Retail Systems Pty Ltd v FISAL Pty Ltd - [2003] WADC 220

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RETAIL SYSTEMS PTY LTD -v- FISAL PTY LTD [2003] WADC 220

CORAM: MARTINO DCJ

HEARD: 8 AUGUST 2003

DELIVERED : 10 OCTOBER 2003

FILE NO/S: CIV 793 of 2002

BETWEEN: RETAIL SYSTEMS PTY LTD (ACN 063 553 051)
Plaintiff
AND
FISAL PTY LTD (ACN 008 917 806)
Defendant

Catchwords:

Practice and procedure - Discovery - Application for further and better discovery

Legislation:

District Court Rules 1996, O 2 r 1

Result:

Application granted

Representation:

Counsel:

Plaintiff: Mr P R MacMillan
Defendant: Mr P Mendelow

Solicitors:

Plaintiff: Gibson Lyons
Defendant: Feinauer & Associates

Case(s) referred to in judgment(s):

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Mulley v Manifold (1959) 103 CLR 341

Case(s) also cited:

Aquila Resources Ltd v Pasminco Ltd [2002] WASC 314
AstraNational Productions Ltd v NeoArt Productions Ltd [1928] WN 218
Basuki v Joondalup Country Club [2002] WASC 61
Beecham Group Ltd v BristolMyers Co [1979] VR 273
Birch Investments Pty Ltd v Kiap Khee Lim, unreported; SCt of WA; Library No BC8801057; 12 July 1988
British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709
Edmiston v British Transport Commission [1956] 1 QB 191
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Hooker Corporation Ltd v Commonwealth (1985) 61 ACTR 37
John Allan Ltd v Keegan [1968] WAR 125
Jones v Richards (1885) 15 QBD 439
Kent Coal Concessions Ltd v Duguid [1910] AC 452
PDM Australia Pty Ltd v Kellogg Overseas Corporation & Ors, unreported; SCt of WA; Library No 6646; 26 March 1987
Re Malley SM; Ex parte Gardner [2001] WASCA 83
Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 1 All ER 975
Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178

MARTINO DCJ: This is an appeal by the defendant against a decision of Deputy Registrar Hewitt refusing the defendant's application for specific discovery.
The plaintiff is a company that supplies cash registers, software and related products to supermarkets. The defendant carries on a supermarket business under the name "Dewsons Beaumaris". While there is a dispute as to what constitutes their agreement the parties agree that in May 2000 they entered into an agreement for the plaintiff to supply to the defendant cash registers, software and related equipment and that the defendant paid a deposit of $10,530. The plaintiff claims $46,730.55 as the balance of the purchase price payable under the agreement and moneys claimed for additional products and services supplied by the plaintiff to the defendant.
The defendant denies liability. It contends that the products and software supplied by the plaintiff were defective and that they do not comply with representations made by the plaintiff. The defendant has counterclaimed damages for breach of contract, under the Trade Practices Act 1974 and for negligent misstatement. In its defence and counterclaim the defendant defines the products and scanning system it agreed to purchase as the "System" and the software it agreed to purchase as the "Software".
The further and better discovery sought by the defendant is of the following documents:
"All correspondence or documents relating to any complaints from any other customers of the Plaintiff in respect of the matters the subject of this action limited to the claims that the Software and the System each:
a.Were fit for their purpose.
b.Were of merchantable quality.
c.Would be installed properly and in a workmanlike manner.
d.Would be installed promptly and with the least amount of disruption to the Defendant's/Plaintiff by Counterclaim's Business.
e.The GST software module of the Software as pleaded in paragraph 17.i(v) and (vi) of the Defence and Counterclaim would at the time of:
i.its release be fully functional.
ii.its installation would operate properly and efficiently.
f.All training to be provided by the Plaintiff/Defendant by Counterclaim to the Defendant's/Plaintiff by Counterclaim's employees for the System and the Software would be adequate.
g.That the Software is a tried and proven package."
In support of its application the defendant has filed an affidavit sworn by Daniel Norman Crowley on 31 July 2003. Mr Crowley is a director of the defendant. He has deposed that he has been informed by operators of other supermarkets who have acquired the same or similar products and software from the plaintiff as that supplied to the defendant of complaints they made to the plaintiff orally and in writing. Mr Crowley has deposed that he believes that there are or have been in the plaintiff's possession, custody or power various documents evidencing the making of complaints and documents in response to the complaints. That affidavit is made on the basis of Mr Crowley's information and belief and the sources of the information are identified in the affidavit.
In answer to that affidavit the plaintiff has filed an affidavit by its managing director Peter Noel Martin sworn 6 August 2003 in which Mr Martin has deposed that not all of the persons identified in Mr Crowley's affidavit acquired products or software from the plaintiff or the same products and software as the defendant acquired from the plaintiff and that of those that did and have complained their complaints have been addressed.
A party must give discovery of documents which are or have been in its possession custody or power "relating to any question" in the action: District Court Rules 1996, O 2 r 1. This obligation extends to an obligation to discover documents which may directly or indirectly enable a party to pursue a train of enquiry to advance its own case or damage the case of its adversary: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55; Mulley v Manifold (1959) 103 CLR 341.
By its defence and counterclaim the defendant pleads that before it agreed to purchase the plaintiff's products and software the plaintiff made various representations to the defendant as to the features of the products and software.
The defendant also pleads that the products and software supplied were not fit for the purpose for which they were supplied, were not of merchantable quality, that when supplying the products and software the plaintiff did not comply with implied terms of the contract that they would be installed properly and in a workmanlike manner, that they would be installed promptly and with the least amount of disruption to the defendant's business, that the GST component of the software would operate effectively and that the plaintiff's training of the defendant's employees would be adequate and that the plaintiff's representation that the software was a tried and proven package was false, misleading or deceptive.
The plaintiff admits that it informed the defendant of some of the matters alleged by the defendant to be representations but denies others and denies that it has breached the contract and that it has engaged in any misleading or deceptive conduct.
At the trial of this action findings will be made as to what statements were made by the plaintiff to the defendant, what were the terms of the contract, whether any statements made were false, misleading or deceptive and whether any terms of the contract have been breached.
In my view documents evidencing complaints made by customers of the plaintiff relating to the same products and software supplied by the plaintiff and the plaintiff's responses to those complaints may enable the defendant to pursue a train of enquiry which would support the defendant's case because they may assist the defendant in endeavouring to prove that the products and software supplied to the defendant did not comply with the contract and that the alleged representation that the software was a tried and proven package was false, misleading or deceptive. It is my view therefore that the defendant's application for further and better discovery should succeed.