Federal Court of Australia

CEU22 v Minister for Home Affairs [2022] FCA 1328

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application of 25 July 2022 be dismissed.

2.    The parties’ costs of and pertaining to the applicant’s interlocutory application of 25 July 2022 be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    By an interlocutory application dated 25 July 2022, the applicant seeks relief relating to some answers that the respondent has provided in response to interrogatories that a registrar of this court ordered her to answer. For the reasons that follow, that relief is not to be granted. The applicant’s interlocutory application will be dismissed.

Background

2    The applicant is an Afghani national. He came to Australia in 2010 and, prior to 9 December 2021, was the holder of a class BS subclass 801 partner (residence) visa. On that date (9 December 2021), the then Minister for Home Affairs, the Hon. Karen Andrews MP (to whom I shall hereafter refer as Ms Andrews), made a decision under s 501(3) of the Migration Act 1958 (Cth) (the “Act”) to cancel that visa on the basis that the applicant failed the “character test” for which s 501(6) of the Act provides and that the cancellation was in the national interest.

3    By an originating application dated 11 January 2022, the applicant seeks, by way of judicial review, prerogative relief directed to that decision (the “Cancellation Decision”). Various bases are identified in support of that cause; but, relevantly for present purposes, one of them posits that the then-Minister, Ms Andrews, failed “…to give proper, genuine or realistic consideration to the merits of the [a]pplicant’s case”.

4    Ms Andrews ceased to hold the office of Minister for Home Affairs on 23 May 2022. Her successor is the current Minister, the Hon. Clare O’Neil MP.

5    On 4 July 2022, a registrar of the court made orders requiring that the respondent answer interrogatories concerning certain aspects of the Cancellation Decision (including questions concerning the consideration of a brief prepared by department staff to assist in its making). Those interrogatories were answered by means of a response made on 18 July 2022, which was verified by an affidavit affirmed by Ms Josefina Soledad Wellings Booth, a solicitor employed by the department over which the respondent presides. That affidavit explained that Ms Wellings Booth had spoken personally to Ms Andrews in order to ascertain the answers to the interrogatories that the respondent had been ordered to answer. The answers to the interrogatories and the affidavit by which they were verified were filed and served in the usual way.

6    It is convenient to record at this juncture the questions that were the subject of the interrogatories that were ordered. The relevant order was as follows:

6.    By 4pm AEST on 18 July 2022, the Respondent serve and file an affidavit providing written answers to the following interrogatories in accordance with Part 21 of the Federal Court Rules 2011 (Cth):

(a)     On what date, and at what time, did you receive the brief (containing reasons which you signed on 9 December 2021) from your Department for the purpose of making the Decision you made or purportedly made pursuant to s 501(3) of the Migration Act to cancel the Applicant’s Class BS visa?

(b)    At what time on 9 December 2021 did you make the Decision?

(c)    How many minutes did your consideration (inclusive of reading time) of the Brief occupy, before you made the Decision?

(d)    Did you read the entirety of the statement of reasons, which had been prepared by your Department and had been included in the Brief, before you made the Decision?

(e)    How many minutes did your consideration (inclusive of reading time) of the statement of reasons occupy, before you made the Decision?

(f)    Did you read the entirety of each of the attachments identified in the “Index of Relevant Material for [the Applicant]” in Attachment 2 of the Brief, before making the Decision?

7    It is to be recalled that the respondent was not the relevant Minister at the time that the Cancellation Decision was made. That reality reflected in the answers that were given to the interrogatories, which were as follows:

Pursuant to an order made on 4 July 2022, the [r]espondent provides the following answers to the [a]pplicant’s interrogatories:

The questions are directed to a decision made by the former Minister for Home Affairs. The answers to the questions are not within the knowledge of the [r]espondent, the present Minister for Home Affairs. The [r]espondent provides the following answers on the basis that “you” is understood to refer to the former Minister and on the basis of inquiries made of the former Minister pursuant to the letter annexed at JWB-1 of the below affidavit.

1    Interrogatory 1: On what date, and at what time, did you receive the brief (containing reasons which you signed on 9 December 2021) from your Department for the purpose of making the Decision you made or purportedly made pursuant to s 501(3) of the Migration Act to cancel the Applicant’s Class BS visa?

1A.    I do not recall the date and time.

2    Interrogatory 2: At what time on 9 December 2021 did you make the [Cancellation Decision]?

2A.    I do not recall the exact time.

3    Interrogatory 3: How many minutes did your consideration (inclusive of reading time) of the Brief occupy, before you made the [Cancellation Decision]?

3A.    I cannot recall.

4    Interrogatory 4: Did you read the entirety of the statement of reasons, which had been prepared by your Department and had been included in the Brief, before you made the [Cancellation Decision]?

4A.    Yes, it was my invariable practice to read the statement of reasons in full before making a decision.

5    Interrogatory 5: How many minutes did your consideration (inclusive of reading time) of the statement of reasons occupy, before you made the [Cancellation Decision]?

5A.    I cannot recall.

6    Interrogatory 6: Did you read the entirety of each of the attachments identified in the “Index of Relevant Material for [the applicant]” in Attachment 2 of the Brief, before making the [Cancellation Decision]?

6A.    I do not recall but it was my invariable practice to read the entirety of the statement of reasons and review all relevant supporting material provided.

8    The affidavit of Ms Wellings Booth annexed (as annexure JWB-1) a letter that the respondent’s solicitors sent to Ms Andrews, requesting her assistance in answering the interrogatories that were the subject of Registrar Haag’s orders.

9    On 21 July 2022, the applicant’s solicitor sent a letter to the respondent’s solicitor, complaining that the respondent’s answers to the interrogatories were insufficient. Four days later (and before the respondent had offered her reply), the interlocutory application to which these reasons relate was filed. By that application, the applicant seeks the following relief, namely:

1.    At a time to be agreed upon between the parties and the Registrar, but no later than 3 weeks from the date of this order, the Hon Karen Andrews MP is to personally attend before the Registrar to be interrogated orally, pursuant to r 21.05(b) of the Federal Court Rules 2011 (Cth).

2.    In the alternative to order 1: Within a week from the date of this order, pursuant to rr 21.05(a) and/or 21.04(2) of the Rules:

a.    The Hon Karen Andrews MP is to personally write and duly affirm or swear an affidavit in accordance with r 21.03 of the Rules, verifying sufficient answers to all of the interrogatories administered by Registrar Haag on 4 July 2022;

b.    The Respondent is to file and serve on the Applicant Form 40, attaching to it the affidavit referred to in order 2(a), in accordance with r 21.03 of the Rules.

3.    In the alternative to order 2: Within a week from the date of this order, pursuant to rr 21.05(a) and/or 21.04(2) of the Rules:

a.    A person who:

i.    is a lawyer neither for the Respondent nor for any of her officers nor for the Hon Karen Andrews MP; and

ii.    is the Respondent or an officer of the Respondent; and

iii.    ‘know[s] the facts’ (within the meaning of r 21.04(3) of the Rules)

is to write and duly affirm or swear an affidavit in accordance with r 21.03 of the Rules, verifying sufficient answers to all of the interrogatories administered by Registrar Haag on 4 July 2022;

b.    The Respondent is to file and serve on the Applicant Form 40, attaching the affidavit referred to in order 3(a), in accordance with r 21.03 of the Rules.

4.    The costs of and incidental to this interlocutory application be the Applicant’s costs, on an indemnity basis, in the proceedings in any event.

5.    The costs of and incidental to the Applicant’s interlocutory application filed on 22 April 2022 be the Applicant’s costs, on an indemnity basis, in the proceedings in any event.

6.    Any other orders that the Registrar sees fit.

10    The interlocutory application of 25 July 2022 contemplates determination by a registrar of the court. No such determination has been made and the matter has, instead, made its way before me. It was the subject of an oral hearing conducted on 31 October 2022. During the course of that hearing, senior counsel for the applicant indicated that proposed orders 3, 4 and 5 were not pressed and that the parties were agreed that the court should reserve the question of costs for later consideration.

11    In support of the relief that is sought, the applicant read two affidavits affirmed by his solicitor, Ms Elizabeth Wisser: one made on 25 July 2022 and the other on 21 October 2022. The respondent read four affidavits: the affidavit of Ms Wellings Booth (described above), an affidavit affirmed by her solicitor, Ms Emily Jane Nance, on 25 October 2022 and two affidavits of an employee of her (the respondent’s) department, Mr Nigel Muir, one affirmed on 18 May 2022 and the other on 27 May 2022.

Interrogatories

12    Part 21 of the Federal Court Rules 2011 (Cth) (the “FCA Rules”) is entitled, “interrogatories”. Of relevance presently are rr 21.03, 21.04 and 21.05, which provide as follows:

21.03 Answers to interrogatories

(1)    A party who is ordered to answer interrogatories must do so by filing:

(a)    written answers in accordance with:

(i)    Form 40; and

(ii)    subrules (3) and (4); and

(b)    an affidavit verifying the answers in accordance with rule 21.04.

(2)    The party must serve the documents mentioned in subrule (1) on each party who has filed a notice of address for service.

(3)    The answers must address each interrogatory:

(a)    by directly answering the substance of the interrogatory; or

(b)    by objecting to answer the interrogatory on a ground mentioned in subrule (4) and briefly stating the facts on which the objection is based.

(4)    A party may object to answering an interrogatory only on one or more of the following grounds:

(a)    that the interrogatory does not relate to an issue raised on the pleadings and in issue;

(b)    that the interrogatory is vexatious or oppressive;

(c)    privilege.

Note: The Court will, in its order, specify the time for compliance.

21.04 Affidavit verifying written answers to interrogatories

(1)    An affidavit verifying a party’s written answers to interrogatories must be made by one of the following:

(a)    the party;

(b)    if the party is a person under a legal incapacity—the person’s litigation representative;

(c)    if the party is a corporation or organisation—an officer of the corporation or organisation;

(d)    if the party is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person—a member or officer of the body;

(e)    if the party is the Crown or an officer of the Crown suing or being sued in the party’s official capacity—an officer of the Crown.

(2)    However, if the party is a person mentioned in paragraph (1)(b), (c), (d) or (e), the party applying for the written answers may apply to the Court for an order specifying:

(a)    by name or otherwise, the person to make the affidavit; or

(b)    by reference to an officer or an office—the persons from whom the party may choose the person to make the affidavit.

(3)    A person making an affidavit under paragraph (1)(b), (c), (d) or (e) must know the facts to make the affidavit.

21.05 Orders dealing with insufficient answers

If a party fails to answer an interrogatory sufficiently, the party applying for the written answers may apply to the Court for an order:

(a)    that the other party give a sufficient answer verified by affidavit in accordance with rule 21.04; or

(b)    that the party, or a person mentioned in paragraph 21.04(1)(b), (c), (d) or (e), attend before the Court or a Registrar to be interrogated orally.

13    A party ordered to answer interrogatories is not at liberty merely to indicate that he or she does not know the answer to what is asked. Personal knowledge is only one source from which an interrogated party might properly discern the answers to what is asked of them. Information and belief are others: Sharpe v Smail (1975) 5 ALR 377, 379 (Gibbs J). If an interrogated party is, for want of personal knowledge, unable to answer what is asked, then he or she may say so; but only after making “…all reasonable inquiries of…servants and agents, including, within the limits set by the principle of oppressiveness, those who were…agents at the material time but are no longer”: Derham v Amev Life Insurance Co Ltd (1978) 20 ACTR 23 (Blackburn CJ).

Sufficiency of the respondent’s answers

14    The applicant’s present complaint has undergone a measure of refinement since the interlocutory application was filed. Initially, it focused upon Ms Andrews’s failure to recall the detail that it was hoped that she might share as to how it was that she made her Cancellation Decision. It was said that Ms Andrews did not directly answer the substance of the interrogatories, that she ought to have made such additional inquiries as might have permitted her to do so and that her failure in those regards put her in breach of her obligation to answer the interrogatories that the court saw fit to order.

15    More recently, the focus of the applicant’s complaint has shifted toward the respondent. It is said now that the respondent (via the agency of Ms Wellings Booth) did not make all reasonable inquiries necessary to enable her to answer the interrogatories that were ordered. In particular, it is said that she (or somebody else on the respondent’s behalf) ought to have done more than simply record the answers that were sought and received from Ms Andrews.

16    Regardless, the relief for which the applicant moves remains directed toward Ms Andrews. He asks the court to require either that Ms Andrews attend the court for oral examination pursuant to r 21.05(b) of the FCA Rules; or, alternatively, that Ms Andrews be required, pursuant to rr 21.05(a) or 21.04(2) of the FCA Rules, personally to verify on affidavit answers to the interrogatories that the court has seen fit to order.

17    By written reply submissions filed on the weekend prior to the oral hearing of Monday, 31 October 2022, the applicant identified pt 1 of the FCA Rules as an alternative source of power pursuant to which the court might require either of the two outcomes that he hopes to secure (namely, that Ms Andrews be required personally to answer the interrogatories, either by means of oral examination or by affidavit). Rule 1.32, in particular, empowers the court to make “…any order that the Court considers appropriate in the interests of justice”. That includes orders that are inconsistent with other provisions of the FCA Rules: FCA Rules, r 1.35.

18    It is necessary to record what steps the respondent took before answering the interrogatories in the way that she did. It is to be recalled that the interrogatories were the subject of orders made on 4 July 2022. Those orders contemplated that they be answered within 14 days. By letter dated 12 July 2022, Ms Nance sent correspondence to Ms Andrews adverting to the orders, seeking to arrange a time for Ms Andrews to answer the interrogatories and attaching documentation that might have assumed some relevance to those answers. It is convenient to replicate the relevant parts of that letter:

2.    On 4 July 2022, orders were made requiring the [r]espondent to file an affidavit by 18 July 2022, providing written answers to the following interrogatories in accordance with Part 21 of the Federal Court Rules 2011 (Rules):

a)    On what date, and at what time, did you receive the brief (containing reasons which you signed on 9 December 2021) from your Department for the purpose of making the [Cancellation] Decision you made or purportedly made pursuant to s 501(3) of the Migration Act to cancel the [a]pplicant’s Class BS visa?

b)    At what time on 9 December 2021 did you make the [Cancellation] Decision?

c)    How many minutes did your consideration (inclusive of reading time) of the Brief occupy, before you made the [Cancellation] Decision?

d)    Did you read the entirety of the statement of reasons, which had been prepared by your Department and had been included in the Brief, before you made the [Cancellation] Decision?

e)    How many minutes did your consideration (inclusive of reading time) of the statement of reasons occupy, before you made the [Cancellation] Decision?

f)    Did you read the entirety of each of the attachments identified in the “Index of Relevant Material for [the Applicant]” in Attachment 2 of the Brief, before making the Decision?

3.    A copy of the orders made on 4 July 2022 is attached.

4.    In answering the interrogatories set out above, the [r]espondent is obliged to make all due inquiries. We are therefore writing to seek your response to the interrogatories, as they relate to matters in your personal knowledge. To assist you, we have attached the following documents:

a)    The submission provided to you with respect to the cancellation of [the applicant]’s visa, with attachments;

b)    A redacted copy of your diary for week commencing 6 December 2021; and

c)    Your reasons for the decision made on 9 December 2021 to cancel [the applicant]’s visa.

5.    Please let us know if there are any other documents which may be in the possession of the current Minister or her Department which may assist in your response to these questions.

6.    We propose that a senior officer from the Department of Home Affairs will contact you by telephone at a time suitable to you, no later than 17 July 2022, to obtain your formal answers to the interrogatories set out above. That person will then depose to an affidavit verifying the answers as required under Part 21 of the Rules.

19    That correspondence also addressed measures that were afoot to comply with the respondent’s discovery obligations. It is apparent that the respondent had uncovered a small array of documents that were potentially relevant to the applicant’s substantive application (including his contention that the Minister had failed properly to consider various aspects of what he had advanced in opposition to the cancellation of his visa), and had enlisted Ms Andrews’s assistance to identify any others that might be provided to the applicant.

20    Three days after that letter was sent, Ms Wellings Booth spoke directly to Ms Andrews. She put to Ms Andrews each interrogatory in the same terms as were ordered and recorded Ms Andrews’s answer to each.

21    Following receipt of the answers to the interrogatories, the applicant’s solicitors wrote to the respondent’s solicitors and complained about their inadequacy (above, [9]). The present application was filed before the respondent’s response to that complaint was received. Some months later (on 18 October 2022), Ms Nance sent further correspondence to Ms Andrews, the relevant parts of which it is convenient now to extract:

3.    Although it is not sought in the interlocutory application, we write to request further information in relation to the responses that you provided on 15 July 2022.

4.    In particular, we would be grateful if you could provide your response to the following further questions:

4.1.    In relation to Interrogatory 1, the Department's records show that the brief and attachments were emailed to your office at 7 December 2021 at 11.30am. The Department's records also show that a hard copy of the brief was delivered to your office on 7 December 2021. Does this assist your recollection as to when you personally received the brief?

4.2.    In relation to Interrogatory 2, we note that, in our letter of 12 July 2022, we provided to you a redacted copy of your diary for the week commencing 6 December 2021. Do the diary entries assist you in recalling the time on 9 December 2021 at which you considered or signed the brief?

4.3.    In relation to Interrogatory 3, we note that you cannot recall how many minutes your consideration of the brief occupied. Did you have any general practice in relation to your process for considering briefs relating to the cancellation of visas? If so, how much time would you generally spend on that process?

5.    In relation to Interrogatory 5, we note that you cannot recall how many minutes your consideration of the statement of reasons occupied. Did you have any general practice in relation to your process for considering statements of reasons relating to the cancellation of visas? If so, how much time would you spend on that process?

6.    We could be grateful if, when considering your responses to these questions, you could make appropriate inquiries of any members of your office who assisted you (or may have assisted you) in considering the brief and statement of reasons in the present case. If such inquiries are made, it would also assist us if you could set out the nature of those inquiries.

22    The applicant maintains that it was not open to Ms Andrews simply to not recall the matters that were asked of her. Similarly, it is said that it was not open to Ms Wellings Booth simply to pose to Ms Andrews the questions that arose and then passively record her answers to them. Instead, it is said that the obligation to make what the authorities describe as “all reasonable inquiries” imposed upon both she (or Ms Wellings Booth, on her behalf) and Ms Andrews obligations that here went undischarged.

23    I do not accept that Ms Andrews failed in any such way. Ms Andrews is not a party to the present matter. She neither laboured nor labours under any obligation imposed by part 21 of the FCA Rules. Responsibility for answering the interrogatories that were ordered fell to the respondent. The discharge of that responsibility required that she make, either directly or via the agency of her staff (including Ms Wellings Booth), all reasonable inquiries that might be made to ascertain information sufficient to answer what was asked.

24    That Ms Andrews occupied the ministry now held by the respondent—and did so when each of the Cancellation Decision, the application for judicial review of that decision and the application for orders requiring answers to interrogatories were made—is of no moment. She was not a party when the registrar’s orders were made and, most importantly, is not now a party to the present matter.

25    That last reality, though not apparently controversial, is worthy of analysis. It is well-established that, where a challenge is mounted against a decision made by the holder of an executive office, it should be mounted against that office, rather than against the individual who held it at the time: Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721, 724-725 (Moffitt P, Hope and Samuels JJA agreeing). If, as has occurred here, the holder of the office changes, the challenge so mounted continues as against the office (as opposed to the individual who succeeds thereto): Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, 529 [31] (McHugh J, with whom Kirby J agreed at 552 [111]).

26    By her written submissions in opposition to the interlocutory application of 25 July 2022, the respondent noted as follows:

As she no longer holds the office of Minister, Mrs Andrews is correctly characterised as a non-party to the proceedings. The Court has no power to require a non-party to the proceedings such as Mrs Andrews to answer interrogatories under Part 21. This is an answer to the entirety of the applicant’s proposed Orders 1 and 2.

27    With respect, I agree. Ms Andrews cannot, in this matter, be compelled under Part 21 of the FCA Rules to answer interrogatories. Likewise, she is not authorised under r 21.04(1) to verify on affidavit the respondent’s answers to the interrogatories administered in this matter. She is neither a party to the matter nor a representative of somebody who is. She is not (and is not said to be) an officer of the Crown. In the absence of any such authority, she cannot be compelled to attend before the court or a registrar for oral interrogation under r 21.05(b).

28    Even if the respondent’s answers to the interrogatories could be impugned as insufficient (and, for reasons to which I shall shortly come, I do not accept that they can), the relief that the applicant seeks by the interlocutory application of 25 July 2022 (and, specifically, by proposed orders 1 and 2 therein) is beyond what the court can or should grant.

29    The applicant sought to overcome the textual limitations of pt 21 of the FCA Rules in two ways: first, by relying upon the effect of s 20 of the Acts Interpretation Act 1901 (Cth); and, second, by appealing to notions of common justice.

30    Section 20 of the Acts Interpretation Act 1901 (Cth) provides as follows:

In a provision of an Act, or of an agreement entered into by or on behalf of the Commonwealth, a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being:

(a)    hold or occupy the office, appointment or position; or

(b)    perform the duties of the office, appointment or position.

31    Respectfully, it does not assist the applicant. There is nothing about it that serves to qualify former holders of an office that is engaged in litigation as continuing parties thereto.

32    Nonetheless, the applicant submits that there must be some occasion for reading the FCA Rules with a degree of flexibility, and in a way that accommodates, or overcomes, the scope for prejudice that attends circumstances such as these, where a decision maker might be relieved of obligations that attach to litigants merely because he or she ceases to hold the office that is involved in litigation. I do not accept that there is. At the risk of repetition, the text of pt 21 is unambiguous and it does not accommodate the submission advanced directly against Ms Andrews. Ms Andrews is not a party and is not a representative of somebody who is. She cannot be compelled under pt 21 of the FCA Rules to do any of the things in respect of which the present application is pursued.

33    Attention then turns to the respondent. Pressed to identify what reasonable inquiries Ms Wellings Booth (or somebody else on the respondent’s behalf) ought to have made in order properly to answer the interrogatories that were ordered, the applicant nominated two broad examples. First, it was said that Ms Andrews should have been alerted to “…the insufficiency of [her] answers”, and that she ought generally to have been asked additional questions that might have assisted her to recollect what she was unable to recollect during her conversation with Ms Wellings Booth. Second, it was said that the respondent ought to have made inquiries of Ms Andrews’s former staff.

34    The applicant placed some reliance upon Ms Nance’s correspondence of 18 October. That correspondence, it was said, served to prompt Ms Andrews in ways that ought to have occurred before the interrogatories were answered. The applicant sought to cast it as an admission that the respondent did not, in July, make all reasonable inquiries of Ms Andrews as required.

35    It is to be recalled that the respondent did not make the Cancellation Decision. The questions that she was ordered to answer concerned measures that were undertaken by Ms Andrews. She could not, then, presume to answer them from her own knowledge. Ms Wellings Booth’s affidavit said as much; and fairly so.

36    Quite obviously, the respondent’s obligation to make such inquiries as might reasonably permit her to answer what was asked required that she put the questions directly to Ms Andrews. That occurred. Indeed, the respondent (via Ms Nance) went further and provided, in advance of the discussion that Ms Wellings Booth had with Ms Andrews, information that might (but, sadly, appears not to) have prompted Ms Andrews to recall what was then asked of her.

37    Can it be said, then, that Ms Wellings Booth (or somebody else on the respondent’s behalf) ought to have challenged—more accurately, was obliged to challenge—Ms Andrews’s failure to recall that which was asked of her; to, in effect, examine (and, perhaps, cross-examine) Ms Andrews in the hope that her memory might improve?

38    I do not consider that it can. Ms Andrews was under no obligation to assist the respondent and the respondent could not compel her to that end. Moreover, the questions that were posed of Ms Andrews concerned matters of which she might ordinarily be forgiven her apparent want of memory. It should hardly surprise that Ms Andrews, having relinquished her Ministry upon the election of the Albanese government in May 2022, might have little to no recollection of specific decisions that she made some seven months earlier during what was surely a busy period in her life. Of course, there was a reasonable possibility that she might—and, for that reason, it was appropriate for the respondent to make the inquiries of her that were made. Nonetheless, her apparent failure to recall the detail that she was asked to recall strikes very much as consistent with common expectation.

39    Ms Wellings Booth had no reason to think that any exploratory “prodding” might elicit from Ms Andrews any detail that she had, to that point, been unable to recall. Given that and the absence of any obligation compelling Ms Andrews to assist at all, it cannot be said that Ms Wellings Booth ought (on the respondent’s behalf) to have embarked down that purely exploratory path. The fact that Ms Nance did so (at least to a degree) by her correspondence of 18 October 2022 is of no moment. That correspondence does not serve to colour the inquiries that it contained as reasonable inquiries that ought to have been made in July. It was likely sent as an effort to appease the applicant ahead of the hearing of his interlocutory application.

40    Equivalent reasoning applies to the suggestion that the respondent ought to have made inquiries of Ms Andrews’s staff. The matters to which the interrogatories were directed concerned the degree to which Ms Andrews personally considered things before making her Cancellation Decision. The respondent, in considering what inquiries she might reasonably make in order to be able to answer the interrogatories, had no reason to suspect that former members of Ms Andrews’s staff might have any information more helpful to that endeavour than what Ms Andrews herself gave. Indeed, given Ms Andrews’s personal inability to assist, there seems every reason to presume that her staff would not have been any more helpful.

41    Of course, it is conceivable that some of them might have been. But the obligation operating upon the respondent was to make inquiries of “…those who may be supposed to know the primary facts which form the subject matter of the interrogatory”: Tipperary Developments Pty Ltd v Western Australia [2004] WASC 179, [15] (Murray J). Why, it might rhetorically be asked, should a party be compelled to make inquiries of those from whom it could fairly be thought that relevant assistance was most unlikely to be forthcoming? The respondent was under an obligation to make reasonable inquiries; not all inquiries and certainly not inquiries that were as inherently ambitious or exploratory as what is now the subject of contention.

42    Before Registrar Haag, the applicant sought to support his application for interrogatories on the basis that the questions that he hoped to pose called “…for very simple answers”. That characterisation was apt: all that was proposed to be obtained was an admission concerning the period or periods of time that Ms Andrews spent doing certain things that culminated in her Cancellation Decision. To suggest now, as the applicant does, that the answers that were sought required the exploratory interrogation of her staff is at odds with that stated simplicity.

43    I am not satisfied that the respondent, in answering the interrogatories as she has, has failed directly to answer the substance of what was posed. She has no first-hand knowledge of the matters that she was required to answer and the only person that could reasonably be expected to was asked about them but was unable herself to recall much that was helpful. One can understand why the applicant is disappointed with that outcome; but it does not involve any want of compliance with pt 21 of the FCA Rules.

The alternative case for further examination

44    The applicant alternatively submits that the court should, by orders made pursuant to pt 1 of the FCA Rules, require that Ms Andrews either be subjected to oral examination or provide an affidavit of her own. Each is urged on the basis that the answers given to date to the interrogatories that were ordered were inadequate. I have already addressed that contention. Nonetheless, additional observations might be made of the alternative courses of action that the applicant proposes under pt 1 of the FCA Rules.

45    There are at least two reasons why the relief that is sought under pt 1 of the FCA Rules should not be granted. The first invokes protections of procedural fairness. It is one thing to require that the respondent, via a representative or alter ego, comply with the requirements of pt 21 of the FCA Rules by means of the oral examination or affidavit material that the original form of the applicant’s interlocutory application contemplates. It is another entirely to envisage that orders might be made directly against a third party by means of an application of which she was not given notice. That, in my view, is fatal to the applicant’s case under pt 1 of the FCA Rules.

46    But, second (and even if it weren’t), I do not consider that the interests of justice here require that Ms Andrews be subjected to either of the courses that the applicant proposes (that is to say, to oral examination or a requirement that she answer interrogatories herself). There are two reasons for that.

47    First, to require either species of relief under pt 1 would be to circumvent the boundaries erected by pt 21. Part 21 of the FCA Rules identifies the circumstances in which admissions might be compulsorily extracted in the form of verified answers to interrogatories. Those circumstances do not extend so as to oblige non-parties to extant litigation. It is not in the interests of justice that “…a general power [such as that for which r 1.32 provides] be exercised in a way that transcends the threshold requirements placed on the exercise of discretion under [a] specific power [such as that for which pt 21 of FCA Rules provides]”: McAlister v New South Wales (2014) 223 FCR 1, 5 [23] (Edmonds J).

48    Second—and consistently with what is discussed above—there do not appear to be sufficient prospects that, were she to be subjected to either of the processes for which the applicant moves, Ms Andrews’s memory might improve to a point that could assist him (or anybody). Absent some reasonable expectation that it might yield information that he doesn’t already have, it is not in the interests of justice that a non-party be subjected to the invasive burdens inherent in what the applicant proposes.

Disposition

49    The interlocutory application of 25 July 2022 should and will be dismissed. The parties were agreed that the costs of and associated with that application should be reserved and there is no reasons why I should not accede to that course. There will be orders accordingly.

Associate:

Dated:    9 November 2022