franchisees of loan providers (lenders) and ANZ’s failure, it is said, to clearly plead to the role and activities of franchisees. 

86                  The ACCC says the basis for the denials and non‑admissions by ANZ is so unclear that the defence has been treated as a “bare traverse” putting matters pleaded in issue.  An example of this is said to be ANZ’s pleaded denial that it provided loan arrangement services as an answer to a pleaded contention that loan arrangement services offered by ANZ and MRPL in respect of ANZ loan products were direct substitutes for one another.  The ACCC says its contention of “close competition” between MRPL and ANZ is central to its case and it was plain from the submissions in support of the leave initially that the ACCC would seek clarification of such matters.

87                  The ACCC says the interrogatories relate firstly to matters pleaded and not admitted and secondly to matters going to the following categories:  first, the nature of the loan arrangement services provided in respect of ANZ loans including those services provided by ANZ either directly or through third parties or by “other means” (interrogatories:  4, 6, 14, 15, 16 and 17); secondly, the boundaries, core participants and features of a market for loan arrangement services (interrogatories:  5 and 11); thirdly, the contestability and substitution of the loan arrangement services in respect of ANZ loan products supplied by the core participants in the market (interrogatories:  7, 8, 9, 10, 17, 18, 19, 20 and 21); fourthly, the nature and extent of competition between ANZ, mortgage brokers and MRPL in their respective supply of loan arrangement services in relation to ANZ loans (interrogatories:  22, 23, 24, 25, 26 and 27); and fifthly, the purpose or effect or likely effect of the relevant provision of the Maximum Refund Agreement (interrogatories:  28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41). 

88                  Apart from the point concerning the expiration of leave, ANZ contends that many of the interrogatories go well beyond (and thus do not relate to) matters in question between the ACCC and ANZ; in other cases, the pleading is responsive; and in other cases, many of the interrogatories offend Order 16, rule 6(3). 

89                  Order 16, rule 3 of the Federal Court Rules is in these terms:

Limitation of interrogatories by notice

3          (1)        The Court may, before or after any party has been required under rule 1 to answer interrogatories, order that answers to interrogatories under rule 2 by any party shall not be required, or shall be limited to such interrogatories or classes of interrogatories, or to such of the matters in question in the proceeding, as may be specified in the order. 

            (2)        Where any party has been required under rule 1 to answer any interrogatory, the Court may order that an answer to that interrogatory shall not be required or may limit the extent to which an answer shall be required. 

            (3)        The Court may make such orders under subrules (1) and (2) as are necessary to prevent unnecessary interrogatories or unnecessary answers to interrogatories. 

90                  Order 16, rules 6(2), (3) and (4) are in these terms:

Contents of statement

…

6          (2)        A statement in answer to interrogatories shall deal with each interrogatory specifically either –

            (a)        by answering the substance of the interrogatory without evasion; or

            (b)        by objecting to answer the interrogatory on one or more of the grounds mentioned in subrule (3) and briefly stating the facts on which the objection is based.

            (3)        Subject to subrule (4), a party may object to answering any interrogatory on the following grounds but no other –

            (a)        where the answering is not required by an order, that the interrogatory does not relate to any matter in question between him and the party requiring the answer;

            (b)        that the interrogatory is vexatious or oppressive; and

            (c)        privilege. 

            (4)        On an application under subrule 3(2) or rule 5 in respect of any interrogatory, the Court may require the applicant to specify on what grounds he objects to answering that interrogatory and may determine the sufficiency of the objection and, if the Court determines that the objection is not sufficient, the applicant shall not be entitled to object to answering that interrogatory in a statement in answer to interrogatories. 

General approach

91                  I propose to deal with the question of whether each and every interrogatory is a proper interrogatory by asking these questions.  First, is the interrogatory directed to a matter pleaded in the amended statement of claim but not admitted in the defence?  That, fundamentally, was the proposition put in support of leave initially.  Secondly, if the interrogatory is not directed to that question, is each interrogatory otherwise directed to a denial or non‑admission which is said to be unclear?  If so, on either basis, the third question is whether the interrogatory is vexatious or oppressive in the sense that those terms are understood in the authorities. 

92                  Those questions seem to me to address the essential objective of interrogatories identified by Simpson J in Green v Green (1912) 13 SR (NSW) 126 at pp 132 and 133 (a view also adopted by Lockhart J in WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 574 (Bowen CJ agreeing at 562)) that interrogatories are characterised as questions in the nature of a demand for further and better particulars; questions directed to obtaining admissions as to facts which support the case of the interrogating party (here, the ACCC); questions directed to obtaining admissions as to facts which will destroy or damage the case of the interrogated party (here, ANZ); and, where the interrogated party is a fiduciary with an obligation to keep accounts, interrogatories may seek those accounts or a summary of them.  Simpson J at p 133 also said this:

I do not think the Court acts on hard and fast lines.  If, for instance, the admission intended to be elicited will only afford a meagre or unsubstantial support to the plaintiff’s case, while answering the interrogatory will involve the defendant in great labour and expense, I think the Court may exercise a discretion whether it will enforce an answer or not.

93                  Street J (with whom Cullen CJ agreed) said (at 138):

I think the true rule on the subject is as stated in The Laws of England (Vol II, p 98), that ‘where an account is claimed as part of the claim in an action, or questions of account arise in the action, interrogatories as to the details of the accounts may be allowed, provided they are of sufficient importance to the party interrogating, eg, enabling him to obtain an immediate decree or order at the trial, and cause comparatively little trouble to the party interrogated, but not where the interrogatory would be oppressive.’  So stated, the rule seems to me to be in complete accordance with what was said by Collins MR in White & Co v Credit Reform Association and Credit Index Limited [1905] 1 KB 653 at 659 that ‘there is one general principle underlying the whole law as to interrogatories, namely, that they must not be of such a nature as to be oppressive, and to exceed the legitimate requirements of theparticular occasion.’

                                                                                                [emphasis added]

94                  In principle, an interrogatory ought only to be allowed if the end sought to be achieved by administering the question is reasonably proportionate to the effort required in answering the question. 

95                  The first three classes of interrogatories identified by Simpson J were discussed by the Full Court of the Supreme Court of Victoria in Adams v Dickeson [1974] VR 77.  At p 79, the Court (Winneke CJ, Gillard and Nelson JJ) said this:

The prime object of interrogation is to enable a 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. [emphasis added]

96                  These passages were cited with approval by White J in Bullivant’s Natural Health Products v CF Planners [1999] QSC 35 at [17] (unreported, Supreme Court of Queensland, 4 March 1999);  by McDonald J in CEO of Customs v Amron [2001] VSC 373 at [52]; and by Duggan J in State of South Australia v White [2008] SASC 32 at [15].

97                  The ultimate aim of the process of discovery of information by interrogatories is to shorten the trial and save costs.  Interrogatories are not a de facto written cross‑examination of the interrogated party.  The interrogatories must be relevant in the sense that they relate to a matter in question framed by the pleadings (including particulars contained in the pleading).  In Ring‑Grip (Australasia) Pty Ltd v H.P.M. Industries Pty Ltd [1971] NSWLR 798 at 800,the New South Wales Court of Appeal observed that it is not permissible to interrogate as to matters beyond the issues as disclosed by the pleadings and the particulars.  In Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390, the phrase “relating to any matter in question” was understood to mean that the right to interrogate is not confined to the facts directly in issue but extends to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue.  See also American Flange & Manufacturing Co. Inc. v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 per Myers J at 195; and Marriott v Chamberlain (1886) 17 QBD 154 per Lord Esher MR at 163. 

98                  In Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101, Griffiths CJ, at pp 109 and 110, considered that questions the answers to which might help, together with other facts, in establishing a body of facts from which an inference would be drawn confirmatory of an element of the cause of action was the “very object of interrogatories” and that the degree of connection between the issues in the proceeding and the subject matter of the interrogatory must not be “remote or speculative”.  In Tiver v Tiver [1969] SASR 40 at 50, the Full Court of the Supreme Court of South Australia considered that the paramount consideration in determining whether an interrogatory is proper must be the relevance of the inquiry to the question in dispute and whether the information sought is strictly relevant and materially important in establishing the interrogating party’s case.  However, the two further objectives mentioned above are also important considerations.  Generally, the ACCC supports the interrogatories on the basis that they go to matters pleaded but not admitted or a lack of clarity in the basis for a non‑admission or denial.  Other categories are identified at [87] of these reasons.  The interrogatories must be “expressed in language of the most rigorous precision” and there is no place in interrogatories for “reading between the lines”:  Kupresak v Clifton Bricks (Canberra) Pty Ltd 57 ACTR 32 at p 34 per Blackburn CJ.  Thus interrogatories must not be too uncertain or wide.  Nor should the interrogated party or the Court be put in the position where it is required to go through the interrogatories and pick out, from a large number, those that are allowable discarding those that might be prolix, oppressive or unnecessary so as to ascertain which of them are admissible.  The mere obligation to do so is itself unreasonable and can itself constitute oppression:  American Flange & Manufacturing Co. Inc. v Rheem (Australia) Pty Ltd (No. 2) (supra) per Myers J. 

99                  As to the question of whether an interrogatory is irrelevant, fishing, vexatious or oppressive or reflects ambiguity, I adopt the brief observations of Woodward J in Aspar Autobarn Cooperative Society and Others v Dovala Pty Ltd & Others (1987) 16 FCR 284 at 287‑288 in these terms: 

…  I believe that ‘vexatious’ is used in the sense illustrated by the Shorter Oxford Dictionary when it says ‘Of legal actions: Instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant’.

Thus an interrogatory administered for a purpose foreign to the proceeding would be vexatious, as would the traditional ‘fishing’ interrogatory, which seeks information on which to base claims not yet made. …

The word ‘oppressive’ … means, I think, unfair, or unreasonable, in the sense that a good deal too much is expected of the party questioned.  It may be that the details sought would take many hours to extract from records and would only be relevant to some side issue in the case.  Or the question may be so ambiguous that it would be unfair to expect the party questioned to make assumptions about its meaning.  Or the question may cover a wider geographic area or a longer period of time than is reasonably necessary in readying the case for trial.  There are many questions which might be admissible in cross-examination, but are by their very nature inappropriate, and thus oppressive, in interrogatories.  Questions going to credit or to motive are obvious examples.

Thus it can be seen that the types of question which may properly be objected to as ‘oppressive’ are many and varied.  Each contested instance will have to be resolved on the basis of the court’s general impression as to what is reasonable.

100               This passage was cited with approval by French J in Nella v Kingia [1987] FCA 299 at [12] – [18] and by Cox CJ in Lowe v Marriott [1998] TASSC 111.

101               In American Flange v Rheem (supra), Myers J considered the following matters in ascertaining whether a set of interrogatories was oppressive:

·                      The number of individual interrogatories;

·                      The extent to which the providing an answer imposes an unreasonably onerous burden on the interrogated party;

·                      Whether the interrogatory required the interrogated party to form opinions, exercise judgment or draw conclusions;

·                      The repetitiveness of the questions;

·                      Whether the questions were in truth asked for the purpose of discovering trade secrets.

102               It is now necessary to examine each of the 98 questions put by the ACCC to ANZ.  Every interrogatory is the subject of objection by ANZ on the ground that leave expired.  Each interrogatory will be examined in terms of the other specific objections grouped by reference to the schedule attached to the letter from Mr McPherson (ANZ) to Mr Owbridge (ACCC) dated 7 August 2009 which is also attached to the submissions of ANZ. 

The interrogatories

Interrogatory 1

 

1          Each interrogatory is directed to the material times pleaded in the amended statement of claim.  If the answer to any interrogatory changes in that time, specify all answers to that interrogatory and the time or times at which each answer obtained.

 

103               No objection is made to this statement framing all other interrogatories although the burden of compliance is taken up in objection to other interrogatories. 

Interrogatory 2

 

2          Does the respondent (ANZ) have a section, division, department or branch howsoever named (for the purposes of these interrogatories referred to as “the Mortgage Division”), which is responsible for the lending of money for home loans?

 

104               No objection is made to this interrogatory. 

Interrogatory 3

 

3          If yes,

 

3.1       what is the title of the Mortgage Division?

3.2       what are the other sections, divisions, departments, or branches (for the purpose of these interrogatories referred to as “areas”) within ANZ? 

3.3       what are the other functions (if any) of the Mortgage Division?

3.4       is the Mortgage Division responsible within ANZ for assessing home loan applications and, if not, which area is?

3.5       is the Mortgage Division responsible within ANZ for approving home loan applications and, if not, which area is?

3.6       is the Mortgage Division responsible within ANZ for approving or determining the means by which home loan applications may or are to be submitted to ANZ and, if not, which area is?

3.7       is the Mortgage Division responsible within ANZ for setting lending terms or the criteria for approval of loans and, if not, which area is?

3.8       can persons seeking home loans from ANZ apply directly to the Mortgage Division without the involvement of some other area or person, and if so, what is the means by which they can do this?

 

105               No objection is taken to 3.1. 

106               As to 3.2, ANZ says the question is ambiguous and requires the bank to make assumptions about its meaning.  The question is very broad.  ANZ is a large public company that no doubt operates wholly owned branches in the provision of banking services and, according to the evidence, had contracts with 34 ANZ franchisees at 30 September 2004.  The question invites an answer identifying the broad structural arrangements developed within the bank by ANZ in the conduct of its activities.  Some of those might be well understood operational areas of banking such as managed funds, share trading, investment advice, cash management, home lending, commercial lending or many other areas or activities about which further speculation is unnecessary.  I am not satisfied that the question as formulated is a proper interrogatory. 

107               As to 3.3, 3.4 and 3.5, no objection is made. 

108               As to 3.6, the same objection is made as the objection made to 3.2.  ANZ ought to be able to say whether the Mortgage Division (if there be one) is responsible for approving or determining the means by which home loan applications may be submitted to the bank and if not a mortgage division, then the area within the bank responsible for determining that means, without making assumptions about the meaning of the question. 

109               As to 3.7, no objection is made. 

110               As to 3.8, the same objection is made as that taken to 3.2.  The question seems to ask whether a person can seek a home loan from ANZ by applying to the Mortgage Division of the bank without engaging some other area or person (of or within the bank) and if so, what is the means by which such a person may do so.  ANZ ought to be able to say whether an applicant for a home loan can apply to a section of the bank called the Mortgage Division, directly, without first lodging an application with some other organ of the bank (or person), such as a branch or another operational area of the bank handling home loan applications.  As to the means of applying directly to the Mortgage Division (if that event occurs), the bank ought to be able to say whether a protocol or policy exists setting out how such an application ought to be made. 

Interrogatory 4

 

4          Do the means by which a person seeking a home loan product from ANZ may submit an application for a home loan product include making the application:

4.1       through a branch of ANZ?

4.2       through a franchisee or agent of ANZ and, if yes, state the terms upon which the franchisee or agent may do so?

4.3       through a mortgage broker?

4.4       through an internet site operated or maintained by ANZ? or

4.5       by any other means?

 

111               As to 4.1, 4.2 and 4.3 and 4.4, ANZ says each interrogatory is vexatious or factually oppressive.  As to 4.2, Mr McPherson, a partner of Freehills and solicitor for ANZ, gave evidence that he was informed by Ms Glenda Waghorn, the head of ANZ’s dispute resolution group, that complying with interrogatory 4.2 would require significant resources, significant time and involve substantial cost for these reasons.  As at 30 September 2004, ANZ franchisees numbered about 34; the number fluctuated through time; the terms of the arrangements between ANZ and any particular franchisee were delimited by the terms of a separate contract with that franchisee and a policy and procedures manual that was regularly changed and updated from time to time.  Therefore, interrogatory 4.2 requires, it is said, ANZ to state the effect of every franchise agreement and policy manual that it has had with any franchisee for an undefined period. 

112               As to the period, the ACCC’s pleading uses the phrase “at all material times” in pleading particular contentions and pleads particular times when other events occurred.  For example, paras 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19 and 20 of the amended statement of claim adopt that phrase.  Paragraph 16.4 pleads that from November 2002, AFG was the aggregator that accredited MRPL to submit loan applications to lenders for customers.  Paragraphs 16.5 pleads that from February 2003, AFG was the aggregator that accredited MRPL to submit loan applications for customers for ANZ loan products.  Paragraph 23 pleads MRPL’s offer of refunds from November 2002 and by para 24, MRPL’s offering of refunds in respect of ANZ loan products is said to have occurred from February 2003.  The cancellation conduct and reaccreditation offer is said to have occurred on 25 March 2004 and 29 April 2004 respectively.  Acceptance of the reaccreditation offer is said to have occurred on 10 May 2004.  The material times seem to span a period from November 2002 to the end of the period during which ANZ has continued to give effect to the contended contravening conduct although the immediately relevant period seems to be November 2002 to 10 May 2004. 

113               As to interrogatory 4.1, the interrogatory is a proper interrogatory.

114               Interrogatory 4.2 is oppressive.  The terms upon which a franchisee or agent undertakes particular activities as an ANZ franchisee or agent is more efficiently revealed by discovery of the contracts between ANZ and its franchisees and agents, the relevant versions of the policy and procedures manual and any other relevant documents.  The first two categories of documents will largely speak for themselves. 

115               As to 4.3, the interrogatory is not vexatious or oppressive. 

116               As to 4.4, ANZ also says the interrogatory, apart from being vexatious and oppressive, does not relate to a matter which is pleaded but not admitted.  Interrogatory 4.5 is challenged on the same two grounds.  The ACCC says 4.4 and 4.5 go to the nature of the loan arrangement services provided in respect of ANZ loans including those services provided either by ANZ directly or through third parties or by other means.  The question asks whether an applicant for an ANZ home loan may submit such applications through an internet site operated or maintained by ANZ or by any other means (that is, a means other than the methods described in 4.1 to 4.4). 

117               ANZ pleads directly to the method by which applicants might apply for an ANZ home loan (at para 4 of the General Response).  At para 9 of the General Response, ANZ denies that it provides loan arrangement services.  The matter is not pleaded by the ACCC and is simply the subject of a non‑admission by ANZ.  However, neither interrogatory is oppressive as to the particular method of receiving home loan applications.  Each interrogatory is said to go to facts which, in part, go to services provided by ANZ either as a supplier of services as pleaded or a credit supplier as asserted by ANZ.  Leave will be given to administer interrogatories 4.4 and 4.5. 

Interrogatory 5

 

5          Approximately what proportion, by value and by number, of home loan applications does ANZ:

5.1       receive;

5.2       approve

by each of the means specified in answer to the previous interrogatory?

 

118               Interrogatory 5 requires ANZ to isolate the number of home loan applications received by it in the relevant material period (November 2002 to 10 May 2004); the number of applications approved; and the value of those loans, broken down as to receipt and approval of applications according to the means recited in interrogatories 4.1 to 4.5. 

119               These matters are not matters pleaded, but not admitted.  Mr McPherson says that ANZ does not keep records of loan applications that are not approved.  He also says that an extremely large number of records would be relevant to such an inquiry and substantial effort would be necessary to retrieve, review and check the relevant material and provide verified answers.  I suspect that ANZ would have available to it spreadsheet summary data (or statistical information capable of being drawn into a spreadsheet report) that reveals the number of home loan applications approved by it in the period November 2002 to 10 May 2004 by financial years; the value of those loans by financial years; and the percentage of the market for the acquisition of home loans throughout Australia and separately for each State, that ANZ home loans represent.  The data might also indicate the reference points of entry to the bank for such approved applications, as pleaded by ANZ in its defence at paras 9(a), (b) and (c).  The interrogatory as framed is too broad in requiring the answer it commands as to applications received and those ultimately approved broken down by the referenced categories across the relevant period. 

120               More fundamentally, ANZ admits that it offers to supply and does in fact supply loan products including ANZ home loan products according to its lending criteria (paras 1, 2 and 3 of the General Response) sourced as pleaded at para 4.  The interrogatory however is not directed to establishing that ANZ supplies home loans as that matter is not in issue on the pleadings, but rather, the interrogatory seeks an admission as to the distributed sources of applications for home loans.  That fact, taken together with other facts, is said to go to a question of contended competition between ANZ, franchisees, agents or brokers in attracting applicants for home loans and the provision of pleaded services. 

121               Leave ought not to be given to administer the interrogatory as framed.  However, I give leave to administer an interrogatory in these terms:

To the extent that ANZ is able to say by means of schedule or spreadsheet summary: 

(i)         what was the number of home loan applications approved by ANZ and the value of those approved loans in each financial year ending 30 June 2002, 30 June 2003 and 30 June 2004; and

(ii)        what were the sources of those applications made to ANZ by value in each financial year. 

Interrogatory 6

 

6          Does the Mortgage Division manage each of the means by which persons may apply to ANZ for home loan products and, if not, which area does?

 

122               Interrogatory 6 asks a question which relates to the means contemplated by interrogatory 4 and asks whether the mortgage division manages the means by which a person might apply to ANZ for a home loan product.  It is not entirely clear what the phrase “manage each of the means” precisely contemplates.  Presumably the interrogatory asks whether the mortgage division establishes policies and procedures by which a person might apply for an ANZ home loan by applying either to a branch at ANZ, a franchisee or agent, a mortgage broker, through the internet or otherwise.  ANZ says that the question is oppressive in the sense that it is ambiguous and requires ANZ to make assumptions about its meaning before responding.  The ACCC says that the interrogatory does not require the respondent to speculate. 

123               Leave ought not to be given for the interrogatory in the way framed although leave will be given to ask this question:

Does the Mortgage Division establish policies and procedures by which a person may submit an application for an ANZ home loan product either by applying to an ANZ branch, a franchisee or agent of ANZ, a mortgage broker, through an internet site operated or maintained by ANZ or in any other way, and if not, how does ANZ otherwise establish the policies and procedures by which an applicant may do so? 

Interrogatory 7

 

7          Does the Mortgage Division, or any other area and if so which, make or cause to be made any payment or credit or transfer to:

7.1       a branch or an area of ANZ which lodges a successful home loan application if there is no mortgage broker or franchisee or agent involved?

7.2       a branch or an area of ANZ which lodges a successful home loan application if there is a broker involved?

7.3       a branch or an area of ANZ which lodges a successful home loan if there is a franchisee or agent of ANZ involved?

7.4       a branch or an area of ANZ which lodges the successful home loan application if a person applies through the internet?

7.5       a branch or an area of ANZ if a successful home loan application is made through any other means specified in answer to interrogatory 4?

 

124               ANZ objects to the interrogatory on the basis that there are no facts pleaded in the amended statement of claim which assert a payment, credit or transfer by ANZ (or the Mortgage Division) to a branch or area of ANZ as recited in 7.1 to 7.5, and not admitted by ANZ.  The ACCC says that these questions go to further elaboration of matters which are unclear as a result of ANZ’s pleading.  The ACCC pleads that ANZ is a supplier of loan products (para 5) and a supplier of loan arrangement services (para 8) through ANZ branches and franchisees (para 17.2).  The content of those services are pleaded at para 17.3.  ANZ charged borrowers a loan approval fee (para 17.4), sometimes waived (para 17.5).  Interrogatory 7 addresses a possible payment, credit or transfer by the mortgage division of the bank to an ANZ branch or other area of the bank in the circumstances set out at 7.1 to 7.5, which is not a fact pleaded by the amended statement of claim.  It may however relate to a matter in question.  The matter in question is said to be contestability in loan arrangement services between lenders, franchisees and brokers in the loan arrangement market or rivalry and substitution between MRPL and ANZ in loan arrangement services for ANZ loan products. 

125               The interrogatory is said to relate to that matter because it goes to a related fact; that is, whether the bank pays a success fee to an ANZ branch or other “area of ANZ” lodging an ultimately approved home loan application where a mortgage broker, franchisee or agent may or may not be involved or some other method of application is engaged or not.  An answer to interrogatory 7 is said to aid in establishing incentives for contestability in loan arrangement services for ANZ home loans. 

126               However, ANZ does not plead and presumably does not know any of the relevant facts as to whether ANZ makes a payment, credit or transfer to a branch or relevant area of ANZ in any of the circumstances reflected in 7.1 to 7.5.  ANZ is seeking out facts to make a case rather than seeking admissions as to contended facts it is in a position to plead. 

127               Leave ought not to be given to administer the interrogatory. 

Interrogatory 8

 

8          If yes to any of the above, state the means and terms upon which the payment, credit or transfer is calculated and made, including whether any part is to be passed on to any other person.

 

128               Leave ought not to be given to administer this interrogatory for the same reasons identified in addressing interrogatory 7.

Interrogatory 9

 

9          Does the Mortgage Division, or any other area and if so which, make or cause to be made any payment or credit or transfer to any other person in each of the circumstances specified in interrogatory 7?

 

129               Leave ought not to be given to administer interrogatory 9 for the reasons indicated in addressing interrogatory 7. 

Interrogatory 10

 

10        If yes to the preceding interrogatory, state in each circumstance the person, and the means and terms upon which the payment, credit or transfer is made or caused to be made.

 

130               Leave ought not to be given to administer interrogatory 10 for the reasons indicated in addressing interrogatory 7. 

Interrogatory 11

 

11        Do mortgage brokers and franchisees and agents of ANZ submit home loan applications through branches of ANZ?

 

131               ANZ objects to this interrogatory on the basis that it does not relate to any matter pleaded in the amended statement of claim, but not admitted.  The ACCC does not plead that mortgage brokers or franchisees and agents of ANZ submit home loan applications through branches of ANZ.  The ACCC pleads that ANZ is a lender and provider of loan arrangement services.  So too are agents and franchisees of lenders and brokers.  ANZ denies that it provides loan arrangement services and pleads in the General Response the methods by which applications for home loans are submitted to ANZ (para 4).  However, a question which addresses whether brokers or franchisees and agents of ANZ submit home loan applications to the bank through branches of ANZ may relate to facts going to the question of the core participants in the market as pleaded and a feature of the market as pleaded.  Leave will be given. 

Interrogatory 12

 

12        Do ANZ branches offer the home loan products of any lender other than ANZ?

 

132               No objection is taken to this interrogatory. 

Interrogatory 13

 

13        Does ANZ employ persons to deal with people coming to its branches to inquire as to obtaining a home loan product from ANZ?

 

133               No objection is taken to this interrogatory. 

Interrogatory 14

 

14        If yes to the preceding interrogatory, with respect to each person or category of person so employed:

14.1     does that person provide his or her services at a single branch or at a number of branches or are they responsible for a particular area?

14.2     is that person’s title Personal Mortgage Manager and, if not, state the title of that person (herein after referred to as a Personal Mortgage Manager)?

 

134               ANZ objects to these questions on the basis that they do not relate to any matter pleaded against it, but not admitted.  The question is broadly put and requires ANZ to identify each person or category of persons, throughout the relevant period, employed by ANZ to engage with any person who attends an ANZ branch to enquire about obtaining an ANZ home loan, and requires ANZ to say whether such an employee “deal[s] with people” (which presumably means provides advice concerning the enquiry about one or more home loan products) at a single branch or multiple branches or whether that person has responsibility for “a particular area”.  ANZ says the interrogatory is oppressive because in 2004 ANZ employed 6,525 people in approximately 700 branches almost all of whom, it is said, are relevant to these two questions.  Some of those employees are no longer employed by ANZ.  Mr McPherson says it would be an extremely onerous task to answer these questions

135               The ACCC says the interrogatory does not require ANZ to seek out information from individual employees.  Rather, management is called upon to say whether ANZ had in place at the material times a structure (that is, particular officers or personnel) to respond to enquiries made at a branch or branches concerning an ANZ home loan. 

136               The interrogatory as framed calls upon ANZ to answer two questions with respect to each person or category of persons so employed.  The interrogatory is thus very broad.  If the ACCC seeks to address a question related to a matter in question in the proceeding (that matter being whether ANZ provides services of the kind pleaded which bear the description “loan arrangement services”, concerning ANZ loan products) and the interrogatory goes to a related fact concerning the structural arrangements adopted by ANZ to respond to individuals making inquiries of it concerning its home loan products, the question should address that higher level structure more precisely. 

137               Leave ought not to be granted to administer interrogatory 14.  Leave is granted to administer an interrogatory in these terms:

If yes to [interrogatory 13],

(i)         did ANZ in the period November 2002 to May 2004 have in place an organisational structure by which particular bank officers (by reason of their office or position descriptions) were responsible for responding to enquiries as to ANZ home loan products and, if so, what was that organisational structure; and

(ii)        were such persons described by the title Personal Mortgage Manager and, if not, state the title of that person (hereinafter referred to as a Personal Mortgage Manager). 

Interrogatory 15

 

15        Do the duties of a Personal Mortgage Manager include any of the following and, if so, which?

15.1     advising enquirers as to the features of the respective loan products available from ANZ;

15.2     advising enquirers which of ANZ’s loan products are available to persons in the enquirer’s circumstances;

15.3     advising the enquirer which of ANZ’s loan products are best suited to the enquirer’s needs.

15.4     assisting the enquirer to complete and lodge applications for the loan product selected in a matter that meets the requirements of the Mortgage Division.

15.5     acting as liaison or otherwise facilitating the transaction for the acquisition of the loan product between the enquirer and the Mortgage Division, and

15.6     submitting, or arranging for the submission, of the enquirer’s application for the loan product to the Mortgage Division.

 

138               Interrogatory 15 is directed to matters expressly pleaded at paras 17.3.1 to 17.3.6 of the amended statement of claim setting out the advice, assistance and facilitation services supplied by ANZ, in the material period, as the content of the loan arrangement services ANZ is said to have supplied through ANZ branches and franchisees throughout Australia including Queensland.  ANZ pleads a denial (para 9(b) of the General Response) that it provides “what are described as” loan arrangement services, as pleaded in para 6 of the amended statement of claim (the content of which is pleaded in paras 7.2.1 to 7.2.6).  It is not immediately clear from para 9(b) of the General Response whether ANZ denies it provides services that bear the characterisation loan arrangement services or whether it denies that it does the things described at 7.2.1 to 7.2.6 which are contended to be loan arrangement services. 

139               As to para 17 of the amended statement of claim which asserts that ANZ is a supplier of loan arrangement services (set out at 17.3.1 to 17.3.6) focussed specifically upon advice, assistance and facilitation services in relation to its own loan products, ANZ denies at para 25 of the defence that it is such a supplier and denies that loan arrangement services include any of the things set out at 17.3.1 to 17.3.6.  It re‑asserts para 9(b) of the General Response and says it is a credit supplier that supplies loans to members of the public who meet ANZ’s lending criteria.  Again, it is not entirely clear whether the denials at para 25 of the defence are directed to the characterisation of the activities as “loan arrangement services” or whether ANZ denies that it engages in the conduct described at 17.3.1 to 17.3.6.  There is no doubt that ANZ denies the contentions as framed. 

140               Interrogatory 15 is directed to the content of the conduct itself.  Whether engaging in that conduct amounts to the provision of loan arrangement services in a loan arrangement market is the subject matter of the proceedings.  Interrogatory 15 is necessarily linked to interrogatory 14 which in turn relates to interrogatory 13.  Although I have suggested a more appropriate mechanism for identifying the structural organisation adopted by ANZ in responding to enquiries from members of the public concerning ANZ home loan products, it seems to me that a question directed to the content of the activities that may or may not have been undertaken by ANZ in the relevant period is a proper interrogatory. 

141               Leave will be granted for interrogatory 15 to be administered, save that it should be introduced in this way:

Did ANZ in the period November 2002 to May 2004 respond to enquiries from persons seeking to apply for an ANZ home loan product, undertake any of the following activities and if so, which:

[15.1 to 15.6]

 

Interrogatory 16

 

16        Does ANZ operate or participate in a business activity known as Mortgage Solutions? If yes, specify the nature and purpose of the business activity and the other persons involved and, in particular, whether the other persons involved:

16.1     are known as “Mobile Lenders” or have a similar name (for the purpose of these interrogatories referred to as “Mobile Lenders”);

16.2     are authorised or permitted to submit applications on behalf of others to ANZ for its home loan products;

16.3     in the course of dealing with persons seeking or enquiring as to ANZ home loan products, do any of the following and, if so, which:

(i)   advise the enquirer as to the features of the respective loan products available from ANZ;

(ii)  advise the enquirer as to which of ANZ’s loan products are available to persons in the enquirer’s circumstances;

(iii)advise the enquirer which of ANZ’s loan products are best suited to the enquirer’s needs;

(iv)assist the enquirer to complete and lodge applications for the loan product selected in a manner that meets the requirements of the Mortgage Division;

(v)   act as liaison or otherwise facilitate the transaction for the acquisition of the loan product between the enquirer and the Mortgage Division; and

(vi)submit, or arrange for the submission of, the enquirer’s application for the loan product to the Mortgage Division.

16.4     submit applications directly to the Mortgage Division or through a branch of ANZ or by some other means, specifying which;

16.5     are entitled to submit home loan applications to any lender other than ANZ.

 

142               The amended statement of claim does not plead any facts in relation to a business or entity described as Mortgage Solutions.  Thus, the interrogatory does not fall into the category of a question directed to a matter pleaded in the amended statement of claim, but not admitted.  Nor does the interrogatory facilitate clarification of a matter pleaded by ANZ which is unclear.  The question of the role of Mortgage Solutions as a business activity and whether it is related to ANZ in any way, shape or form is simply not asserted in any part of the pleading.  If it is said that ANZ undertakes certain activities by or through its participation in a business described as Mortgage Solutions, or alternatively, if it is said that Mortgage Solutions does certain things in a way which relevantly relates to ANZ, the central factual matters ought to be pleaded.  It is neither necessary nor appropriate for the ACCC to plead matters of evidence going to a fact or issue in question in the proceeding.  It need only plead the material facts giving rise to the cause of action and the remedial relief it seeks.  The ACCC says the interrogatory goes to the pleaded facts concerning the nature of the loan arrangement services said to have been provided by ANZ either directly by it or through third parties or by other means. 

143               By para 8 of the amended statement of claim, the ACCC says that loan arrangement services are provided by ANZ, agents and franchisees of ANZ (and other lenders) and other parties who are neither agents nor franchisees although they are accredited by or on behalf of lenders to submit applications for home loans (that is, brokers).  By para 17, the ACCC says ANZ was a supplier of loan arrangement services to customers through branches and franchisees in relation to loan products available from ANZ.  By para 18, the circumstances concerning MRPL’s activity is pleaded.  ANZ pleads denials of the matters at paras 8 and 17 of the amended statement of claim. 

144               By this interrogatory, the ACCC seeks to obtain information about a business activity described as “Mortgage Solutions”.  The ACCC wants to know what it is; is ANZ engaged in it either as operator or in some other participatory way; who else is involved; what is the nature and purpose of the business activity; are the “other persons” called “mobile lenders”; are these mobile lenders authorised or permitted to submit applications on behalf of others to ANZ for its home loan products; and, in the course of dealing with persons seeking out or enquiring about ANZ home loan products, do these other persons do any of the things described at 16.3(i) to 16.3(vi) of the interrogatory.  The ACCC also asks whether these other persons submit applications directly to the mortgage division of ANZ or to ANZ through an ANZ branch or by some other means (and if so, state which).  At 16.5, the interrogatory calls upon ANZ to say whether such other persons are entitled to submit home loan applications on behalf of others, to any other lenders. 

145               The ACCC apparently cannot say whether “Mortgage Solutions” (whatever its legal personality) is part of ANZ, an agent or franchisee of ANZ, a broker or otherwise accredited.  If the role of “Mortgage Solutions” in terms of its structure, participants, role and the range of activities in which it engages, in connection with ANZ home loan products, is significant or material to the cause of action alleged in the proceedings, those matters would seem to constitute material facts that might usefully be pleaded and made the subject of a response in the defence.  The sequence of interrogatories framed by interrogatory 16 seem to seek out broad information to see whether that information aids in building a case rather than seeking out information about asserted facts constituting the cause of action.  In the exercise of discretion, it seems to me that leave ought not to be given to administer interrogatory 16, in all the circumstances. 

Interrogatory 17

 

17        In the usual course, if a person seeking to acquire a home loan product from ANZ uses:

17.1     a Personal Mortgage Manager or other employee of ANZ engaged to deal with such persons;

17.2     a mortgage broker; or

17.3     a franchisee of ANZ or a participant in the mortgage solutions business,

are these alternatives or does the person seeking the loan product use more than one means in a single transaction?

 

146               Interrogatory 17 addresses a matter asserted in the amended statement of claim and the subject of an express denial by ANZ.  ANZ says that interrogatory 17 falls outside the scope for leave contemplated when the initial order was made granting general leave and nor does the matter go to a question of clarification as the contention is expressly denied.  The ACCC says the question is directed to the issue of rivalry, contestability and substitution.  ANZ also says that the question invites ANZ to speculate as to a state of affairs or give an opinion.

147               I propose to grant leave to ask a question in these terms:

Having regard to ANZ’s experience in considering applications from members of the public to acquire a home loan product from the bank:

(i)         can ANZ say whether, when an application is made to it by such a person directly (that is, to any officer or employee of the bank dealing with such applications), such an applicant also engages a mortgage broker or franchisee or other agent or entity to also lodge an application for a home loan product, or is it the bank’s experience that such applicants adopt a single means of applying to the bank for a home loan product; and

(ii)        if the bank can so say, what is its experience?

Interrogatory 18

 

18        Does ANZ, or its Mortgage Division, consider the various means by which persons may inquire about, be informed of and submit applications for its home loan products to be substitutes for each other?

 

148               Interrogatory 18 is objectionable as it invites ANZ to express an opinion about a matter centrally in question in the proceedings. 

Interrogatory 19

 

19        If a person acquired the services of:

19.1     a mortgage broker; or

19.2     Mortgage Refunds or a person associated with Mortgage Refunds, in relation to the obtaining of an ANZ home loan,

            was it the case that that person would then not in the usual course, obtain the home loan through a franchisee or agent of ANZ, or a participant in the Mortgage Solutions business or a Personal Mortgage Manager or other employee of ANZ engaged to deal with such persons?

 

149               ANZ objects to the interrogatory on the ground that it does not relate to any matter pleaded in the amended statement of claim, but not admitted.  It says the question goes to a matter that is pleaded and is the subject of a denial.  ANZ also objects to the question on the basis that it seeks inadmissible evidence by requiring ANZ to speculate as to a state of affairs or give a mere opinion.  The interrogatory seems to ask ANZ to express a statement of its experience rather than speculate about matters.  It asks whether, if a person acquired the services of a mortgage broker or MRPL in relation to obtaining an ANZ home loan, was it the bank’s experience (in the relevant period, having regard to interrogatory 1) that such a person would not, in the ordinary course, “obtain the home loan” through a franchisee or agent of ANZ or through an ANZ personal mortgage manager or other employee of ANZ engaged to deal with persons making applications for home loans.  The interrogatory also directs that question to another alternative, namely, through the “Mortgage Solutions business”.  The reference to “obtain the home loan” is presumably intended to be a reference to the acquisition of services in connection with an application for a home loan, consistent with the introduction to the interrogatory. 

150               Leave ought not to be given in respect of the interrogatory as formulated although leave will be given to ask a question in these terms:

Having regard to ANZ’s experience of applicants for an ANZ home loan product seeking out and acquiring the services of a mortgage broker or MRPL (or a person associated with MRPL) in connection with an application made to the bank:

(i)         can ANZ say whether such persons lodge an application for a home loan product through a franchisee or agent of ANZ or directly to ANZ, notwithstanding that the applicant has acquired the services of mortgage broker or MRPL (or a person associated with MRPL) or whether such applicants adopt a single means of application either through a mortgage broker or MRPL or a person associated with MRPL; and

(ii)        if the bank can so say, what is its experience?

Interrogatory 20

 

20        Does ANZ:

20.1     have a preference as to; or

20.2     seek to influence,

whether persons seeking to apply for its home loan products do so through:

(i)    a Personal Mortgage Manager or other employee of ANZ?

(ii)   a mortgage broker?

(iii)  a franchisee or agent of ANZ or a person engaged in the mortgage solutions business?

(iv)  any other means, and if so, specify the means.

 

151               ANZ objects to these questions on the basis that they do not relate to any matter pleaded in the amended statement of claim, but not admitted.  The ACCC says the interrogatory is directed to the issue of contestability and substitution in the supply and acquisition of loan arrangement services in respect of ANZ loans supplied by the core participants in the market.  It is difficult to see how a question going to whether ANZ had a preference as to whether applicants for ANZ home loan products ought to make applications in a particular way, or whether ANZ sought to influence the method of application, is probative of a fact pleaded or a fact from which inferences might be drawn about a pleaded fact.  The contravention alleged in the amended statement of claim relies upon the operation of s 45A which, in the relevant circumstances, brings about a contravention of ss 45(2)(a)(ii) and 45(2)(b)(ii).  Section 45A requires the parties to the relevant contract, arrangement or understanding to be in competition with each other.  The question of competition is determined by reference to substitution possibilities within a field of rivalry and it is not clear to me that questions directed to preferences or influences of one kind or another are probative of facts related to substitution possibilities within a field of rivalry.  The question of the market, the provision of the pleaded services and the functional scope of the contended market are all expressly in controversy and thus, even if the questions were relevant to a fact in issue or a fact from which inferences might be drawn about a fact in issue, these matters are central to the controversy and fall outside what was contemplated by leave.  In essence, leave was supported on the footing that the question sought to extract an admission about a fact in issue thus shortening the trial, or sought clarification of a matter rendered unclear by the pleading.  Interrogatory 20 does not fall into either category. 

Interrogatory 21

 

21      If yes to any part of the preceding interrogatory, state:

21.1        the preferences of ANZ and the reasons for those preferences;

21.2        the means it uses to influence the outcome;

21.3        the reasons it seeks to so influence;

21.4        other means it has considered in order to influence the outcome including disaccrediting mortgage brokers, reducing their commission, increasing their commissions, or forming a common approach with other lenders, advertising.

 

152               Having regard to interrogatory 20, interrogatory 21 is not a proper interrogatory. 

Interrogatory 22

 

22        Does ANZ, for persons who apply for its home loan products either through:

22.1     Mortgage Solutions; or

22.2     mortgage brokers,

charge a loan approval fee to the person?

 

153               At para 17 of the amended statement of claim, the ACCC pleads that ANZ is and was at all material times a supplier of loan arrangement services which comprehended the things pleaded at 17.3.1 to 17.3.6 and, in respect of that supply, ANZ charged customers using those services to acquire an ANZ loan product a direct payment known as an establishment fee or loan approval fee (para 17.4).  Further, from time to time, ANZ fully or partially waived that fee for that service (para 17.5).  ANZ denies that it is or was a supplier of loan arrangement services and it denies para 17.4, that is, the charging of a fee for such a service.  It says by para 25 of the defence that it charged borrowers a loan approval fee “solely as consideration for ANZ assessing and approving a customer’s application for the relevant ANZ loan product” and it admits that from time to time it partially waived approval fees in order to either secure or retain the custom of a customer.  ANZ says that the pleading does not assert any fact in relation to the charging of a loan approval fee in circumstances where either a mortgage broker or “Mortgage Solutions” was the vehicle through which an applicant made an application.  It is thus difficult to see how the interrogatory seeks to extract an admission about a pleaded fact which would shorten the trial or a fact related to a pleaded fact. 

154               The interrogatory may seek clarification of whether a loan approval fee is levied when an application for an ANZ home loan is made other than directly to ANZ.  Leave is given to administer the interrogatory. 

Interrogatory 23

 

23        Does ANZ, for persons who apply for its home loan products either through:

23.1     Mortgage Solutions; or

23.2     mortgage brokers,

waive all or any portion of the loan approval fee in order to secure the person’s custom and, if so, state the circumstances and means by which the fee is waived wholly or in part?

 

155               Leave is not given to administer this interrogatory as it is factually oppressive. 

Interrogatory 24

 

24        If ANZ does not charge a loan approval fee to persons who apply:

24.1     through Mortgage Solutions; or

24.2     through a mortgage broker,

why not?

 

156               Similarly, there is no express controversy pleaded, but not admitted, in respect of the subject matter of this question.  In any event, the question involves ANZ examining applications for home loans made to it through the two identified sources across the relevant period and providing an explanation as to why, in each case, a fee may not have been charged.  The question is oppressive.

Interrogatory 25

 

25        If ANZ does charge a loan approval fee to persons who apply through:

25.1        Mortgage Solutions; or

25.2        a mortgage broker,

why?

 

157               Interrogatory 25 is oppressive for the same reasons as interrogatory 24. 

Interrogatory 26

 

26     Does ANZ attend meetings, whether under the auspices of the Mortgage Industry Association of Australia lending committee or otherwise, specifying which, with other lenders at which:

26.1        home loan lending practices; or

26.2        the relationships between lenders and mortgage brokers,

have been discussed?

 

158               Interrogatory 26 calls upon ANZ to say whether its officers attend meetings with other lenders and whether such meeting are organised under the auspices of the Mortgage Industry Association of Australia Lending Committee, or otherwise.  It then calls upon ANZ to specify how such meetings were organised (if not through the MIA) and to say whether home loan lending practices or the relationship between lenders and mortgage brokers was discussed. 

159               The contravention alleged by the ACCC is that ANZ and MRPL entered into a maximum refund agreement which contained a provision that had a particular purpose or had or was likely to have a particular effect, in circumstances where the parties to the agreement were in competition with each other, thus bringing about a contravention of s 45 of the TP Act.  The purpose or effect of the particular provision in the particular agreement between the identified parties is the critical matter.  It is difficult to identify the matter in question to which meetings between lenders convened through an industry body or otherwise is relevant to a matter pleaded.  Leave ought not to be given. 

Interrogatory 27

 

27        State, to the extent ANZ is aware from those meetings or otherwise, in relation to any, and if so which, of the Commonwealth Bank of Australia, National Australia Bank Limited, Westpac Banking Corporation, HSBC Bank Australia Limited, ING Australia Limited, Suncorp Metway Limited, Bank of Queensland, Credit Union Australia Limited, Homeloans Limited, Aussie Homeloans, National Mortgage Company or Bluestone Mortgages:

27.1     whether that lender has a branch network in Australia or in Queensland?;

27.2     whether that lender accredits mortgage brokers to apply to them on behalf of persons seeking to acquire their home loan products;

27.3     whether, if a person is seeking to enquire about a home loan product from any of them, that person may:

(i)         deal with an employee of the lender at a branch of that lender,

(ii)        deal with a franchisee of the lender or a person contracted by the lender to deal with that lender’s loan product, or

                        (iii)       deal with a broker accredited by that lender.

27.4     whether, in the case of mortgage brokers those persons, are accredited by the lender concerned either directly or through an aggregator;

27.5     whether those lenders remunerate brokers either directly or through aggregators in respect of each successful loan application lodged or submitted to that lender through that mortgage broker.

 

160               Having regard to the subject matter of interrogatory 26, interrogatory 27 is not a proper interrogatory. 

Interrogatory 28

 

28        State each of the substantial purposes ANZ had in:

            28.1     cancelling the accreditation of the Mortgage Refund related brokers; and

            28.2     restoring the accreditation of the Mortgage Refund related brokers?

 

161               Interrogatory 28 calls upon ANZ to state each of the substantial purposes it had in cancelling the accreditation of MRPL related brokers on 25 March 2004 by letter (para 25) and in restoring the accreditation of MRPL related brokers by means of the offer made on 29 April 2004 and accepted and signed by MRPL on 10 May 2004.  Interrogatory 28 is directed to para 26 of the amended statement of claim which pleads that ANZ engaged in the cancellation conduct “for the reason that [MRPL] had offered to customers” the pleaded refunds in respect of MRPL’s supply to them of loan arrangement services for ANZ loan products.  The ACCC pleads the offer of re‑accreditation at para 27 and the provision or “term” of the offered agreement that the maximum refund to be offered by MRPL to its customers was to be no greater than the maximum loan approval fee that might be charged by ANZ to its customers as varied by ANZ from time to time.  By para 30, that provision of the agreement (accepted on 10 May 2004) had a substantial purpose or had or was likely to have the relevant statutory effect.  The pleaded purpose is said to be inferred from the terms of the maximum refund agreement.  The ACCC pleads that ANZ had the alleged purpose because that purpose was held by Mr Joe Sirianni and Mr Tim Carroll, employees of ANZ.  The purpose is said to have been held by other employees not presently identified.  MRPL is said to have held that purpose through Mr Jason King. 

162               The pleading of inferential purposes and actual purposes is the subject of a responsive pleading by which ANZ at para 32 “denies each and every allegation in paragraph 26 … and says further that the accreditation of [MRPL related brokers] was cancelled for the reasons set out in the letter [dated 25 March 2004 from ANZ] …”.  ANZ admits that it offered to re‑accredit MRPL related brokers upon the pleaded term and that MRPL signed a copy of the relevant letter on 10 May 2004.  As to the substantial purpose pleaded at para 30 of the amended statement of claim, ANZ pleads that it “denies each and every allegation in paragraph 30 …” which, of course, pleads an express denial that its officers, either those nominated or others unidentified, held the relevant purpose or that the agreement is capable of giving rise to an inference of the contended substantial purpose. 

163               Thus it can be seen that at the centre of the controversy to be resolved by the Court is this question of purpose.  The interrogatory directed to ANZ calls upon it to, in effect, swear to its defence.  No doubt, the time will shortly arise consequent upon discovery, when statements will be exchanged between the parties.  Those statements will no doubt address each of the contentions in controversy and provide a sworn version of the relevant facts.  That is the appropriate place to find a response to the contentions. 

164               ANZ also objects to interrogatory 28 as it calls upon ANZ to state each of the substantial purposes it held in cancelling the accreditation of MRPL‑related brokers in circumstances where para 26 of the amended statement of claim pleads a reason for the cancellation conduct as opposed to a purpose or substantial purpose for that conduct and thus ANZ ought not, in any event, to be called upon to state a substantial purpose for conduct which is attributed to particular reasons.  By para 30, the ACCC pleads a substantial purpose in relation to the re‑accreditation conduct. 

165               However, it seems to me that interrogatory 28 is not a proper interrogatory for the reasons already mentioned. 

Interrogatory 29

 

29        Did representatives of ANZ (and if so which) discuss with representatives of any other lender (and if so which) the accreditation of brokers which refunded a proportion of the commission they were paid to persons who acquired their services?

 

166               It seems to me that interrogatory 28, which addresses discussions between representatives of ANZ and representatives of other lenders, is not relevant to a matter in question in the proceedings. 

Interrogatory 30

 

30        If yes to the preceding interrogatory, did

30.1     the representatives of ANZ; or

30.2     the representatives of any other lenders, specifying the lender,

express a view that the refund model ought be discouraged by lenders? 

 

167               Having regard to the view I have taken of interrogatory 29, interrogatory 30 is not a proper interrogatory. 

Interrogatory 31

 

31        If yes to the preceding interrogatory, did

31.1     the representatives of ANZ; or

32.2     the representatives of any other lenders, specifying the lender,

state why in their view such a model ought be discouraged?

 

168               Having regard to the view I have taken of interrogatory 29, interrogatory 31 is not a proper interrogatory.

Interrogatory 32

 

32        If yes to the preceding interrogatory, what were the reasons stated and by whom that such a model ought be discouraged?

 

169               Having regard to the view I have taken of interrogatory 29, interrogatory 32 is not a proper interrogatory.

Interrogatory 33

 

33        Did ANZ reach an understanding or seek to reach an understanding with other lenders as to the discouragement of a refund model?

 

170               It seems to me that questions going to understandings which may or may not have been reached between officers of ANZ with officers of other lenders concerning the discouragement of a refund model is not relevant to the questions raised by a contended contravention arising out of the operation of s 45A and its relationship with s 45 of the TP Act. 

Interrogatory 34

 

34        If yes to the preceding interrogatory, what were ANZ’s purposes in doing so?

 

171               Having regard to the view I have taken of interrogatory 33, interrogatory 34 is not a property interrogatory. 

Interrogatory 35

 

35        Is ANZ aware of any person accredited to submit loan applications to it, other than Mortgage Refunds or its related brokers, who has offered a gift or prize or refund in connection with the supply of the brokers services in the obtaining of the loan?

 

172               The question in issue in the proceeding in relation to the contended conduct is whether ANZ cancelled MRPL’s [and MRPL‑related brokers’] accreditation for the contended reasons and whether the re‑accreditation involved an agreement which contained a term or provision having the relevant substantial purpose or effect or likely effect.  A part of that controversy involves a denial of the ACCC’s contentions and an assertion by ANZ at para 32 of the defence that the cancellation of accreditation occurred for the reasons set out in the letter to AFG dated 25 March 2004.  That is the scope of the controversy.  The question of whether ANZ was aware of any accredited person, other than MRPL or MRPL‑related brokers, offering a gift or prize or refund in connection with the provision of services related to obtaining a loan is not productive of an answer going to a fact pleaded nor does it relate sufficiently to a fact from which an inference might be drawn about the fact in issue and is thus not a proper interrogatory. 

Interrogatory 36

 

36        If yes to the preceding interrogatory, state the name of the broker and what it was that was offered and in each such case whether and, if so, when ANZ withdrew or threatened to withdraw accreditation and, if it did withdraw or threaten to withdraw accreditation:

36.1     in each case the means by which it did so;

36.2     in each case the purposes for which it did so;

in each case whether it made those purposes known to the broker concerned. 

 

173               Having regard to the view I have taken of interrogatory 35, interrogatory 36 is not a proper interrogatory.

Interrogatory 37

 

37        Has ANZ permitted any broker accredited to it to offer refunds of commission with respect to ANZ loan products and, if so, specify the details and the reasons it did so?

 

174               Having regard to the view I have taken of interrogatory 35, interrogatory 37 is not a proper interrogatory.

 

Interrogatory 38

 

38        For what reasons did ANZ select the amount of its loan approval fee from time to time as the amount of refunds Mortgage Refund or its related brokers were permitted to provide?

 

175               The question in issue in the proceeding is whether the provision of the agreement limiting the refund that might be offered by MRPL and its related brokers to its customers to an amount no greater than the maximum loan approval fee that might be charged by ANZ to its customers as varied from time to time had the relevant substantial purpose or had or was likely to have the relevant effect contemplated by s 45A.  Interrogatory 38 calls upon ANZ to state the reasons for the selection of a maximum refund amount limited to the maximum loan approval fee that ANZ might charge.  That question is not the relevant question and, in any event, to the extent that the question might seek to address the substantial purpose or effect or likely effect, that matter is the central subject matter of the controversy and is not the proper subject matter of an interrogatory. 

Interrogatory 39

 

39        Did ANZ ever hold a view as to how much commission a broker had to make in order to provide an appropriate level of training, expertise and service to persons acquiring ANZ loan products through it? 

 

176               Interrogatory 39 addresses the question of whether ANZ ever (at any material time) held a view as to how much commission a broker had to derive or receive in order to provide an appropriate level of training, expertise and service to persons acquiring ANZ loan products through that broker.  The question does not address a question or issue in controversy on the pleadings.  It is not clear to me whether the question relates to a matter in question in the proceedings.  It goes to a view ANZ officers may or may not have held at any moment in time, across the material time, about the level of commission a broker might derive and the relationship between that level of commission and training expertise and service questions.  ANZ objects to the interrogatory on the footing that it is factually oppressive as it requires ANZ to make enquiries of relevant officers as to the question over a significant period of time.  I am not satisfied that the interrogatory is a proper interrogatory.  It seems to me that the interrogatory is oppressive.  It does not relate to any matter pleaded in the amended statement of claim, but not admitted and nor does it fall into the category of a matter pleaded about which there is lack of clarity arising out of ANZ’s defence. 

Interrogatory 40

 

40        If yes to the preceding interrogatory, specify the amount considered necessary and how it was calculated and whether any and if so what examination of businesses was conducted by ANZ in order to come to its determination?

 

177               Having regard to the view I have taken of interrogatory 39, interrogatory 40 is not a proper interrogatory. 

Interrogatory 41

 

41        Did ANZ ever:

41.1     hold the view; or

41.2     express the view,

to representatives of other lenders that commissions paid to mortgage brokers were too high and should be reduced?

178               Interrogatory 41 does not relate to any matter pleaded in the amended statement of claim, but not admitted and the question of whether ANZ held a view that commissions paid to mortgage brokers were too high and should be reduced; and whether it expressed that view to representatives of other lenders does not relate to a matter in question between the parties which requires an answer. 

General conclusion

179               The question of the objections to each of the interrogatories including the sub‑questions was heard in a lengthy contested application in which each party was represented by senior counsel.  The Court was referred to 37 authorities.  In resolving the challenge to the interrogatories, consideration has been given to the precise field of the controversy defined by the pleadings, the general objection based upon the expiration of general leave and the specific challenge to each and every interrogatory.  The response to that objection has been considered and a view formed about each and every interrogatory.  In some cases I have taken the view that an interrogatory which goes too far might be reformulated and I have suggested a reformulation.  I propose to make orders giving leave to deliver some of the interrogatories and leave to deliver other interrogatories in a reformulated form.  I have done so with a view to extracting some value from a lengthy argument about each of the interrogatories. 

180               The interrogatories were lengthy and the notion that oppression might arise out of casting an obligation on the relevant party and the Court to closely examine almost all of the interrogatories, in the manner described above, to ascertain which of them might be admissible itself, resonates:  American Flange & Manufacturing Co. Inc. v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 per Myers J.  However, the issues having been argued extensively in relation to each interrogatory, the questions in issue ought to be resolved in relation to each interrogatory rather than resolving the application on the footing that the interrogatories demand an unreasonable degree of engagement by the party and the Court and are thus not proper interrogatories. 

181               I will reserve the question of costs for further short written submissions. 

I certify that the preceding one hundred and eighty‑one (181) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:         16 March 2010