Supreme Court New South Wales Medium Neutral Citation: Luxon v SC (Melbourne) Pty Ltd [2015] NSWSC 1012 Hearing dates: 23 July 2015 Date of orders: 27 July 2015 Decision date: 27 July 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Ordered that the defendants give the plaintiffs discovery of: In the period 1 February 2005 to the date of the commencement of these proceedings: (1) All documents recording or referring to any complaints, defects, claims, recalls, or notices to customers in relation to any component which the Second Defendant on 16 November 2011 said in a rare number of cases may over-heat and ignite inside the Sony Bravia KDL-40W3100 model. (2) All documents recording or referring to any complaints, defects, claims, recalls, or notices to customers arising from or in relation to the risk or alleged occurrence of fires within or caused by any Sony Bravia television models available for purchase in Australia as at February 2008. Catchwords: PROCEDURE – notice of motion – discovery of documents – documents sought not oppressive – order sought granted – costs Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Peter Luxon (First Plaintiff) Sheryl Luxon (Second Plaintiff) SC (Melbourne) Pty Ltd (ACN 094 130 695) (First Defendant) Sony Australia Limited (ACN 001 215 354) (Second Defendant) Representation: Counsel: Mr D Lloyd (Plaintiffs) Mr P Dodson (Defendants) Solicitors: Lee & Lyons (Plaintiffs) Curwoods (Defendants) File Number(s): 2014/172517 Publication restriction: None Judgment 1. These proceedings concern a claim brought by Mr and Mrs Luxon that in June 2008, a defective component in a Sony television set caused a fire at their home, resulting in extensive damage. In November 2011, they received a notice from Sony advising them of a potential problem with a component in the TV, which had been identified might contain a component affected by a quality issue, which "in a rare number of cases may over-heat and ignite inside the television and may possibly result in the melting of the upper rear casing of the TV". 2. Mr and Mrs Luxon seek damages for various breaches of the Trade Practices Act 1974 (Cth), alleging that the television was not of merchantable quality and was defective; for breach of contract, alleging that the television was not fit for purpose or of merchantable quality; and in negligence, alleging failure to inspect and test the television prior to sale, or to ensure its safety. 3. By their defences, the Sony companies plead a limitation defence, although they accept that the November 2011 notice amounted to a relevant admission, that is, a previous presentation adverse to their interest in the outcome of the proceedings (see the definition of "admission" in the Dictionary to the Evidence Act 1995 (NSW)). The limitation defence is of little relevance, given that it was not suggested that it applied to the contractual claim. 4. There is now a disagreement between the parties about discovery. By a motion filed in July 2015, Mr and Mrs Luxon seek an order for discovery, which Sony claims is too wide. Discussions between the parties brought them closer together, but there was no agreement. 5. The classes of discovery for which they finally respectively pressed were: Mr and Mrs Luxon "(1) All documents recording or referring to any complaints, defects, claims, recalls, or notices to customers in relation to any component which the Second Defendant on 16 November 2011 said in a rare number of cases may over-heat and ignite inside the Sony Bravia KDL-40W3100 model. (2) All documents recording or referring to any complaints, defects, claims, recalls, or notices to customers arising from or in relation to the risk or alleged occurrence of fires within or caused by any Sony Bravia television models available for purchase in Australia as at February 2008." Sony "A. All documents which came into the possession of either defendant between 1 January 2005 and 30 June 2008 which: (a) record or refer to complaints, claims or reports of the occurrence or risk of fire commencing within a television set of the specific models; (b) record or refer to defects which capable of causing or which have caused the occurrence or risk of fire commencing within a television set of the specific models; (c) include or provide notice to customers reporting or warning of the occurrence or risk of fire commencing within a television set of the specific models; where the specific models are Sony Bravia models KDL-40W3100, KDL-40X3100, and KDL-40D3100 LCD sets available for purchase in Australia in February 2008. B. All documents which record or refer to the existence of a defect capable of causing fire to commence within the television set purchased by the plaintiffs, or by Jason Luxon, and sold by the first defendant to them or him on 11 February 2008 at the first defendant's retail premises in Chapel Street, Prahran, Victoria." 1. The parties relied on various affidavits and documents, including, in Sony's case, a short affidavit sworn by Mr Harris, a technical manager, in which he deposed that up to 28 models of Sony Bravia television sets were sold as at 2008, of which 8 had 40 inch LCD screens and others ranged in size from 20 to 70 inch. The relevance of the screen size is not apparent. The affidavit said nothing about which of these models used components of the kind which caused the 2011 notice to be sent to Mr and Mrs Luxon, or anything as to which, if any of them, had given rise to other claims of having caused fires. 2. On Sony's case, the real issues raised by the negligence claim were whether it knew or ought to have known of the risk that any 40 inch models in the Bravia range might catch or cause a fire, which would justify particular testing and inspection of components. The real issues raised by the contract and Trade Practices claims were whether as a matter of objective fact, the television set which Mr and Mrs Luxon acquired contained a defect, as defined, or which made it unfit for purpose or unmerchantable. Its knowledge about other television sets was irrelevant, it was submitted, to the question of whether the television was defective. 3. Thus it was important, Sony argued, to distinguish between the discovery sought in respect of the tortious claim on the one hand and the Trade Practices Act and contract claims on the other. This was because documents coming to Sony's attention after the fire could not be relevant to its knowledge, duty or the reasonableness of its conduct, at the time of the alleged negligence. 4. These submissions cannot be accepted. 5. As the parties each accepted, the two categories which they each advanced, overlap. That underscores the artificiality of seeking to distinguish between the claims in negligence on the one hand, from the claims in contract and under the Trade Practices Act on the other, by reference to the two categories. It can readily be envisaged, for instance, that a document discoverable under the second category pursued by Mr and Mrs Luxon which, for example, revealed that in 2007, other televisions were recalled because of a fire, might be relevant to the claim that the television Mr and Mrs Luxon acquired in 2008, had not been properly inspected and tested. 6. As Sony submitted, the claim advanced against them in negligence concerns not only what they knew at the relevant time, but also what they ought to have known. The discovery pressed for Mr and Mrs Luxon captures not only documents which came to their attention after the fire, but also those they created themselves. A document brought into existence after the fire could conceivably shed light both on what was in fact known, or by inference, what ought to have been known at the time of the fire. A reference in a later document to concerns raised about the existence of defects and their potential consequences before the fire is an obvious example of a later created document which would shed light on what was known before the fire. It is not necessary to give examples of later created documents which might give rise to inferences that relevant things ought to have been known before the fire. 7. That the production which Mr and Mrs Luxon finally pressed is too wide, may not be accepted. 8. Under Rule 21.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court may order that discovery of particular classes of documents be given. As specified in Rule 21.2(3), a class of documents may be relevant to one or more facts in issue. The discretion to limit discovery must be exercised, in accordance with s 56 of the Civil Procedure Act 2005 (NSW), which requires the Court to facilitate the overriding purpose, namely, "the just, quick and cheap resolution of the real issues in the proceedings". Account must also be taken of the objectives specified in s 57, which includes what the just determination of the proceedings requires. The Court must also act in accordance with the dictates of justice (s 58). 9. The evidence led by Sony does not suggest that what was sought to be discovered was oppressive. The case it pressed was that the discovery sought was too wide and in part irrelevant. These arguments were advanced, by reference to the nature of Mr and Mrs Luxon's claims and the screen size of the television they bought. Screen size is of no apparent relevance. The two categories of discovery pressed are on their face both relevant to the entirety of what lies in issue between them, that is, to material allegations relating to the substance of the dispute in contract, negligence and under the Trade Practices Act. 10. Under Rule s 21.1(2), relevance depends on a document containing material that could rationally affect the assessment of the probability of the existence of facts in issue, irrespective of whether or not the document would be admissible in evidence. Thus, documents which might throw light on the case, whether they advance Mr and Mrs Luxon's case or are detrimental to it, are all discoverable. 11. The parties finally identified that it was the restriction of documents in category 1 pressed for Mr and Mrs Luxon, to documents which came into existence before the fire, about which they could not agree. 12. The documents in that category were pressed by Mr and Mrs Luxon on the basis that they related not only to the claims they advanced in negligence, but also under the Trade Practices Act and contract. That must be accepted. 13. A document which, for example, revealed that Sony had admitted, as the November 2011 notice sent to Mr and Mrs Luxon did, that the television might have a component affected by a quality issue, which could cause it to overheat and ignite inside the television, is a document relevant to the claims advanced in contract and under the Trade Practices Act, that the television had a defect and was not of merchantable quality. 14. That is a document which falls into category 1. Mr and Mrs Luxon are entitled to pursue other documents which fall into that category, even if not admissible, in relation to the claim pressed in negligence. 15. In the result, it is not appropriate, in the absence of evidence, agreement or any suggestion of oppression, to restrict category 2 to models which contained a component of the kind which was the subject of the November 2011 notice. This was something I raised at the hearing, but was finally not agreed. Sony could have led evidence from Mr Harris about this, but did not. He was not available for cross-examination and in the circumstances, I do not consider it just to limit category 2 in that way, absent an opportunity to question him or agreement being reached between the parties. Costs 1. The usual order as to costs is that they follow the event. Unless the parties approach to be heard within 7 days, the Court's order will be that the defendants bear the plaintiffs' costs of the motion. Orders 1. For the reasons given, I order that the defendants give the plaintiffs discovery of: In the period 1 February 2005 to the date of the commencement of these proceedings: 1. All documents recording or referring to any complaints, defects, claims, recalls, or notices to customers in relation to any component which the Second Defendant on 16 November 2011 said in a rare number of cases may over-heat and ignite inside the Sony Bravia KDL-40W3100 model. 2. All documents recording or referring to any complaints, defects, claims, recalls, or notices to customers arising from or in relation to the risk or alleged occurrence of fires within or caused by any Sony Bravia television models available for purchase in Australia as at February 2008. ********** Amendments 29 July 2015 - Amendment made to the orders DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2015