Finsbury Print Pty Ltd v CPI Graphics Ltd
[2005] SASC 278
•27 July 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
FINSBURY PRINT PTY LTD & ANOR v CPI GRAPHICS LTD
Reasons of Judge Lunn a Master of the Supreme Court
27 July 2005
PROCEDURE
Application by defendant to take plaintiff's machine whose performance was in issue to Victoria for testing - held Court had power under R68.04 and under its inherent jurisdiction to make such an order - held subject to suitable conditions the order would be made to test whether environmental factors affected the performance of the machine.
FINSBURY PRINT PTY LTD & ANOR v CPI GRAPHICS LTD
[2005] SASC 278[2005] SASC
Reasons on Defendant’s Application for Testing of Machine
JUDGE LUNN The plaintiffs have sued the defendant for damages for the alleged defective performance of a Fuji Film Luxel L Twin Beam (CTP) Recorder (”the Machine”) which the defendant sold to the plaintiffs in 2000. The defendant has joined its suppliers as third parties, one of which is in England. The third party proceedings have been served, but no solicitor representing them has yet filed an address for service. Although the third parties apparently will have an interest in testing the Machine, neither party wanted the present application adjourned until the third parties were before the Court.
The Machine is installed in the plaintiffs’ premises at Thebarton. It is quite large and heavy. It is hard-wired to the electricity supply and plumbed to water mains. Because of its alleged defective performance the plaintiffs have bought and installed another similar Machine of a different make and in January 2005 decommissioned the Machine. It still remains installed at the plaintiffs’ premises and can be re-commissioned and operated there if need be. The plaintiffs have agreed to retain and preserve the Machine until the conclusion of these proceedings.
Just before it was decommissioned in January 2005 the Machine and its operations were inspected by Mr Sean Gardiner, an expert from Victoria, retained by the defendant. Mr Gardiner has given a preliminary, apparently undated, report on the plaintiffs’ complaints about the operation of the Machine in which he has recommended undertaking a number of further extensive tests in operating the Machine to determine the extent of any defective performance and its causes. Mr Gardiner expected to take between four to eight weeks to conduct these further tests. The plaintiff has retained Richard Edwards, also from Melbourne, to give it an expert report, but he has not as yet supplied any reports. He filed an affidavit taking issue with a number of matters in Mr Gardiner’s preliminary report.
On 23 December 2004 the defendant issued a notice for specific directions seeking, inter alia, orders under R68.04 and the inherent jurisdiction of the Court for the inspection and testing of the Machine by experts retained by it. As the matter has evolved there is now only one issue which needs to be resolved on this application. Mr Gardiner wanted the further testing of the Machine to be carried out at the defendant’s premises in Melbourne and for that purpose the Machine to be dismantled, transported to Melbourne and re-assembled and activated in the defendant’s premises there. Subject to agreeing various ancillary terms and conditions, the plaintiffs do not oppose any further tests being carried out on the Machine by Mr Gardiner in its present location in Adelaide, but oppose it being taken elsewhere for that purpose.
The plaintiffs’ counsel submitted that the Court had no power to make the order sought. The defendant relied in part upon R68.04, which reads:
68.04The Court may, on the application of any party to any proceeding, and upon such terms as may be just:
(a)make an order for the inspection, photographing, detention, custody, or preservation of any property that is the subject-matter of the proceeding, or as to which a question may arise in the proceeding;
(b)authorise:
(i)the taking of samples of any property;
(ii)the making of any observation of any property;
(iii)the trying of any experiment on or with any property provided that such experiment does not result in the destruction of the whole of the property of the damaging or disfigurement of a work of art;
(iv)such other action as may be necessary for the purpose of obtaining full information and evidence;
(c)authorise any person to enter upon or on to any land or building in the possession of any party or to do any other thing for the purpose of getting access to the land or building;
(d)in the case of tapes, recordings, films and other means of recording sight or sound give all such directions as may be necessary for the playing or screening thereof.
The plaintiffs’ counsel submitted that there should be a restricted view of the power conferred by R68.04. He submitted that by s 19(2) of the Acts Interpretation Act 1915 reference could be made to the heading of R68 which was the equivalent of a heading to a “Part, Division or Subdivision of an Act”. I doubt that a heading to a Rule is within s 19(2). (Confusingly in the Supreme Court Rules 1987 both the major Rules designated by a whole number eg R68 and the provisions within the whole Rule eg R68.04 are each entitled “Rule”). Even if reference can be made to the heading of R68, it is of no significance. The heading of R68 is “INTERLOCUTORY INJUNCTIONS AND INTERIM PRESERVATION OF PROPERTY”. The argument was that the power sought to be exercised was neither properly categorised as an interlocutory injunction nor as one directed to the interim preservation of property. However much of the contents of R68 goes beyond that subject matter eg RR68.12 and 68.13.
The defendant’s counsel submitted that the order he sought came within R68.04(b)(iv) as being “such other action as may be necessary for the purpose of obtaining full information and evidence”. I accept that submission and do not consider that it should be read down by reason of the heading to R68 or for any other reason. As is illustrated by Anton Piller orders, which are made under a combination of R68.04 and inherent jurisdiction of the Court, the Court has the power to make any orders which are reasonably necessary to ensure disclosure of material and information which is necessary for the proper trial of an action: Golf Lynx v Golf Scene Pty Ltd (1984) 117 LSJS 40.
The power conferred by R68.04 and the inherent jurisdiction is only permissive and discretionary, and it is only to be exercised where it is in the interests of justice to do so, and as stated in the preamble to R68.04 “upon such terms as may be just”. Once the Machine is dismantled and removed from its present location no testing of it can thereafter be carried out in the exactly manner in which it was set up and installed by the defendant. Also if it is dismantled and transported, there is a danger that it may be damaged in some way which would compromise the results of subsequent testing of its operation. I do not accept that it would be proper to order removal of the Machine to Melbourne merely to meet the convenience of Mr Gardiner, who is based in Melbourne, in carrying out the further extensive tests.
The only basis upon which the removal of the Machine could be justified is in relation to the preliminary conclusion of Mr Gardiner that factors relating to its environment in the plaintiffs’ premises, such as dust and general uncleanliness, were a reason for it not to perform satisfactorily. Removing the Machine to the defendant’s premises in Melbourne where other similar Machines apparently have operated satisfactorily, and testing the Machine there, will be some evidence, if it then performs satisfactorily, that environmental factors in the plaintiffs’ premises may have caused any defective operation while it was there. While the results of such testing in the defendant’s premises, if favourable to the defendant, will not be conclusive on the point, they are likely to be significant evidence on it. If the defendant is not permitted to test the Machine in another environment where similar machines have allegedly operated satisfactorily, the trial Judge will be deprived of important evidence on the contested issue of whether such defective operation as did occur was not the result of any defect in the Machine but of environmental factors. While the plaintiffs strongly dispute that any such environmental factors exist, I cannot determine that issue on an interlocutory application.
Subject to the exercise being carried out at the cost of the defendant and on terms and conditions which will as far as practicable protect the position of the plaintiffs, I consider that the risks of damage to the Machine and possible consequent problems from its removal to Melbourne are outweighed by the potential benefit of testing the Machine in a different environment and thus, subject to fixing reasonable terms and conditions, the order sought should be made.
I will hear the parties on the precise wording of the terms and conditions to be imposed on the making of the order.
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