| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AIRWAVES GOLDCOAST PTY LTD -v- CANEFLIGHT ENTERPRISES PTY LTD [No 2] [2013] WADC 28 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : ON THE PAPERS DELIVERED : 1 MARCH 2013 FILE NO/S : CIV 1409 of 2010 BETWEEN : AIRWAVES GOLDCOAST PTY LTD (ACN 074 353 852) Plaintiff
AND
CANEFLIGHT ENTERPRISES PTY LTD (ACN 010 812 718)
First Defendant
ADRIAN GOULD
Second Defendant
Catchwords: Practice and procedure - Further and better discovery Legislation: District Court Rules 2005 (WA) r 46
Rules of the Supreme Court 1971 (WA) O 26
(Page 2)
Result: Further and better discovery ordered
Representation: Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : SRB Legal
First Defendant : Equitas Lawyers
Second Defendant : CSS Insurance Law
Case(s) referred to in judgment(s):
Airwaves Goldcoast Pty Ltd v Caneflight Enterprises Pty Ltd [2013] WADC 24
Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191
Australian Railroad Group Pty Ltd v Rowan [2004] WASC 165
Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344
Beecham Group Ltd v Bristol-Myers Co [1979] VR 273
British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709
Chandler v Water Corporation [2004] WASC 95
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Daraja Ltd v Hogan & Partners Stockbrokers Pty Ltd [2012] WASC 256
Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1
Hadley v Baxendale (1854) 9 Exch 341, 354; (1954) 156 ER 145
International Land Developments Pty Ltd (t/as Key West Realty) v Diamo Nominees Pty Ltd [2008] WASC 152
Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 65
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
(Page 3)
Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341
P N Corporation Pty Ltd v Oxford Uniforms Pty Ltd [2012] WADC 149
Pollard v Endale Pty Ltd [2009] WADC 97
Robinson v Harman (1848) 1 Ex 850; (1848) 154 ER 363
Smith v Leveraged Equities Ltd [2011] WASC 282
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 83 ALJR 390
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
(Page 4)
PRINCIPAL REGISTRAR GETHING:
Overview 1 On 9 August 2009 a De Havilland DHC-2 seaplane registration number VH-IDO (Seaplane) crashed on landing on the water at Talbot Bay in the Kimberley region of Western Australia. The Seaplane is owned by the plaintiff, Airwaves Goldcoast Pty Ltd. At the time of accident it was leased to the first defendant, Caneflight Enterprises Pty Ltd. The pilot at the time of the crash was the second defendant, Adrian Gould, who was an employee of Caneflight. 2 Airwaves asserts that Mr Gould attempted to land the Seaplane on water with its wheels extended, and that this caused the accident. It claims damages, principally for the loss of income it incurred whilst the Seaplane was being repaired. The Seaplane was repaired in Canada. The repair costs were paid for by an insurer and do not form part of this claim. Caneflight and Mr Gould deny that the crash arose as a consequence of negligence and assert that it occurred as a result of the poor mechanical state of the Seaplane at the time of the accident and/or incorrect information as its empty weight. 3 By application dated 10 September 2012, Mr Gould sought orders for further and better discovery. By application dated 29 November 2012 Caneflight sought orders in similar terms. In each application, the relevant defendant also sought orders for security for costs. Caneflight's application for security for costs is the subject of the decision in Airwaves Goldcoast Pty Ltd v Caneflight Enterprises Pty Ltd [2013] WADC 24. Mr Gould's application for security for costs is yet to be determined. 4 On 4 February 2013, I made orders for the filing of schedules in relation to the documents sought, the basis on which further discovery was sought and Airwave's response. In each discovery application, I further directed that if any party wanted to make oral submissions in relation to the application, the party was to so advise the court by 22 February 2013, failing which the applications would be dealt with on the papers. No party sought the opportunity to make oral submissions, so I proceeded to determine the applications on the papers.
Sources of the power to order further discovery 5 Rules of the Supreme Court 1971 (WA) (RSC) O 26 applies to the District Court in the present case as modified by the District Court Rules (Page 5)
2005 (WA) (DCR) r 46. The primary obligation on a party to provide discovery is contained in DCR r 46(2): (2) Subject to any order made by the Court, each party to the action must give each other party discovery of all documents that are or have been in the party's possession, custody or power relating to any matter in question in the action. 6 The scope of the obligation to give discovery in DCR r 46(2) is substantively the same as that in RSC O 26 r 1(1). 7 In the present case, Airways has given discovery on oath. A list of discoverable documents verified by affidavit is generally treated as conclusive as to its contents: Chandler v Water Corporation [2004] WASC 95 [10]. There are four sources of power in the court to go behind discovery on oath and make orders where there has been a deficiency in discovery. 8 The first is RSC O 26 r 15, which empowers the court to make 'such order as it thinks just' when there has been a failure to comply with 'any of the Rules of this Order or … any order made thereunder, to give discovery'. In its application in the District Court, this would include a failure to comply with DCR r 46(2). 9 The second source of power to make orders where there has been a deficiency in discovery is the inherent jurisdiction of the District Court: Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [3] - [5]; Chandler [16]; Pollard v Endale Pty Ltd [2009] WADC 97 [10]. The court's inherent jurisdiction is not modified by the power in RSC O 26 r 6: Technomin [5]; Chandler [16]; Pollard [10]. A limitation on this power is that the deficiency cannot be demonstrated by a contentious affidavit from the party seeking to challenge the discovery: Technomin [4]; Chandler [17]. 10 The third source of power to make orders where there has been a deficiency in discovery is RSC O 26 r 6. This was introduced to modify the rules which apply in the inherent jurisdiction, in particular to allow a challenge to discovery based on a contentious affidavit seeking discovery of particular documents, or a particular class of documents: Technomin [4]; Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, 343. 11 The power of the court to make further orders for discovery in RSC O 26 r 6 is not modified by DCR r 46 in its operation in the District Court. The power in RCS O 26 r 6(1) is that: (Page 6)
… the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession custody or power, and if not then in his possession custody or power when he parted with it and what has become of it. 12 In exercising these first three sources of power, the court should take into account case management principles: RSC O 1 r 4A, r 4B; Daraja Ltd v Hogan & Partners Stockbrokers Pty Ltd [2012] WASC 256 [10]; Smith v Leveraged Equities Ltd [2011] WASC 282 [35]; Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [6]; Pollard [10]; . In addition, the general case management powers of the court empower it to make orders where there has been a deficiency in discovery. This is the fourth source of power. 13 There are at least two relevant aspects to the court's general case management powers. The power of the court to make orders in relation to discovery in RSC O 26 r 7(3) allows the orders to be made fashioned according to case management principles, with an express reference to O 1 r 4B. The power in RSC O 26 r 6 is subject to O 26 r 7. This suggests that the court may make more general discovery orders pursuant to RSC O 26 r 7 in lieu of orders in relation to specific documents in O 26 r 6. 14 Further, on the hearing of a summons for an interlocutory order, the court may also make a case management direction: DCR r 33(1)(b). A case management direction is 'any procedural direction that in the Court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously': DCR r 24(1). This power is wide enough to include orders relating to discovery of documents. The obligation on a party to provide discovery contained in DCR r 46(2) is 'subject to any order made by the Court'. In other words, the general obligation to give discovery may be modified by court order, including orders fashioned around DCR r 24(1) or RSC O 26 r 7. 15 The most efficient manner in which to determine the two present applications is to first consider RSC O 26 r 15 and the inherent jurisdiction of the court. In the instances in which this does not lead to any order for further discovery, I then proceed to ascertain whether an order for further discovery is justified pursuant to RSC O 26 r 6 or the general case management powers of the court. (Page 7)
Caneflight – item C1 – financial records
Issues 16 Item C1 comprises: Financial records from 1/7/2005 – 30/6/2010, being: (a) financial statements containing detailed profit and loss statements; (b) business activity statements; (c) tax returns; and (d) other books of account or financial information used by the plaintiff to verify the income earned from the Aircraft and the expenditure on the Aircraft for maintenance and repairs and all other costs associated with operating the Aircraft; and (e) Invoices relating to repairs and maintenance of aircraft. 17 Airwaves objects to discovering the documents in item C1 on the grounds of fishing and oppression. An objection of 'fishing' is another way of stating that the documents are not relevant. Airwaves further assert that: (a) No inferences can be drawn from these documents in respect of maintenance. Maintenance may have been done in house. The aircraft may not have been used and therefore may not have required maintenance. Alternatively, maintenance may have been paid for by a lessee of the aircraft during the period of the lease. (b) Caneflight is a competitor of Airwaves in the market of hiring aircraft and in particular seaplanes, making it inappropriate for the court to order disclosure of financial information. (c) The best evidence of the mechanical condition of the aircraft is the maintenance releases. The serviceability of the aircraft is demonstrated by the issue of an independent licensed aircraft maintenance engineer signing off on the aircraft log books. All relevant log books have been discovered for the period from September 2007 to January 2012. (d) The income of the aircraft prior to the crash is not relevant. It is the income subsequent to the crash which is the subject of the proceedings. Airwaves will adduce oral evidence from subsequent (Page 8)
hirers of the aircraft on this issue, which constitutes the best evidence. (e) Invoices in respect of repairs carried out in Canada are not relevant because Airwaves does not make any claim for the costs of work carried out in Canada. 18 The first issue is whether the documents comprising item C1 relate to the matters in question in the action. 19 The test to be applied in considering whether to order further and better discovery in the inherent jurisdiction of the court is whether the court has reasonable grounds for being fairly certain that there are further documents relating to any matter in question in the action which ought to have been disclosed: DCR r 46(2); Beecham Group Ltd v Bristol-Myers Co [1979] VR 273, 276; Technomin [6]; Chandler [17]. The pleadings are the principal source of defining the matters in question in the proceedings: Mulley (345); Smith [9]; Australian Railroad Group Pty Ltd v Rowan [2004] WASC 165 [22]. 20 Caneflight asserts that the documents in item C1 are relevant to two broad issues, the mechanical condition of the Seaplane and the calculation of Airwaves' losses.
Relevance – mechanical condition of the Seaplane 21 Caneflight's defence and counterclaim identifies at least five aspects of the mechanical condition of the Seaplane as being in question in the action: (a) the mechanical condition of the Seaplane prior to the time of delivery by Caneflight to Airwaves; (b) the mechanical condition of the Seaplane at the time of delivery by Caneflight to Airwaves; (c) the mechanical condition of the Seaplane at the time of the accident; (d) the cause of the need for particular repairs carried out on the Seaplane following the accident (that is, whether the cause was the accident or prior wear and tear); and (e) the cause of the need for the unscheduled maintenance pleaded by Airwaves. (Page 9)
22 This conclusion emerges from the following portions of Caneflight's defence: (Page 10)
Particulars (a) due to the stiffness of the propeller blades in the propeller hub, adjustment of the propeller pitch was slow resulting in a reduction in maximum engine RPM from 2,300 to 2,100 and a subsequent reduction in the ability of the engine to deliver rated take off power; (b) due to inaccurate weight information of the Aircraft provided by the Plaintiff in the flight manual, the Aircraft was operating over its allowable takeoff and operating weight. The trim sheet dated 6 August 2005 provided by the Plaintiff stated the empty weight of the Aircraft as 1,759 kg and the maximum takeoff weight as 2,440 kg. Following repair of the Aircraft it was reweighted by Sealand Aviation and the empty weight of the Aircraft was recorded as approximately 1,950kg. The exact weight of the Aircraft when last weighed will be recorded in the Aircraft's log books which have not been disclosed by the Plaintiff. (c) the Aircraft had a history of maintenance problems which are recorded in the Aircraft's maintenance log book, including recurring problems with the undercarriage and undercarriage indicator lights. (d) Terms implied by Section 54 of the Australian Consumer Law, alternatively, Section 71 of the Trade Practices Act 1974 (Cth). 20.3 Had an empty weight of more than 1,759 kg.
Particulars
… 22.3 If the Plaintiff suffered loss as pleaded in paragraph 16 of the Claim (which is denied), that loss was caused by or contributed to by the Plaintiff's decision to extend the Aircraft's cabin and replace parts of the Aircraft that were damaged due to long term corrosion and or fair wear and (Page 11)
(Page 12)
(Page 13)
Particulars 23 A document will 'relate to' a matter in question if it directly or indirectly enables a party to advance its own case or damage an adversary's case: Mulley (345); Technomin [37]; Chandler [14]; Youlden [4]; Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, 63. The document may also 'relate to' a matter in issue if it indicates a useful line of investigation, or contains information which could affect the manner in which a party may decide to conduct proceedings: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66, [19]; Technomin [37]. 24 I do not accept Airwave's objections as set out in [17] above. The fact that maintenance may have been done in house or been paid for by a third party (eg, a lessee) or not been done at all, simply means that, on a proper discovery inquiry, there may be no or few documents falling within this item. If it is the case that maintenance releases are the best source of repair information, this does not exclude from discovery other documents recording or evidencing maintenance or repair. Invoices for the work carried out in Canada will record or evidence the work done, which is relevant to the mechanical condition of the Seaplane before, and (Page 14)
at the time of, the accident. This also goes to the issue of the cause of the need for particular repairs and maintenance carried out on the Seaplane following the accident. Again, if Airwaves does not have any invoices for this work in its possession, custody or power, then it can be under no obligation to discover any documents. 25 In my view, the documents in item C1 relate to the matters in question set out at [21]. Discovery of the financial records, in particular the records of expenditure on maintenance and repairs, will enable Caneflight to advance its own case or damage that of Airwaves in relation to these matters. The documents may also lead to lines of investigation into, say, what repairs were carried out so as to give rise to an invoice for repairs by a third party.
Relevance – calculation of losses 26 In relation to the second broad issue, calculation of losses, Caneflight asserts the income that Airwaves has earned from the Seaplane and its expenditure on the Seaplane are relevant in order to calculate the operating expenses and to thereby ascertain whether Airwaves has in fact incurred a loss of rental income as a result of the accident and, if so, what in fact is the quantum of the loss that it has incurred. 27 Airwaves seeks damages in contract and tort, arising out of the loss of income as a result of the Seaplane being unavailable for hire whilst being repaired. It claims the gross loss of income, both actual from Caneflight's rental and potential from others it could have rented the Seaplane to had it been returned to Goldcoast airport on 31 August 2009 as required under the rental agreement with Caneflight (Statement of Claim par 16.3). 28 In relation to the claim for breach of contract, the general principle governing the measure of damages is that the innocent party suing for breach of contract is to be placed in the same position, so far as money can do it, as if the contract had been performed: Robinson v Harman (1848) 1 Ex 850, 855; (1848) 154 ER 363, 365; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 83 ALJR 390 [13]; Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 80, 116, 118 - 126, 134; Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191 [276]. The assessment of these damages will ordinarily involve 'a comparison between the position in which the innocent party would have been if the breach of contract had not occurred and what, relevantly, represents the position in which the innocent party is (Page 15)
in after the occurrence of the breach': Australian Goldfields [276], referring to Amann Aviation. In this context, Airwaves will need to establish that the claim for losses on future rental agreements is not too remote from the breaches of the contract (if any) found against Caneflight: Hadley v Baxendale (1854) 9 Exch 341, 354; (1954) 156 ER 145 [151]; Amann Aviation (91 – 92); Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344, 368. 29 Although Airwaves has claimed for loss of the gross rental it would have received from potential future hirers, it is open for Caneflight to assert (as it appears to do) that, as a matter of law: (a) the appropriate approach to assessing these damages is to assess the loss of the opportunity to enter into a rental contract with a third party in the relevant period; and (b) the appropriate measure of such damages is the loss of profits, not loss of income: Amman Aviation (90 - 95), (103 - 104), (144 - 149); P N Corporation Pty Ltd v Oxford Uniforms Pty Ltd [2012] WADC 149 [112] - [124]. 30 As Mason and Dawson JJ made clear in Amman Aviation, in assessing loss of profits, expenses must be brought to account (81): In the ordinary course of commercial dealings, a party supplying goods or rendering services will enter into a contract with a view to securing a profit, that is to say, that party will expect a certain margin of gain to be achieved in addition to the recouping of any expenses reasonably incurred by it in the discharge of its contractual obligations. It is for this reason that expectation damages are often described as damages for loss of profits. Damages recoverable as lost profits are constituted by the combination of expenses justifiably incurred by a plaintiff in the discharge of contractual obligations and any amount by which gross receipts would have exceeded those expenses. This second amount is the net profit. 31 A similar conclusion arises from the application of the general principles in relation to the assessment of damages in tort: Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 (12 - 13). 32 I do not accept Airwaves objections as set out at [17] above. The Seaplane is the only substantial, and income producing, asset of Airwaves. The financial records of Airwaves are thus more or less co-extensive with the financial records relating to the operation of the Seaplane. The expenses and income of the Seaplane are relevant to the (Page 16)
issue of the appropriate quantification of any damages suffered by Airwaves. The fact that Airwaves may adduce evidence from subsequent hirers does not mean that the historical evidence is not relevant for discovery purposes. 33 In my view, the financial records of Airwaves relate to the question in issue of the calculation of Airwaves damages for the loss of use of the Seaplane.
Case management and oppression 34 In the inherent jurisdiction of the court, it is not necessary to infer the existence of a particular document to ground an order for further and better discovery where it appears that a party has excluded a document under a misconception of the case: Mulley (343); Smith [9]; Technomin [7]; British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709, 714, 715. Put slightly differently, where a party has excluded documents under a misconception of what issues are relevant, this is sufficient for the court to conclude that it has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed: Beecham Group (276); Technomin [6]; Chandler [17]. In effect, Airwaves has conceded the existence of further documents within item C1, but has asserted they are not relevant, an assertion with which I do not agree. This misconception is a sufficient foundation for the court to make orders in its inherent jurisdiction. 35 For the same reason, I am satisfied that Airwaves has failed to comply with the obligation in DCR r 46(2) to 'give each other party discovery of all documents that are or have been in the party's possession, custody or power relating to any matter in question in the action'. This enlivens the power in RSC O 26 r 15. 36 As I have already observed, both in the inherent jurisdiction of the court and that in RSC O 26 r 15, the discretion is to be exercised having regard to the principles of case management. In relation to case management, in Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 65, Le Miere J stated [18]: Factors to be considered in making or framing an order for discovery depend upon the circumstances of each case but will often include the likely time, cost and inconvenience of making discovery of any documents or classes of documents by way of comparison with the amount of documents involved in the action, the relative importance or likely relevance of them in relation to any issue or issues in the action and the probable effect on the outcome of the action of a party obtaining access to (Page 17)
the documents or class of documents. Generally, the court will try to avoid making discovery orders that would place an oppressive burden on a party such that it must devote disproportionate resources to the search for relevant documents. 37 Consistently with these comments of Le Miere J, in my view Airwaves' second ground of objection, oppression, is more appropriately framed as an argument that because of the oppressive impact of providing further discovery in the terms sought, the court in exercising its discretion based on the principles of case management should decline to make an order. Unlike interrogatories, there is no specific power for a party to object to discovering documents on the ground of oppression: RSC O 27 r 5(1)(a). The frame suggested is also consistent with RSC O 1 r 4B which provides (so far as is relevant) that 'Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the object … of … ensuring the procedure applicable, and the costs of the procedure to the parties … [is] proportionate to the value, importance and complexity of the subject matter in dispute …'. 38 In International Land Developments Pty Ltd (t/as Key West Realty) v Diamo Nominees Pty Ltd [2008] WASC 152 [4] the Chief Justice made the following observation in the context of interrogatories which is apposite for present purposes: The purpose of the requirement that leave be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose and also that the burden of answering them be proportionate to the forensic purpose to be served. 39 It seems to me that the appropriate way to reframe Airwaves objection of oppression is to inquire whether the burden of providing the further discovery sought is proportionate to the forensic purposes to be served by the order. This frame also reflects the comments of Le Miere J in Leighton Contractors. 40 The forensic purpose to be served by an order for discovery of the documents falling within item C1 is that they are relevant to this issues I have identified above. In my view, the issue of the mechanical condition of the Seaplane at the various points and the assessment of the damages sustained by Airwaves are perhaps the two issues most central to the resolution of the dispute between the parties. (Page 18)
41 The period of time for which the records are sought – 1 July 2005 to 30 June 2010 – is a reasonable period to ask for, given that: (a) the Seaplane was built in 1964; (b) Airwaves has been the registered holder and operator of the Seaplane since 25 May 2005; (c) the mechanical condition of the Seaplane prior to the time of delivery by Airwaves to Caneflight is in issue; and (d) Airwaves claim for damages for loss of income is from 1 September 2009 (after the end of the agreement with Caneflight) to 1 July 2011, when it appears that the Seaplane was again airworthy (statement of claim, par 16.3). 42 There is no evidence that Airwaves will suffer any undue burden or particular difficulties in discovering the documents in item C1. 43 In my view, the burden of providing the further discovery sought is proportionate to the forensic purposes to be served by the order. 44 Airwaves further objects that Caneflight is a competitor of Airwaves and ought not to have the benefit of this information. There is no evidence before me of the nature of any competitive advantage that Caneflight would gain, or competitive detriment that Airwaves would suffer, as a result of the disclosure of the information in item C1. I am not able to give any weight to the submissions made by counsel for Airwaves on this point in the submissions filed on 27 February 2013 as the factual material referred to is not in evidence before me. In any event competitive issues are likely to be minimal as I propose to limit financial information to the period ending 30 June 2010, making the information disclosed of less current relevance. In addition the nature of the information sought does not make it immediately apparent that there will be a competitive advantage or detriment. An objection of this kind is usually raised in relation to information such as a trade secret or customer list. There is no evidence before me that any document of these types would fall within scope of item C1. There is no foundation in the evidence to give this factor any weight in the exercise of the discretion to order further discovery. 45 There are no other discretionary or case management considerations weighing against an order for discover of the documents in item C1. I am satisfied that an order should be made for further discovery of the (Page 19)
documents in item C1 in either the inherent jurisdiction of the court or pursuant to RSC O 26 r 15.
Caneflight – item C2 – aircraft flight manuals
Issues 46 Item C2 comprises: Aircraft operating handbooks and flight manuals, including the trim sheet and weight and balance sheets for VH IDO, Serial number 1545 (Aircraft) for the period that the Plaintiff has owned the Aircraft, being from 25 May 2005 to 9 August 2009. 47 The registered operator of an aircraft is under a statutory obligation to ensure that the aircraft's flight manual is at all times appropriate for the aircraft: Civil Aviation Regulations 1998 (Cth) (CAR) r 54. 48 Caneflight submits that the weight of the Seaplane at the time of the accident is central to its defence and counterclaim as it claims that the Seaplane was not fit for the purpose of taking off and/or landing on water and/or land when at calculated maximum take-off weight. The Seaplane operating handbooks and/or the flight manual will contain the trim sheet and the weight and balance report. Part of its defence is that the Seaplane weighed more than Airwaves represented to it, which caused the pilot to land the Seaplane at the wrong speed, which in turn caused the Seaplane to invert. 49 Airwaves opposes discovery of the documents in item C2 on the grounds of relevance and oppression. It submits that Caneflight seeks to raise a new allegation which is not pleaded, namely that the weight affected the speed of the aircraft and caused the crash. It says that until now the only allegation was that the weight meant Caneflight could not carry the desired number of passengers. It says that the allegation ought not be allowed to be proceeded with. 50 It is clear from pars 20.2, 20.3 and 44.1 (quoted above [22]) of Caneflight's defence and counterclaim that the actual and stated weight of the Seaplane at the time it was handed over to Airwaves, and at the time of the accident, are matters in question. I do not accept Airwave's submission that the request opens up a new issue not within the current pleadings. (Page 20)
51 Airwaves further submits that it has discovered the relevant documents including the relevant trim sheet, and weight and balance report, being those which were applicable immediately prior to the crash. 52 I disagree. In my view it is a valid line of inquiry for Caneflight to want to know whether the weight of the aircraft has been altered in the flight manual whilst Airwaves was the registered holder and operator of the Seaplane, and whether there were any modifications to the Seaplane which may have caused its weight to increase, so as to exceed the weight stated in the flight manual. This justifies the time period sought of 25 May 2005 to 9 August 2009, and not just the report applicable immediately prior to the accident. 53 As with item C1, I am satisfied that Airwaves has excluded at least some further documents under a misconception of what issues are relevant. This is a sufficient foundation for the court to make orders in its inherent jurisdiction. 54 For the same reason, I am satisfied that Airwaves has failed to comply with the obligation in DCR r 46(2), enlivening the power in RSC O 26 r 15. 55 Further, it appears that the weight and balance report for the Seaplane has not been discovered. This is meant to be in an envelope in the rear of the flight manual. The weight and balance report was not provided to Caneflight with the balance of the flight manual that was previously discovered (see the affidavit of Kerry Lee Davis, a solicitor employed by Caneflight's lawyers, dated 22 February 2013). 56 As to Airwaves objection of oppression, there is no evidence before me of any specific difficulties Airwaves will encounter in discovering the documents in item C1. The flight manual is to be carried in the aircraft (CAR r 139), so presumably it will be readily accessible, and thus easily discoverable. 57 Further, as with the documents in item C1, the issues to which the documents in item C2 are sought are of central, rather than peripheral, relevance. 58 I am satisfied that the burden of providing the further discovery sought in item C2 is proportionate to the forensic purposes to be served by the order. (Page 21)
59 There are no other discretionary or case management considerations weighing against an order for discovery of the documents in item C2. Accordingly, I am satisfied that an order should be made for further discovery of documents falling within item C2 in either the inherent jurisdiction of the court or pursuant to RSC O 26 r 15.
Caneflight – item C3 – witness names 60 Item C3 is: Names and contact details of the person/s and/or organisations that have maintained the Aircraft for the period from 25 May 2005 to 9 August 2009. 61 Airwaves opposes discovery orders for item C3 as it is oppressive because it is a request for a witness name and fishing. 62 A request for a name of a person who may have information about the facts in issue is not a valid subject of an order for discovery. Discovery is limited to a 'document' meaning any record of information: RSC O 26 r 1. I am not aware of any authority to the effect that there is an obligation on a party to bring a document into existence for the purposes of meeting a discovery obligation. 63 Caneflight has not satisfied me that there is a basis for an order for further discovery in relation to item C3 pursuant to the inherent jurisdiction of the court, RSC O 26 r 15 or RSC O 26 r 6. 64 Neither am I satisfied that there is a basis for making a case management order for Airwaves to disclose the information is item C3. To the extent that there is readily available information about the identity of persons who carried out repairs on the Seaplane it is likely to be disclosed from discovery of the invoices relating to repairs and maintenance of the Seaplane, to be ordered pursuant to item C1.
Caneflight – item C4 – historical maintenance releases 65 Item C4 comprises: Historical maintenance releases, including weight recordings for the period from 25 May 2005 to 9 August 2009 66 A maintenance release is issued by an authorised repairer at the completion of the each routine periodic inspection of an aircraft. It is valid for period of chronological time and/or flight time in service as set out in the maintenance release and subject to endorsements written on the (Page 22)
maintenance release. Defects, major damage and unserviceable parts are to be recorded on the maintenance release as required by the CAR and Civil Aviation Orders (CAO). The operator of an aircraft has a statutory obligation to retain past maintenance releases (see generally CAR Part 4A, Div 9). 67 Airwaves opposes discovery of the historical maintenance releases on the ground that this item is fishing, not relevant and oppressive. It says that all relevant historical maintenance releases and weight and balance reports applicable immediately prior to the crash have been discovered. 68 As to relevance, for the reasons set out in relation to items C1 and C2, all documents recording or evidencing the mechanical condition of the aircraft from the time Airwaves became the registered holder and operator of the Seaplane on 25 May 2009 to its return from repairs in Canada relate to matters in question in the action. The documents sought in item C4 clearly fall within this description. I am satisfied that Airwaves has excluded documents under a misconception as to what issues are relevant. This is a sufficient foundation for the court to make orders in its inherent jurisdiction. 69 For the same reason, I am satisfied that Airwaves has failed to comply with the obligation in DCR r 46(2), enlivening the power in RSC O 26 r 15. 70 Mr Green, a director of Airwaves, in his affidavit of 29 January 2013 deposes that it is not possible for Airwaves to provide a complete set of maintenance releases because some releases remain in Caneflight's possession. However, this is not a reason to decline to order discovery of those maintenance releases which are in the possession, custody or power of Airwaves. It does suggest that I should make an order that Caneflight provide further discovery as a case management order. 71 As to oppression, there is no evidence before me that Airwaves will have any particular difficulties in discovering the documents falling within item C4. Airwaves has an obligation to permit CASA to inspect all maintenance releases for the Seaplane (CAR r 43A), implying that the documents need to be readily accessible. On the evidence before me, I do not see how production of such a document could impose any undue burden on Airwaves. 72 Further, as with the documents in item C1, the issues to which the further documents are sought are of central, rather than peripheral, relevance. (Page 23)
73 I am satisfied that the burden of providing the further discovery sought in item C4 is proportionate to the forensic purposes to be served by the order. 74 There are no other discretionary or case management considerations weighing against an order for discover of the documents in item C4. Accordingly, I am satisfied that an order should be made for further discovery of documents falling within item C4 in either the inherent jurisdiction of the court or pursuant to RSC O 26 r 15.
Caneflight – item C5 – aircraft log books 75 The specific items sought in item C5 are: Log books for the Aircraft for the period 25 May 2005 to the 9/8/2009. 76 An operator of an aircraft is under an obligation to keep and maintain log books for the aircraft: CAR r 50A, Civil Aviation Orders (CAO) O 100.5.3. Among other information, it is to contain any changes to the empty weight of aircraft: CAO O 100.5.3 par 3.2(i). 77 Airwaves submits that the request for item C5 is too broad. It says that the exact type of log books sought is not specified. To date, the propeller log book, engine certification log book, air craft maintenance certification log book, Canadian propeller log book, airframe technical log book, installation and modification technical log book, engine technical log book aircraft flight manual and STC float manual have been discovered for the period from September 2007 to January 2012. 78 Airwaves further submits that the 'valid maintenance release' is evidence of the serviceability of the aircraft. In the event that the log books reflect any unserviceable item, a maintenance release would not be issued. Accordingly, the log books do not further Caneflight's inquiries. It says that the relevant maintenance release was issued 21 days prior to the crash on 21 July 2009, meaning that the aircraft was serviceable as at the date. It was Caneflight, rather than Airwaves, that was responsible for maintenance for the aircraft during the period of lease, commencing on 1 June 2009. 79 In his affidavit of 29 January 2013, Mr Green, deposes that he has passed a complete set of aircraft log books from September 2007 until January 2012 to Airwaves' lawyers who, he is advised, passed the documents on to the lawyers for Caneflight and Mr Gould. He states he (Page 24)
has no understanding of what is meant by aircraft logs beyond what has been provided. 80 In my view, all log books for the period 25 May 2005 to 9 August 2009 sufficiently relate to matters in question in the action to be discovered. Caneflight specifically particularises a 'history of maintenance problems' with the Seaplane (defence pars 20.2(c) and 44.2(e)), with inclusive references to particular deficiencies. In this context, all log books ought to be discovered. Again, I observe that it is sufficient that for a document to be discoverable for it to lead to a useful line of investigation: Mann [19]; Technomin [37]. 81 To the extent that Airwaves has not discovered the log books for the period from 25 May 2005 to August 2007 (that is, prior to the period Airwaves considered relevant), it has excluded documents under a misconception of what issues are relevant. This is a sufficient foundation for the court to make orders in its inherent jurisdiction. 82 For the same reason, I am satisfied that Airwaves has failed to comply with the obligation in DCR r 46(2), enlivening the power in RSC O 26 r 15. 83 Caneflight has not identified any specific type of log book, or document comprising a log book, for the period from September 2007 to August 2009 which Airwaves has failed to discover. However, from a case management perspective, there ought to be no doubt that all log books which Airwaves is required to maintain pursuant to the CAR have been discovered. This can be done by way of a general order for further discovery. 84 As with the documents previously considered, the issues to which the further documents are sought are of central, rather than peripheral, relevance. There is no evidence that discovery of the documents within item C5 will cause any particular burden to Airwaves. I am satisfied that the burden of providing the further discovery sought in item C5 is proportionate to the forensic purposes to be served by the order. 85 There are no other discretionary or case management considerations weighing against an order for discover of the documents in item C5. Accordingly, I am satisfied that an order should be made for further discovery of documents falling within item C5 in either the inherent jurisdiction of the court or pursuant to RSC O 26 r 15, if necessary augmented by the general case management power of the court. (Page 25)
Mr Gould – item G1– maintenance records
Issues 86 Items G1 requested by Mr Gould is: Aircraft Maintenance Log Books for VH IDO, Serial number 1545, for the period from 13 April 2006 (total time in service ['TTIS'] 16116 hours) to and including 15 June 2011(TTIS 16645.2). 87 As I have set out in relation to Caneflight's item 5, ([76] above), Airwaves is under a statutory obligation to keep and maintain log books for the Seaplane. 88 The request relates to the period both before and after the accident on 9 August 2009. 89 Airwaves objects to discovery of documents falling with item G1 on the grounds of fishing (relevance) and oppression.
Relevance 90 Mr Gould submits that the mechanical and electrical status of maintenance on the aircraft is central to his defence, as he claims that the aircraft undercarriage and/or its indicators malfunctioned on the date of the accident. The aircraft log books will contain the history of maintenance carried out on the aircraft and will show history of any defects. 91 In relation to the objection of relevance, Airwave submits that item G1 is too broad. The exact type of log books sought is not specified. It says that, to date, it has discovered the log books which I have set out in [77] above, which relate to the period from September 2007 to January 2012. It further submits that the valid maintenance release is evidence of the serviceability of the aircraft. In the event that the log books reflect any unserviceable item, a maintenance release would not be issued. Accordingly, it says that the log books do not further Mr Gould's inquiries. It also says that the relevant maintenance release was issued 21 days prior to the crash on 21 July 2009, so the aircraft was serviceable as at that date. 92 In his pleadings, Mr Gould squarely raises the issue of the mechanical condition of the Seaplane prior to the date of the accident. Specifically, pars 19 to 22 provide: (Page 26)
(Page 27)
upon by pilots, including the Second Defendant, when operating the aircraft. The Second Defendant's position is that the accident was most likely caused by a faulty landing gear indicator light, or a defect which caused the landing gear to remain extended (even in part) upon touchdown on the water which was not and which could not have been reasonably detected by the Second Defendant beforehand. 22. Further or alternatively if the Second Defendant was negligent, which is not admitted but is specifically denied, then the plaintiff has been contributorily negligent in that the aircraft was not maintained in accordance with the manufacturers and/or regulatory requirements. 93 Mr Gould's defence goes beyond the issue of whether the Seaplane was serviceable as at 21 July 2009, being the date of the last maintenance release. His pleaded case includes the general particular that the Seaplane had a history of maintenance problems that are recorded in the maintenance log book for the aircraft. As with Caneflight's item C5, the log books for the period from 25 May 2005 to August 2007 (that is, prior to the period Airwaves considered relevant) relate to matters in question and are discoverable. The log books for the period after the accident are relevant as they may disclose maintenance problems prior to the accident, which were repaired when the accident related repairs were carried out. 94 I am satisfied that Airwaves has excluded at least some further documents falling within item G1 under a misconception of what issues are relevant. This is a sufficient foundation for the court to make orders in its inherent jurisdiction. For the same reason, I am satisfied that Airwaves has failed to comply with the obligation in DCR r 46(2) in relation to item G1, enlivening the power in RSC O 26 r 15.
Case management and oppression 95 As with the objections to the order for further discovery sought by Caneflight, I will again consider Airwaves objection of oppression by inquiring whether the burden of providing the further discovery sought is proportionate to the forensic purposes to be served by the order. 96 The forensic purpose to be served by an order for discovery of the documents falling within item G1 is that they are relevant to the issues I have identified above. The issue of the maintenance history of the Seaplane is central, rather than peripheral, to the resolution of the dispute between the parties. There is no evidence before me that Airwaves will have any particular or undue burden in discovering the documents falling within item G1. In my view, the burden of providing the further (Page 28)
discovery sought is proportionate to the forensic purposes to be served by the order. 97 There are no other discretionary or case management considerations weighing against an order for discovery of the documents in item G1. An order should be made for further discovery in either the inherent jurisdiction of the court or pursuant to RSC O 26 r 15. 98 For the reasons set out above (including my observations in relation to Caneflight's item C5 above), I am of the view that all log books for the Seaplane for the period from 25 May 2005 to 1 July 2011 (being the date which Airwaves identifies as marking the end of its damages claim) ought to be discovered, and that a general order for further discovery should be made to ensure that this occurs.
Mr Gould – item G2 – maintenance releases 99 Item G2 comprises: Maintenance releases for VH IDO, Serial number 1545, for the period from 13 April 2006 (total time in service ['TTIS'] 16116 hours) to and including 15 June 2011 (TTIS 16645.2). 100 As I have set out above in relation to Caneflight's item C4 ([66] above), there is a statutory requirement to create and retain maintenance releases. 101 Airwaves objected to discovering the documents falling within item G2 on the grounds of relevance and oppression. 102 In relation to relevance, Airwaves submitted that the only matters pleaded by Mr Gould are that there was a possible malfunction with the aircraft undercarriage and or its indicators. It submits that any request for maintenance releases and/or log books should be limited only to those entries which refer to the undercarriage and/or indicators. In any event, it says that the relevant maintenance release is that which was issued most recently prior to the crash, being that dated 21 July 2009, which has been discovered. 103 I do not accept this submission. Mr Gould has particularised 'a history of maintenance problems' (defence par 21). These problems are said to include 'recurring problems with the undercarriage and undercarriage indicator lights', but are not limited to those problems. His defence goes beyond the issue of whether the Seaplane was serviceable as at 21 July 2009, being the date of the last maintenance (Page 29)
release. In my view, the maintenance releases for the period sought (13 April 2006 to 15 June 2011) relate to matters in question and are discoverable. Any maintenance releases for the period after the accident are relevant as they may disclose maintenance problems prior to the accident, which were repaired when the accident related repairs were carried out. 104 I am satisfied that Airwaves has excluded documents falling within item G2 on a misconception of what issues are relevant. This is a sufficient foundation for the court to make orders in its inherent jurisdiction. 105 For the same reason, I am satisfied that Airwaves has failed to comply with the obligation in DCR r 46(2), enlivening the power in RSC O 26 r 15. 106 As to oppression, there is no evidence before me that Airwaves will have any particular or undue burden in discovering the documents falling within item G2. In my view, the burden of providing the further discovery sought is proportionate to the forensic purposes to be served by the order. I therefore do not accept the objection of oppression. 107 There are no other discretionary or case management considerations weighing against an order for discover of the documents in item G2. An order should be made for further discovery in either the inherent jurisdiction of the court or pursuant to RSC O 26 r 15.
Mr Gould – item G3 – documents relating to the undercarriage and electrical system 108 Item G3 sought by Mr Gould is: Work packs, invoices and other documents related to the defects in and repair of undercarriage and electrical system for VH IDO, Serial number 1545, for the period from 13 April 2006 (total time in service ['TTIS'] 16116 hours) to and including 15 June 2011(TTIS 16645.2). 109 There is a statutory requirement for records to be kept about maintenance and modification work carried out on an aircraft: CAR pt 4A; Civil Aviation Safety Regulations 1998 (Cth) (CASR) pt 42. 110 Airwaves submits that documents falling within item G3 have been discovered for the period from 2007. The items for the period from 13 April 2006 to September 2007, and any items that relate to a time after the crash, are said not to be relevant. Mr Green states in his affidavit of (Page 30)
28 January 2013 that the work packs sought by Mr Gould are not in Airwaves' possession. He believes that they would be held by the engineer in Canada (who did the repairs), 'as is normal for such records'. 111 For the reasons set out in relation to items G1 and G2, I am of the view that all documents recording or evidencing the defects in, and repair of, the undercarriage and electrical system for period from 13 April 2006 to 15 June 2011 relate to matters in question in the action. 112 I am satisfied that Airwaves has excluded documents falling within item G3 on a misconception of what issues are relevant. This is a sufficient foundation for the court to make orders in its inherent jurisdiction. 113 For the same reason, I am satisfied that Airwaves has failed to comply with the obligation in DCR r 46(2), enlivening the power in RSC O 26 r 15. 114 Airwaves did not object to discovery of the documents in item G3 on the ground of oppression. 115 There are no discretionary or case management considerations weighing against an order for discover of the documents in item G3. An order should be made for further discovery in either the inherent jurisdiction of the court or pursuant to RSC O 26 r 15.
Mr Gould - item G4 – defect reports and correspondence 116 Item G4 is Defect reports and all correspondence to and from CASA for VH IDO, Serial number 1545, for the period from 13 April 2006 (total time in service ['TTIS'] 16116 hours) to and including 15 June 2011 (TTIS 16645.2). 117 The obligation to file these reports arises pursuant to CAR pt 42 subdivision 2.D.6.1. 118 Airwaves submits that there are no defect reports, though there is no evidence to this effect from Mr Green. It further submits that correspondence to and from CASA may be in respect to the number of different matters and or issues, not related to a mechanical, electrical status or maintenance of the aircraft undercarriage and or its indicators. (Page 31)
119 Given my findings so far, it is readily apparent that Airwaves has had a different view about the scope of the matters in question in the action than I have found to be the case. That being so, there may well be further relevant correspondence between CASA and Airwaves. 120 Rather than making a specific order, there should be a general obligation on Airwaves to review its discovery in the light of the views I have expressed as about the scope of the matters in question in the action. This can be done in the exercise of the court's general case management powers. This will inevitably require Airwaves' lawyers to review the correspondence between it and CASA. This may or may not lead to the discovery of further documents. 121 Mr Gould has not satisfied me that any more specific order is required.
Mr Gould – item G6 – aircraft flight manual 122 There is no 'item 5' in the documents sought by Mr Gould. 123 Item 6 is more specifically: Aircraft flight manual for VH IDO, Serial number 1545 (with all amendments current as at 9 August 2009). 124 As set out above in relation to Caneflight's item C2 ([47] above), there is a statutory obligation to ensure that there is an appropriate flight manual for an aircraft and to carry it in the aircraft. 125 Airwaves does not contest the relevance or existence of the aircraft flight manual for the Seaplane. Rather, it submits that it has discovered the relevant flight manual. 126 As I have set out in relation to Caneflight's item C2, the evidence before me is that the copy of the flight manual discovered is incomplete ([55] above). I am satisfied that Airwaves' discovery in relation to the aircraft flight manual is deficient, enlivening the power in RSC O 26 r 15 and r 6. 127 There are no other discretionary or case management considerations weighing against an order for discovery of the documents in item G6.
Final orders 128 For the reasons set out above, in my view, Airwaves should be ordered to provide further discovery in relation to the issues identified. (Page 32)
129 Airwaves submitted that any further documents sought by Caneflight and Mr Gould ought to be precisely identified. However, as I have already observed, it is apparent to me that Airwaves has had a different view of the scope of what is relevant than I have set out in these reasons. In the present case, the appropriate power to exercise to address the deficiencies in discovery (or non-compliance with DCR r 46(2)) is not RSC O 27 r 6, but the inherent jurisdiction or the court and/or RSC O 26 r 15. The appropriate form of the order to address the deficiencies in discovery is not to require discovery of particular precisely identified documents, but to require Airwaves to review its position on discovery generally in the light of what I have determined to be matters in question in the action. For the avoidance of doubt, it is appropriate that I identify certain classes of documents which must be discovered if in the possession, custody or control of Airwaves. 130 There is a considerable overlap in the classes of the documents sought by Caneflight and by Mr Gould. In crafting the orders which follow, I have sought to amalgamate the requests to remove duplication and simplify the orders which Airwaves will need to comply with. I have also sought to more clearly and succinctly express the descriptions of the class of documents sought. 131 In my view, the relevant period for the operational records of the Seaplane is from 25 May 2005 (when Airwaves acquired the Seaplane) to 1 July 2011 (the end point of Airwaves' damages claim). For the financial documents, a slightly more limited period of 1 July 2005 to 30 June 2010 is appropriate to align with financial years and recognise the fact that throughout the 2010/11 financial year the Seaplane was not operational. 132 Given the length of time this case had been in progress and the fact that each defendant's solicitors are based in the Eastern States, the order should include the provision of copies of the documents in question. 133 In crafting the orders I have taken into account that RSC O 26 and DCR r 46 define the obligation to give discovery by reference to matters in question in the action. They do not confine the obligation to matters in question between the party seeking discovery and the party from whom it is sought: Smith [33]. Hence, there ought only to be one order for discovery against Airwaves encompassing the issues raised by both Caneflight and Mr Gould. (Page 33) 134 It is apparent from the material before me that extracts of certain larger documents, like log books, have been discovered by Airwaves to date (see for example, par 7 of Ms Davis' affidavit, sworn 22 February 2013). The orders I propose to make may require discovery of further extracts from these documents. In order for the defendants, and ultimately the trial judge, to understand the documents, it seems to me that a copy of the complete document ought to be provided. If the plaintiff needs to redact the document, this can be done in accordance with RSC O 26 r 1B. However, given my findings on relevance, this should be unlikely. 135 I have also minded to make a general order for further discovery against each defendant at the directions hearing listed for 5 March 2013. This is because as part of the lead up to trial, I want each party to have filed an affidavit to the effect that they have discovered all relevant documents, the issue of relevance being interpreted in the light of these reasons. Further, Mr Green asserts that certain documents required for statutory compliance may have been retained by Caneflight. 136 The net result of the orders which I have made should include the outcome that all the records required to be created, kept or maintained under the CAR, CASR and CAO in relation to the Seaplane are discovered, for the period 25 May 2005 to 1 July 2011. 137 My preliminary view is that an order in the following terms will give effect to these reasons: 1. by [date], the plaintiff must: (a) make a list of the documents which are or have been in that party's possession, custody or power relating to any matter in question in the action, and which to date have not been discovered, in the form of Form 17 to the Rules of the Supreme Court 1971 (WA) ('RSC'); (b) swear an affidavit verifying the list in par (a) in the form of RSC Form 18; (c) serve a copy of the documents in pars (a) and (b) on each other; (d) file a copy of the documents in pars (a) and (b) with the court; and (Page 34) (e) serve on each other party a legible photocopy (or PDF image) of each document referred to in Part 1A of the list in par 1(a), which is not the subject of an objection as set out Part 1B of the list, the cost of provision of which is to be in the cause; 2. the documents in par 1(a) are to include any documents falling within the following classes of documents in its possession, custody or power of the plaintiff: (a) the financial records of the plaintiff for the period from 1 July 2005 to 30 June 2010, including profit and loss statements, business activity statements and tax returns; (b) all documents recording or evidencing the income earned from the Seaplane the subject of the action (registration VH IDO) for the period 1 July 2005 to 30 June 2010; (c) all documents recording or evidencing expenditure on the maintenance of, repairs on, and the costs of operating, the Seaplane for the period 25 May 2005 to 1 July 2011; (d) all documents recording or evidencing the modification or maintenance of, or repairs on, the Seaplane for the period 25 May 2005 to 1 July 2011; and (e) all documents required to be created, kept or maintained pursuant to CAR, CASA or a CAO relating to the Seaplane relating to the period from 25 May 2005 to 1 July 2011, including, but not limited to, aircraft operating handbooks, flight manuals, maintenance releases and log books; 3. where a document in the list in par 1(a) is part of a larger document from which other documents have been extracted (for example a log book), the copy document provided in par 1(e) is to be the complete document (even though extracts from the document may have been previously discovered); 4. by [date], the plaintiff's solicitor must file a certificate in accordance with RSC O 26 r 16A; 5. by [date], each defendant must: (a) make a list of the documents which are or have been in that party's possession, custody or power relating to any matter (Page 35) in question in the action, and which to date have not been discovered, in the form of RSC Form 17; 138 I will hear from counsel as to the precise form of the orders required and costs.
|