Problem question on identifying and gathering evidence in civil proceedings

Banksia Industries produces special high-strength alloys for use in the construction of submarines. The company holds a patent for its unique system of heat-treatment which gives the steel its strength. It has recently commenced action against another company, Lillypilly Limited, claiming that it has used the same process in breach of Banksia's patent. Banksia believes that a series of internal emails between members of Lillypilly's R&D division may be relevant to ascertaining whether a breach of patent has occurred, although it can't specify specific emails. Additionally, in their defence, Lillypilly Limited has referred to two letters between the company and an external engineering consultancy firm, Brereton & Sons. Banksia wishes to obtain access to both sets of documents.

1. What would be the best way for Banksia Industries to obtain access to the emails? What documents would they need? Reference the UCPR.

2. What would be the best way for Banksia Industries to obtain access to the letters referred to in Lillypilly's pleadings? What document/s would they need? Reference the UCPR. Banksia Industries also seeks to commence action against Walther O'Reilly, a former employee who defected to Lillypilly Limited in breach of a non-compete clause in his employment contract. However, Walther has recently gone to ground, and Banksia Industries cannot ascertain his whereabouts for purposes of serving a statement of claim. It is known that he has a close relationship with his mother.

3. How might Banksia Industries go about ascertaining Walther's whereabouts? What document/s would they need? At the trial, Lillypilly Industries relies in part upon an affidavit from John Brereton, the chief engineer of Brereton & Sons, that the process of heat-treatment they have developed is unique and does not resemble that of Banksia Industries. The affidavit itself follows on the next two pages.

4. What are some of the problems with this affidavit? Reference the relevant UCPR rules.

5. Banksia Industries wants the opportunity to cross-examine John Brereton as the deponent of the affidavit. Can a deponent of an affidavit be cross-examined after they have made their affidavit? Reference the relevant legal rules.

AFFIDAVIT COURT DETAILS Court Supreme Court Division Equity List Technology & Construction Registry Sydney Case number 10001/100001 TITLE OF PROCEEDINGS [First] plaintiff Banksia Industries [First] defendant Lillypilly Limited FILING DETAILS Filed for Lillypilly Limited, defendant Filed in relation to Plaintiff's claim Legal representative Steve Ryan - Ryan, Baker & O'Malley Lawyers Legal representative reference GAS.AEB.123456789 Contact name and telephone Alexandra Bartlett, (02) 9516 3467 Contact email abartlett@RBOM.auAFFIDAVIT Name John Brereton Address 23 Paisley Street, Bondi Occupation Engineer Date 23 March 2022 My name is John Brereton. | am the Chief Engineer of the engineering consultancy company Brereton & Sons. | was born on 4 August 1967. | was approached on 7 May 2020 by Lillypilly Limited, a metal alloys business, to provide advice as to whether or not their technique for heat- treating a nickel and molybdenum alloy breached a patent (patent no 126395) held by Banksia Industries. | attended the plant of Lillypilly Limited on May 21 2020 and saw the process of heat treatment in action. On May 22 | consulted with Jim Taylor, the head of Lillypilly Limited''s Research and Development division. Additionally, | have exchanged emails with several individuals in the Research and Development Division between May 23 and June 30. On the basis on my observations, | advised Lillypilly Limited in two letters (dated 5 August and 7 August) that their process of heat-treatment is completely different from the registered patent of Banksia Industries. Signed, John Brereton, 23 March 2022