11 However, in my opinion, this does not affect the previous rule that a subpoena which seeks documents which could have been the subject of discovery is an abuse of process. The fundamental purpose of the amendments to the rules which limit discovery to classes was to avoid parties having excessively burdensome discovery obligations imposed on them, by excluding from discovery those documents which were outside the classes which were agreed or determined to be appropriate for discovery. If it remained open to a party to subpoena classes of documents which had been excluded from discovery, that would completely defeat the purpose of the rules in limiting discovery to specified classes. It would amount to using a subpoena to obtain discovery.
12 In this case, orders were made for discovery on several occasions, and classes for discovery were identified. So far as I can tell at this stage, the plaintiff specified classes of documents of which it sought discovery. Either the documents now sought fall within those classes and, if they exist, ought to have been discovered, or they fall outside the specified classes.
13 If the plaintiff contends that documents falling within one of the classes which it specified and in respect of which an order for discovery was made have not in fact been discovered, the only proper remedy is for it to seek further and better discovery, upon proof that there has been a failure to give proper discovery in that class. The defendant, of course, should be alert that if it transpires that it has not given proper discovery of documents in classes which were identified for discovery, then that will have been a serious default on its part. I do not suggest for a moment that that is in fact the case, but in view of the debate which has taken place and in view of the arguments which have been advanced about the subpoena, it should not be assumed that a conclusion that it was not permissible to subpoena these documents involves any conclusion as to whether or not there has been sufficient compliance with the order for discovery in the first place.
14 If, on the other hand, the plaintiff contends that it now seeks documents which were not covered by the order for discovery, then the proper approach would have been to make an application for further discovery by adding a further class to the documents for discovery. It seems to me that 28 February, a couple of days before the commencement of the trial, is rather too late to take that course, at least in the absence of a compelling explanation as to why it could not have been or was not taken earlier [cf Small, 574].
15 So far as relevance is concerned, the plaintiff has sought to support the apparent relevance of the documents called for on a number of grounds. First, it is said that the amended defence alleges, by paragraph 94(d), that disagreements between Volvo and TAA about TAA's performance under the one-year dealer agreement and the failure to agree upon terms of the new agreement frustrated the bringing to fruition of a replacement agreement. The plaintiff submits that the documents for which the subpoena calls are relevant to the issue raised by that paragraph of the defence.
16 I am unable to agree. Paragraph 94(d) raises as a material fact the existence of disagreements about the performance of TAA under the one-year agreement, but not the truth or otherwise of any allegations about TAA's performance. The documents called for, which go to the existence and nature and contents of warranty claims made not only by customers of TAA but also by other Volvo dealers; product or part recalls similarly not limited to customers of TAA; design, engineering or manufacturing flaws, similarly not so limited; or premature brake wear, similarly not so limited; do not go to the facts raised by paragraph 94(d) of the amended defence. Even if some of those documents might, as presently framed the notice calls for documents which go so far beyond what might have apparent relevance to the issues raised by 94(d) to be excessively wide.
17 Next, it is said that the documents are relevant to determining the damages to which the plaintiffs may be entitled, and in particular to the profits which the plaintiffs might have made had there been a five-year agreement, and the lost opportunity of renewing the one-year agreement for a further five years. The plaintiff points to observations made in a recent report of Mr Ross, the defendant's expert, served as late as January this year, who refers to the defendant's "warranty customer service index report" in respect of the first plaintiff, and conclusions expressed by Mr Ross that the first plaintiff was not a "benchmark dealer". I am inclined to accept that, in the light of the time at which Mr Ross's report was served relative to when discovery was had and to the hearing of these proceedings, the plaintiffs might well be entitled further to explore some of the material on which Mr Ross relied, and documents in the possession of the defendant which would bear on that material. It may well be that the plaintiffs would be entitled, for example, to see warranty customer service indices for other dealers, so as to test the conclusion as to whether or not the first plaintiff was a benchmark dealer. There may also be other documents within the classes called for which would be permissible, but again, in calling for all the documents to which it refers, in respect of all dealers, at least across Australia, the notice requires production of documents which far beyond those which could potentially be relevant to testing and answering the issues raised by Mr Ross, and must include documents of no apparent relevance. The notice is therefore too wide in this respect also.
18 Specific reference is made in the notice to produce to "the major program of technical repair and upgrade to resolve product quality issues" referred to by Tania Lister in paragraph 80 of her affidavit of 25 May 2005. Although at first sight the fact that that program is raised in Ms Lister's affidavit would make the documents sought at least of sufficient apparent relevance, it is to be observed, first, that that affidavit was served as long ago as May 2005; and, secondly, that in fact what Ms Lister says in that paragraph is a response to paragraph 113(f) of Mr Azzi's own affidavit, in which he described a presentation which he made to Mr Snijders of Volvo as including "the various problems as I see it with VCA and their relationship with us, namely ... high warranty work ...". In that context it does not seem to me that a last-minute requirement to in effect discover all documents relating to the major program of technical repair and upgrade which Ms Lister mentioned in response to that is other than oppressive, and I am not satisfied that such documents would throw light on a significant issue in the case.
19 The notice also specifically calls for documents that summarise or collate information concerning "teething problems" with the Volvo S80, referred to by Jan Ericksson in paragraph 17 of his affidavit of 4 May 2005. Again, that affidavit was served many months ago. Again, the relevant paragraph in the affidavit responsed to an assertion made in one of Mr Azzi's affidavits and, further, the defendant has indicated that the paragraph in question will not be read.
20 Accordingly, taking together the substantial burden which this eleventh-hour notice will cast on the defendant, the fact that it in effect endeavours to go behind the discovery which the defendant has given and/or to seek further discovery, and that the documents for which it calls are so extensive that many must be of no relevance, even if a few might be relevant, so that it is too wide, I would set aside the notice to produce. In doing so, I do not exclude the possibility that it might be possible to frame a narrower notice which could legitimately be served.
21 I order that the notice to produce dated 28 February 2006, as amended on 7 March 2006, be set aside. I order the plaintiffs to pay the defendant's costs of the motions insofar as they relate to setting aside the notice to produce.