Thyssenkrupp Materials NA Inc. v. The “Stewart Island”

The Plaintiff brought this application for leave to examine the Chief Engineer of the Defendant vessel under Rule 238 of the Federal Court Rules, 1998. The Prothonotary at first instance accepted that the Chief Engineer had relevant information and that his examination would not cause undue delay, inconvenience or expense but nevertheless denied the application on the grounds that the information could be obtained from other sources such as production of documents or examination for discovery. On appeal, the appeal Judge dismissed the appeal holding that the Plaintiff had failed to demonstrate that the Prothonotary’s order was clearly wrong in the sense that it was made upon an incorrect principle of law or misapprehension of the facts.