The Job Cards
221 Mr Brookfield adduced no direct evidence or any evidence from which an inference could be drawn that the job cards were fraudulently or deliberately withheld from discovery. A number of witnesses were cross-examined by Mr Brookfield - Mr Wilsdon, Mr Fahy, the Group Controller of McPherson Ltd between June 1989 and March 1995 and now General Manager Commercial, Mr Bennett, now Director and Company Secretary of the respondent, Mr Ashley White, Product Manager, Rural and Domestic, of the respondent, and now employed by Davey and Mr Mills and Mr Davis, both solicitors in Piper Alderman. Mr Brookfield did not suggest to any of those witnesses that any of them or anyone else had been guilty of deliberately failing to make discovery of relevant documents in the principal proceedings. Mr Brookfield made various allegations of improper conduct but these allegations were muddled together into a general sense of grievance on his part. I find that none of the directors, employees or agents of the respondent, or their solicitors, were at any time guilty of fraudulently withholding relevant material from discovery.
222 The inquiry in respect of these documents is narrowed, therefore, to the questions whether the documents are relevant; whether or not the applicants exercised due diligence in seeking the discovery and production of these materials; and what impact, if any, the documents might have had on the reasoning of the trial judge at first instance.
223 The respondent concedes that, insofar as the job cards relate(d) to comparable failures experienced by other customers of the respondent, the job cards were discoverable. The respondent, however, argued that the applicants had never defined the concept of 'comparable users'. It submitted that there was a 'pronounced lack of clarity in the notion of comparable users'. The respondent argued that other septic waste systems had different designs 'and took different approaches to aeration and effluent'.
224 Ultimately, however, the respondent conceded that if there were job cards relating to manufacturers of waste water systems which put the pumps to uses which were comparable to those of Mr Brookfield, then those job cards were also discoverable, either as a matter of general principle or because DW27 to Mr Wilsdon's affidavit made them relevant.
225 I can proceed, therefore, on the basis that any job cards, whether forming part of the 329 job cards contained in the 810 pages of documents or any other job cards which showed failure of the same kind experienced by the applicants whilst being used by comparable users were relevant and discoverable.
226 The originals of the 810 pages of documents were ultimately tendered by the respondents at the hearing of the notice of motion. The job cards record service or warranty claims in respect of 457 pumps and motors, of which 216 can be positively identified as Doc 3 pumps and 65 as Doc 7 pumps. Mr Brookfield took me to several job cards which identified seal failure or shaft grooving as the fault giving rise to the return of the pump to the respondent. These job cards related to pump returns by customers other than the applicants. Mr Brookfield identified 44 job cards which he asserted showed 'identical failures' to those experienced by SPA.
227 The faults identified by the handwritten comments on those 44 job cards are not always precisely described. There are comments to the effect that there is 'moisture in motor', 'leaking between shaft and lip seal', 'grooves in shaft from lip seals and sand' and 'grooves in shaft'. Some job cards identify the cause of failure as the pumping of abrasive materials such as sand, cow manure, rubbish, stones and gravel.
228 However, those job cards do show that other users of Davey pumps experienced failures similar (if not identical) to those experienced by Mr Brookfield and SPA.
229 The respondent presented two written analyses of the job cards.
230 One analysis is an analysis of the 44 job cards identified by the applicants. The respondent observes that two of the 44 job cards are duplicates of others, therefore there are 42 relevant job cards. In its analysis, a fault code was ascribed to each of the faults identified by each of the job cards. All faults identifiable as shaft grooving or lip seal failures were identified with the number '1'. It should be noted that a fault was only ascribed the fault code '1' if the description of the fault on the job card specifically mentioned shaft grooving. Where the failure was something other than shaft grooving / lip seal, '2', where the fault was unclear '3' and where there was no fault, '4'. In this analysis, the respondent identified 33 shaft groove / lip seal failures. Twenty-three such failures occurred in Doc 3 pumps, four in Doc 7 pumps, and eight in other sorts of pumps (including four sumprat pumps) supplied by the respondent. The individual failures total 35.
231 The other analysis identified each of the 329 job cards, the type of pump to which the job card related, and the category of fault recorded on the job card. By cross-referencing this summary against the list of 44 job cards identified by Mr Brookfield, it was possible to identify further examples of pump failures which could be said to be similar to those experienced by Mr Brookfield and SPA.
232 For example, one job card, to which Mr Brookfield did not draw my attention, did not record any fault in the field provided for that purpose. However, on the reverse of the original job card there is written 'grooves in shaft'. This particular job card is identified by Document No. 156135. Whilst that particular job card is marked 'Cancelled', assuming the provenance of the comment on the reverse of the job card was established, the job card would presumably record a fault which Mr Brookfield would describe as being identical to the faults experienced by SPA.
233 Again, on the reverse of job card No. 156326, there is a comment handwritten in the following terms: 'water in motor through grooves in shaft (slight grooves)'.
234 Why some entries appear on the reverse of the original job cards (as opposed to the attached carbon copies) is not clear. These particular entries were obviously not identified by Mr Brookfield during the course of the hearing, and were not dealt with during the hearing. Mr Brookfield presented his arguments by reference to the 810 pages of documents which are copies of the originals contained in Exhibit R16 tendered by the respondent. He may, therefore, have easily missed some of these entries.
235 The job cards appear to record failures in 216 Doc 3 pumps and 65 Doc 7 pumps (as well as a number of other pumps which are not presently relevant). Mr Brookfield has identified 44 job cards which he says record pump failures identical to those experienced by SPA (ie: shaft groove / lip seal failures). In respect of those job cards, the respondent concedes that the records disclose 23 Doc 3 pump shaft groove / lip seal failures, and 4 like failures in respect of Doc 7 pumps. It appears that there are job cards apart from the 44 identified by Mr Brookfield which might record relevant failures. From a cross-referencing of the respondent's analyses and the list of 44 job cards identified by Mr Brookfield, I have identified a further 12 job cards (155647; 156135; 156326; 156497; 203; 2557; 1338; 1377; 495; 2352; 2341; 2654) which specifically record shaft groove / lip seal failures in 11 Doc 3 pumps and 4 Doc 7 pumps. Some of these are marked 'cancelled'. That notation has not been explained.
236 Assuming these are the only recorded failures in respect of Doc 3 and Doc 7 pumps amongst the newly discovered job cards, I have working figures of 34 Doc 3 pump shaft groove failures out of 216 returns and 8 Doc 7 pump shaft groove failures out of 65 returns. However, these figures can only be regarded as rough estimates; no safe extrapolation can be made that would enable me to draw any conclusions as to relevant failure rates experienced by the respondent's other customers.
237 The trial judge found a causal relationship between the working fluid in Mr Brookfield's systems, and the failures experienced by him in relation to the Doc 3 and Doc 7 pumps. Mr Brookfield argued that her Honour's reasons for judgment meant that the failures experienced by SPA were unique to the systems which incorporated the modified filter medium, ie: the disc-pack. The disc-pack was incorporated in the modified Parco Beaver system and the BPS system. He asserted at the hearing that this was the respondent's case at trial.
238 However, the respondent denied that the trial judge's finding was as Mr Brookfield contended. The respondent pleaded in its defence in the principal proceedings that pumps were replaced by it due to problems caused by defects in the septic system designed by Brookfield and/or the incorrect installation of the pumps. It also pleaded that any problems which arose with the pumps arose not because of faults and defects in the pump, but due to design faults in the septic system designed by Brookfield and/or the incorrect installation of the pumps. No further particulars were given of the defects or the design faults.
239 The respondent relied upon the evidence of two experts in the trial in the principal proceedings. Their reports were tendered.
240 Mr Weir, in a report dated 4 August 1995, offered the following executive summary in his report:
'2. EXECUTIVE SUMMARY OF CONCLUSIONS
The Davey pumps (Lowara DOC 3 and DOC 7, and the Sumprat) are well-designed and economical examples of mechanical engineering equipment. They are capable of providing reliable long-term operation in a clean pumping environment. They are also adequate for operating in moderately dirty conditions over a reasonable service life. They are not designed for extended operation in an extremely arduous environment, particularly one involving highly abrasive working fluids. Their useful service life could be expected to be reduced in such circumstances. The greater the amount of grit and abrasive particles in the working fluid, the shorter the useful life of the pump.
These Davey pumps have failed prematurely, not because of any alleged inherent design flaws, but because they have been wrongly used in an environment for which they were never intended.
Evidence is presented in this report which shows that the conclusions of Professor Joubert and Mr Miller concerning the causes of failure of the pump seals are incorrect. Evidence is presented instead which shows that any failures of the pump shaft seals were due to the action of a working fluid containing an excessively high concentration of abrasive particles.'
241 In his report he said:
'5.6 Likely causes of failure
In the light of the above, the most likely cause of premature failure of the pumps (given that failure was precipitated by water getting into the motor) is that the pumps were exposed for prolonged periods to excessively harsh conditions of abrasion, that is, to a working fluid which carried an unusually high concentration of abrasive particles in suspension.'
242 It can be seen that Mr Weir's opinion was that there were two factors operating which caused the failure; prolonged use; and use in fluids which carried an unusually high concentration of abrasive particles in suspension.
243 The respondent also tendered the report of Mr Mark Gobbie. He had been retained to 'review the design features, performance and operation of the Brookfield Plumbing Services Mark 9 wastewater treatment system'.
244 His report shows that he reviewed that system and the Parco Beaver Wastewater treatment plans. He wrote:
'2 TREATMENT PLANT DESCRIPTION
The two systems reviewed were the Brookfield Plumbing Services Mark 9 Wastewater Treatment Plant and the Parco-Beaver Wastewater Treatment Plant. Both systems are trickling filter systems where settled wastewater from a septic tank is discharged to the secondary treatment plant (trickling filter system).
In the Brookfield Plumbing Services design the trickling filter reactor consists of two concentric chambers. Settled wastewater is discharged to the primary settling chamber (which is the central chamber) and is then lifted by a recirculation pump to the top of the filter to be distributed over media which is positioned above the primary settling chamber. Biomass which grows on the media, breaks down the organics contained in the wastewater as it trickles over the filter media. The biomass which is exposed to a mix of air and organics continues to grow to the point where it can no longer sustain its own weight and it is then said to slough or break off.
The mix of wastewater and biomass particles flow back to the primary settling chamber where the solid biomass settles from the liquid stream. Outside the primary settling chamber is the secondary settling chamber which is hydraulically linked to the primary chamber via a hole located at the bottom of the dividing wall. Clarified liquid from the settling chambers passes to the irrigation chamber through a pipe where it is chlorinated. The irrigation chamber is used for storage of treated effluent which is pumped to an irrigation system by high level activation of a submersible pump.
The Parco-Beaver system is similar in concept to the Brookfield system. The major functional difference is that wastewater is discharged at a point between two concentric baffles. This baffle arrangement enables the full area of the tank to be utilized as the primary settling chamber. Consequently, the system has a larger area for sludge settling and storage.
The most significant process difference between the two systems is the filter media. The Parco-Beaver system uses a randomly packed plastic media while the Brookfield Plumbing Services system uses series of parallel horizontal discs with 12 mm diameter drainage holes. It is worthy to note that the plastic media would be likely to provide a higher media surface area to filter volume ratio than the disc system enabling effective operation at loading higher rates.'
245 He later concluded:
'On the basis of the above discussion which summarizes key issues discussed by Harrison and Daigger it is valid to conclude that the horizontal media is likely to lead to uneven biomass growth.
The other difference in the two designs noted in reviewing the literature was that the recirculation pump was lower in the Brookfield system than in the Parco-Beaver plant. As the primary settling chamber is intended to allow settlement of solids, a build-up of sludge would be expected at the bottom of this chamber. This, combined with the previously mentioned fact that the primary settling chamber is smaller in the Brookfield system, results in the likelihood that the recirculation pump in the Brookfield system is exposed to the sludge build-up sooner than in the Parco-Beaver system.'
246 His final conclusions were:
'6 CONCLUSION
On the basis of the discussion presented above, the following conclusions can be drawn:
● The higher organic loading rate in relation to the hydraulic flushing capacity of the Brookfield system is likely to result in an increased biomass build-up within the filter. This in turn is likely to result in an increase in the solids sloughed from the filter.
● The baffle arrangement used in the Parco-Beaver system enables the full tank area to be used for settling and sludge accumulation. Exposure of the recirculation pump to solids is likely to be more severe in the Brookfield system.
● The baffle arrangement used in the Parco-Beaver system provides an effective means of allowing incoming solids to settle away from the recirculating pump. This is not the case in the Brookfield system.
● The use of horizontal media as opposed to plastic media is likely to increase the potential for uneven biomass development within the filter media.
● The light weight construction materials in the Brookfield unit may increase the potential for uneven flow distribution and hence uneven biomass development within the filter.
● The observations made by John Zio indicating thick anaerobic gelatinuous biomass build-up in the Brookfield system are consistent with the above.
● The build-up of biomass on the filter is likely to expose the recirculation pump to a higher solids content liquid than would normally be expected if the system were operating correctly, and higher than that in the Parco-Beaver system.
In addition to the above, it is worthy to note that the modification made by John Zio to the Brookfield system (levelling of the filter media, increased pump discharge pipe diameter and increased venturi size) have established a stable relatively well distributed aerobic biomass. The Davey pump is operating well in this environment.'
247 In my opinion, there is no ambiguity about Mr Gobbie's opinion. His opinion was that the Brookfield system was the reason for the pump failures.
248 It is necessary to understand the trial judge's reasons for rejecting the applicants' claim in breach of contract before considering the impact of the recently discovered documents on that decision. The applicants had pleaded that it was an express or implied term of the contract for sale and purchase of the Doc 3 pumps that they were of merchantable quality and fit for the purpose made known to Davey. A similar plea was made in respect of the Sumprat pumps.
249 A plea that it was an express or implied term of the sale and purchase agreement of the Doc 7 pumps that they were of merchantable quality and fit for the purpose of pumping septic waste water was also raised.
250 The applicants pleaded that at the time they made the agreement (for the sale and purchase of the Doc 3 pumps) Mr Brookfield expressly or by implication made known to Davey, its servants or agents the particular purpose for which the Doc 3 pumps were required.
251 The two terms pleaded in respect of the Doc 3 pumps and the single term pleaded in respect of the Doc 7 pump and the Sumprat pump were admitted by the respondent.
252 The trial judge found that the pleas to which I have referred could not be supported under the Trade Practices Act. She proceeded on the basis that the applicants' claims in contract and breach relied upon s 14 of the Sale of Goods Act to which I referred at [67].
253 She found that s 14 I did not apply so as to provide a statutory warranty in respect of Doc 7 pumps because the proviso to s 14 I applied as 'the supply by the respondent to Mr Brookfield of Doc 7 pumps were contracts "for the sale of a specified article under its patent or other trade name"'.
254 She found that the contract/contracts for the sale and purchase of the pumps from the respondent included no implied condition of fitness for any particular purpose because the contract/contracts were 'contracts for the sale of a specified article under its patent or other trade name'.
255 She then considered whether Mr Brookfield had made known to Mr Wilsdon and, therefore, the respondent, the particular purpose for which the Doc 3 pumps 'were required so as to show that he relied on the respondent's skill and judgment'.
256 Although her Honour preferred Mr Wilsdon's evidence to Mr Brookfield's, she made a positive finding that Mr Brookfield did make known to Mr Wilsdon and, thus, the respondent, the particular purpose for which the Doc 3 pumps were required so as to show that he relied on the respondent's skill and judgment.
257 However, the applicants failed to establish that the exception in s 14 I should apply because the trial judge found that the particular purpose the applicants made known to the respondent was use in a Parco Beaver system not a modified Parco Beaver system which replaced 'the cut plastic piping filter medium with a disc pack or in a BPS system'.
258 Her Honour said:
'I am prepared to treat the particular purpose expressly made known to the respondent so far as the contracts for the sale of Doc 3 pumps by it to Mr Brookfield were concerned, as having been made known to the respondent, expressly or by implication, so far as the contracts for the sale of Doc 3 pumps by it to Septic Products were concerned.'
259 She next posed for herself the question whether the applicants had established that the Doc 3 pumps were not reasonably fit for that purpose. After considering evidence relating to a specific batch of faulty pumps which failed due to bottom bearing housing problems, which she treated separately, she found that 50 per cent of the Doc 3 pumps failed in use. She found that a failure rate of that kind over a relatively short period indicated that the Doc 3 pumps 'were not fit for the purpose for which they were in fact used'.
260 She then posed the further question: 'Is the purpose for which the Doc 3 pumps were in fact used the particular purpose which I have found was made known to the respondent: that is, the particular purpose of acting as a recirculation pump in a Parco Beaver system?'
261 She referred to Mr Brookfield's evidence of design modifications to the Parco Beaver system and, in particular, replacing the filter medium of cut plastic piping with a disc pack which he commenced to do in South Australia in 1990 and in New South Wales in 1991. She found that, some time in 1991, he stopped using cut plastic piping altogether and, after September 1991, only installed the BPS system.
262 She found it was unlikely that any Doc 3 pumps were installed in any BPS system because Mr Brookfield stopped purchasing Doc 3 pumps in August 1991.
263 She concluded that nearly all Doc 3 pumps were installed in waste water systems which used disc packs. Because of her earlier finding, she must have found that the Doc 3 pumps were nearly all installed in modified Parco Beaver systems.
264 The trial judge then referred to Mr Gobbie's evidence. She described Mr Gobbie as the 'only academically qualified expert with experience in waste water process design'. She said:
'Mr Gobbie expressed the opinions, which I accept, that horizontal medium, such as the disc packs, are likely to lead to uneven biomass growth, and that uneven biomass growth will result in large pieces of biomass sloughing from the filter medium into the area of the holding tank in which the recirculation pump (for present purposes, the Doc 3 pump) operates. Although Mr Gobbie assumed, contrary to the fact, that disc packs would not be serviced, I do not consider that this factor affects his above opinions. A view of waste water systems, including a BPS system, was held early in the hearing of this matter. The BPS system seen on the view was one which the evidence established to have been regularly serviced. Uneven biomass distribution on the top disc of the disc pack was pointed out to me and observed by me. Also pointed out to, and observed by me, were lumps of biomass on the surface of the holding tank below the disck pack. What I saw on the view in this regard tends, in my view, to provide support for the opinion expressed by Mr Gobbie (s54 of the Evidence Act 1995 (Cth)).'
265 The trial judge found that the modified Parco Beaver system (which was unique to Mr Brookfield) would create large pieces of biomass which would come into contact with the Doc 3 pumps. She referred to other evidence which she said reinforced that finding:
'Mr Wilsdon gave evidence of Doc 3 and Doc 7 pumps returned by Mr Brookfield to the respondent having large quantities of thick waste material in and around the pumps' external workings of the shaft and the impeller. His evidence was that after the removal of such material the pumps operated satisfactorily.
There is other evidence that a number of failed pumps returned to the respondent showed on examination a build up of bacteria growth. Mr Brookfield himself gave evidence of seeing approximately 9 dismantled Doc 3 pumps previously returned by him to the respondent: on each of them he saw a dried substance around the impeller and the pump shaft which, when he rubbed it between his finger and thumb, ground down to a fine gritty substance. His evidence is that he recognised the dried substance immediately as bacteria culture, and that it was identical to the biomass growth which forms on top of filter packs.'
266 There was no dispute, so the trial judge found, that both the Doc 3 and Doc 7 pumps had failed because lips seals (of which each had three) located on the pump shafts had failed allowing fluid to come into contact with the motors.
267 She rejected the applicants' experts' hypothesis that the lip seals had failed because the steel shaft was too soft for use with lip seals.
268 She accepted Mr Wilsdon's evidence:
'Moreover, Mr Wilsdon gave unchallenged evidence of the sale of 22,017 Doc 3 pumps by the respondent between 1988 and 1993 and of the sale of 4,689 Doc 7 pumps over the same period. He was only able to give evidence of warranty replacements of Doc 3 and Doc 7 pumps between 1990-1994. His evidence was that during that period 740 Doc 3 pumps and 297 Doc 7 pumps were replaced under warranty. Whilst there may be reason to doubt that such figures are precisely accurate, I accept that they reflect the order of the number of pumps so replaced. I further accept Mr Wilsdon's evidence that a number of the Doc 3 and Doc 7 pumps sold by the respondent over the periods referred to above were sold to customers other than the applicants for use in waste water systems and that the return rate of such pumps was not out of the ordinary.'
269 She then discussed the different functions performed by the Doc 3 and Doc 7 pumps in the modified Parco Beaver system. The Doc 3 pump operates in the stilling chamber where they pump the fluid in its early stages of treatment. The Doc 7 pump operates the treated fluid which is substantially cleaner than the fluid in the stilling chamber. She then said:
'Mr Brookfield acknowledged that the applicants' records indicated that only "a handful" of pumps supplied to the applicants had failed in systems which did not have the disc pack modification. There was no attempt made on behalf of the applicant to call admissible evidence of Doc 3 pumps failing in significant numbers in Parco Beaver systems which did not have the disc pack modification, or in any other waste water systems.'
270 The trial judge thereby specifically relied upon the applicants' failure to call evidence from others in the industry to establish failure in waste water systems which were not modified by using a disc pack filter.
271 The respondent's pleadings, of course, do not specifically raise the question of other users of pumps supplied by the respondent, but the respondent relied on evidence at trial from which it could be inferred that the high rate of lip seal/shaft degradation failures experienced by Mr Brookfield was peculiar to him. The trial judge accepted that evidence and found:
'I find that, on the balance of probabilities, there is a relationship between the established failure of a significant proportion of the Doc 3 pumps supplied to Septic Products by the respondent and the modification effected by Mr Brookfield to the Parco Beaver system. The evidence does not disclose that Mr Brookfield, or any other person on behalf of the applicants, advised the respondent of the modification made by Mr Brookfield to the Parco Beaver system.
Although Septic Products may be taken to have made known to the respondent that the Doc 3 pumps were required for use as recirculation pumps in Parco Beaver systems, the failure to inform the respondent of the modification effected to the system (which modification I have found affected the working environment of the Doc 3 pumps) has the consequence, in my view, that Septic Products did not make known to the respondent the particular purpose for which the Doc 3 pumps were required.
The claim for breach of an implied condition of the contracts of sale of Doc 3 pumps between Septic Products and the respondent based upon the first proviso of s14 of the Sale of Goods Act must fail.'
272 The applicants' case under s 14 I did not succeed because the trial judge concluded that the Doc 3 pumps failed because of Mr Brookfield's modifications to the Parco Beaver system which had not been made known to the respondent. Thus, the applicants had not made known to the respondent the particular purpose for which the Doc 3 pumps were required.
273 It would have been relevant to her Honour's decision, as her Honour herself observed, to have evidence from other manufacturers or installers in the industry using the Parco Beaver system, or any other system not employing the disc pack modification, of their experience with Doc 3 pumps. The only evidence she had was that deposed to by Mr Wilsdon which was of sales of all Doc 3, Doc 7 and sumprat pumps, which were not peculiar to the industry.
274 Her Honour next dealt with the applicants' claim under s 14 II. She said:
'It is not contested in this case that the Doc 3 pumps were bought by description and that the respondent dealt at the relevant time in goods of that description. No party chose to hazard what that description might have been. The description on the evidence must, I think, have been that of "Lowara Doc 3 sump pumps", or perhaps, simply "sump pumps". It was not suggested that any examination made of the goods ought to have revealed defects. The issue here raised is that of whether the Doc 3 pumps sold by the respondent to Septic Products were of merchantable quality.'
275 She referred to a number of authorities concluding:
'This case has, in my view, many similarities with the case of Jillawarra Grazing Company v John Shearer Ltd (1984) ATPR 40-441. In that case, which involved an airseeder purchased by the applicant from the respondent, at 45,089 Toohey J said:-
"I am not persuaded that the airseeder was of unmerchantable quality in the sense in which that term has been considered by the Courts; indeed I am satisfied that it was of merchantable quality. As an airseeder or, if it is permissible to impose a gloss and say an airseeder capable of carrying out the work for which it was designed, the airseeder met the test. The experience of John Shearer with similar airseeders sold throughout Australia would indicate that the machine is one that a reasonable purchase would accept …
As I have concluded, the difficulties encountered by Jillawarra stemmed in the main from Mr. Bunter's decision to drive the airseeder with a hydrometer. I should not be taken as holding that John Shearer should not have anticipated that the airseeder might be driven by a hydraulic motor as well as by a power take-off. What I am saying is that a purchaser who decided to install a hydromotor was obliged to ensure that the hydraulic drive was appropriately designed and installed. … The applicant did not seek the respondent's advice in this respect and the latter cannot be held responsible for any vice in the airseeder that was a consequence of an inadequate hydraulic system."'
276 She found that the applicants had failed to establish that the pumps were not of merchantable quality. Whilst her Honour did not say so it is implicit in her findings that she was not satisfied that the pumps were not of merchantable quality if used in appropriate conditions.
277 Like her findings in respect of the applicants' case based on s 14 I, her Honour decided this aspect of the case on the basis that the pumps were not intended to be used in a waste water environment which was filtered by the disc pack modification.
278 It is implicit in her findings that the pumps were intended to be used in the unmodified system.
279 The job cards recorded service or warranty claims in relation to 457 pumps and motors. The respondents identified 48 shaft groove failures amongst all pumps returned (including pumps that were not Doc 3 or Doc 7 pumps). The respondent contended that one approach would be to consider the job cards as representative of a 10 per cent failure rate amongst other pump users, which could be compared with the 50 per cent failure rate experienced by Mr Brookfield. This is wrong. The trial judge found that 50 per cent of the Doc 3 pumps supplied to Mr Brookfield suffered shaft groove/lip seal failures. The industry figure contended for by the respondent is in reality a percentage of pumps returned which were returned because of a particular failure. The two figures are incomparable.
280 I cannot, on the job cards before me, be satisfied of any particular rate of failure experienced by customers of the respondent at large. Nor can I be satisfied of the cause of any shaft groove/lip seal failures experienced by those customers. There is some indication from the job cards that shaft groove / lip seal failures were experienced by customers of the respondent who pumped abrasive material such as sand, cow manure, rubbish, stones, gravel, soft solids and mud. This is consistent with the trial judge's finding that such failures were caused by extended pumping in an abrasive environment. It is consistent with the respondent's case at trial.
281 It may have been the case that, had all job cards (available as at the date of the trial) been discovered and produced, the applicants could have proved, by reference to the same or similar failures experienced by other users of Davey pumps, that the shaft grooving and lip seal failures were caused by something other than pumping in an abrasive environment and were occurring at high rates in systems which did not incorporate Mr Brookfield's modification.
282 Mr Brookfield appeared to argue that had the job cards been discovered, other septic waste manufacturers supplied by the respondent would have been identified to him and a case could have been run that pumps were failing at high rates in systems which did not incorporate Mr Brookfield's modification.
283 The respondent contended that this argument should be rejected for several reasons.
284 First, the respondent says that the applicants had the ability to run a case of 'comparable use' or 'comparable failure' from the outset, and that pursuit of such a tact was not hindered by the non-discovery. The respondent conceded that my inquiry is not limited to the impact the now discovered documents would have had as evidence at trial, but extends to the impact of potential evidence which was rendered unavailable by reason of the non-discovery.
285 I have referred several times to the affidavit of Mr Dallas Wilsdon sworn on 30 July 1995. Mr Wilsdon deposed to having inspected the records of Davey and to having determined and summarised national sales and returns figures for the respondent in the relevant years. This summary was exhibited to his affidavit and marked DW25 (refer to par [87] above). He further deposed to having made an inspection to determine the statistics in relation to customers of the respondent who were waste water treatment system manufacturers. A summary of his findings was exhibited to his affidavit and marked DW27.
286 DW27 related only to two waste water treatment systems manufacturers: 'Envirocycle and Biocycle'. Mr Brookfield argued that job cards relating to several other waste water system manufacturers existed and ought to have been discovered. Had they been discovered, Mr Brookfield argued, he could have identified comparable users of Davey pumps and investigated failures experienced by them. On the second day of the hearing of this notice of motion, Mr Brookfield said:
'MR BROOKFIELD: Right. Apart from Envirocycle, Biocycle and myself in
the industry, there were other waste water treatment manufacturers that the
respondent used to supply the DOC3 and DOC7 pumps to.
HIS HONOUR: Did you know that then?
MR BROOKFIELD: I knew this because of the fact that from time to time we
would communicate with other waste water treatment companies over the time.
At the time I didn't know the - apart from Envirocycle, Biocycle and
Clearwater, I wasn't aware of the extent of which they supplied to some of the
eastern state companies because there was a reasonable amount of
confidentiality in there with supplies and manufacturers, et cetera. In relation
to what the respondent claimed at trial and what the case actually was are two totally different things….'
287 The respondent's answer to this contention was that the other waste water manufacturers were known to or could easily have been identified by Mr Brookfield without discovery of the job cards.
288 Certainly, Envirocycle and Biocycle were known to Mr Brookfield at trial. So much is evident from the transcript of cross-examination of Mr Brookfield at trial. These two companies manufactured activated sludge systems which aerated effluent by means of an air blower. Their systems did not employ a recirculation pump, but rather used Davey pumps as irrigation pumps. As could be expected, the pumps in these systems pumped cleaner water than that pumped by a recirculation pump in Mr Brookfield's systems. Evidence of similar rates of failure, experienced by these manufacturers may well have supported any 'comparable user' case Mr Brookfield may have pursued at trial.
289 Some material supporting the figures in DW27 was exhibited to Mr Wilsdon's affidavit as DW28. As previously mentioned, Mr Wilsdon incorrectly deposed that the records, which would have enabled him to give details as to pump failures and causes, were destroyed in a fire. A notation to DW27 recorded that the summary was prepared using documents which Mr Wilsdon said had been destroyed. DW27, however, could have been prepared solely by reference to the material contained in DW28. The notation may have been incorrect. I do not know.
290 The end result is that job cards relating to Envirocycle and Biocycle were not discovered, and nor were job cards relating to other waste water system manufacturers supplied by the respondent.
291 The 'other' waste water treatment system manufacturers identified by Mr Brookfield during the hearing of the notice of motion were 'Clearwater', 'Allwater', 'Dural', 'Earthsafe' and 'Biotreat'.
292 The respondent says that all of these manufacturers were known to Mr Brookfield at the trial, and that non-discovery of job cards relating to returns from these manufacturers did not prevent Mr Brookfield from investigating failures experienced by those manufacturers.
293 Even if that is so, that is no answer to the respondent's failure to make discovery.
294 Certainly, Mr Brookfield must have been aware of Allwater Treatment Pty Ltd. This was the company which held the licence to manufacture the Parco Beaver system, and which later went into provisional liquidation (see par [29] above).
295 Mr Brookfield was also aware of the existence of Clearwater Treatment Systems Pty Ltd (Clearwater) at the time of the trial. Two affidavits of Mr Andrew Leishman sworn in June 1999 were tendered at the hearing of the notice of motion.
296 Mr Leishman was, at least in 1989, the managing director of Clearwater, a company that manufactured a trickle filter system similar to the Parco Beaver system (the Clearwater System). Mr Brookfield claimed that the Clearwater System used a cut-pipe filter medium similar to that used in the original Parco Beaver system. Some time in 1990, Mr Leishman began incorporating Doc 3 and Doc 7 pumps in the Clearwater System. The pumps were supplied by the respondent.
297 Mr Leishman deposed that the Doc 3 pumps, used as recirculation pumps in the Clearwater System, failed consistently after eight months of usage.
298 That evidence may have assisted Mr Brookfield at trial. However, the respondent says it was not evidence that was denied to Mr Brookfield by reason of the respondent's failure to give adequate discovery. There is some evidence to suggest that Mr Brookfield knew at trial that the respondent supplied Clearwater with pumps. He claims that he was unable to achieve co-operation from other waste water system manufacturers until recently because of competition in the industry, and hostility between competitors.
299 On the respondent's case, Mr Brookfield must be taken to have known since the filing of Mr Wilsdon's affidavit of 30 July 1995 that Clearwater had been supplied by Davey with pumps (although not necessarily Doc 3 or Doc 7 pumps) and that Clearwater had experienced failures in such pumps. Exhibit 'DW28' to Mr Wilsdon's affidavit records two entries in respect of 'Clearwater' (although one of these is an entry in respect of 'Clearwater Tanks').
300 'Biotreat', another activated sludge system manufacturer was also identified in 'DW28', as were, of course, 'Envirocycle' and 'Biocycle'. 'Allwater' and 'Dural' are also mentioned in that document.
301 Dural Irrigation Pty Ltd (Dural) distributed the respondent's pumps. Mr Michael Freame is the manager and 'part-owner' of that company, and an affidavit of his sworn 1 July 1999 was tendered at the hearing before me. In his affidavit, Mr Freame deposed to Doc 3 and 7 pumps having been returned to Dural by customers, which ultimately resulted in Dural ceasing to stock such pumps. The pump failures experienced by customers of Dural were related to seal failure and shaft grooving.
302 Dural supplied pumps for use in swimming pools, fish ponds, cellars and aquariums. Mr Freame deposed that it was his 'experience that the Davey Lowara Doc pumps could not perform in continuous use applications …'.
303 DW28 only records returns from Dural to the respondent of pumps other than Doc 3 and Doc 7 pumps. Mr Freame claims that failed Doc 3 and Doc 7 pumps were in fact returned to the respondent by Dural, and that DW28 does not completely record returns from Dural.
304 Mr Brookfield asserted that requests were made to Dural Irrigation by his solicitors pre-trial for documents relating to returned Doc 3 and Doc 7 pumps. He said that such requests were refused and that, therefore, evidence of the matters referred to in Mr Freame's affidavit were not available to the applicants at trial. There is no reference to any such requests in Mr Freame's affidavit. There is no evidence that the requests were made, or that Mr Freame's evidence was unavailable to the applicants in 1995.
305 'Earthsafe' was another company Mr Brookfield claimed was supplied with pumps by the respondent.
306 Mr Brookfield claims that Earthsafe used the Doc 3 pump as an irrigation pump in clean, chlorinated water. He argued that that company experienced similar failures to the applicants.
307 Mr Brookfield simply did not prove his assertions as to the use by 'Earthsafe' of Doc 3 pumps, and as to the failure of those pumps. Attempts were made to prove the assertions, but no material advanced was admitted into evidence.
308 In those circumstances, it is unnecessary for me to consider whether or not Mr Brookfield or his advisers exercised reasonable diligence (at trial) in trying to obtain the evidence which Mr Brookfield says was denied to him by the respondent's failure to discover.
309 Finally, Mr Brookfield has asserted that various waste water treatment system manufacturers experienced similar failures (and rates of failures) in respect of Doc 3 and Doc 7 pumps supplied by the respondent. Such failures were said to have been experienced in systems pumping cleaner water than that encountered by pumps in the modified Parco Beaver system.
310 Mr Brookfield claimed that had appropriate discovery of job cards been made, he would at least have been alerted to the identity of those manufacturers supplied by the respondent who experienced the relevant failures. Such identification would have opened a line of inquiry enabling Mr Brookfield to seek out evidence in support of his case.
311 Whilst I am satisfied that those other manufacturers of waste water systems were entities already known to Mr Brookfield at the trial, and that he may be taken to have been aware of the fact that those manufacturers were supplied with pumps by the respondent, it is not right, as the respondent has argued, that because Mr Brookfield was aware of those other manufacturers and that, in all probability, they used similar pumps, he should have been on inquiry to determine his competitors' rates of failure.
312 That rather reverses the onus. The onus was on the respondent to discover these 810 pages of job cards and all other job cards which were or have been in the possession, custody or power of the respondent at the time that the proceedings were brought.
313 Those job cards would have alerted Mr Brookfield to the fact that his competitors were also experiencing failures of the kind which he and SPA were experiencing. That would have allowed him, if he could not have obtained the co-operation of his competitors, to obtain third party discovery from them so as to establish that pumps of this kind were simply unsuitable in the industry generally although, of course, I do not making that finding. They would have put the applicants on notice that other inquiries ought to be made of other competitors in the industry.
314 In my opinion, these job cards were not only relevant, they were vital to the applicants' claims and they would have either by themselves or, in combination with other job cards now destroyed, had the effect of answering the respondent's expert evidence.
315 Moreover, they would have allowed the applicants to place the material before their experts to obtain evidence in answer to the respondent's expert evidence to which I have referred and to obtain other expert evidence.
316 These documents would have been very important in the applicants' case.