Plaintiff/Defendant by Counterclaim v First Defendant/First Plaintiff by Counterclaim

(a) on behalf of the Defendants, affidavits of Michael Tandora, solicitor for the Defendants, affirmed 14 October 2025 ('First Tandora Affidavit'), 20 October 2025 ('Second Tandora Affidavit') and 21 October 2025 ('Third Tandora Affidavit'); and

(b) on behalf of the Plaintiff, affidavits of Jacinta Simone Atkinson, sworn 14 October 2025 ('First Atkinson Affidavit') and 21 October 2025 ('Second Atkinson Affidavit').

1. A hearing of the Application was conducted on 23 October 2025. The two Defendants were represented by the same solicitors and counsel. In the Application the Court had the benefit of helpful written and oral submissions from both counsel for the Plaintiff and the Defendants.
2. At the hearing on 23 October 2025, the parties agreed to provide a minute setting out orders to be made in respect of categories the parties had previously determined by consent ought to be ordered to be discovered. On 11 November 2025, my chambers received an email from the Defendants' solicitors in the proceeding, attaching that agreed form of order ('Agreed Orders'). The email also attached a draft form of order from the Defendants, which proposed a subsequent amendment to the order it sought in respect of Category M1A(a)(3). That amendment is discussed in more detail at paragraph [29] below.
3. For the reasons that follow, I have determined that orders will be made for discovery of documents responding to Category M1A (excluding sub-category M1A(a)(3)) and Categories M2(a), M2(f) and M2(h)(2).

1. The Plaintiff is a statutory authority responsible for the provision of emergency assistance services across Victoria, which it achieves in part via the deployment of vehicles known as Heavy Duty Rescue Trucks ('HRTs'). For specified periods between 2007 and 2019, the Defendants were engaged by the Plaintiff under various agreements entered into in 2007, 2009 and 2014 to design, manufacture and supply a fleet of 68 of these HRTs ('Agreements'). The Plaintiff alleges that the HRTs supplied in accordance with the Agreements were defective, including that the service body of each HRT was required to but did not last for at least 20 years. The Plaintiff claims against the Defendants for damages for breaches of the Agreements, for payment of debts demanded under indemnities alleged to have been given by the Defendants pursuant to the various Agreements, and for damages for breaches of s 18 of the Australian Consumer Law. The quantum of the Plaintiff's loss is particularised to include damages to compensate the Plaintiff for non-pecuniary loss for the non-profitable use of the HRTs, from the period they were removed from service to the end of the alleged 20-year period of design life, which I will refer to as the claim for 'Design Life Loss'. The Defendants deny any liability and contend that the HRTs are not defective, and submit in the alternative that, to the extent there are any issues arising in respect of the HRTs, those issues are the consequence of misuse of the vehicles having regard to the design, failure by the Plaintiff to maintain the HRTs, or ordinary wear and tear, for all of which the Defendants contend they are not liable. The Defendants deny the Plaintiff's pleaded loss and further plead in their defence that the Plaintiff has failed to mitigate its loss.
2. The Disputed Categories relate to what is named in correspondence between the parties as the NextGen HRT Program, being a program for the design and manufacture of new heavy rescue vehicles to replace the existing HRT fleet. In an article in an online publication called 'Fleet Auto News' dated 25 March 2025 exhibited to the First Tandora Affidavit, the development of the NextGen HRT Program is reported as having commenced in 2019.
3. At paragraphs [22]-[23] of the Second Atkinson Affidavit, Ms Atkinson confirms that the NextGen HRT Program is not referred to in the pleadings, and the loss and damage claimed by the Plaintiff in the proceeding does not include the costs of the Plaintiff in respect of the NextGen HRT Program.

(1) This Rule applies to any proceeding in the Court.

(2) Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating -

(a) whether that document or any, and if so what, document or documents of that class is or has been in that party's possession; and

(b) if it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it.

(3) An order may be made against a party under paragraph (2) notwithstanding that the party has already made or been required to make an affidavit of documents.

1. The parties were in agreement as to the relevant legal principles that I ought to apply to the determination of the Application under r 29.08, which may be summarised simply as follows.

(a) 'The public interest in privacy and confidence demands that the compulsion [to discover documents] should not be pressed further than the course of justice requires'. [1]

(b) Discovery is of documents that relate to a question or fact in issue on pleadings between parties.[2]

(c) A demand for discovery of documents 'which are peripheral to the central issues' ought not be entertained by the Court. The Court must focus on 'the central issues as best it can be determined at this point in the litigation'.[3]

1. No material submissions were put regarding the obligations on the Court and the parties in respect of discovery imposed by the Civil Procedure Act 2010 (Vic) ('CPA'). The broad scope of the Court's powers in relation to discovery conferred by ss 7 and 55 of the CPA and Order 29 of the Rules, as recognised by J Forrest J in Volunteer Fire Brigades Victoria v CFA (Discovery Ruling),[4] nonetheless is limited by the overarching purpose of the CPA, having regard to the following statement from the High Court (considering corresponding New South Wales legislation) in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd:[5]

That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.

1. The 'overriding consideration' of the CPA is to ensure that parties receive a fair trial - not a perfect trial, but rather the best trial a court can provide within reason, and in proportion to the issues in dispute and the resources of the court. [6] It is in that context that I must, and do, determine this Application.

1. Category M2(a) seeks documents evidencing or recording the genesis of, reasons for, purposes and objectives of, the NextGen HRT Program. As set out above, the Plaintiff claims for Design Life Loss arising from what it alleges was the premature retirement of the HRTs necessitated by the Defendants' breaches. In pressing for discovery of this category of documents, the Defendants submit that documents evidencing or recording the 'genesis' of the NextGen HRT Program and the reasons for, purposes and objectives of it, are relevant, as they may disclose whether the Project in fact began in 2019 and why it occurred. The Defendants submit that such information is critical to the Defendants showing on a 'but for' basis that the NextGen HRT Program would have occurred in any event, in support of their challenge to the quantum of the Design Life Loss component of the damages claimed by the Plaintiff.
2. By Category M2(f), the Defendants seek documents evidencing or recording the investigation, consideration or evaluation of alternative options to the procurement, acquisition, build or supply of the NextGen HRTs. These documents are sought on the basis that they are relevant to the Defendants' challenge to the positive decision of the Plaintiff to choose to procure a whole new fleet, rather than choosing to retrofit the existing fleet.
3. Category M2(h)(2) seeks documents evidencing or recording any decision to procure, acquire, build or have supplied the NextGen HRTs. For the same reasons as categories M2(a) and M2(f), the Defendants seek documents relating to the actual decision to procure the NextGen HRTs, which the Defendants submit will provide critical information on when the decision was made and timing for the replacement.
4. In response to the Defendants' submissions on Categories M2(a), M2(f) and M2(h)(2), the Plaintiff disputes the submission that these documents are relevant to any challenge by the Defendants to the quantification of the Plaintiff's loss. The Plaintiff submits that the articulation of the relevance of these documents in both the written and oral submissions of the Defendants identify a defence of failure to establish causation which is not currently pleaded. The Defendants' written submissions set out that the documents in these categories are sought for the purposes of:

establishing the reasons and nature of the Plaintiff's decision to replace the HRTs with the NextGen HRTs [...] and the absence of a connection between the decision and the matters which the Plaintiff alleges gives rise to loss and damage including a replacement cost in respect of the HRTs.

1. That 'but for' argument, the Plaintiff submits, does not go to whether the Plaintiff can prove the quantum of its loss but in fact forms the basis of a potential challenge to whether the breaches alleged against the Defendants in fact caused the Plaintiff's loss - a challenge which ought to be but is not currently pleaded in the Defendants' defence.
2. The Defendants refer in reply to the Plaintiff's claim of Design Life Loss. The Defendants submit that they are entitled to documents relevant to the proper calculation of the Plaintiff's Design Life Loss, in particular in circumstances where the Plaintiff has not yet particularised its loss but has indicated it intends to do so primarily by way of lay evidence. The Defendants submit that it is not a matter for the Defendants to plead that causation is not satisfied - that the alleged breaches by the Defendants caused the Plaintiff's claimed loss, including the Design Life Loss, is a matter which the Plaintiff must prove.
3. It is useful at this point to return briefly to the principles governing the Application: the compulsion to discover documents must be confined to what is required to render a just outcome and discovery is to be of documents relating to a question or fact in issue between the parties and central at this point in the course of the proceedings.[7] With those principles in mind, the determination of this dispute must begin with the pleadings.
4. The Plaintiff's particulars of damages are set out at paragraph [36] of the Plaintiff's Amended Statement of Claim dated 24 October 2024 ('ASOC') in respect of the Agreement entered into in 2007. Those particulars are largely replicated in respect of the 2009 and 2014 Agreements in paragraph [76] and [117] of the ASOC. Each set of particulars includes at sub-paragraph (F) a claim for 'damages to compensate non-pecuniary loss for the non-profitable use of the [HRTs]', being the Plaintiff's claim for Design Life Loss.
5. I accept the Plaintiff's submissions that no claim is made by the Plaintiff in respect of the NextGen HRTs. However, it does not necessarily follow that matters relevant to the NextGen HRT Program will not otherwise be pertinent, such that documents relating to that Program ought not be discovered. By its ASOC, the Plaintiff has put in issue its entitlement to damages for the loss associated with non-profitable use of the HRTs, based on a 20-year design life. The Plaintiff articulates in each set of particulars that its losses may include actual future loss. There is evidence before the Court that the NextGen HRT Program has been in development since at least 2019.[8] At Annexure C to the ASOC the Plaintiff has set out a table of the HRTs supplied pursuant to the 2014 Agreement, including dates of delivery. That table shows the last of the HRTs were delivered on 21 August 2019 under the Agreement entered into in 2014. I infer, having regard to this chronology, that the NextGen HRT Program may involve delivery of replacement HRTs under the NextGen HRT Program during the 20-year design life period for which the Plaintiff claims loss of profitable use of the HRTs the subject of the proceeding.
6. The Defendants submit, and I accept, that the question as to the timing of and reasons for the development of the NextGen HRT Program are matters which might bear upon the Plaintiff's ability to demonstrate an entitlement to recover damages to compensate it for non-pecuniary loss for the non-profitable use of the HRTs, and the extent of that loss. That is particularly so in circumstances where the Plaintiff is yet to particularise its loss, and has foreshadowed that it intends to do so by way of lay and expert evidence.
7. The Plaintiff may be correct to submit that the Defendants have not properly pleaded a defence of failure to prove causation. The basis on which the Defendants defend the Plaintiff's claims is a matter for them, and to which they will be held at trial. It may also be the case, as the Defendants submit, that the Defendants may apply in the absence of any consent of the Plaintiff to amend their defence following the provision of discovery or the evidence upon which the Plaintiff relies in support of its pleaded loss. When and whether the Defendants decide to take that step is a forensic choice to be made by the Defendants, which will involve factors such as whether and when its legal representatives consider there is a proper basis to do so. In any event, I am satisfied, for present purposes and on the current state of the pleadings, that the question of the Plaintiff's entitlement to damages to compensate it for the non-profitable use of the HRTs is denied by the Defendants and is a matter in issue in the proceeding, and that documents evidencing or recording when and why the Plaintiff decided to commence the development of the NextGen HRT Program are relevant to the question of whether and to what extent the Plaintiff is entitled to recover such loss from the Defendants.
8. For those reasons there shall be an order that the Plaintiff make discovery of documents responding to Categories M2(a), M2(f) and M2(h)(2).

1. In summary, Category M1A seeks documents evidencing, recording or about feedback from and consultation with SES personnel in connection with the NextGen HRT Program, regarding the use, design, servicing, maintenance, safety or operating conditions or equipment load capabilities of the HRTs, and the operational and practical needs or preferences of SES personnel when using any heavy rescue truck. It also seeks documents recording instructions provided by the Plaintiff, and advice, testing, data, analysis or investigation prepared for and obtained by the Plaintiff, in relation to the NextGen HRT Program which evidences, records or concerns certain aspects of or about the HRTs including stress and fatigue performance, durability, lifespan expectations, serviceability and maintenance, tools or equipment carried on the HRTs, operational efficiency, the design of the HRT, as well as consideration of or evaluation of any such advice, testing, analysis, data or investigation. The Defendants refer to their defences to the Plaintiff's claims, which include misuse, non-maintenance, and general wear and tear, and seek these documents on the basis that they will disclose how the vehicles are being operated and whether the operation of the vehicles was appropriate having regard to the design, and the extent and nature of maintenance and use of the HRTs by the Plaintiff.
2. Save for one sub-category, discussed below, the Plaintiff does not dispute that the documents sought in this category are relevant. The basis for the Plaintiff's objection is that documents sought by this category are duplicative of documents sought in other categories. The Defendants accept that there is likely to be some overlap between the categories agreed between the parties and those sought by Category M1A. On their submission, such overlap is not a basis to dispute production of documents responsive to that category.
3. The only exception to the Plaintiff's position in respect of this category is in respect of documents sought by Category M1A(a)(3), which requests documents 'evidencing, recording or about any feedback or consultation from or with SES Personnel in connection with the NextGen HRT Program regarding their operational and practical needs or preferences when using any heavy rescue truck'. Unlike the balance of Category M1A, that sub-category is not confined to matters relating to the HRTs, and the Plaintiff opposes it on the basis that it is therefore too broad and will capture irrelevant documents.
4. At the hearing on 23 October 2025, counsel for the Defendants confirmed that it was not the intention of the Defendants that documents would be sought in Category M1A(a)(3) that did not relate to the HRTs, and the category could be amended to reflect that limitation. I indicated that I did not consider it appropriate for the Court to be amending the terms of categories of discovery to be produced by the parties in the context of an application under r 29.08. The parties agreed before me that the parties would continue to negotiate the terms of Category M1A(a)(3), and any agreed form of order might subsequently be provided to the Court in the event agreement was reached.
5. As described briefly above, on 11 November 2025, I received an email from the Defendants' solicitors in the proceeding. The email was stated to be sent on behalf of both parties. In addition to the Agreed Orders, the email from the Defendants attached a draft form of order from the Defendants ('Defendants' Orders'), which proposed an amendment to Category M1A(a)(3), so that by this category the Defendants now seek documents 'evidencing, recording or about any feedback or consultation from or with SES Personnel in connection with the NextGen HRT Program regarding their operational and practical needs or preferences when using any heavy rescue truck the HRTs' ('revised Category M1A(a)(3)'). The covering email confirmed that the Plaintiff does not consent to revised Category M1A(a)(3), and in fact opposed revised Category M1A(a)(3) being provided to the Court.
6. On its face, revised Category M1A(a)(3) appears to address the Plaintiff's concern expressed at the hearing that Category M1A(a)(3) was not confined to matters relating to the HRTs. However, Category M1A(a)(3) remains opposed by the Plaintiff even in the form proposed in revised Category M1A(a)(3). I have not had the benefit of any submissions in support of or against this revised category so as to understand why opposition is maintained by the Plaintiff. It may be that there are other objections held by the Plaintiff that were not raised before the Court at the hearing in circumstances where a revised form of this category had not been put to them at that time. The Defendants' Application sought orders for production of documents under the original Category M1A(a)(3) and, in the absence of agreement as to a revised form, I consider it appropriate for me to determine the Application on the basis of the orders sought in the summons filed 17 October 2025. It is a matter for the Defendants as to whether they make further application for discovery of the documents sought in revised Category M1A(a)(3).
7. I otherwise accept the Plaintiff's submission that Category M1A(a)(3) (in its original form) is not confined to documents relating to the HRTs and is therefore too broad. No material opposition to that position was put by the Defendants either in their written or oral submissions. The Defendants' Application for discovery of documents in Category M1A(a)(3) (in its original form) is therefore refused.
8. As to the balance of Category M1A, while I accept that there is likely to be some (if not entire) overlap between categories agreed between the parties and (the balance of) Category M1A, there appeared to be no dispute between the parties that the documents responding to the balance of Category M1A are relevant and on that basis it is appropriate that documents in respect of the balance of that category be produced.

1. Orders will be made in the form set out in the parties' Agreed Orders, which provided for discovery to be made by the parties by 19 December 2025. For the above reasons, orders will be made for discovery of documents responding to Category M1A (excluding Category M1A(a)(3)) and Category M2(a), M2(f) and M2(h)(2) by the same date. At the hearing on 23 October 2025 there was a discussion between the Court and the parties that there may need to be some adjustments to the timetable for preparation for trial to accommodate the provision of discovery by categories - whether by consent or as a consequence of the Application. Any amendments to the timetable required as a consequence of the provision of particular discovery should be raised with Delany J as the judge with conduct of the case management of this proceeding.
2. At the hearing on 23 October 2025 the parties indicated their intention that an agreed position might be reached on costs, once the parties had the benefit of these reasons. From the Agreed Orders it is apparent that the parties have been able to reach an agreed position on costs in advance of this ruling being delivered. The Agreed Orders provide for costs to be reserved, as do the Defendants' Orders. Orders have been made reserving the parties' costs on that basis.

M1A. Relevant Documents evidencing, recording or about:

(a) any feedback or consultation from or with SES Personnel in connection with the NextGen HRT Program regarding:

1. the use, design, servicing, maintenance, safety or Operating Conditions of the HRTs;
2. the equipment load capabilities of the HRTs; or
3. their operational and practical needs or preferences when using any heavy rescue truck;

(b) any requests by the SES for, any instructions provided by the SES for, and any advice, testing, data analysis or investigation prepared or obtained by the SES - in each case, whether internally or externally - in relation to the NextGen HRT Program which evidences, records or concerns:

1. stress and fatigue performance of the chassis or body or shelving of any of the HRTs;
2. durability of any of the HRTs;
3. lifespan expectations or performance standards of the HRTs;
4. serviceability of the HRTs;
5. maintenance of the HRTs;
6. tools or equipment carried in or on the HRTs;
7. operational efficiency of the HRTs; or
8. the design of the NextGen HRTs in light of, or so as to avoid, minimise or prevent, any of the Alleged Issues; or

(c) the consideration or evaluation of any advice, testing, analysis, data or investigation referred to in paragraph M1A(b) above.

(a) the genesis of, reasons for, purposes and objectives of, the Next Gen HRT Program;

(f) the investigation, consideration or evaluation of alternative options to the procurement, acquisition, build or supply of the NextGen HRTs;

(i) any services or works in relation to the NextGen HRTs; or

[1] Agnello v Heritage Care Ltd (2023) 72 VR 143 ('Agnello'), 150 [30] (quoting Riddick v Thames Board Mills Ltd [1977] QB 881, 896 (Lord Denning MR); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 37-8 (Hayne JA)).

[3] Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573, [34] (J Forrest J).

[4] [2016] VSC 573.

[5] [2013] HCA 46; (2013) 250 CLR 303, 323 [57] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[7] See paragraph 10 above and the authorities cited therein.

[9] Including the information and documents to which regard was had in reaching each such decision, and any reasons for that decision.