CIELO v MG	KAILIS GULF FISHERIES PTY LTD
Supreme Court of the Northern Territory of Australia Martin J.
31	ay, 6 July 1990

PRACTICE AND PROCEDURE - Striking out of claim - Failure to file and serve answers to interrogatories - Preconditions to self-executing order - Compliance clearly and easily determined - Sufficiency of answers - True nature of order - NT Supreme Court Rules r. 24.02, 30.06(1)
WORDS AND PHRASES - "Or else"

Followed:
Broers v Forster (1981) ALR 605
Freeman v Robinov (1981) VR 539
T'-'uc.cr_n_e_r v_B..cu_l_l_e_t_i_n_N_e_w_s.._p_a p_e_r_s_P_t&y_L_t_d (1974) 131 CLR 69

Counsel for the applicant Solicitors for the applicant

Counsel for the respondent Solicitors for the respondent

CR	McDonald Ward Keller

BJ	Cassells Australian Legal Aid Office

ma.r900017

mar900017

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 186 of 1988

BETWEEN:
JOSEPH CIELO
Plaintiff

AND:

MG	KAILIS GULF FISHERIES PTY LTD
Defendant
CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 6 July 1990)

This is an application on summons for orders that "the plaintiff's claim be dismissed/struck out" and that "the Defendant be at liberty to enter judgment" for failure on the part of the plaintiff to file and serve sworn answers containing further and better answers to certain interrogatories administered by the defendant.

A brief history of this aspect of the action is:

21 December 1989	order that the plaintiff within
28 days file and serve his answers to the Defendant's Interrogatories delivered 23 October 1989

18 January 1990

2 February 1990

8 March 1990

affidavit of the plaintiff containing answers and interrogatories sworn

affidavit filed

order, by consent, that plaintiff not later than
29 March 1990 file and serve sworn further and better

	answers to the interrogatories, about 18 in all.	

12	
April	
1990	
order, by consent, that the	
			plaintiff not later than 20	
			April 1990 file and serve his	
			sworn further and better	
			answers as ordered on 8 Marcr1
1990 OR ELSE the Plaintiff's	
			claim be struck out and the	
			Defendant enter Judgment	
			inclusive of costs in the	
			proceedings.	

17	
April	
1990	
plaintiff's affidavit in	
			response to the above order	
			sworn.	

19 April 1990

18 May 1990

affidavit filed.

Defendant's summons now under consideration.

There is no application before me on the part of the plaintiff.	The applicant says that the plaintiff has failed  to comply with the order of 12 April 1990, in that tbe affidavit filed on 19 April does not contain answers to four of the interrogatories in respect of whicb further and better answers were ordered.	Counsel for the plaintiff advanced argument based on r. 30.06(1) that there bad been answers to tbe substance of the interrogatories.	That argument, whether good or not, points to the difficulties which can arise in ascertaining whether preconditions to the operation of a self-executing order have been complied with. Such orders should only be made where the question of  whether there has been compliance with the precondition to the operation of the order is clearly and easily able to be determined: see the remarks of Barwick CJ. in
Turner v Bulletin Newspapers Pty Ltd (1974) 131 CLR 69 at p.
74 and the expression of caution regarding such orders made by Lush J. in Freeman v Robinov (1981) VR 539 at p. 544).

There is sufficient power under r. 24.02 to have the plaintiff's proceedings dismissed or the defence struck out on failure of that party to comply with an order.	Such

an application enables the Court to consider all the circumstances of the case and to exercise its discretion accordingly.

Furthermore, the terms of a self-executing order must be precise and unambiguous so as not to leave it open to debate whether the event upon which judgment can be entered has or has not occurred.	(Broers v Forster (1981) ALR 605 per Bowen CJ. and Ellicott J. at p. 613).	The following is an extract from that judgment:

"The relevant principle was discussed in Abalian
v Innous [1936] 2 All ER 834.	In that case a judge in chambers ordered that a trial be adjourned generally and that if the action be not fixed for trial within six years from the date of "the alleged loss" the action should stand dismissed.

Greene LJ (as he then was) said that the order upon its face was an anticipatory dismissal of the action and meant that, unless witr,in the period mentioned a certain event has happened, the action dies.	His Lordship continued (at p 838): "Speaking for myself I think that any order dealing with the dismissal of an action, unless something is done, should be absolutely and perfectly precise in its terms.		The dismissal of an action at an interlocutory stage is a very serious matter and may well work serious injustice.	If an order is to be made in the form that, unless one party or another party does something the action will be dismissed, it is imperative that the thing to be done in order to avoid dismissal of the action should be satisfied in the clearest and most precise language, so that it may be possible for the party on whom the necessity of doing the act lies - which would normally be the plaintiff - to be in no doubt whatsoever as to the steps wriich be is to take if he is to avoid bis action being dismissed.	Looking at it in another way: Where the defendant, in reliance on such order, goes to the court and asks it to say, as a result of the order, the action stands dismissed and is no longer

existent, he must be able to show first of all that the language of the order is sufficiently precise, and secondly, that the facts which the order contemplates have occurred."

In that case the Court of Appeal held that the order fixed no ascertainable date and was inoperative to effect a dismissal of the action.

The principle was again discussed in Reiss v Woolf (by Devlin J [1952] 2 All ER 3; and on appeal [1952] 2 QB 557; [1952] 2 All ER 112).	The facts
of that case are not dissimilar to the present. There the plaintiff sued for an amount payable under a written agreement.	The defendant filed a statement of defence.	The plaintiff later obtained an order "that the defendant deliver not later than
4.00 o'clock in the afternoon of the twenty-first day following the date hereof ... the
under-mentioned further and better particulars of his defence and that in default thereof paragraphs
2 and 3 of the defence be struck out".	Within the time limited, the defendants (sic) delivered a letter in wliich he gave particulars in relation to some of the matters, but, as to others, replied that he could not give particulars until after discovery.	An application was then made to have the case disposed of summarily on the grounds that the defence had been automatically struck out. Devlin J and the Court of Appeal referred to the views expressed in Abalian v Innous, supra, and held that "default" in the order meant, not default in the sufficiency of one or more of the answers, which the order did not define with precision, but default in delivery within the prescribed time (which was so defined) of a document made in good faith which could fairly be entitled "particulars", and that as such particulars had been delivered within the prescribed time, there had been no default and the paragrapl,s were not automatically struck out.
Devlin J,	after referring to Abalian v Innous said (supra at p 5): "If 'default' means in the sufficiency of one or more of the answers, I should not consider that the event was defined with precision.		Whether or not it had taken place might be the subject of a genuine conflict of opinion which could only be resolved by further adjudication.	If I thought this to be the right construction of  the order I should follow Abalian v Innous and treat it as inoperative.	The order can conform with the principle in that case only if it is treated as an order that is dealing with the

time of compliance rather than the mode of compliance.	The order does fix a time very precisely and I think it can fairly be construed as a time order.	So construed 'default' refers to default in the delivery of a document within the specified time.	I do not, of course, mean that any document with writing on it will do.	It must be a document made in good faith which can fairly be entitled "Particulars".	It must not be illusory
... That, in my judgment, is the test, and not as the plaintiff contends, whether each demand for particulars had been substantially met.	Applying that test I think there has been no default.	Of course, any party who receives particulars which he says are insufficient is entitled to pursue the matter by further summons, and it may be, to have any paragraph that is not sufficiently particularized struck out as vague and embarrassing.	But that is not what I have to consider.	I determine no more than that the paragraphs have not been struck out automatically."

His Lordship went on to say: "The contention that the paragraphs are not struck out until the court, on a fresh summons declares that they are, is, in my judgrnent, unsound."

The Court of Appeal agreed with his Lordship and held that the paragraphs in the statement of defence bad not been automatically struck out and that therefore the plaintiff was not entitled to the order it sought (see also Kaye v Levinson [1950] 1 All ER 594; Stubbs v ES & A Bank [1959]
Qd R 158).

It will be apparent from this discussion of the principle that the reason for requiring an order of this nature to be precise and unambiguous is the automatic or self operating effect which the order is intended to have.	Although in the cases mentioned they were not consent orders we do not think the application of the principle in any way depends on whether or not the order is by consent. In either case it is a question of interpreting the order and determining whether it has had an automatic effect and this in turn will depend on whether it is precise and unambiguous."

In the affidavit in support of the application the solicitor for the defendant acknowledges that "the Plaintiff

delivered his sworn Further & Better Answers to Interrogatories in accordance with tJ-,e order of 12th April 1990, but wholly failed to answer Interrogatories 31(c) and (e), 34(a) and (b) and 35(d)".	The evidence therefor is that in so far as time is concerned the plaintiff complied with the order.	The complaint is that there has been
non-compliance with the order in so far as it requires sworn answers to be given to particular interrogatories.

Most of the argument before me went to the question of whether or not the affidavit answered all of the interrogatories.	It certainly satisfies the requirement that the answers be sworn and it runs to 17 pages of detail. There is nothing to suggest that it was not made in good faith and it does not fit the description of being "illusory".	Counsel for the plaintiff says that in so far as it fails to precisely provide further and better answers to interrogatories, if it is read with the original answers the information sought by the defendant is disclosed, alU,ough not strictly in the form which answers to interrogatories should take.	Counsel for the defendant denies that that is the case, and says that some questions have not been answered at all.

Here the word "default" does not appear as the trigger to the self-executing order, the words are OR ELSE, meaning otherwise, but the difference does not matter.	The

defendant complains about the sufficiency of the answers provided and that can give rise to genuine conflict of opinion which could only be resolved by further adjudication.	The argument before me points to that, and that points to there being an absence of clear and precise language in relation to what was required of the plaintiff. It is not for me therefore to resolve the question as to whether there has been proper further and better answers to the interrogatories, that issue is not properly raised on this summons.	The issue is whether or not the plaintiff has complied with tr,e true nature of the order.

Upon its proper <;:onstruction the order was a "time order", and the order was complied with in that regard.

It is not open to the defendant to rely on the order to obtain the relief sought in these circumstances and its application is dismissed.