Finsbury Print Pty Ltd v CPI Graphics Ltd (No 2)
[2006] SASC 352
•24 November 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
FINSBURY PRINT PTY LTD & ANOR v CPI GRAPHICS LTD & ORS (NO 2)
[2006] SASC 352
Reasons of Judge Lunn a Master of the Supreme Court
24 November 2006
PROCEDURE - DISCOVERY AND INTERROGATORIES
1987 Rules - applications by defendant and first third party for better discovery from the plaintiffs - held no entitlement to discovery of classes of documents under RR 58A.03 and 58A.04 unless all of the documents sought qualify for discovery under those Rules - held order for discovery of class of documents can only be made under R 58.04(e) insofar as that Rule applied - held where documents sought were directly relevant but not discovered no order could be made for them under R 58A.04 - held third party entitled to discovery against the plaintiffs on issues joined on the pleadings only between the plaintiffs and the defendant.
FINSBURY PRINT PTY LTD & ANOR v CPI GRAPHICS LTD & ORS (NO 2)
[2006] SASC 352Reasons on applications by the defendant and the first third party against the plaintiff for better discovery.
JUDGE LUNN: In about August 2000 the second plaintiff entered into a contract to purchase a Fuji Quin Beam CPI Recorder (“the CPI equipment”) from the defendant for use in the plaintiffs’ commercial printing business. (For the purpose of these reasons it is not necessary to differentiate between the roles of the two plaintiffs). In broad terms this machine was a computer which produced plates from which colour documents could be printed. The plaintiffs allege various representations and warranties about the performance of this equipment. They allege that it was defective and did not produce printing plates of sufficient quality. Sixteen different types of defects are alleged. It is possible that some may be found to be actionable but others not. The defendant has pleaded some of the defects were caused by errors by the plaintiffs’ operators and some resulted from a failure of the plaintiffs to service and maintain the equipment properly.
The defendant has issued third party notices against its suppliers of various parts of the CPI equipment. The first third party has filed a defence to the third party statement of claim. The second third party has not yet been served.
As a result of the ongoing alleged defective operation of the CPI equipment, in September 2004 the plaintiffs purchased alternative equipment from Creo Australia Pty Ltd (“the Creo equipment”), which is a competitor of the defendant. From January 2005 the plaintiffs used the Creo equipment in their business in place of the CPI equipment.
In paragraph 18 of their further amended statement of claim the plaintiffs have pleaded that the defective performance of the CPI equipment has “resulted in significant production delays and personnel downtime”. It is further pleaded that the first plaintiffs’ loss comprises (inter alia) “material costs, press and plate downtime”.
Pursuant to R 38.01 the plaintiffs have served on the defendant an expert accounting report from Mr P B Jorgensen (“the Jorgensen report”) in which details are given of a net claim for loss for downtime by the plaintiffs of $478,989. The defendant has served on the plaintiffs an expert accounting report dated 22 August 2006 from Mr Brian Morris (“the Morris report”) which joins issue with the claim in the Jorgensen report for downtime and concludes there is no justifiable claim for downtime shown by the Jorgensen report.
The parties have all made discovery pursuant to R 58A.03. There have been disputes about various issues on discovery. On 3 October 2006 the defendant took out an application for further discovery by the plaintiffs. Some parts of this application have been resolved by agreement between the parties. Below I deal only with the following paragraphs which were not the subject of agreement between the parties:
4That the plaintiffs make further and better discovery ….. of documents in the plaintiffs’ possession, custody or power relating to:
…..
(b)CAR reports relating to the Creo piece of equipment from September 2005 to present and ongoing;
(c)Creo maintenance records and logs maintained by the plaintiffs in respect of the Creo equipment;
(d)requests for assistance from the plaintiffs to Creo or a representative of Creo who has authority to receive queries in relation to the Creo equipment;
(e)all job cards in relation to the Fuji CTP equipment;
…..
5That the plaintiffs provide further and better discovery of documents in its possession, custody or power relating to complaints made by the plaintiffs to the Creo plate supplier and/or the manufacturer of the Creo plates about its quality and performance of plates supplied to the plaintiffs during the period February 2005 to present and ongoing.
In determining these issues it is necessary to have regard to the following Rules:
R 58A.03The parties must discover in their lists of documents, but discovery only, the documents which are or have been in their possession, custody or power which are directly relevant to any issue arising on the pleadings.
R 58A.04(1)Parties are not to include in their lists of documents any documents which are only indirectly relevant to any issue arising on the pleadings unless it is ordered by the Court where it is in the interests of justice to do so.
R 58A.10Rule … 58.04 … (is) to apply to discovery which is governed by Rule 58A, but nothing in Rule 58 is to override what Rule 58A provides about which documents need to be discovered, how they are to be described in a list of documents or otherwise. …..
R 58.04The Court may on application for discovery made at any stage of the proceedings:
…..
(e)Further and better discovery where it appears to the Court that there are grounds for a belief that some document or class of documents relating to any matter in question in the proceedings may be or may have been in the possession, custody or power of a party, order that party:
(i)to file an affidavit stating whether that document, or any of that class, is or has been in his possession, custody or power and, if it has been but is not presently, to state when he parted with it and what has become of it.
…..
The plaintiffs have made discovery under R 58A.03 of the documents which they say are directly relevant to any issue arising on the pleadings. Paragraph 18 of the statement of claim makes the downtime attributable to any cause of action established by the plaintiffs an issue directly raised by the pleadings. The extent of that downtime is not particularised in the statement of claim. However, it was implicitly accepted by counsel, and it is the usual practice, that the expert reports served by the parties are to be treated as particulars of such downtime claims. (This is consistent with R 46A.10(2)(b)). Hence regard is to be had to the Jorgensen report and the Morris report on how the plaintiffs’ claims for downtime are to be made out and on how those claims are answered by the defendant.
No order under R 58A.04 has been made for discovery by the plaintiffs of indirectly relevant documents. The defendant seeks such an order in the alternative, but it can only be made if the documents in question are properly categorised as “indirectly relevant”. It cannot be made under R 58A.04 if the documents are directly relevant.
The defendant’s primary contention is that the documents whose discovery is now sought are directly relevant. R 58A.03 does not confer any power on the Court to order discovery of directly relevant documents, but merely imposes an obligation on the party making discovery to discover those documents. Insofar as the documents sought are directly relevant the defendant brings its application under R 58.04 which applies in part by virtue of R 58A.10. (Although the margin title to sub R 58.04(e) refers to “further and better discovery”, there is nothing in the body of subr (e) which confines the power of the Court under subr(e) to orders for further and better discovery. On its face it is wide enough to justify an order even where no prior discovery has been made.)
The defendant can only qualify for an order for discovery under subr 58.04(e) if it can first show “there are grounds for a belief that some document or class of documents relating to any matter in question in the proceedings may be ….. in the possession” of the other party: Lane v Channel 7 Adelaide Pty Ltd, Prior J, 28 November 2003, Judgment No [2003] SASC 391. Here counsel for the plaintiffs submitted that the defendant had not satisfied this threshold. That is a factual issue which needs to be dealt with separately in relation to each document or class of documents for which an order is sought. However, there seems to be an anomaly on the face of the Rule in that if the applicant cannot satisfy this factual threshold, it cannot apparently obtain an order under R 58.04(e) for the other party to make discovery of directly relevant documents which should have been discovered under R 58A.03.
The test for the necessary belief required by this rule is that set out in the following passage from the judgment of Bleby J in Southern Equities Corporation Ltd (in liquidation) v Arthur Andersen & Co (No 5), 21 September 2001, [2001] SASC 335, unreported:
….. if the defendant is to succeed in its application, it must point to some evidence to raise the necessary belief required by Rule 58.04(e). It requires more than merely an assumption or speculation that such documents may exist. The necessary belief may be formed from an examination of the pleadings. Common experience may dictate that there must have been a particular relevant document in the custody, possession or power of a party concerning a particular transaction. The existence of a relevant document may be properly inferred from the contents of another document. Alternatively, the description of a document may be so vague and uncertain as to require more particularity. There may be other circumstances which induce the necessary belief. However, the Court will not act on speculation.
I am not aware of any judicial exposition of what constitutes speculation for this purpose. The Macquarie Dictionary, Second Revised Edition, relevantly defines it as “conjectural consideration of a matter; conjecture or surmise”. It means that the grounds for the belief are more than merely one possibility among many and that there is enough substance in them to justify putting the other party to the expense and trouble of filing an affidavit of discovery about the documents sought. It needs to be assessed against the presumption of regularity that parties have complied with their obligations under the rules to make proper discovery. Short of conducting a mini trial it is impossible for the Court at the interlocutory stages of the action to satisfy itself objectively that proper discovery has been made. Rather the question is to be left to be pursued in cross-examination at the trial with obvious major adverse consequences for the credibility of the parties if they are shown to have not complied with their obligations to have made proper discovery. Where discovery has been made according to the Rules there must be some proper justification for the Court going behind the list of documents and requiring the party to swear to particular instances of proper discovery. Challenges to the adequacy of discovery are not to be encouraged unless there is good reason to put forward to require the party to descend into particularity in affidavits of discovery.
Both RR 58A.03 and 58A.04, in contrast to R 58.04(e), only refer to the discovery of documents, and not to the discovery of classes of documents. It is not necessary here to go into precisely what constitutes a single document for the purposes of these Rules. It is clear that in 4(b), (c), (d), (e) and 5 of the application the defendant is seeking discovery of classes of documents. In each instance they are referring to a genus of document which comprises multiple, and in some instances numerous, individual documents. RR 58A.03 and 58A.04 only apply to classes of documents where all of the documents in the class qualify for discovery under those Rules as respectively either directly or indirectly relevant documents. Under R 58A.03 discovery is not to be made of a class of documents unless all of the documents in the class are directly relevant, as otherwise, contrary to that Rule, discovery will have been made of documents which are not directly relevant. R 58A.03 can only be complied with by discovering individual documents within the class which are directly relevant, and by not discovering any others. (Similarly, if only some of the documents in a class are indirectly relevant, but not the whole class, an order under R 58A.04 could not be made in terms of the whole class of documents, but only for those documents which individually are indirectly relevant).
The only Rule which deals with orders for discovery of a class of documents is R 58.04(e). There “class of documents” is used in the alternative to “document”. While R 58A.10 precludes R 58.04 being used to override what R 58A stipulates about which documents need to be discovered, it does not preclude the use of R 58.04(e) where not all of the documents in the class which are ordered to be discovered are shown to be either directly relevant or indirectly relevant. Accordingly, where the threshold for the application of R 58.04(e) is satisfied, and it is otherwise proper to make an order for discovery of a class of documents which are not shown to be either wholly directly relevant or wholly indirectly relevant, it is permissible to make the order under subrule (e) for the class to be discovered. The only other limitation on the scope of subr (e) is that the class of documents must relate to the matter in question in the proceedings. This appears to be the old Peruvian Guano test [(1882) ll QBD 55 at 62-3] of every document which may either directly or indirectly advance the cause of a party: Donaldson v Harris (1973) 4 SASR 299 at 305.
The test of which documents are “directly relevant” was enunciated by Bleby J in Harris Scarfe Ltd v Ernst & Young (No 4) (2005) 93 SASR 300 at [15] as:
The document will be directly relevant if it tends to prove or disprove a matter which is in issue. It is not directly relevant if it merely tends to prove or disprove something that may be relevant to a matter in issue, or if there is merely a chance that the document will prove or disprove a matter in issue.
The “CAR” reports relating to the Creo equipment from and after September 2005. (Para 4(b)).
The “CARs” (Corrective Action Report) are documents regularly, and apparently contemporaneously, prepared by the plaintiffs’ printers in respect of problems which they encountered in performing their work. They generally recorded, inter alia, the nature of the problem encountered, the identity of the job on which is was encountered, what, if any, downtime in production resulted from the problem, what remedial action was taken or needed and the cost claimed which may or may not have been attributable solely to the downtime involved. In some instances it would seem that a CAR may have related to more than one problem which was encountered at the same time. CARs were created for the problems which the plaintiffs allege they encountered as a result of the defective performance of the CPI equipment, but also in respect of many other types of problems in carrying out the printing work which were unrelated to the defendant. The Jorgensen report calculated the claim for lost downtime by adding up the downtime shown in the CARs which the plaintiffs say are attributable to the defective CPI equipment. This is apparently based on many hundreds of CARs.
The Jorgensen report also includes a calculation of the lost downtime for the period from January to September 2005 when the plaintiffs were using the new Creo equipment. Some problems, and consequent downtime, were encountered in the use of this equipment. By a comparison with the collations from the CARs for the period in which the CPI equipment was used with the first nine months in which the Creo equipment was used the Jorgensen report concludes at para 5.19 that the printing errors caused by the Creo machine were significantly less than the printing errors caused by the CPI equipment. That appears to be a conclusion going both to the adequacy of the CPI equipment and to the assessment of the plaintiffs’ claim for downtime.
From a sample survey of the CARs for May 2005 (which was during the use of the Creo equipment) the Morris report puts in issue the plaintiffs’ allocations of downtime arising from various types of problems. It says that the CARs for May 2005 show instances of problems being encountered similar to those for the CPI equipment where downtime had been claimed as a result but where in May 2005 no downtime had been claimed.
Paragraph 18 of the statement of claim makes the downtime incurred by the plaintiffs as a result of the alleged defaults of the defendant an issue which arises on the pleadings. The two experts’ reports show that CARs, at least up to September 2005, are directly relevant to that issue arising on the pleadings. By discovering the CARs up to 30 June 2005 under R 58A.03 the plaintiffs have impliedly conceded that all of the documents in that class are directly relevant.
The issues to be determined here are whether the CARs after 30 September 2005 are directly relevant and whether there is a proper basis under R 58.04(e) to order their discovery. There is nothing in the Jorgensen report as to why the comparative figures derived for the Creo equipment were limited to the period up to 30 September 2005. As that report is dated 1 December 2005 the obvious inference is that they were the only comparative figures which were available at the time. There is nothing to show that comparative figures after 30 September 2005 would be substantially less significant than the figures before that date. (There is evidence of problems with Kodak plates being used in the Creo equipment, but is unclear how significant this might be in the context of the problem with the CPI equipment.) As the class of CAR documents prior to 30 September 2005 was directly relevant there seems no reason to conclude the same class of documents after that date, and until the present time, would not also be directly relevant to the issues which have to be determined. There was no evidence about anything which would indicate such a change of circumstances that it would be a cut-off point after which no meaningful comparisons could be made with the CARs prior to January 2005. For the purpose of R 58.04(e) there are grounds to believe that the plaintiffs continued their previous practice of making such CARs after 30 September 2005. Paragraph 7 of the affidavit of Stephen Osborne, the general manager of the plaintiffs filed on 30 October 2006, does not suggest to the contrary. The plaintiffs’ argument was that such documents after 30 September 2005 were neither directly nor indirectly relevant, but I am against that submission. For the reasons given those documents do relate to a matter in question in the proceedings for the purpose of R 58.04(e). On the Morris report it seems likely that the comparative situation of the Creo equipment after 30 September 2005 will be a topic which the defendant will pursue at trial. It would be contrary to the interests of justice if the trial had to be delayed while these documents were obtain and collated. There was no evidence that there would be any particular problem for the plaintiffs in making discovery of, and in producing for inspection, this class of documents. Accordingly, an order will be made under R 58.04(e) for their discovery and inspection.
Creo equipment performance records. (Paragraphs 4(c) and(d) and 5.)
The defendant has pleaded in paragraph 10 of its amended defence and counterclaim that some of the faulty operation of the CPI equipment was due to errors by the plaintiffs’ operators of that equipment or environmental factors such as dust in the plaintiffs’ premises. These matters are also referred to in the experts’ reports of Mr Gardiner and Mr Edwards, who are experts on the type of machinery in question. The CARs already discovered by the plaintiffs for the Creo equipment suggest some similar operating problems with that equipment as was encountered with the CPI equipment. While the documents sought in paragraphs 4(c), (d) and 5 are not directly relevant to these issues as there is only a chance that they will be relevant to proving or disproving the causes of the defective performance of the CPI machinery they are indirectly relevant for the purposes of R 58A.04(1) as there is some reasonable prospect that they may bear on what is or is not attributable to operator error and/or environmental factors in the performance of the CPI equipment. These documents are also indirectly relevant to the issues mentioned under paragraph 4(b) of what downtime could have been reasonably expected even from satisfactory equipment.
In deciding whether the defendant has shown that it is in the interests of justice to make an order for the discovery of these documents under R 58A.04(1) the Court must perform a balancing exercise taking into account the relevant circumstances: Rehn v Australian Football League (2003) 227 LSJS 378. The plaintiffs’ counsel submitted that this request by the defendant was merely a “fishing” expedition. While it is unknown at this stage what the documents contain, it seems likely that there will be a substantial inquiry at the trial into the comparative performances of the CPI equipment and the Creo equipment, and the reasons for any differences in their performances. It is likely to be a complex and protracted investigation. It would not be in the interests of justice for the trial to be delayed if in the light of the other evidence adduced the trial Judge considered it proper that the plaintiffs’ witnesses in cross-examination should be required to produce the documents in question. Unlike paragraph 4(e), which is to be mentioned next, there is no evidence from the plaintiffs that there would be any particular difficulty or expense in discovering these documents and producing them for inspection. Accordingly, an order will be made for their discovery under R 58A.04(1).
The plaintiffs’ “job bags” for the work performed by the CPI equipment. (Paragraph 4(e)).
In response to paragraph 4(e) requesting job cards, Stephen Osborne in his affidavit, referred to above, stated that the plaintiffs did not have job cards, but in respect of each job undertaken by the first plaintiff a “job bag” had been prepared. In paragraph 8 he deposed:
….. that job bag, contained amongst other things, instructions to the printer, the bindery standard for the job (being the specifications for the binding of the finished printed article), the printed standard, the client’s order, print instructions, print sequence and invoicing details. None of the contents of the job bag relate specifically to the CTP equipment. They relate to the print and finishing instructions and records. No other record of the contents of the job bag is retained by the plaintiffs.
The defendant then pursued paragraph 4(e) in terms of discovery of the job bags for the jobs performed by the plaintiffs using the CPI equipment.
On the experts’ reports and documents which are before me the proof of the downtime lost by the plaintiffs as a result of any defects in the CPI equipment is potentially a mammoth exercise. It may well require every job, of which there are apparently many hundreds, to be looked at separately as the relevant circumstances causing the downtime for each may differ. Presumably the CARs showing the downtime attributed to that defect will be admissible as a business record of the plaintiffs under s 45A of the Evidence Act, but it may only be on terms that the author of the document is called as a witness. Where it is necessary to establish the reasonableness of the downtime separately for each job where production was delayed it may well be necessary for the Court to look at the wider context of the job and to assess the time claimed against what was otherwise involved in performing the job as well as in overcoming the defects. At least some of the contents of the job bag for that particular job may be material to such an inquiry.
The contents of all of the job bags for work performed by the CPI equipment are not directly relevant to the issue of downtime because there is only a chance that the document will prove or disprove anything on that topic. If the contents of any particular job bag (assuming a job bag to be a single document for this purpose) are directly relevant to the claim for downtime for a particular job, it should have been already discovered under R 58A.03. None have been so discovered. However, in his submissions on oppression the plaintiffs’ counsel said it would be oppressive for the plaintiffs to have to inspect all of the job bags before making discovery of them, which suggests that the plaintiffs have not yet done the exercise.
Likewise, all of the job bags relating to the CPI equipment are not indirectly relevant documents for the purpose of R 58A.04(1). On the present pleadings and experts’ reports job bags relating to jobs where no downtime has been claimed are not relevant at all. (The Morris report asserts that the Jorgensen report has omitted an essential step in the calculation of the recoverable downtime which is to show that the plaintiffs could have otherwise profitably used the CPI equipment if that the downtime had not occurred. Whether this is correct is not for me to say, but if the plaintiffs were to attempt to counter it by showing other profitable work could have been performed by the CPI equipment if downtime had not occurred, it may be that all of the job bags would be indirectly relevant to showing what work was done and when, and what other capacity of the CPI equipment could have been utilised at particular times). Even if the discovery is limited only to the job bags for jobs where downtime is claimed, all of those bags have not been shown to be indirectly relevant to any matter in issue on the pleadings. It may well be that some of them are, but it will depend upon the circumstances of the particular job and how the downtime claimed for it is to measured. In order to obtain discovery of these job bags under R 58A.04 it would be necessary to identify each of the jobs where downtime is claimed and to show in the circumstances of that particular job the contents of the job bag may be relevant to what the Court has to determine in that instance.
The plaintiffs’ application, in the alternative, is one for discovery of a class of documents under R 58.04(e). While the contents of every job bag do not relate to a matter in question in this action, the contents of the bags for jobs where downtime had been claim do relate, within the Peruvian Guano test, to the issue of the downtime claimed. The affidavit of Mr Osborne admits that the plaintiffs have, or have had, these job bags and so the threshold requirement of a belief that such documents have been in the plaintiffs’ possession is satisfied.
It then remains to consider whether the Court should exercise its judicial discretion under R 58.04(e) to order such discovery. The plaintiffs assert it would be oppressive because the job bags which they still have which go back to December 2002 have accumulated at the rate of about 10 A3 boxes each month. While I accept it will take a substantial amount of work to identify which of the job bags relate to the jobs for which downtime is claimed and to give inspection of these bags this is outweighed by the risk that the trial on damages may be significantly disrupted if the defendant and the third parties have not seen these documents well in advance of the trial. Accordingly, I order under R 58.04(e) that the plaintiffs make discovery of the job bags for each job for which downtime has been claimed.
Application by the 1st third party for further discovery from the plaintiffs.
On 17 October 2006 the 1st third party took out a notice for specific directions against the plaintiffs in the following terms:
The First Third Party ….. applies for the following orders …..
1That the plaintiffs make further and better discovery of all purchase orders and requests, invoices, vouchers, statements, receipts, correspondence, emails, note and other documents relating to the purchase, replacement and maintenance of the following components and parts of the CTP equipment:
(a)The spinner mirror:
(i)Isopropyl alcohol and acetone;
(ii)Lens tissue;
(b)The processor:
(i)Fuji Film LP-D digital plate developer;
(ii)LP-DR digital plate replenisher;
(iii) finishing gum;
(c)PAT 505 id air purifier filters, including:
(i) Dust pre-filter;
(ii) Hi-efficiency 65%;
(iii)Hepa 99.9%
(d)Busch filter part no SV/SD 1016 B
2That the plaintiffs make further and better discovery of all employment contracts, resumes and curriculum vitae, training modules and procedures, training requirements and tests, test results, correspondence, notes, emails and all other documents relating to the qualifications, expertise, experience and training for the CTP equipment the subject of the proceedings, of all employees of the plaintiffs who:
(a)cleaned and maintained the CTP equipment or any part of it;
(b)serviced and/or performed repair work on the CTP equipment or any part of it;
(c)operated and performed jobs on the CTP equipment.
3That the plaintiffs make further and better discovery of all documents recording the hours worked by each person employed by the plaintiffs to operate the CTP equipment.
The third party has not filed any defence to the plaintiffs’ statement of claim. I reject the plaintiffs’ contention that the third party is not entitled to any orders against them for discovery because no issues are directly joined between the plaintiffs and third party on the pleadings. Under the1987 Rules a third party is a party to the action for all purposes: Civil Procedure SA para [R 37.02.1.] R58A and the obligation to make discovery applies to all parties and on all issues raised on the pleadings regardless of whether the party is concerned in that issue. Therefore, the 1st third party is entitled to seek discovery on the issues raised between the plaintiffs and the defendant.
Discovery on component parts of the CTP equipment. (Paragraphs 1(a)-(d)).
I accept that the report of the defendant’s expert, Mr Gardiner, of 26 April 2006 makes the components described in (a), (b), (c) and (d) issues for the case. The documents requested are directly relevant to the performance of these components and so were discoverable by the plaintiffs under R 58A.03. As the documents are directly relevant, which was the primary contention of the 1st third party, they cannot be only indirectly relevant, and therefore the subject of any order under R 58A.04(1).
Accordingly, any order for the discovery of these documents must be under R 58.04(e). However, there is no evidence of any grounds for a belief that any of these documents, which they have not already discovered, may be in the possession of the plaintiffs. In the absence of such evidence it is to be presumed that the plaintiffs have complied with their obligation to make discovery of directly relevant documents under R 58A.03. Any suggestion to the contrary is no more that speculation or conjecture. Thus no order is to be made for such discovery.
Discovery of employment records of operators of the CPI equipment (Paragraph 2.)
Not all of these documents are directly relevant to any issue raised on the pleadings about the cleaning, servicing or operation of the CPI equipment. There is no more than a chance that some of them might bear on such issues. The request is extremely broad in its scope and seems to be the type of discovery which R 58A was designed to curtail. It is not every act of cleaning, maintenance, servicing, repair and operation of the CPI equipment which is made an issue by the pleadings and the experts’ reports. For instance, the evidence suggests that the CPI equipment operated satisfactorily for some jobs which did not lead to any defective output or downtime. The qualifications and experience of the operators of the CTP equipment on those occasions is not in any way relevant. Thus all of the documents sought do not qualify under R 58A.04 as indirectly relevant documents. (It is not for the Court to construct an order in substantially different limited terms which might come within R 58A.04: Wild Boar Ltd v Armatek Ltd (1998) 199 LSJS 49). Even if the request qualifies as one for classes of documents, and so can overcome the restriction in R 58A.10, again there is no evidence to show the ground for a belief that documents of that class may be in the possession of the plaintiffs which have not been discovered. In any event, for the reasons given the breadth of the discovery sought in the paragraph is outside documents relating to any matter in question in the proceeding. Accordingly, no order will be made for discovery of such documents.
Discovery of the working hours of the plaintiffs’ operators of the CPI equipment (Paragraph 3.)
Counsel for the 1st third party sought to establish the relevance of these documents on the claim for downtime. He submitted they were at least indirectly relevant to whether the plaintiffs could have profitably used that downtime if the CPI equipment had performed satisfactorily. For the reasons given above, that is not at present a component of the plaintiffs’ basis of claim for downtime. No other grounds to make these documents discoverable was put forward.
I today have made the following orders:
1On the defendant’s application of 3 October 2006 that the plaintiffs by 22 December 2006 file a supplementary list of documents making discovery:
(a)as sought in paras 4(b), (c) and (d) and 5 of the application; and
(b)of the job bags for each job for which downtime is claimed.
2The application of the first third party of 17 October 2006 is dismissed.
3The plaintiffs are to pay to the defendant its costs as agreed or taxed of the application of 3 October 2006.
4The first third party is to pay to the plaintiffs their costs as agreed or taxed of the application of 17 October 2006.
5Fit for counsel on 17 November 2006.
6 Liberty to apply at the management conference on 28 November 2006 to vary or supplement these orders.
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