Supreme Court New South Wales Medium Neutral Citation: Sprayworx Pty Ltd v Homag Australia Pty Ltd [2016] NSWSC 84 Hearing dates: 16 & 17 February 2016 Date of orders: 17 February 2016 Decision date: 17 February 2016 Jurisdiction: Common Law Before: Harrison J Decision: I allow paragraphs 9 and 10 of Mr Duwentäster's 15 February 2016 affidavit. Catchwords: EVIDENCE – affidavit – leave to lead evidence in proper form – whether further affidavit conforms to the terms of the grant of leave Category: Procedural and other rulings Parties: Sprayworx Pty Ltd (First Plaintiff) Nelson Pinto (Second Plaintiff) George Kanios (Third Plaintiff) Homag Australia Pty Ltd (Defendant) Representation: Counsel: J Lazarus with M Sheldon (Plaintiffs) I M Neil SC with P J Doyle (Defendants) Solicitors: Tomaras Lawyers (Plaintiffs) Schweizer Kobras (Defendant) File Number(s): 2012/141255 Publication restriction: Nil Judgment 1. HIS HONOUR: Ludger Duwentäster affirmed an affidavit on behalf of the defendant on 20 August 2015. Paragraph 100 of that affidavit is in these terms: "100 I have read all of the documents in the folder and make the following comments: 100.1 when I was at Sprayworx in November all the parts of the Machine were in good working order. There were no mechanical issues with the Machine; 100.2 I do not believe that all the parts that were replaced needed to be replaced. For example, replacing the sanding inserts were a trial and error to try to give some more pressure to improve the sanding. 100.3 in my opinion, most of the issues covered in the service reports were not caused by a problem with the Machine. They were caused by trying to compensate for the unevenness and the overspraying of the panels. For example, when extra pressure is put on the cross belt to remove the overspray, then there is too much torque on the chevron belt causing it to break or to mistrack on the last head. 100.4 in my opinion, the problems with the tracking system were caused by too much sanding pressure, which in turn destroyed the sanding belts and even the chevron belt. 100.5 the Machine 'taking off the corners', and 'digging into' the panels, were in my opinion all faults caused by too much pressure on the segmented pads; 100.6 an overload of the second head tells me there was too much pressure; 100.7 it all came back to the panels. The technicians were pushing the Machine very hard to get the finish on the panels as good as possible on these bad panels. That is, they were using the Machine to remove excessive overspray, which is not what the machine is designed to do. If the Machine is used to do this, the setting which are necessary in order to achieve it would then be inappropriate for use on flat panels or panels with minimal overspray. 100.8 in my opinion, there is just one reason for all the problems and it comes down to preparation, and in particular to storage of the panels and overspraying of the panels. In my opinion, this is confirmed by the service reports." 1. In response to objections by the plaintiffs I rejected paragraph 100.3, the first sentence of paragraph 100.7 and the whole of paragraph 100.8. I granted leave to the defendant to lead further evidence in a proper form if so advised. In response to that grant of leave the defendant sought to read the further affidavit of Mr Duwentäster affirmed on 15 February 2016. With some minor exceptions, the plaintiffs have objected to the whole of that affidavit as both going beyond the terms of the grant of leave as well as in effect raising matters that the defendant could and should have deposed to at some much earlier time. 2. In support of that last contention, the plaintiffs drew attention to the terms of an email sent to Mr Duwentäster on 2 April 2015 by Ms Henderson, the solicitor for the defendant. That email is instructive and is relevantly as follows: "Thank you for your reply. I am happy to meet you in the afternoon on 20 April. I will probably need to meet you on both days. The first to take a draft which I will send back to Australia overnight and on 21 to finalise what has been settled and fill in any gaps. Is the telephone number below the best number to call you on? We have a proposed hearing date as of yesterday afternoon. It is from 27 October 2015 to 20 November 2015. We can discuss this more when we meet. In the meantime, I have a folder of documents I would be grateful if you could read before I arrive. I will send them by Fed Ex so you should have them shortly after Easter. Should I use the address in your email below? The documents are a complete record of all the service calls and emails relating to the QCH during the time it was in operation. What we would like to get from you (and we can discuss it more when I arrive) is your opinion of what these records tell you was wrong with the machine – based both on the service records and your own observations and experience with it We are also looking to get some more detailed information from you about how panels for the high gloss industry are usually prepared compared with how Sprayworx prepares them. Thanks. I will get in contact around 15 April to finalise our meeting." 1. In his 15 February 2016 affidavit Mr Duwentäster included a review of the service records referable to the sanding machine that is the subject of these proceedings. Part of what he deposed to in that respect is as follows: "Review of service records 4. In paragraph 100.3 of my affidavit of 20 August 2013 [sic, 2015] I stated that 'most of these issues in the service reports were not caused by a problem with the Machine, but were instead caused by operators trying to compensate for poor panel preparation.' 5. I based this statement on both: (i) the way in which I observed operators using the Machine at Sprayworx; and (ii) the nature of the problems recorded in the service records for the Machine. Below, I identify the problems recorded in the service records (in bold), and comment on how those problems may have arisen." 1. It seems apparent to me that the subject matter of paragraphs 100.3 and 100.8 was a contention that overspraying of panels by Sprayworx was the central and significant present cause of the problems it experienced when using the machine. Of particular significance in this respect is the way in which Mr Duwentäster paraphrases or inadvertently misquotes the first two sentences of his original paragraph 100.3 in the quoted portion of paragraph 4 of his 15 February 2016 affidavit. This clearly indicates, together with the use of the word "instead", that Mr Duwentäster's principal focus was the issue of overspraying, and not generalised problems with the machine in other respects. 2. The obvious difficulty for the defendant in this respect is that Mr Duwentäster proceeds at some considerable length in the subparagraphs of paragraph 5 of his latest affidavit to deal in terms not with overspraying at all, but in effect with the twenty or so problems with the machine originally identified by the plaintiffs about which they complain in these proceedings. Mr Duwentäster has therefore not taken advantage of the grant of leave for the purpose intended but for an entirely different purpose. That fact alone is sufficient in my view to dispose of the defendant's application to read the latest affidavit. 3. Furthermore, it is clear that Mr Duwentäster has been in possession of the relevant service records since some time shortly after Ms Henderson's email on 2 April 2015. It would have been possible for him to have deposed unobjectionably in his 20 August 2015 affidavit to the matters that he has dealt with in paragraphs 4 and 5 of his latest affidavit. He apparently chose not to do so. It is in my opinion now too late for him to do so. In this respect I observe that counsel for the plaintiffs asserts that he would require an adjournment of some ten days or so, having regard to the state of the case at the present time, to obtain instructions about the matters to which Mr Duwentäster now refers. Senior counsel for the defendant does not concede that an adjournment of that length should be necessary but does concede that Mr Duwentäster's new material is such that the plaintiffs should be given some appropriate accommodation to deal with it. Whatever may be the correct analysis of that dispute, there is in my view no doubt that these matters should have been dealt with by the defendant's witness much earlier. Whereas an order for costs may have been an all-embracing salve to such problems in the past, it is no longer always so. The evidence of the parties in this case currently extends to twelve very substantial lever arch folders of affidavits sworn or affirmed from as long ago as 22 July 2013 to as recently as 28 January 2016. Mr Duwentäster's latter-day analysis of the service records should properly and reasonably have been included in the defendant's evidentiary collection well before now. 4. Objection was also originally taken to a portion of paragraph 95 of Mr Duwentäster's 20 August 2015 affidavit in the following terms: "In my experience, all my customers took care not to overspray and to ensure that all surfaces are sprayed with the same amount of base coat or filler." 1. I granted leave to the defendant to lead other evidence in substitution for the rejected sentence if so advised. That opportunity was taken up by the defendant. The relevant paragraphs of Mr Duwentäster's latest affidavit are as follows: "Spraying techniques used by customers 1. In paragraph 95 of my affidavit of 20 August 2015 I stated that: '[i]n my experience, all my customers took care not to overspray and to ensure that all surfaces are sprayed with the same amount of base coat or filler as far as possible.' The experience I referred to is based on the observations I made at customer sites I visited. There are several examples I could give. Most of the customers I visited would stack panels of the same size with small spacers, between two and three millimetres thick. The whole face of the top panel was then covered with a piece of paper and taped down along the edges using masking tape so that the whole top surface was covered to within a few millimetres from the edge. 2. Two customers that come to mind are Holtmann and Reinhold Mirchel. Both of these customers are located in Beckum, Germany. I have visited Holtmann approximately five times and Reinhold Mirchel about twenty times. During my visits to Holtmann and Reinhold Mirchel I observed them both using the masking technique described above when they wanted to spray only the edges and not the face of the panels. For example, when they were dealing with panels with melamine faces which did not have their edges sealed with an edgebander. 3. I also observed Holtmann and Reinhold Mirchel evenly spraying the face and edges of their panels with filler. One example of where they employed this technique was when they were dealing with raw MDF panels (with no melamine). When they did this, they applied an even coat of filler across all of these surfaces." 1. The plaintiffs complain that they cannot now verify anything said by Mr Duwentäster concerning his observations made about the spraying techniques used in these German factories. The narrow issue that appears to have a connection with this evidence is whether the representations allegedly made by the defendant about the machine upon which the plaintiffs rely were or could have been made in a context that included an understanding or expectation that the plaintiffs would use the machine on panels that may have been oversprayed. The broader issue is whether there was some kind of universal spraying technique in existence for sealing the edges of Melamine covered MDF panels and whether or not the plaintiffs failed to comply with it if there were. It is uncontroversial that Mr Duwentäster himself did not make the representations complained of and was never employed by the defendant. 2. Upon reflection it seems to me that the original sentence was objectionable on grounds of relevance and that the expanded version of the evidence on this topic suffers from the same fault. If I have correctly identified the issue to which this evidence goes, it was always within Mr Duwentäster's expertise to say, if it were the case, that the machine could never satisfactorily sand excessive overspray and/or that assiduously avoiding or limiting excessive overspray was a universal and established practice in the high gloss panel industry. The fact that a particular operator, or any operators, in that industry in Germany or in Australia operated in a particular fashion to eliminate or limit overspray on panels would not establish the proposition in question. I have elsewhere rejected the affidavit of Mr Antonio Arena dated 9 September 2015 for a similar reason. 3. In the circumstances I consider that the further evidence in paragraphs 1 to 3 inclusive of Mr Duwentäster's latest affidavit should be rejected. 4. Penultimately, Mr Duwentäster purports to comment upon photographic exhibits in the Court Book. He does not appear to do so in response to any particular grant of leave. His evidence about these matters in paragraph 6 of his latest affidavit should therefore be rejected. 5. Finally, Mr Duwentäster deals with chevron belts at paragraphs 7 and 8 of his latest affidavit. He does not appear to do so in response to any relevant grant of leave. The evidence appears on one view to be unexceptionable in the evidentiary scheme of the present contest and also quite helpful as an explanation of part of the machine sanding process. However, if the plaintiffs maintain their objection to this material I would reject it. 6. No objection is taken to paragraphs 9 or 10 of Mr Duwentäster's latest affidavit. Those paragraphs are therefore read by the defendant and I allow them. 7. In summary, with the exception of paragraphs 9 and 10 of Mr Duwentäster's 15 February 2016 affidavit, it is otherwise rejected. ********** 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: 19 February 2016