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In the Matter of Olsen Infrastructure Pty Limited [2012] NSWSC 1202. 

Brereton J. 

2 So far as interrogatories are concerned, UCPR r 22.1(1) authorises the Court "at any stage of the proceedings" to order any party to answer specified interrogatories.

The limitation on this is, under r 22.1(4), that such an order is not to be made unless the Court is satisfied that it is necessary at the time it is made.

The concept of necessity has been considered in many cases, and variously characterised as necessary in the interests of a fair trial, or for disposing fairly of the case: Boyle v Downs [1979] 1 NSWLR 192, 204-5 (Cross J); Yamazaki v Mustaca [1999] NSWSC 1083, [4] (Sully J). Thus the test is not one of absolute necessity, but of reasonable necessity in the interests of a fair trial. 

3 Although Practice Note SC Eq 11 - Disclosure in the Equity Division - does not apply in terms to interrogatories, nonetheless the Court would not countenance a party using the process of interrogatories to circumvent the requirements of SC Eq 11.

Under that Practice Note, disclosure will only be ordered in exceptional circumstances before the parties have served and exchanged their evidence. The reason for that is that the exchange of evidence will focus and refine the issues in dispute.


9 To my mind, the factors that make this case sufficiently exceptional to justify an order for interrogatories at this stage include

(1) the defendant's at least partial admission,

(2) the circumstance that, in addressing paragraph 14 of the statement of claim, the defendant will in any event have to turn his mind to the matters raised in the proposed interrogatories

(3) the circumstance that, without the information sought by the proposed interrogatories, the plaintiff will not be in a position to adduce expert evidence of value, and

(4) fundamentally, the circumstance that the relevant knowledge and information is solely in the hands of the defendant.

There may well be other means of obtaining the material facts, but they are likely to be more difficult and time-consuming than the proposed interrogatories.

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