Consolidated Manufacturing Industries Ltd v Cold Forged Products No 1 Pty Ltd

[2001] VSC 317

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4367 of 2000

CONSOLIDATED MANUFACTURING INDUSTRIES LTD.	Plaintiff
v.
COLD FORGED PRODUCTS NO. 1 PTY. LTD.	Defendant
v.
SENIOR THERMAL ENGINEERING AUSTRALIA PTY. LTD. AND ELITE PLATING PTY. LTD.	Third Parties

---

JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 AUGUST 2001
DATE OF RULING:	21 AUGUST 2001
CASE MAY BE CITED AS:	CONSOLIDATED MANUFACTURING INDUSTRIES LTD. v. COLD FORGED PRODUCTS NO. 1 PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2001] VSC 317

---

CATCHWORDS:      Ruling – Notices to Produce – Whether documents relevant to the issues raised on the pleadings – Production of documents not required.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Riordan	Phillips Fox
For the Defendant	Mrs. S. Marks	Deacons
For 1st Third Party	Mr. P. Moloney	Connery & Partners
For 2nd Third Party	Mr. P. McCurdy	Norris Coates

HIS HONOUR:

1. I have before me two notices to produce issued by the first third party to, respectively, the plaintiff and the defendant.  By each notice to produce the first third party seeks production of four categories of documents.  First, the originals of all documents referred to in the relevant parties' affidavit of documents; secondly a document known as QS9000 and an associated licence agreement; thirdly documents relating to or being in fact a Quality Assurance Manual or Manuals and work instruction documents; and finally all records relating to batch identification and sample testing for Grade 10.9 bolts for the period 14 May 1998 to 22 March 1999.

1. In my opinion neither the plaintiff nor the defendant should be required to produce the originals of all the documents referred to in their respective affidavits of documents.  It may be that certain originals should be produced because there is a live question about the authenticity or provenance of that particular document.  If a document were identified as being within that category then it would be incumbent upon the relevant party to produce it; and I would expect that party to do so without any further intervention from the court.  In my opinion a blanket request for production of all originals is too wide.

1. The second category relates to the document QS9000 and the licence agreement. In my opinion that document is not relevant to any issue presently raised on the pleadings either of causation or mitigation.  It may be that in general a party can rely upon the undoubted proposition that an opposite party seeking damages against it must prove those damages.  The burden of proof having been placed on that party, the standard of proof is to the civil standard, the balance of probabilities. If either the plaintiff or the defendant fails to prove its damage against the relevant opposite party to the relevant standard then it will to that extent fail.

1. The point remains that (as I presently understand the issues between the parties) the documents in Category 2 do not go to those issues and their production should not be ordered.

1. I might add that Mr Moloney assumes that document QS9000 will be relied upon by one or other of the parties to which he is opposed.  As I understand it neither party will rely upon that document.  If I am wrong about that the matter can be revisited although I accept that in those circumstances the revisiting process might be difficult.  On the basis, however, that the documents are not relevant they need not be produced.

1. The third category relates to the Quality Procedure Manuals and work procedure and work instruction documents. They seem to me to fall within the same category for present purposes as those documents in Category 2; and production of them should not I think be ordered, for the same reason.

1. The final category relates to all records relating to batch identification and sample testing documents.  The question of batch identification may be relevant to the question of damages.  The court book already contains documents that go to that issue and contain what seem to me to be admissions which if relevant can be relied upon by the third parties.  I am not satisfied that the records in the fourth category will relevantly assist the third parties in relation to the question of the quantum of damages that the defendant seeks against them.  Accordingly in my opinion there should be no order for the production of documents in Category 4.

---