Finsbury Print Pty Ltd v CPI Graphics Ltd - [2006] SASC 287

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FINSBURY PRINT PTY LTD & ANOR v CPI GRAPHICS LTD & ORS
[2006] SASC 287
Judgment of Judge Burley a Master of the Supreme Court
15 September 2006
PROCEDURE
Discovery - application for further and better discovery - whether issues in respect of which discovery is sought arise on pleadings.
SCR 58.04(e), referred to.
Mulley v Manifold (1959) 103 CLR 341; Harris Scarfe Ltd v Ernst & Young & Ors (No. 4) (2005) 93 SASR 300, considered.

TRADE PRACTICES
Future representations - whether reasonable to make such representations - whether such issue arose on pleadings.
Trade Practices Act (Cwlth) Section 51A, referred to.
Ting v Blanche (1993) 118 ALR 543 at 552, considered.

FINSBURY PRINT PTY LTD & ANOR v CPI GRAPHICS LTD & ORS
[2006] SASC 287

JUDGE BURLEY. By application filed on 19 June 2006 (FDN 60), the plaintiff sought orders against the defendant for further and better discovery and for the provision of further material facts in relation to the defendant’s Defence. The latter part of the application has not been argued and it is probable that it will be resolved by agreement between the parties. These reasons deal with the plaintiff's application for further and better discovery.
The orders sought by the plaintiffs are as follows:
1.The defendant make further and better discovery of all documents in its possession, custody or power relating to all defects in, problems with and/or complaints about the CTP equipment during the period 1 January 2000 to November 2002 of the type sold by the defendant to the first plaintiff that was sold by the defendant to:
1.1    Lane Bros Printers Pty Ltd;
                  1.2    New Style Printing Co Pty Ltd; and
                  1.3    Custom Press Pty Ltd.
A class of documents, originally within the ambit of the orders sought, was referred to during argument as “assistance request forms”. At my direction, a further affidavit on the part of the defendant was filed. The Managing Director of the defendant, Mr Bernard Cassell, swore an affidavit on 18 August 2006, the content of which has caused the plaintiff to accept that documents of that description are no longer in the custody, possession or power of the defendant. As a result, the plaintiffs no longer pursue this aspect of the application.
At the hearing of the application, Mr Keith appeared for the plaintiffs, Mr Slattery QC and later Ms Deuter for the defendant and Mr Miller for the third party.
In this action the plaintiffs claim from the defendant damages because, they allege, the first plaintiff was supplied by the defendant with defective machinery. The causes of action pursued include misrepresentation, breach of contract, breach of warranty, contravention of Section 52 of the Trade Practices Act and Section 56 of the Fair Trading Act. The causes of action based on breach of warranty include warranties implied by the provisions of the Trade Practices Act and the Sale of Goods Act.
In broad terms, the first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Finsbury Print Pty Ltd v CPI Graphics Ltd

Details

AGLC: Finsbury Print Pty Ltd v CPI Graphics Ltd [2006] SASC 287
Case: [2006] SASC 287
Decision Date: 15 September 2006

CaseChat Overview and Summary

The case of Finsbury Print Pty Ltd v CPI Graphics Ltd was heard in the Supreme Court of South Australia. The plaintiffs, Finsbury Print Pty Ltd and another, sought orders for further and better discovery and additional material facts from the defendant, CPI Graphics Ltd, and others. The plaintiffs alleged that the first plaintiff was supplied with defective machinery by the defendant and sought damages based on causes of action including misrepresentation, breach of contract, and breaches of statutory warranties. The plaintiffs' application for further and better discovery sought documentation relating to defects in equipment sold to other entities, which they argued could show design defects and the defendant's knowledge of these defects.

The court considered whether the documentation sought was directly relevant to the issues in dispute. The plaintiffs argued that evidence of defects in similar equipment sold to others would support their case for design defects and the defendant's knowledge at the time of making representations. The court noted that under Section 51A of the Trade Practices Act, the onus was on the defendant to establish reasonable grounds for any future representations. However, the defendant had not pleaded any material facts in support of having reasonable grounds, and thus the question of reasonableness did not arise. The plaintiffs' application for further and better discovery was dismissed as the documentation was not directly relevant to the issues raised in the pleadings.

The court also rejected the argument that the defendant's knowledge was material to the question of compliance with statutory implied terms, stating that such knowledge was irrelevant to whether those terms had been complied with. The plaintiffs' application for further and better discovery was dismissed, and the court directed the parties to address costs.

Orders