TYCO AUSTRALIA PTY LTD v OPTUS NETWORKS PTY LTD and ORS [1998] NSWCA 240

TYCO AUSTRALIA PTY LTD v OPTUS NETWORKS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and GILES JJA 16 December 1998, 18 December 1998

[1998] NSWCA 240

Practice — party having experiment conducted — not yet know if will rely on report of experimenter — direction that information concerning experiment be provided to other parties — claimed to infringe client legal privilege — if did so, could not stand — whether would do so unclear — judge giving direction had no evidence or submissions to assist — direction set aside so could reconsider appropriate direction.

Akins v Abigroup Ltd (1998) 43 NSWLR 539, distinguished.

Mason P, Sheller and Giles JJA The Optus companies had computer equipment in premises at Rosebery in New South Wales. The premises had a gas fire suppression system, in the design and installation of which Leightons, Disney & Young, and Tyco were variously involved. It was alleged that, when activated, instead of releasing an inert gas the system sprayed contaminated water and a rusty sludge mixture throughout the premises and onto the computer equipment. The Optus companies claimed the costs associated with cleaning the computer equipment, said to be an amount in excess of $43,000,000. Leightons, Disney & 'Young, and Tyco cross-claimed between each other and against others involved in the manufacture, installation, and approval of the system.

The proceedings were brought in the Construction List by a summons filed on 17 November 1997. Defences, no less than ten cross-claims, and defences to cross-claims were filed, and directions were given for discovery. On 28 August 1998 the Optus companies were ordered to file and serve witness statements and experts' reports, in relation to all issues by 29 October 1998, a date subsequently extended to 19 November 1998. A number of witness statements and experts' reports were served on or shortly after that date, although it seems more are to come.