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[2003] WADC 220
appellant. The defendant's application for further and better discovery was granted. The judgment does not state the precise form of the consequential order.
2 cited instruments linked from this judgment.
Fisal wanted Retail Systems to disclose documents about complaints from other customers who had received the same products and software. The court considered those documents potentially relevant because they could help Fisal investigate whether the goods and software supplied to it met the contract and whether a claim that the software was tried and proven was misleading. Applying the broad train-of-enquiry test for discovery, the court granted the application.
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2,079 words · generated 28/09/2026
Retail Systems Pty Ltd supplied cash registers, software and related products to supermarkets. Fisal Pty Ltd operated a supermarket business as “Dewsons Beaumaris”. The parties agreed that they had entered an agreement in May 2000 for Retail Systems to supply cash registers, software and related equipment, and that Fisal had paid a deposit of $10,530 (para 2). They disagreed about what the agreement contained.
Retail Systems claimed a further $46,730.55, comprising the asserted balance of the purchase price and amounts for additional products and services (para 2). Fisal denied liability. It alleged that the supplied products and software were defective and did not meet representations made by Retail Systems. Its counterclaim included breach of contract, claims under the Trade Practices Act 1974 (Cth), and negligent misstatement (para 3).
The discovery dispute concerned documents about complaints from other customers. Fisal sought “all correspondence or documents” relating to other customers’ complaints, but confined the request to specified matters also in dispute between the parties: fitness for purpose, merchantable quality, installation, disruption, the GST software module, training, and whether the software was a “tried and proven package” (para 4).
Fisal supported the application with an affidavit from its director, Daniel Crowley. He said that operators of other supermarkets had told him about oral and written complaints they had made to Retail Systems regarding the same or similar products and software. He believed relevant documents existed in Retail Systems’ possession, custody or power. His affidavit identified the sources of his information (para 5). Retail Systems’ managing director, Peter Martin, responded that not everyone identified had bought products from Retail Systems or the same products as Fisal. He also said that complaints by customers who had bought the same products had been addressed (para 6).
The judgment describes an appeal by Fisal from Deputy Registrar Hewitt’s refusal of its specific-discovery application (para 1). Martino DCJ held that the application for further and better discovery should succeed (para 12). The judgment does not set out the precise wording of the consequential order.
The court applied O 2 r 1 of the District Court Rules 1996 (WA). As expressed in the judgment, a party had to discover documents in its possession, custody or power that related to any question in the action (para 7). The court explained that the obligation was not limited to documents that directly proved or disproved a pleaded fact. It extended to documents that could “directly or indirectly” enable a party to pursue a train of enquiry that might advance its case or damage its opponent’s case (para 7).
Martino DCJ cited Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 and Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 in stating that approach (para 7). The judgment relies on those authorities for the breadth of the train-of-enquiry test. It does not discuss their facts or separately analyse their reasoning.
The court then connected that test to the issues in Fisal’s pleadings. Fisal alleged that the products and software were not fit for purpose or of merchantable quality, that installation and training fell short of the alleged contractual requirements, and that the GST software and the “tried and proven” description raised issues of performance and representation (para 9). Retail Systems denied breach and misleading or deceptive conduct, while admitting some but not all of the alleged representations (para 10). The trial would therefore require findings about what statements were made, the contract’s terms, whether statements were false or misleading, and whether contractual terms were breached (para 11).
On that background, complaints about the same products and software could be relevant to Fisal’s investigation of the pleaded issues. The court’s conclusion was expressly cautious: the complaints and Retail Systems’ responses “may enable” a relevant train of enquiry and “may assist” Fisal in endeavouring to prove its case (para 12). The stated basis for allowing discovery was that potential assistance, not a finding that the complaints were true or that Retail Systems had breached the contract.
Retail Systems’ evidence that some customers had acquired different products, and that complaints from customers who acquired the same products had been addressed, is recorded at para 6. The judgment does not treat the fact that complaints were addressed as dispositive. Nor does it find that every requested document existed or that every customer had received identical products. Its reasoning is confined to documents concerning complaints about the same products and software, and the responses to those complaints, where they could support an enquiry into issues already pleaded (para 12).
The judgment applies the discovery rule in O 2 r 1 of the District Court Rules 1996 (WA), as the provision is described in para 7. It states that discovery covers documents “relating to any question” in the action and adopts a broad relevance formulation that includes documents capable of opening a train of enquiry, even indirectly. It supports that formulation by citing Compagnie Financiere and Mulley (para 7).
The decision’s contribution in this dispute is the application of that approach to complaints made by other customers. It demonstrates that such complaints are not automatically outside the scope of discovery simply because they concern third parties. On the facts before the court, documents about complaints relating to the same products and software could be connected to pleaded issues about contractual performance and a representation that the software was tried and proven (paras 9, 12).
The supplied judgment does not describe a change in the law before or after the decision. It does not compare the rule with a later procedural regime, discuss subsequent amendments, or explain whether another court later narrowed or developed the test. Any account of later law or the current operation of discovery would require sources beyond this judgment. Accordingly, the limited “before and after” account available from the text is that Martino DCJ applied the stated O 2 r 1 test to the particular request; the judgment itself makes no claim that it altered the test.
At para 7, the court states that discovery concerns documents “relating to any question” in the action. In plain English, a document may be within the discovery obligation if it has a sufficient connection to an issue the court must decide. The paragraph also describes the relevant documents as those which may help a party pursue a line of enquiry, whether that help is direct or indirect.
The phrase “train of enquiry” is important to the result. It does not mean that the court found that the other customers’ experiences proved Fisal’s allegations. Rather, the court considered whether those documents might help Fisal investigate or support issues raised in the pleadings. That is why para 12 uses conditional language: the complaints “may enable” an enquiry and “may assist” in endeavouring to prove the case.
At para 11, the judge notes that the eventual trial would require findings about what statements Retail Systems made, what the contract required, whether statements were false or misleading, and whether contractual terms had been breached. In ordinary terms, the discovery decision was tied to the issues that would need resolving at trial, not to a general inquiry into Retail Systems’ dealings with all its customers.
At para 12, the court identifies the relevant category as complaints “relating to the same products and software” and Retail Systems’ responses. This limitation matters. The reasoning does not say that any customer complaint about any product is discoverable. The asserted connection was that other customers’ complaints concerned the same products and software, and the matters complained of overlapped with Fisal’s pleaded allegations.
The decision is most directly relevant where a party seeks documents about third-party complaints and can link those complaints to issues already raised in the action. In this case, Fisal identified specific contractual and representation issues, including fitness, quality, installation, software functionality, training and whether the software was tried and proven (paras 4, 9). Its request was directed to complaints about the same products and software, not a general search for customer dissatisfaction (para 12).
The judgment may be particularly useful in understanding why evidence of similar customer complaints can have a discovery connection even though it does not itself determine the dispute. Under the test applied, such documents may support a further enquiry into whether the goods or software performed as represented or required under the contract. Whether a particular document meets the test will depend on its connection to an issue in the relevant action. The judgment does not establish a universal rule that all complaints by other customers must be disclosed.
The record also illustrates the importance of identifying a plausible documentary source. Crowley’s affidavit described information from supermarket operators and explained the basis for his belief that documents existed in Retail Systems’ possession, custody or power (para 5). The judgment does not set out a general evidentiary threshold for supporting discovery applications, so it should not be read as fixing one.
The decision is less directly informative where the other customers used materially different products, where the requested documents concern issues not pleaded, or where the request is not limited in a way that connects it to the action. The judgment records Retail Systems’ point that some identified people had not acquired the same products (para 6), but it does not provide a detailed analysis of how to resolve disputed product similarity or prescribe a method for narrowing a request. Its conclusion is framed around documents relating to the same products and software (para 12).
The text supplied for this judgment contains no decisions from later courts discussing, applying, distinguishing or limiting Retail Systems Pty Ltd v Fisal Pty Ltd. It therefore does not support a conclusion about the judgment’s subsequent treatment or its present precedential weight.
The case heading lists Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company and Mulley v Manifold as authorities referred to in the judgment. Martino DCJ invokes them in para 7 when stating the train-of-enquiry approach. The heading also lists a number of other authorities under “Case(s) also cited”, but the supplied judgment does not explain their role in the judge’s reasoning. Their listing alone does not establish how a later court has treated Retail Systems v Fisal.
For research or professional use, the reliable account from this source is therefore limited to the decision’s own reasoning: O 2 r 1 discovery included documents that could indirectly assist a relevant train of enquiry, and the specified complaint documents could assist enquiries into Fisal’s pleaded claims (paras 7, 12). Any claim about later judicial use would need to be checked against later judgments, which are not included here.
The judgment resolves the application before it but leaves several matters unaddressed. First, it does not set out the final document categories or precise terms of the order. It records the request in para 4 and concludes that the application should succeed in para 12, but provides no further order text.
Second, the judgment does not determine whether the alleged customer complaints actually existed, what they said, whether they were accurate, or whether the products were in fact defective. The affidavits describe competing information about other customers and their products (paras 5–6). Those are not findings about the merits of Fisal’s counterclaim.
Third, the judgment does not decide whether complaints that had been addressed would ultimately have evidentiary significance at trial. It considers the possibility that complaint documents and responses could assist an enquiry for discovery purposes (para 12). It does not rule on admissibility, weight, or the conclusions that could properly be drawn from any disclosed documents.
Fourth, the decision does not explain how much similarity between products, software versions, installations or customer circumstances would be required in another case. Its stated reasoning concerns complaints relating to the same products and software. More detailed questions of similarity would depend on the evidence and the pleaded issues in the particular action.
Finally, the text does not assess the law after the District Court Rules 1996 or the subsequent treatment of this decision. Those questions cannot be answered from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, a qualified Australian lawyer should check it.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : RETAIL SYSTEMS PTY LTD -v- FISAL PTY LTD [2003] WADC 220
BETWEEN : RETAIL SYSTEMS PTY LTD (ACN 063 553 051)
Practice and procedure - Discovery - Application for further and better discovery
District Court Rules 1996, O 2 r 1
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341
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] VicRp 27; [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] FCA 202; (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
1 MARTINO DCJ: This is an appeal by the defendant against a decision of Deputy Registrar Hewitt refusing the defendant's application for specific discovery.
2 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.
3 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".
4 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:
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."
5 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.
6 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.
7 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] HCA 23; (1959) 103 CLR 341.
Retail Systems Pty Ltd
Fisal Pty Ltd [2003] WADC 220
(1959) 103 CLR 341
(1988) 81 ALR 397
The defendant's application for further and better discovery was granted. The judgment does not state the precise form of the consequential order.
8 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.
9 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.
10 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.
11 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.
12 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.