REASONS FOR JUDGMENT

INTRODUCTION

1                                             The applicant (Lynx) applies for leave to administer a relatively small number of interrogatories for answering by the fourth respondent (WorleyParsons).

2                                             Although the number of interrogatories in respect of which leave is sought is small, it should be noted that WorleyParsons has agreed to answer other interrogatories.

3                                             Essentially there are three complaints by WorleyParsons concerning the interrogatories.  The first is that they are fishing; the second is that they seek discovery; and the third is that answers to the questions sought will already have been given by answers to more general questions. 

INTERROGATORIES IN DISPUTE

4                                             The interrogatories in respect of which leave is opposed are the following: 

21.       Look at the email from Patrick Torock of Bradken Resources to John Scott of WorleyParsons dated 3 July 2003 (with attachments) a copy of which is at Tab 7 of the Exhibits to these Interrogatories, which contains, inter alia the following:

“We have been informed by BHP that the Golynx Wagon discharges adequately when the dumper is rotated 140 degrees.  We believe that the slope of the Golynx wagon walls is around 9.5 degrees from the vertical.  After the dumper is rotated 140 degrees, this surface will be at 40.5 degrees from a horizontal plane.  Worley should confirm the side-wall angle of the Golynx wagons.

“Your current arrangement shows an angle of 20º which would make the side wall at an angle of only 30º from the horizontal when rotated through 140º.  This is clearly too shallow and your design needs to be changed to ensure adequate discharge.”

and state:

21.1      Did WorleyParsons confirm the side-wall angel of the Golynx Wagons as stated in the first paragraph from the email set out above, and, if so:

21.1.1   What did WorleyParsons do to confirm the angle?

21.1.2   When, where and in what manner and by which employee, officer or agent was that confirmation carried out?

21.1.3   Identify each document recording that confirmation.

21.2      Did WorleyParsons inform Bradken Resources to the effect that it proposed to confirm, or had confirmed the side-wall angle of the Golynx Wagons, and, if so:

21.2.1   Was the communication conveying the information partly or wholly oral in writing, express or implied?

21.2.2   Insofar as it was wholly or partly oral, state the substance of the communication, and when, where and between which servants, officers, agents or representatives of Bradken Resources and WorleyParsons the communication took place?

21.2.3   Insofar as the communication was wholly or partly written, identify each document recording or containing it.

21.2.4   Insofar as the communication was wholly or partly implied, state what was implied, and the acts, facts matters circumstances and things recording or evidencing each implication.

21.3      Did WorleyParsons use or consider some or all of the information in the email from Patrick Torock of Bradken Resources to John Scott of WorleyParsons dated 3 July 2003 (with attachment) a copy of which is at Tab 7 of the Exhibit to these Interrogatories to design iron ore railway wagons for manufacture, sale and supply to BHPBIO?

21.4      If the answer to 21.3 is in the affirmative, state

21.4.1   What documents, contents or information were used or considered.

21.4.2   Which employees, officers, agents or representatives of WorleyParsons considered or used the documents, contents or information, and when, where, in what manner.

21.4.3   Identify each document recording or referring to that use or consideration. 

22        Look at the second annexure to the email from Patrick Torock of Bradken Resources to John Scott of WorleyParsons dated 3 July 2003 (with attachment) a copy of which is at Tab 7 of the Exhibits to these Interrogatories being a copy of part of Lynx Drawing No 7122-01-01, and state:

22.1      Did WorleyParsons obtain Lynx Drawing No 7122-01-01 or a copy of it or part of it otherwise than as an annexure to the email?

22.2      When, where and from whom and in what circumstances did WorleyParsons obtain Lynx Drawing No 7122-01-01 or a copy of it or of part of it otherwise than as an annexure to the email?

22.3      Which employees, officers, agents or representatives of Bradken Resources received Lynx Drawing No 7122-01-01 or a copy of it or part of it otherwise than as an annexure to the email?

22.4      Was the receipt of Lynx Drawing No 7122-01-01 or a copy of it or of part of it otherwise than as an annexure to the email pursuant to or accompanied by any communication?

22.5      If the answer to 22.4 is in the affirmative, was the communication wholly or partly orally, in writing, express or implied?

22.5.1   Insofar as it was wholly or partly oral, state the substance of the communication and when, where and between which persons the communication took place.

22.5.2   Insofar as the communication was wholly or partly written, identify each document recording or containing it. 

22.5.3   Insofar as the communication was wholly or partly implied, state what was implied, and the acts, facts matters, circumstances and things recording or evidencing each implication.

23.       Look at the Email from Patrick Torock of Bradken Resources to John Scott of WorleyParsons dated 7 July 2003 (with attachments) a copy of which is behind Tab 8 of the Exhibits to these Interrogatories, which states, inter alia,

“We have good information that suggests that the Lynx Wagons have a 9.5º slope on the side walls.  A secondary source and information (scaling from drawing 7122-01-01) suggests the angle is around 10º.  Your estimation of 7.7º on the top portion end and 11.3º on the lower portion seems to be based on measurements made during a site visit which I believe may not give you the correct angles. 

If you wish for Bradken to get information on the sidewall slope directly from BHP, please indicate this by reply email.”

and state:

23.1      Did Bradken Resources communicate to WorleyParsons what was the “good information that suggests that the Lynx wagons have a 9.5 degree slope on the sidewalls” as stated in the first paragraph above, and, if so:

23.1.1   Was the communication from Bradken Resources conveying the information partly or wholly oral, in writing, express or implied?

23.1.2   Insofar as it was wholly or partly oral, state the substance of the communication and when, where and between which servants, officers, agents or representatives of Bradken Resources and WorleyParsons.

23.1.3   Insofar as the communication was wholly or partly written, identify each document recording or containing it.

23.1.14Insofar as the communication was wholly or partly implied, state what was implied, and the acts, facts matters, circumstances and things recording or evidencing each implication. 

23.2      Did WorleyParsons reply to the email to the effect that it wanted Bradken Resources to get information on the sidewall slope directly from BHPBIO, and, if so:

23.2.1   did Bradken Resources request or take steps to obtain such information?

23.2.2   what did Bradken Resources do, by which employee, officer, agent or representative, and to what effect? And

23.2.3   identify each document recording that request, any steps taken, and any reply or information provided. 

24.       Did WorleyParsons use or consider some or all of the information in the email from Patrick Torock of Bradken Resources to John Scott of WorleyParsons dated 7 July 2003 (with attachments) a copy of which is behind Tab 8 of the Exhibits to these Interrogatories to design iron ore railway wagons for manufacture, sale or supply to BHPBIO?

25.       If the answer to 24 is in the affirmative, state

25.1      What documents, contents or information were used or considered.

25.2      Which employees, officers, agents or representatives of WorleyParsons considered or used the documents, contents or information, and when, where, in what manner.

25.3      Identify each document recording or referring to that use or consideration.

26.       In or about November 2006, was WorleyParsons consulted, engaged or retained by [FMG], or by any person or corporation on behalf of FMG in connection with the design or proposed design of iron ore railway wagons for manufacture in China by China Southern Rolling Stock for use by FMG in Western Australia or in connection with that proposed manufacture or manufacture, and, if so, state:

26.1      When, where, and in what manner by whom and by which of its employees, officers, agents or representatives was WorleyParsons consulted, engaged or retained.

26.2      Identify the terms of the engagement or retainer.

26.3      If there is no document recording that consultation, or the terms of the engagement or retainer, state the substance of what was said and by whom and to whom, and when and where, as to the terms of the engagement or retainer. 

27.       Look at WorleyParsons Drawing FMG SK-34 a copy of which is at Tab 9 of the Exhibits to these Interrogatories and state when, by whom and for what purpose was it prepared, and identify all drafts and other documents requesting, or recording or referring to the preparation of the drawing. 

30.       Was WorleyParsons Drawing FMG SK-34 forwarded to FMG or to Zhuzhou Rolling Stock Works or to any other entity in China or elsewhere, and, if so, identify each entity, and the employees, officers or agents of each entity to which the drawing was forwarded, and identify each document recording or referring to the forwarding of the drawing to each entity. 

31.       In or about November 2006 and thereafter, did WorleyParsons provide any services or perform any work in connection with or for the purposes of the design or proposed design iron ore railway wagons for manufacture in China by China Southern Rolling Stock or Zhuzhou Rolling Stock Works or any other entity for use by FMG in Western Australia or in connection with that proposed manufacture or manufacture and, if so, state:

31.1      What was the nature of the services provided or work performed, when and over what period was it performed, where was it performed and by which employees, officers, agents, or representatives of WorleyParsons was it performed.

31.2      Identify each document recording or referring to the provision of those services or the performance of that work.

RULING

5                                             In relation to the interrogatories in dispute, leave will be granted subject to modifications. 

6                                             WorleyParsons have relied on a passage from a recent decision in Austal Ships Pty Ltd (ACN 079 160 679) v Incat Australia Pty Ltd (ACN 051 556 855) (No 3) [2010] FCA 795(at [7]) where I said:

The administering and answering of interrogatories is a form of discovery.  Just as this Court has now substantially limited the scope for wide ranging discovery, the circumstances on which leave to administer interrogatories will be granted is increasingly rare.  That is not to say that interrogatories and discovery of documents are mutually exclusive.  It is clear that they may overlap on occasions.  In this Court it will be unlikely that interrogatories will be permitted as a substitute for discovery of documents.

7                                             Unlike the circumstances in Austal Ships, the interrogatories in respect of which leave is now sought in this proceeding are far more confined in their nature and are directly referable to specific documents which have been identified and discovered.  Senior counsel for Lynx has explained clearly the relevance of aspects of those documents to the pleaded case. 

8                                             WorleyParsons complains that in seeking to identify further documents, Lynx is seeking to go behind the affidavit of discovery in respect of which 50 or 60 gigabytes of discovery has already been given. 

9                                             In my view, Lynx is not guilty of this vice.  It has identified with precise clarity particular documents to which its questions are directed and it seeks clarification, in the light of the content of those documents, as to the identity and location of other specific documents.  It may very well be that those documents have already been discovered and given the breadth of discovery, WorleyParsons would be in a far better position to identify with the benefit presumably of electronic searching facilities documents which might conform with the questions raised by Lynx. 

10                                          Further, I do not consider there is a fishing component in this inquiry because there is an evidentiary foundation for raising the relatively narrow line of questioning.  The relatively narrow line of questioning goes directly to the heart of the case and depending upon the answer, may have the capacity to go some way in resolving some or all aspects of the litigation insofar as these two parties are concerned. 

11                                          Senior counsel for Lynx, Mr Garnsey QC made a number of concessions in the course of argument in relation to the form of the interrogatories which will be pursued.  It seems to me that some further modification is necessary as follows but subject to that modification, I give leave to administer the interrogatories.

12                                          Leave is granted to Lynx to administer interrogatories to WorleyParsons subject to the modifications identified in these reasons:

In interrogatory 21.2.1 the words ‘express or implied’ will be removed and ‘or’ inserted between ‘oral and ‘in writing’.  The same ruling applies in all subsequent  references including 22.5 and 23. 

Interrogatory 21.2.4 will not be permitted.  The same ruling applies in all subsequent  references including 22.5 and 23. 

In relation to interrogatory 21.3 ‘information in the email from Patrick Torock…’ dated 3 July 2003 is confined to the part of the email reproduced at interrogatory 21, commencing ‘We have been informed…’ and ending …changed to ensure adequate discharge’.  Each subsequent reference to that email is to be similarly confined. 

Interrogatory 22.5.3 will not be permitted.

In relation to interrogatory 24 ‘information in the email from Patrick Torock’ dated 7 July 2003 is confined to the part of that email reproduced at interrogatory 23 beginning ‘We have good information…’ and ending ‘…please indicate this by reply email’.

In interrogatory 26, the word ‘consulted’ will be removed.  Interrogatory 26.1 will be removed in its entirety and in interrogatory 26.2 the words ‘that consultation, or’ will be removed.  In interrogatory 26.3 the words ‘that consultation, or’ and ‘in that consultation or’ will be removed also.

13                                          Lynx has largely succeeded in this contested argument and it seems on its face that costs should follow the event.  I will so order but grant liberty to apply.  The orders will be as follows:

1.                  The applicant do have leave to file and serve upon the fourth respondent a notice requiring the fourth respondent to answer the interrogatories set out in the Notice to Answer Interrogatories annexed to the applicant’s motion of 24 August 2010 as amended in the manner set out in these reasons. 

2.                  The fourth respondent do pay the costs of the applicant in relation to this motion.

3.                  There be general liberty to apply on 7 days notice.

Associate: 

Dated:         14 October 2010