Juniper Constructions Pty Ltd & Ors v. OneSteel Reinforcing Pty Ltd & Ors
[2007] QSC 287
•11 October 2007
SUPREME COURT OF QUEENSLAND
CITATION:
Juniper Constructions Pty Ltd & Ors v OneSteel Reinforcing Pty Ltd & Ors [2007] QSC 287
PARTIES:
JUNIPER CONSTRUCTIONS PTY LTD (ACN 010 175 201)
(first plaintiff)
JUNIPER PROJECT DEVELOPMENTS PTY LTD (ACN 094 086 138)
(second plaintiff)
JUNIPER HOTELS PTY LTD (ACN 080 083 969)
(third plaintiff)
JUNIPER PROPERTY HOLDINGS NO. 2 PTY LTD (ACN 095 324 066)
(fourth plaintiff)
JUNIPER DEVELOPMENT CORPORATION PTY LTD (ACN 005 248 635)
(fifth plaintiff)
v
ONESTEEL REINFORCING PTY LTD (ACN 004 148 289)
(first defendant)
ANCON CCL PTY LTD (ACN 000 496 079)
(second defendant/first third party)
DANLEY CONSTRUCTION PRODUCTS PTY LTD (ACN 010 910 308)
(third defendant/second third party)
BARLOW GREGG & ASSOCIATES (MAROOCHYDORE) PTY LTD (ACN 007 079 165)
(fourth defendant)FILE NO:
BS10865 of 2005
DIVISION:
Trial Division
PROCEEDING:
Interlocutory applications
DELIVERED ON:
11 October 2007
DELIVERED AT:
Brisbane
HEARING DATE:
6-7 August 2007
JUDGE:
Mullins J
ORDER:
1. The second defendant provide disclosure of documents in relation to the matters in issue in the proceeding relating to the second defendant’s allegation that “the Connectors are suitable for use in residential building constructions in accordance with the specifications and method of installation described in the Brochure”, but so that the disclosure of the second defendant’s packing slips and related documents for the supply of the connectors for residential building constructions is limited to supplies within Australia.
2. The second defendant provide the further and better particulars requested in paragraphs 29(f), 30(f), 31(c), 32(e), 33(e), 34(e), 35(e), 36(c), 37(c), 38(c), 39(d), 40(d), 41(b), 42(b), 43(d), 44(e), 45(e), 46(e) and 47(e) of the plaintiffs’ request dated 10 May 2007.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – pleading – particulars – where defendant seeks particulars of the plaintiff’s claim that is relevant for the defendant’s investigation of its case, but not relevant to the plaintiff’s case – not a proper request for particulars – where plaintiff seeks particulars of the allegations of contributory negligence made by the defendant – where defendant seeks to defer providing the particulars until after pre-trial procedures and expert reports have been obtained – where the plaintiff seeks particulars that are fundamental to enable the plaintiff to understand the allegations of contributory negligence – particulars ordered to be provided
PROCEDURE – DISCLOSURE AND INSPECTION OF DOCUMENTS – DISCLOSURE OF DOCUMENTS – where party resisted disclosing a category of documents on the basis that it would be too onerous to undertake enquiries to ascertain which documents were relevant to the issues in the proceeding – where party not required to undertake investigation to determine relevance of the documents – where party should decide relevance on the basis of the information on the face of the document and by reference to the information known to the party – order for disclosure of specified category of documents made
COUNSEL:
SL Doyle SC for the plaintiffs
JD McKenna SC and S Hooper for the second defendantSOLICITORS:
Gadens Lawyers for the plaintiffs
Allens Arthur Robinson for the second defendant
MULLINS J: By application filed on 13 July 2007 (document 103) the second defendant applied to strike out specified paragraphs of the plaintiffs’ third amended statement of claim filed on 19 January 2007 (the statement of claim) or, alternatively, that the plaintiffs provide further and better particulars of those specified paragraphs.
By application also filed on 13 July 2007 (document 108) the plaintiffs applied for further and better particulars of specified paragraphs of the second defendant’s amended defence to the third amended statement of claim (the defence) and disclosure of specified categories of documents.
A hearing of the applications took place on 6 and 7 August 2007. Some of the matters in issue between the parties were able to be disposed of during the course of that hearing. These reasons deal with those aspects of the applications that I reserved for further consideration.
The nature of the proceeding
The plaintiffs are companies owned and controlled by members of the Juniper family. They developed high rise residential buildings called “Blue Water” and “Deep Water” at Minyama.
The second defendant sells Staifix ESDQ Shear Load Connectors (the connectors) to distributors and to building contractors in Australia. It imports them from a related company that manufactures them.
The plaintiffs allege that the connectors were installed as connectors at the joints of the slabs in each level of the Blue Water and Deep Water buildings. The connectors are designed to allow movement to take place as the slabs expand and contract without causing cracking in the concrete. The essence of the plaintiffs’ claim set out in paragraph 73 of the statement of claim is that the connectors result in the creation of excessive noise when movement occurs within the slabs and that the connectors are therefore defective, not reasonably fit for the purpose of use in residential building construction and not of merchantable quality. The plaintiffs claim that the excessive noise adversely affects the amenity of residents and guests in the buildings. Because of each plaintiff’s different role in respect of each development, there is a separate claim for loss and damage pleaded by each plaintiff. In general terms, the plaintiffs are seeking to recover from the second defendant the costs of rectifying the defective connectors.
The first defendant, OneSteel Reinforcing Pty Ltd (OneSteel), supplied reinforced steel and other materials and products for the construction of the buildings including certain connectors, but does not admit that those connectors were installed in the buildings as alleged by the plaintiffs. The third defendant, Danley Construction Products Pty Ltd (Danley), admits that it contracted with OneSteel to supply certain connectors to OneSteel, but it does not admit that those connectors were supplied by OneSteel to Juniper Constructions Pty Ltd (Constructions) or that connectors were installed in the buildings as alleged by the plaintiffs.
The second defendant admits it supplied certain connectors to Danley and to OneSteel. The second defendant does not admit that Danley on-supplied those connectors to OneSteel, that OneSteel on-supplied those connectors to Constructions or that those connectors were installed in the buildings as alleged by the plaintiffs.
The second defendant pleads in paragraph 16(b) of the defence that if any connectors supplied by it were used in the buildings, they were not installed in conformity with the recommendations contained in the brochure that may have accompanied the supply of connectors. In paragraph 17 of the defence, the second defendant does not admit the occurrence of the noise events in the buildings alleged by the plaintiffs and denies that the connectors create the excessive noise alleged by the plaintiffs. The second defendant alleges in paragraph 19 of the defence that any alleged noises within the buildings are the result (in whole or in part) of incorrect installation of the connectors, concrete ingress in the rectangular box component of the connectors, poor construction practices, ongoing settlement of the foundations of the buildings, the design of the buildings and the effect of sunlight hitting the façade of windows in the buildings.
Particulars of paragraph 40 statement of item
Paragraph 40 of the statement of claim provides:
“Pursuant to the Blue Water Reinforcing Subcontract, between November 2001 and March 2002, OneSteel supplied the Connectors to Constructions for installation at the joints of the slabs in the levels of the Blue Water building.”
The second defendant does not admit the allegations in paragraph 40.
The second defendant requested particulars of the connectors that were supplied by OneSteel to Constructions (by reference to quantity, type and size) and each supply of the connectors (by reference to the date, quantity, type, size and length). Connectors are made in a variety of types and sizes. Each connector consists of two separate components, a dowel and a sleeve. The sleeve consists of one or two cylindrical tubes into which one or two dowels are inserted. If a connector is a “Q” model, the dowel can move in a lateral direction, in addition to a longitudinal direction. A number that is specified after the type of connector is referable to the length and diameter of the dowel.
The plaintiffs have given particulars which they describe as the “best particulars which can be provided until proper disclosure by OneSteel and Ancon”. They have given some quantities, but have not been able to specify the type of most of the connectors. Some are specified as ESDQ15. The plaintiffs have identified numerous delivery dates between 12 December 2001 and 26 August 2002. Apart from four deliveries where the type of connectors are specified as ESDQ15, most of the deliveries give a quantity of connectors without specifying the type. Two of the deliveries that are particularised are for an unspecified quantity of an unspecified type of connectors.
The plaintiffs submit that the request is not a proper request for particulars of the plaintiffs’ case, as it seeks particulars of features of the connectors which are not pleaded as material facts to the plaintiffs’ case. The plaintiffs’ case is that each of the connectors supplied was defective, not reasonably fit for the purpose of use in residential building constructions and was not of merchantable quality, as they have been producing multiple excessive noise events. On this basis the plaintiffs submit that the size and length of the connectors are not relevant to their case.
The second defendant seeks the particulars on the basis they are relevant to the issue of whether connectors supplied by the second defendant were actually installed in the buildings. The second defendant argues that particulars of which connectors were delivered on which dates are likely to assist in the identification of which connectors were installed in which precise locations, because it may be possible to correlate the dates of delivery with the timetable of construction of the buildings.
The particulars that the second defendant seeks are relevant to its case and the enquiries it is making and are not particulars of the plaintiffs’ case alleged against the second defendant. The plaintiffs are not required to provide the particulars that are sought in respect of paragraph 40 of the statement of claim.
Particulars of paragraph 41 statement of claim
Paragraph 41 of the statement of claim provides:
“The Connectors referred to in paragraph 40 above were installed by Constructions or others on its behalf at the joints of the slabs in the Blue Water building.”
The second defendant does not admit the allegations in paragraph 41.
The second defendant seeks particulars of the type and size of the connectors alleged to have been installed and the precise location (by reference to the joint of which slab in which level of the Blue Water building) in which each connector is alleged to have been installed.
The plaintiffs have provided plans on which they have highlighted in yellow the locations where connectors have been installed. The plaintiffs have particularised the type and size of the connectors installed as “ESDQ15 and possibly some ESDQ10 and/or ESDQ20”. The plaintiffs have particularised that within the joints highlighted in yellow in the drawings the connectors were placed at 300mm centres, except where the drawings identified additional connectors and in that situation the additional connectors were placed as per the drawing.
The plaintiffs acknowledge that the second defendant may wish to know the particulars of the type and size of the connectors installed at each location, but submit that is not required as a particular of the plaintiffs’ case. On the basis of what is pleaded in the statement of claim, the position adopted by the plaintiffs is correct. They are not required to provide the particulars that are sought of paragraph 41 of the statement of claim.
Particulars of paragraph 48 statement of claim
Paragraph 48 of the statement of claim is an identical allegation to that made by the plaintiffs in paragraph 41 of the statement of claim, except that the allegation is in respect of the Deep Water building. Consistent with my conclusion in relation to the request made for particulars of paragraph 41 of the statement of claim, the plaintiffs are not required to provide the particulars that are sought of paragraph 48 of the statement of claim.
Particulars of paragraph 54 defence
The only requests for particulars that were made by the plaintiffs which remained outstanding at the hearing of the applications were those in respect of paragraph 54 of the defence. Paragraph 54 is the contributory negligence claim. The second defendant sets out in paragraph 54 discrete particulars of the failure of each of the plaintiffs to exercise reasonable care to avoid the loss or damage that the plaintiffs allege they have suffered. Paragraphs 54(a) to (g) are the particulars relating to Constructions; paragraphs 54(h) to (j) are the particulars relating to Juniper Project Developments Pty Ltd (Project Developments); paragraph 54(k) is the particulars relating to Juniper Hotels Pty Ltd; paragraph 54(l) is the particulars relating to Juniper Property Holdings No 2 Pty Ltd; and paragraphs 54(m) to (n) are the particulars relating to Juniper Development Corporation Pty Ltd.
The substantive defence of the second defendant to the plaintiffs’ allegation in paragraph 73 of the statement of claim is set out in paragraph 19 of the defence. Paragraph 54 of the defence has relevance only if the defence in paragraph 19 of the statement of claim is unsuccessful and the plaintiffs have proved against the second defendant that they have suffered loss or damage as alleged. The allegations of contributory negligence in paragraph 54 are predicated on the basis that the plaintiffs will otherwise establish their loss or damage based on the allegation in paragraph 73 of the statement of claim.
In opposing the requests for particulars of paragraph 54, the second defendant relies on the fact that the plaintiffs have not sought to challenge the adequacy of the particulars provided by the second defendant in respect of paragraph 19 of the defence.
The further particulars provided by the second defendant of each of the allegations of contributory negligence in paragraph 54 of the defence are largely based on inferences from the facts of which the second defendant is aware or are apparent from the disclosed documents. The second defendant takes the view that it is unable to further particularise the allegations of contributory negligence other than by inference at this stage of the proceeding, because the second defendant had no involvement in the construction of the buildings or the installation of the connectors. The second defendant anticipates that it will be in a position to better particularise which specific acts or omissions on the part of the plaintiffs caused the loss or damage suffered by the plaintiffs after it obtains answers to the interrogatories that it proposes to serve on the plaintiffs, completes non-party disclosure and obtains expert reports regarding the cause of the alleged noises. The second defendant offers to serve its expert reports first rather than in exchange for any expert reports of the plaintiffs, so there is no prejudice to the plaintiffs as a result of the second defendant’s current inability to further particulars its allegations of contributory negligence.
In general terms, the second defendant does not object to providing the particulars requested of paragraph 54, but submits that the second defendant should not be required to provide further particulars at this stage of the proceeding.
Paragraph 54(a)
The second defendant’s allegation against Constructions in paragraph 54(a) is:
“Failure to take any, or any reasonable, step to ensure that the person installing any of the Connectors had ascertained the recommended procedure for installation.”
The particulars provided by the second defendant of paragraph 54(a) are:
“As to paragraph 54(a) of the defence, the second defendant:
(A) says that the allegation is inferred from:
(1)paragraphs 16(b) and 19(a) of the defence and the particulars thereof; and
(2)the fact that Constructions failed to require Bosform Pty Ltd to provide certified formwork workshop/design drawings to it for approval, prior to installation of the Connectors, as required by Schedule 2 of each of the contracts between Constructions and Bosform Pty Ltd for both the Bluewater and Deepwater Developments, which drawings would have revealed all proposed incorrect installations of the Connectors; and
(3)the fact that Constructions failed to require Bosform Pty Ltd to provide to it, once the Connectors were installed, ‘As-built’ drawings showing the works as built, as required by clause 30.3 of each of the contracts between Bosform Pty Ltd and Constructions for both the Bluewater and Deepwater Developments, which drawings would have revealed all incorrect installations of the Connectors;
(B)cannot otherwise provide further particulars until after it obtains proper particulars and/or answers to interrogatories from the plaintiffs or alternatively an inspection of each of the Connectors as installed.”
Paragraph 16(b) of the defence alleges that if any Staifix connectors were used in the buildings, they were not installed in conformity with the recommendations contained in the second defendant’s brochure. Paragraph 19(a) of the defence alleges that if the alleged noises are audible within the buildings and if the connectors had been installed in those buildings, the noises were the result (in whole or in part) of incorrect installation of the connectors, contrary to the recommendations of the brochure.
The plaintiffs press for the particulars requested in paragraphs 29(b), (d) and (f) of the request for particulars attached to the plaintiffs’ letter dated 10 May 2007. Paragraphs 29(b) and (d) request the second defendant to identify what steps or reasonable steps should have been taken to ensure that the person installing any of the connectors had ascertained the recommended procedure for installation. The particulars that have been provided incorporate the allegation that the connectors were not installed in conformity with the recommendations contained in the brochure. The gist of the allegation of contributory negligence is that Constructions did not take any step to ensure that the installation occurred in that manner. The allegation is a negative allegation. It is not necessary to the plaintiffs’ understanding of this aspect of the case alleged against them for the second defendant to give particulars of steps which the second defendant says did not occur.
The position in relation to the request in paragraph 29(f) is different. In paragraph 29(f) the plaintiffs request the second defendant to identify the manner in which the alleged failure to ensure that the person installing any of the connectors had ascertained the recommended procedure for installation of the connectors has resulted in the noises. This goes to the heart of the subject matter of paragraph 54(a) of the defence. The purpose of each of the particulars set out in paragraph 54 of the defence is to identify the act or omission of the relevant plaintiff that is relied upon by the second defendant as causing or contributing to the loss or damage suffered by that plaintiff as a result of the noise from the defective connectors. It is a proper request for the plaintiffs to seek particulars of the connection between the act or omission alleged against the relevant plaintiff and the resultant noise. The particulars that have been provided to date by the second defendant have made no attempt to identify this connection.
The fact that the second defendant may need to revisit its particulars after further investigations does not justify the second defendant’s failing to address a fundamental aspect of each of the allegations it makes in paragraph 54 of the defence. The second defendant gains no comfort from the fact that its particulars of the analogous allegation in paragraph 19 of the defence is not challenged. Paragraph 54 of the defence is much more circumscribed in its operation than paragraph 19 of the defence. The plaintiffs are entitled to know how the second defendant links the alleged failure of Constructions to ensure that the installer of the connectors had ascertained the recommended procedure for installation of the connectors to the noise caused by the connectors. The second defendant must respond now to the request for particulars in paragraph 29(f) of the request.
The plaintiffs’ solicitors’ letter of 2 August 2007 sought clarification of a matter that was relevant to the request made in paragraph 29(e). That is a relatively minor matter that the parties should endeavour to pursue at this stage in correspondence.
Paragraph 54(b)
The particulars requested in paragraphs 30(b), (d) and (f) of the request for particulars in respect of paragraph 54(b) of the defence are analogous to those which I have dealt with in relation to paragraph 54(a). For the same reasons, it is not necessary for the plaintiffs to provide the particulars requested in paragraphs 30(b) and (d), but the second defendant must supply the particulars requested in paragraph 30(f) of the request.
Paragraph 54(c)
Paragraph 54(c) pleads that had the plaintiffs taken the steps to ensure that the person installing any of the connectors had ascertained the recommended procedure for installation or was installing them in accordance with the recommendations of the brochure, and the recommendations of the brochure been complied with, then none of the connectors would have been a cause of any requirement for rectification.
In paragraph 31(c) of the request for particulars of paragraph 54(c) of the defence, the plaintiffs request particulars of the facts, matters and circumstances relied upon to support the assertion that had the plaintiffs taken such steps, none of the connectors would have been a cause of any requirement for rectification. The further particulars the second defendant provided of paragraph 54(c) in the second defendant’s solicitors’ letter of 16 July 2007 corresponded to the further particulars provided of paragraph 54(a) of the defence. The plaintiffs are entitled to know how the second defendant alleges the need for rectification of the connectors would have been eliminated by the taking of the steps that the second defendant alleges Constructions failed to take. This is in the same category as the request for particulars of paragraphs 54(a) and (b) that I have decided should be provided. The second defendant must also supply the particulars requested in paragraph 31(c) of the request.
Paragraph 54(e)
The second defendant’s allegation against Constructions in paragraph 54(e) is:
“Failure to take any, or any reasonable step, to ensure that the Blue Water and Deep Water buildings, including the control joints in which the Connectors are alleged to have been installed, were constructed with reasonable skill and care.”
The particulars that the second defendant has provided of paragraph 54(e) incorporate paragraph 19(c) of the defence. The allegation in paragraph 19(c) is that the alleged noises are due to poor construction practices including poor construction of the buildings and poor construction of the control joint in which the connectors are alleged to have been installed. That allegation in paragraph 19(c) is not limited, however, to noises arising from defective connectors. The allegation in paragraph 54(e) of the defence is limited to the circumstances where the plaintiff has established its case that the audible noises are the result of the defective connectors.
In paragraph 32(e) of the request for particulars which relates to paragraph 54(e) of the defence, the plaintiffs request the second defendant to identify the manner in which the alleged failure to ensure the buildings, including the control joints, were constructed with reasonable care has resulted in the noises. The allegation in paragraph 54(e) is very wide in that it covers the construction of the buildings generally as well as the construction of the control joints. Constructions is entitled to know the connection between the failure to construct the buildings (including the control joints) with reasonable skill and care and the noises caused by the defective connectors. The second defendant must supply the particulars requested in paragraph 32(e) of the request.
Paragraph 54(f)
The same reasoning applies to the request made by the plaintiffs in paragraph 33(e) of the request for particulars in respect of paragraph 54(f) of the defence.
Paragraphs 54(g), 54(i), 54(k), 54(l) and 54(m)
These paragraphs plead in respect of each separate plaintiff that each of them failed to take any, or any reasonable, steps to ensure that the connectors were appropriate for use in the Blue Water and Deep Water buildings. The particulars that were provided by the second defendant were different for paragraph 54(g) than for paragraphs 54(i), (k), (l) and (m).
In relation to paragraph 54(g) the plaintiffs press the request in paragraphs 34(b), (d) and (e). Those requests are analogous to those which I have dealt with in relation to paragraph 54(a) of the defence. For the same reasons, it is not necessary for the plaintiffs to provide the particulars requested in paragraphs 34(b) and (d), but the second defendant must supply the particulars requested in paragraph 34(e) of the request.
In relation to each of paragraphs 54(i), (k), (l) and (m), the second defendant has provided particulars that merely incorporate the allegations in paragraphs 16 and 19 of the defence and the particulars provided of paragraphs 16 and 19. Again, there has been no attempt to provide particulars in the light of the specific circumstance in which paragraph 54 of the defence would be relevant and to address the link between the alleged failure in the conduct of the plaintiff and the resultant noise created by the defective connectors.
The template for the requests of each of these paragraphs is the same as for the other allegations of contributory negligence in paragraph 54 of the defence. The second defendant is not required to provide particulars of the negative allegations (i.e. the steps that the second defendant alleges should have been taken, but were not). Consistent with the approach the plaintiffs have taken to pressing for particulars of paragraph 54(g), the second defendant must supply the particulars requested in paragraphs 44(e), 45(e), 46(e) and 47(e) of the request.
Paragraph 54(h)
The allegation in paragraph 54(h) of the defence is that Project Developments failed to properly comply with its obligations under the Blue Water Development Contract and the Deep Water Development Contract in nine respects. By way of example, paragraph 54(h)(viii) is “to ensure that the construction of the works was performed in a workmanlike manner”. Each of the respects in which it is alleged that Project Developments failed to properly comply with the contractual obligations is expressed in very general terms. Again, the particulars that have been provided merely rely on inferences from paragraphs 16 and 19 of the defence. The complaint pursued by the plaintiffs about the second defendant’s response to the requests for particulars of paragraph 54(h) is that there has been no attempt to link any of the alleged failures to the causing or contributing of the loss and damage by causing or contributing to the noise made by the defective connectors. The second defendant should therefore provide the particulars requested in paragraphs 35(e), 36(c), 37(c), 38(c), 39(d), 40(d), 41(b), 42(b) and 43(d).
The plaintiffs’ application for disclosure
The plaintiffs’ application seeks an order that the second defendant provide disclosure in relation to specified categories of documents about which the parties have been in dispute as to the obligation of the second defendant to make that disclosure and the extent of any obligation.
During the course of the hearing, the question of disclosure in respect of some categories of documents was resolved. In these reasons I will deal only with the categories of documents that remain in dispute.
Paragraph 4(d)(i) defence
In paragraph 4(d)(i) of the defence the second defendant alleges that at all material times it had the practice of delivering an accompanying brochure with any supply of Staifix Shear Load Connectors. The plaintiffs’ application for disclosure sought documents in relation to that practice. The second defendant foreshadows that it will amend paragraph 4(d)(i) of the defence to allege that “at all material times, it had the practice of periodically delivering, in person and/or by post, to distributors and purchasers, including to the first defendant and the third defendant, a brochure in relation to Staifix Shear Load Connectors (‘the Brochure’)”. On 3 August 2007 the second defendant provided further and better particulars of this amended allegation in relation to the delivery of the brochure to OneSteel and Danley. These particulars refer to personal delivery of the brochure and to occasions when copies of the brochure were delivered by post to Danley. The particulars do not necessarily suggest that other documents may be in existence on this issue. Ms Harrip, the second defendant’s solicitor, deposes to her belief that the second defendant has disclosed all documents in its possession or control which are directly relevant to this amended allegation.
It does not follow from the fact that some copies of the brochure were posted that there was an accompanying letter or a mailing list. I am not satisfied that there is a basis shown for ordering disclosure of the category of documents sought in respect of paragraph 4(d)(i) or the proposed amended paragraph 4(d)(i) of the defence.
Paragraphs 6(a)(ii), 8(a)(ii), 11(a)(ii) and 13(a)(ii) defence
The plaintiffs seek disclosure of documents evidencing the type, size and length of the product supplied by the second defendant, as referred to in the specified paragraphs of the defence.
The request for these documents was made because the second defendant was pressing particulars of the quantity, size and type of connectors installed by the plaintiffs in the buildings. As I have determined that the plaintiffs do not have to provide those particulars, this aspect of the disclosure does not need to be pursued by the plaintiffs.
Paragraph 46(e) defence
The second defendant alleges in paragraph 46(e) of the defence that “the Connectors are suitable for use in residential building construction in accordance with the specifications and method of installation described in the Brochure”. Ms Harrip in paragraph 40 of her affidavit sworn on 3 August 2007 deals with details that the second defendant has obtained of certain residential building projects (both in Australia and overseas) constructed at or prior to the time of construction of the Blue Water and Deep Water buildings. The second defendant therefore intends to amend its defence to specifically deny the plaintiffs’ allegation that, prior to the construction of the Blue Water building, the sole or predominant use of the connectors was in commercial or industrial construction. The second defendant foreshadows that it will rely on the residential building projects it has identified as projects in which connectors were used as particulars for the basis of that denial.
The plaintiffs are seeking disclosure of documents in relation to the allegation in paragraph 46(e) of the defence.
Ms Harrip deposes to the fact that the second defendant did not, prior to the matters the subject of this proceeding, keep records in relation to the supply of connectors linked in any way to a particular project. The second defendant’s records are described as numerous arch lever folders containing packing slips filed by sequential numbers. As the second defendant has been in business since 1998, it would require a search of five years of packing slips (and any other documents evidencing supplies of connectors) to locate any that have sufficient information on them to link the packing slips or other documents with a project which the second defendant has identified as a residential building project or that otherwise has sufficient information on the document to enable it to be identified as one relating to the supply of connectors for a residential building project.
The second defendant is not obliged to undertake independent enquiries in relation to its previous supply transactions to determine whether connectors that were supplied were used in a residential building project. The documents that the second defendant has in its possession relating to its supplies should be searched to ascertain whether on the face of the document it can be linked to a residential building project (such as from the address for the delivery of the connectors that were being supplied by the second defendant) or because of other information of which the second defendant is already aware (or becomes aware) that enables it to conclude that the document relates to the supply of connectors for a residential building project (e.g. because of the enquiries the second defendant has already made as to which contracts for supplies of connectors were for residential building projects).
The second defendant’s submission that the process of searching supply documents in order to disclose those that related to residential building projects was too onerous assumed that the second defendant would need to make independent enquiries to determine the relevance of each of the supply documents. That is not required of the second defendant for the purpose of disclosing documents relevant to the issue of whether prior to, or at the time, of the construction of the plaintiffs’ buildings the second defendant supplied connectors for use in residential building projects.
During the course of the hearing, Mr Doyle of Senior Counsel on behalf of the plaintiffs suggested that the order for disclosure of this category documents be limited at the first stage to Australian residential building projects and the matter can be revisited by the parties, if they choose to do so subsequently.
The second defendant has not undertaken the task of searching the packing slips (and any other supply documents) because of its concern at the size of the task. The task is not as large as the second defendant contemplated making it. At this stage, I am persuaded that the second defendant should make the disclosure sought, except that the disclosure of the second defendant’s packing slips and related documents for the supply of connectors should be limited to supplies for residential building projects within Australia.
Orders
As a result of these reasons, there are no further and better particulars to be ordered of the plaintiffs’ statement of claim.
The orders that are to be made to reflect these reasons in respect of the plaintiffs’ application (document 108) are:
1. The second defendant provide disclosure of documents in relation to the matters in issue in the proceeding relating to the second defendant’s allegation that “the Connectors are suitable for use in residential building construction in accordance with the specifications and method of installation described in the Brochure”, but so that the disclosure of the second defendant’s packing slips and related documents for the supply of the connectors for residential building constructions is limited to supplies within Australia.
2. The second defendant provide the further and better particulars requested in paragraphs 29(f), 30(f), 31(c), 32(e), 33(e), 34(e), 35(e), 36(c), 37(c), 38(c), 39(d), 40(d), 41(b), 42(b), 43(d), 44(e), 45(e), 46(e) and 47(e) of the plaintiffs’ request dated 10 May 2007.
Costs
It is necessary to hear submissions from the parties on the appropriate orders for costs that should be made on the applications (documents 103 and 108). It will be necessary to have regard to those aspects of the applications that were dealt with during the course of hearing the applications, in addition to the determination of the remaining issues by these reasons.
0
0
0