Allen v Merym Pty Ltd t/as EMCO BUILDING [No 2] - [2022] WADC 45

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ALLEN -v- MERYM PTY LTD t/as EMCO BUILDING [No 2] [2022] WADC 45
CORAM:   COMMISSIONER COLLINS
HEARD:   7-11, 14-15 FEBRUARY, 5 MAY 2022; WRITTEN SUBMISSIONS 21 & 24 FEBRUARY, 8 & 11 MARCH, 26 & 29 APRIL, 2 MAY 2022
DELIVERED          :   23 MAY 2022
FILE NO/S:   CIV 1102 of 2019
BETWEEN:   ROBERT PAUL ALLEN
Plaintiff
AND
MERYM PTY LTD t/as EMCO BUILDING
First Defendant
AXS ACCESS MANAGEMENT PTY LTD
Second Defendant
PAUL HOUGH AND GAETANA FUCILE t/as UNIQUE SCAFFOLDING
Third Defendant

Catchwords:

Practice and procedure - Leave to reopen - Discovery - Turns on own facts

Legislation:

District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application for further discovery allowed

Representation:

Counsel:

Plaintiff	:	Mr K S Pratt
First Defendant	:	Mr J J Sheldrick
Second Defendant	:	Mr C C Rimmer
Third Defendant	:	Mr A A Nolan

Solicitors:

Plaintiff	:	Hoffmans Lawyers
First Defendant	:	Meridian Lawyers (Perth)
Second Defendant	:	Sparke Helmore Lawyers
Third Defendant	:	McCabes

Case(s) referred to in decision(s):

Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217
Matson v Attorney-General [2020] FCA 1558
Osborne v Landpower Developments Pty Ltd (in Liq) [2003] WASCA 117
Perpetual Trustees Co Ltd v Burniston [2012] WASC 26
Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18
Singh v Friedman [2013] WASC 78
Tremeer v City of Stirling [2002] WASCA 281

COMMISSIONER COLLINS:

Introduction

The plaintiff has applied for an order requiring the first defendant to provide further and better discovery in relation to between 1,000 to 2,000 photographs of the Claremont Football Ground construction site, which were mentioned by a witness during the trial of the matter. The plaintiff has also sought orders requiring the first defendant to file and serve a list of documents in its possession, verified by affidavit, relating to the action. The plaintiff's application also sought an order to reopen his case.
The plaintiff's application was brought by way of chamber summons filed on 13 April 2022. This was some two months after judgment was reserved following a trial as to liability that took place over seven days between 7 and 15 February 2022. The plaintiff's application was supported by an affidavit from Murray Thomas Posa and written submissions. Objection was taken to the admissibility of parts of Mr Posa's affidavit (POS), on which I ruled during the hearing. The defendants did not file any affidavit evidence, but filed written submissions.
I presided over the hearing of the plaintiff's application on 5 May 2022. As matters developed during the hearing, it became clear that the central issue was whether orders for further and better discovery ought to be made. The first defendant opposed the plaintiff's application. The second and third defendants neither consented to, nor opposed the plaintiff's application. It was common ground between the second and third defendants that any application to reopen the plaintiff's case ought to await the production and inspection of photographs, the subject of further and better discovery.
For the reasons that follow, I have determined that the plaintiff's application for further and better discovery should be granted, while the plaintiff's application for leave to reopen should be adjourned, pending review and inspection of the discovered documents.

General background

The litigation arises out of an action commenced against the first defendant in March 2019 in relation to injuries the plaintiff sustained in an accident at the Claremont Football Ground, located at Davies Road, Claremont. The plaintiff alleges that he was injured on 9 January 2017 in the course of his employment with Chan Corporation Pty Ltd, relating to the redevelopment of the Claremont Football Ground in 2016 and 2017. The plaintiff subsequently joined the second and third defendants as defendants to the action.
Broadly speaking, the first defendant is a construction company that was engaged to perform redevelopment works at the Claremont Football Ground. The first defendant engaged the second defendant to supply scaffolding to be erected for the works. The second defendant engaged the third defendant to erect the scaffolding at the Claremont Football Ground.
The trial of the matter was heard by me between 7 and 15 February 2022. By the conclusion of the final sitting day, all parties had closed their cases and orders were made for written closing submissions to be filed on or before 11 March 2022 with written responsive submissions to be filed on or before 8 April 2022. Oral closing submissions were scheduled to be heard on 9 May 2022. As at the date of the plaintiff's chamber summons, all parties had filed both their written closing submissions and written reply submissions.

Background to the plaintiff's application for discovery

The plaintiff supported his discovery application with an affidavit from Mr Posa, the principal solicitor for the plaintiff who had carriage of the matter. In his affidavit, Mr Posa set out a detailed chronology of the plaintiff's attempts to obtain documents from the first defendant before the matter went to trial. I summarise Mr Posa's evidence below.
On 1 October 2020, the first defendant provided discovery by a list of documents to the plaintiff. The list was not verified by affidavit. The list did not include any photographs: POS, par 3.
I observe here that the first defendant filed its defence in early July 2019. It is not clear to me why the first defendant provided informal discovery only, more than 15 months after filing its defence. Having regard to the District Court Rules 2005 (WA) (DCR), in particular, Rule 46 referred to below, the first defendant's discovery was more than a year late.
By email dated 22 February 2021, a solicitor for the first defendant, Jack Davies of Meridian Lawyers, provided Mr Posa and others with a (single) photograph of the site. I note that the email says, amongst other things, 'this was in response to photographs discovered by others': POS, par 4.
By email dated 14 December 2021, Mr Davies provided two photographs of the site to Mr Posa and others. Mr Posa deposes that at that time, the first defendant had only discovered three photographs in total: POS, par 5.
Approximately a month before the trial, by email dated 12 January 2022 from Mr Posa to Mr Mark Birbeck (a principal at Meridian lawyers) the plaintiff asked the first defendant to discover several categories of documents 'immediately': POS, par 6.
By email dated 13 January 2022, Mr Davies emailed Mr Posa and provided him with a further photograph of the site: POS, par 7. The photograph showed the site at 25 October 2016. In his affidavit, Mr Posa notes that this photograph is an exhibit in the trial of the action, being exhibits 1.9.4.1 and 1.9.4.2.
By a later email dated 13 January 2022, Mr Birbeck informed Mr Posa that his firm was making urgent enquiries with his client (the first defendant) and would get back to Mr Posa as soon as he could: POS, par 8.
By a further later email dated 13 January 2022, Mr Posa wrote to Mr Birbeck and the solicitors for the second and third defendants and noted that there had not been any discovery of emails from Mr Derrick Campbell or any correspondence by him in relation to either his email account or in relation to matters concerning safety following the accident on 9 January 2017. Mr Posa said in his email that he looked forward to further discovery: POS, par 9.
I note here that Mr Campbell was, at the relevant time, employed by the first defendant as the site supervisor. In particular, Mr Campbell was the site supervisor at the time that the plaintiff was allegedly injured at the Claremont Football Ground in January 2017. The absence of any documents from Mr Campbell was, given his role on the project, unexpected to say the least.
By email dated 14 January 2022, Mr Posa emailed Mr Birbeck and others and sought a copy of Mr Campbell's curriculum vitae and employment contract - given that he was the site supervisor at the time of the accident: POS, par 10.
By a later email dated 14 January 2022, Mr Davies emailed Mr Posa and others and provided a copy of various minutes of toolbox meetings that occurred at the site. In his email, Mr Davies stated that 'we' had been instructed that Mr Campbell 'would not' have sent any emails concerning safety matters on site, and stated that this would be verified 'next week'. His email also stated that his client was reviewing for further photographs and he would provide an update 'next week': POS, par 11.
By email dated 21 January 2022, Mr Posa sought information about four photographs taken in October, November and December 2016. The request included information about whether the photographs were taken on the same camera, the identity of the owner of the iPhone 5S (upon which the photographs had been taken) and the identity of the person who took the photographs: POS, par 12.
By later email dated 21 January 2022, Mr Davies responded to Mr Posa's email and stated as follows:
1.whether the photographs were taken on the same camera;
Our client can't confirm or deny this. More than one employee of the defendant owned an iPhone 5S at the time.
2.the identity of the owner of the iPhone 5S;
Due to there being more than one iPhone 5S in circulation, this is not able to be verified.
3.the identity of the person who took the photographs.
Same as above.
Later in his email, Mr Davies said that the location of the iPhone 5S was not known and 'presumed destroyed' due to the first defendant's employees upgrading to newer iPhones. His email stated further: 'It is therefore not possible to identify and produce all other photographs of the site taken on that camera'. Later, his email stated: 'Our client is however undertaking searches to uncover all photographs of the site taken': POS, par 13.
As may be observed, Mr Davies' responses seem simplistic. It seemed to be reasonably obvious that taking photographs of the site were part of the first defendant's day-to-day practice of managing and monitoring the site (possibly for security reasons, assessment of claims for progress, time and cost, assessment of other claims etc as is often the case on construction sites). This is borne out by the set of photographs ultimately discovered and their sequential numbering.
By email dated 28 January 2022, Mr Davies emailed Mr Posa and others attaching the first defendant's supplementary list of discovered documents, together with access to those documents: POS, par 14. In his email, Mr Davies stated 'while some of the images in particular would not be relevant, we are providing copies in the interest of full disclosure'.
I observe that the first defendant's supplementary list of discoverable documents includes 12 or more emails from Mr Campbell both in relation to the incident on the site on 9 January 2017 and also more broadly. I also observe that the first defendant's supplementary list of documents includes 54 photographs. The photographs were listed in the following format: IMG_1235, 06.02.2017, commencing at IMG_0421. Many of the photographs bear dates that are a Tuesday - e.g. 11, 25 October, 8, 15, 22 November, 6 December 2016. This tends to suggest that the first defendant had a practice: e.g. weekly or fortnightly photographs were taken of the site as part of an employee's duties. What that practice was, and why it was required, was not explored during the hearing of this application. In any event, the numbering of the photographs and their dates suggest that the first defendant was not simply taking photographs of the construction site at random.
It also seems implicit in the first defendant's numbering that within the list of photographs, there were originally, at least 800 photographs (0421 to 1235) and possibly more. The first defendant did not explain what happened to the first 420 photographs (i.e. 0 to 420) or how the 54 photographs related to the photograph numbering (0421 to 1235). The first defendant did not seek to explain the photograph numbering.
Mr Posa gave evidence to the effect that on the basis of Mr Davies' email, he concluded that no more photographs existed: POS, par 15. I observe here that Mr Posa referred to the first defendant's supplementary list of discovery as containing 43 photographs. As I have already indicated, I calculated 54 photographs. I think Mr Posa's calculation may simply involve an arithmetical error. In any event, it is not material to the application.
By email dated 30 January 2022, Mr Posa emailed Mr Davies and the other defendants regarding the first defendant's supplementary discovery: POS, par 17. In particular, Mr Posa complained about the first defendant's late discovery of emails from Mr Campbell, which Mr Posa said only occurred because they were generally revealed by way of a subpoena directed at a third party, Safety Solutions. He also stated that given the late provision of the documents so close to the impending trial (one week from the commencement of the trial), he reserved all rights, including the right to adjourn the trial, at the first defendant's expense.
By email dated 31 January 2022, solicitors for the third defendant (Mr Paparone of McCabes) wrote to Mr Davies, Mr Birbeck, Mr Posa and solicitors for the second defendant (Mr Rimmer of Spark Helmore) asking the first defendant to provide a sworn affidavit of discovery by the close of business on 2 February 2022: POS, par 18.
By a later email, Mr Davies emailed Mr Posa and sought to explain the first defendant's late discovery: POS, pars 19 - 20. In his email, he stated that:
the first defendant only became aware of the existence of the emails after a search through an online server which was not simple or straightforward to navigate. Documents then had to be recalled and downloaded from there.
By email dated 2 February 2022, Mr Posa emailed Mr Davies stating that the late production of documents had obviously deprived the plaintiff of an ability to interrogate the photographs: POS, pars 21 ‑ 22. Mr Posa asked Mr Davies to identify the person who had taken the photographs dated 9 January 2017, being the date of the accident.
By a later email dated 2 February 2022, Mr Davies emailed Mr Posa and set out when the first defendant had responded to the plaintiff's various requests for documents: POS, par 23. At the bottom of Mr Davies' email, was the following:
In light of the above, it seemed appropriate to disclose the further photographs containing scaffolding as a consequence of those further searches and further and better discovery requests.
Mr Davies' email referred to five requests for further documents made between 12 January and 21 January 2022 in relation to various documents including photographs of the site.
By email dated 3 February 2022, Mr Posa wrote to Mr Davies stating that his questions had not been answered. He again asked who had taken the photographs on 9 January 2017, being the date of the accident. He also raised a number of other questions. In his email, he also stated that the proper preparation of the plaintiff's case was being frustrated by the first defendant's approach to discovery: POS, par 24.
By email dated 4 February 2022, Mr Davies responded to Mr Posa's request stating that it was his firm's view that Mr Posa's request for the identity of the photographer on 9 January 2017 was in fact a request for evidence and that 'it is therefore our view that our client is not obliged to provide the requested particulars': POS, pars 25 ‑ 26.
It seems that Mr Davies thought it appropriate to withhold and/or not disclose the name of the person who took the photographs or not to use his best endeavours to determine the identity of the photographer. In my view, Mr Davies' response was wrong, on a number of levels. It certainly did not assist in the efficient conduct of the matter. Such an approach to litigation is decidedly unhelpful and counterproductive and leads the parties to unnecessarily incur costs and delay.
As Mr Posa observed in one of his earlier emails to Mr Davies, quoting the Western Australian Court of Appeal in Tremeer v City of Stirling [2002] WASCA 281 [33]:
Litigation is not a game, played for the amusement of the lawyers engaged to conduct it, in which they are free to take advantage, in any way they like, of errors, incompetence or dilatoriness on the part of their opponents.
In the application for further and better discovery, Mr Posa included part of the transcript of the hearing from 11 February 2022, when Mr Morrison gave evidence on behalf of the first defendant: POS, pars 27 - 28; ts 454 - ts 462. Mr Morrison said he was the first defendant's compliance officer and gave evidence about how he had located between 1,000 to 2,000 photographs on the first defendant's computer system. He said that he had given the 1,000 to 2,000 photographs to the first defendant's solicitors (Meridian Lawyers). Mr Morrison was shown the first defendant's book of documents and asked to explain how the photographs came to be included in that book. His evidence was to the effect that he had identified about 50 photographs for the period approximately August 2016 to March 2017. He did not say how or why he chose the 50 or so photographs, other than by reference to the date August 2016 to March 2017 and the site at Davies Road, Claremont. He also said that he did not review the properties of all of the other photographs (ts 459).
I observe here that no evidence was led as to how or why Mr Morrison selected or deselected the photographs, other than by date range. I also observe that without looking at each photograph and its properties, it is not clear to me how Mr Morrison was able to determine the dates of the other photographs. The first defendant did not provide any evidence about these matters at the discovery hearing, even though it was aware that the plaintiff sought orders for the 1,000 to 2,000 photographs which Mr Morrison had referred to in his evidence.
Mr Posa also included part of the transcript concerning the evidence of Mr Campbell, who also gave evidence on 11 February 2022: POS, par 29; ts 480. Mr Campbell's evidence on this issue was to the effect that he had taken many photographs walking around the site. His photographs were uploaded to the main computer drive of the first defendant, because 'that's generally what we do on every job'.
About 12 days after the conclusion of the trial, by email dated 27 February 2022, Mr Posa wrote to Mr Davies and requested the '1,000 to 2,000 photographs' which Mr Morrison had referred to during the trial: POS, par 31.
By email dated 1 March 2022, Mr Davies responded, stating that Mr Posa appeared to be 'making a request for discovery of photographs after the parties had closed their respective cases' and ultimately refused Mr Posa's request: POS, par 32.
Between 2 March and 5 April 2022, Mr Posa and Mr Davies exchanged eight emails on the subject. In summary, Mr Posa asked Mr Davies for the photographs referred to by Mr Morrison and Mr Davies refused the request: POS, pars 34 - 41. In his email of 8 March 2022, Mr Davies stated that: 'we do not have (nor have we had) discoverable photographs that have not already been discovered'.

Plaintiff's submissions - application for further discovery

At the discovery hearing, the plaintiff's fundamental contention was that the first defendant had not complied with its discovery obligations under the relevant rules, by which it was required to discover all relevant documents in its possession, custody or control. In support of his contention, the plaintiff referred to several examples contained in Mr Posa's affidavit.

The plaintiff's submissions also focussed on the first defendant's failure to discover particular photographs. The plaintiff's principal submissions as to this issue may be summarised as follows:
(a)the plaintiff first sought discovery of photographs of the Claremont Football Ground taken during the period August 2016 to March 2017, about a year prior to the trial of the matter and made ongoing requests in the lead-up to the trial;
(b)up until shortly before the commencement of the trial, the first defendant had provided the plaintiff with four photographs only;
(c)Mr Morrison gave evidence at the trial of the matter on behalf of the first defendant. Mr Morrison was at the time the first defendant's compliance officer. Mr Morrison was given the task of gathering and collating all photographs associated with the construction at the Claremont Football Ground during 2016 and 2017;
(d)Mr Morrison identified about 1,000 to 2,000 photographs showing the site at Davies Road, Claremont and provided them to the solicitors for the first defendant;
(e)Mr Morrison identified about 50 or so photographs which he thought were relevant to the period August 2016 to March 2017;
(f)Mr Morrison did not review the properties of all of the photographs;
(g)the first defendant then provided the plaintiff with these 50 or so photographs about a week before the trial commenced, but withheld the balance of the 1,000 to 2,000 photographs; and
(h)the first defendant has not explained the steps it took to satisfy itself that the balance of the photographs were not relevant to the matters in issue in the proceedings or otherwise discoverable.
The plaintiff sought orders requiring the first defendant to produce the 1,000 to 2,000 photographs which Mr Morrison mentioned when giving evidence during the trial of the matter, together with a list of discovered documents verified by affidavit.
If successful, the plaintiff proposes that it be given time to review the newly discovered photographs and determine whether it will be necessary for it to reopen its case, which may include seeking leave to cross‑examine Mr Morrison and/or Mr Derrick Campbell based on those further documents.

Defendants' submissions in relation to application for further discovery

The first defendant submitted that the plaintiff had not established reasonable grounds for the court to be fairly certain that there were photographs depicting the west, south or north scaffolding at the construction site between 1 August 2016 and 1 February 2017. The submission rested, in part, on the cross‑examination of Mr Morrison. The first defendant submitted that during cross‑examination, Mr Morrison was not asked questions about the omitted photographs and whether they were photographs of the west, south or north scaffolding. The first defendant further submitted that the plaintiff had not demonstrated why all of the photographs of the Claremont Football Ground were relevant (some of which may not include the scaffold), particularly in light of the limited cross‑examination as to the photographs. In summary, the first defendant contended that it had provided full disclosure.
The second and third defendants submitted that they neither consented to, nor opposed the plaintiff's application for further and better discovery and associated orders. Further, both defendants submitted that the plaintiff's foreshadowed application for leave to reopen should be adjourned, pending production of the photographs and the parties having a reasonable opportunity to inspect them.

Legal principles - discovery

The legal principles in relation to an application for further discovery were not in dispute. See generally Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [26] ‑ [37] (Edelman J) (Perpetual); Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18 [12] ‑ [16] (Le Miere J); Singh v Friedman [2013] WASC 78 [3] - [7] (Allanson J). They can be stated shortly as follows.
First, the onus is on the party seeking further discovery to satisfy the court that the orders should be made.
Secondly, an application for further discovery under O 26 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC) involves the satisfaction of three matters:
(a)the court having reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence;
(b)the documents sought being relevant to a matter in issue in the action; and
(c)the documents ought to have been disclosed.
Thirdly, further discovery may be ordered under O 26 r 6 or O 26 r 7 of the RSC or the inherent jurisdiction of the court. There is a very close relationship between O 26 r 6 and O 26 r 7(3). Whichever of the three sources of power is relied upon, an applicant must satisfy the above three requirements.
Fourthly, whether a document is relevant to a matter in issue is to be determined by reference to the pleadings, but regard must also be had to the conduct and admissions of the parties and the nature of the action.
Fifthly, whether a document is relevant is, of course, a reference to documents which may either (a) advance a party's case or damage his or her opponent's case or (b) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case.
Sixthly, the power to order further discovery is discretionary. The court will only exercise its discretion to order further and better discovery, or discovery of specific documents, if it is necessary for the fair and just determination of the issues in contention and for the preparation of, or for the conduct of, the case at trial.
Seventhly, one matter relevant to the exercise of the discretion is whether the production of the documents would be unnecessary or oppressive. Here, there was no suggestion that it would be oppressive to provide the documents sought.
Over the years, many senior judges in this State have referred to the importance of proper discovery to the administration of justice. In Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217, his Honour, Murphy JA, heard an application for further discovery under O 26 r 6. In that case, Murphy JA referred to some of the same above principles. He also referred to the importance of the discovery process to ensuring the parties are accorded a fair trial. In this regard, Murphy JA stated that:
19The discovery process is very important in ensuring that the parties are accorded a fair trial. Litigants will lose confidence in the courts' processes and decisions if they think that a party might avoid giving proper discovery and not be later held to account: Brookfield v Yevad Products Pty Ltd [2004] FCA 1164 [394].
20A failure to give proper discovery affects both the demands of justice in the individual case, and the public interest in the administration of justice generally: Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134, 141 ‑ 142.
21If available, relevant evidence is withheld from a court, the factfinding task of the court will be seriously compromised and there is a real possibility of the court being misled: Hong Kong Bank of Australia Ltd v Murphy [1993] 2 VR 419, 439.
In the same case, Murphy JA also referred to the purpose of verifying a list of documents to be discovered in the following terms:
25The purpose of verification of a list of documents is to ensure that the court is provided with a reliable list of documents. The responsibility of providing a reliable list of documents is a heavy one: Brookfield v Yevad Products Pty Ltd[2002] FCA 1376 [21].
26The swearing of an affidavit of discovery is a solemn occasion, and for a purpose which requires careful deliberation, both by the client giving discovery and its solicitors. Lander J in Brookfield v Yevad Products Pty Ltd [2004] FCA 1164 said:
'The integrity of the discovery process must be maintained. The discovery process in many ways depends upon the honesty of the parties and their legal advisers. It is essential for the administration of justice that the parties' legal advisers properly instruct their clients as to their responsibilities in the discovery process. The parties must be instructed on the issues in the litigation, including the issues raised by their opponents' pleadings. They must be instructed as to what documents are relevant for the purposes of discovery. They must be encouraged to open up their documents for assessment by their own legal advisers. If the parties are not mindful of the heavy responsibility that lies upon them, including the responsibility to discover and provide production of documents which might be destructive of their own case, then it is likely that the parties might fail to discover those documents [368] - [369]'.
27Generally, and subject to limited exceptions, a party's affidavit of discovery is 'conclusive', as against the other party, including on the question of whether the party giving discovery has or has had in its possession, custody or power any relevant documents other than those discovered: Mulley & Marney v Manifold [1959] HCA 23; (1959) 103 CLR 341. With respect to the party giving discovery, the affidavit of discovery is an admission, on oath, of such matters.
Rule 46 of the DCR amends the application of RSC O 26 to the District Court. Ordinarily, parties to an action 'must give each other discovery of all documents that are or have been in the party's possession, custody or power relating to any matter in question': Rule 46(2) of the DCR. The discovery must be given by all parties within 60 days after the first defence is filed: Rule 46(4) of the DCR. And, discovery must be by way of affidavit, unless the parties agree otherwise: Rule 46(3) of the DCR. The ordinary application of Rule 46 of the DCR is subject to the District Court's case management powers, as found in Rule 24 of the DCR.

Legal principles - leave to reopen

Ordinarily, the court has a discretion whether to allow a party to adduce further evidence, once a party has closed its case. In Osborne v Landpower Developments Pty Ltd (in Liq) [2003] WASCA 117, McLure J canvassed some of the principles that applied to a party seeking to reopen its case: see generally [12] - [14]. Relevantly, McLure J noted that in the court's exercise of discretion, it would be expected that a less stringent test would be applied when leave to reopen was sought before reasons were delivered: [14].
Here, although the plaintiff has made an application for further discovery, it is by no means certain that the plaintiff will seek to adduce further evidence. Whether that occurs, will be dependent on the documents that the first defendant provides to the plaintiff and an assessment of those documents in light of the issues raised in the present action.
In Matson v Attorney-General [2020] FCA 1558, Rangiah J had to consider a similar issue. In that case, Rangiah J found that a party making a discovery application was not, at that stage, seeking to reopen its case: see relevantly, [363] - [365]. As a matter of principle, that seems to me to be correct.

Issues in the case relevant to this application

The essential issue arising from the pleadings concerns the condition of the scaffold walkway on level two located on the south side (scaffold walkway) on the date of the accident. That issue has two parts to it.
First, what was the condition of the scaffold walkway on the date of the accident. That issue involves factual questions about the location of the protruding scaffold tie (if any) into the walkway (including the height of any protruding scaffold tie, the extent of any protrusion into the walkway, and the location of the scaffold tie along the walkway). It also involves factual questions about the condition of the walkway and whether there was material/debris on the walkway, as claimed.
Secondly, what was the general condition of the scaffold walkways at the site more broadly (south, west and north) on each of the levels, and prior to and after the accident. This again involves factual enquires and is relevant to the plaintiff's knowledge of the site generally and why he was watching his step, and how the defendants managed and controlled the scaffold walkways, the erection of the scaffold, the tying of the scaffold to the Grandstand using scaffold tubing that protruded into the walkways, the blocking off of walkways, the use and storage of pans and steel and timber boards in the scaffold walkways and the dismantling of the scaffold.

Existence and relevance of non-discovered photographs

Mr Morrison's unchallenged evidence at the trial was to the effect that he had identified about 1,000 to 2,000 photographs showing the site at Davies Road, Claremont and had provided them to the solicitors for the first defendant. His evidence was a little unclear, in that he did not describe the content of the photographs he located; instead, descriptions were given to him by examining and cross-examining counsel. One of the descriptions was the site at Davies Road, Claremont. I have used this description above in describing the photographs that Mr Morrison provided to the solicitors for the first defendant.
During his evidence, the first defendant's counsel showed Mr Morrison a book of documents that contained 54 photographs that the first defendant had provided to the plaintiff. Mr Morrison confirmed that he had selected about 50 of the photographs and said that he had selected them on the basis of a 'time period' - being August 2016 to March 2017. Note, it was not clear to me whether Mr Morrison was also involved in selecting the other four photographs the first defendant provided to the plaintiff during 2021. Ultimately, nothing turns on this.
Mr Morrison described the process that he followed in selecting the photographs. He said that they were located in a folder on the project drive that contained all of the documents for the Claremont Football Club Project. In response to questions from the first defendant's counsel, Mr Morrison said as follows (ts 456):
the photo would be located in a folder which is labelled with the year, month, date as the - the name.
And when you - you click on - on the icon what does it tell you about the data of that photo or the metadata?---Well, you have to - if you just click on the - the file, the photo opens up but what you're referring to you'd have to right click and then select 'properties' and then you get a panel which allows you to navigate to a details tab, which then provides the metadata of that photo.
And what sort of data does it contain? What does it tell you?---It contains a number of information. It contains the date that the photo was taken, it - - -
COLLINS C: Just – just pause there one moment, please.
Mr Sheldrick, this witness is not an expert in this area.
SHELDRICK, MR: This is the person who's found the photos, your Honour. So I know that there's an issue about who took the photos and I'm just seeking to explain how these photos have come about.
Mr Morrison's explanation as to how he determined the date of each photograph that fell within the 'time period' was not altogether clear to me. It seemed to me to involve clicking on relevant monthly folders and then possibly reviewing the properties (metadata) of a photograph to confirm the date and other data (such as the type of device that took the photograph - e.g. an iPhone 5S as was canvassed later in his evidence). Mr Morrison did not explain whether he used any other criteria and was not asked about any other criteria.
Later in his evidence, Mr Morrison said that he did not review the properties of all of the photographs he provided to the solicitors for the first defendant. The solicitors for the first defendant did not discover all of the photographs provided to them, but 54 - which included 50 photographs selected by Mr Morrison.
Although prior to the trial, the first defendant filed a list of documents provided to the other parties, that list was not verified by affidavit as required by the DCR.
At the discovery hearing, the first defendant's solicitors did not file any evidence to explain the reasoning that informed the choices that they made about the photographs discovered. The first defendant's solicitors did not explain how or why the balance of the photographs were omitted from the first defendant's discovery, in effect, why they were not provided to the other parties given the first defendant's obligations under Rule 46.
In an exchange with the bench during the hearing, counsel for the first defendant said that it was his understanding that the first defendant's solicitors (relevantly, Mr Davies) had reviewed all 1,000 to 2,000 photographs and determined that they were not relevant to the dispute. That evidence was from the bar table, and was not before the court, which counsel accepted as being correct. However, counsel for the first defendant submitted that in effect, what was put against his client involved a reversal of the onus of proof. Instead, the onus was on the plaintiff to demonstrate that it had reasonable grounds for being fairly certain that the documents sought (in this case, the 1,000 to 2,000 photographs) exist, were relevant to a matter in issue and ought to have been disclosed.

Relevance of the photographs to the pleadings

In broad outline, the plaintiff was employed as a concrete form worker at the Claremont Football Ground during its redevelopment in 2016 and 2017.
As already mentioned, the first defendant is a construction company that was engaged to perform redevelopment works at the Claremont Football Ground. The first defendant engaged the second defendant to supply scaffolding to be erected for the works. The second defendant engaged the third defendant to erect the scaffolding at the Claremont Football Ground.
The plaintiff pleads that the first defendant owed the plaintiff a duty to take reasonable care for his safety given, that it occupied the site, was responsible for the general safety of workers at the site, and in particular, for safety of any scaffolding on the site, and knew that the plaintiff would use the scaffold walkway from time to time to go about his work.
Further, the plaintiff pleads that on the date of the accident (9 January 2017):
(a)the plaintiff had control of the site and a duty to make it safe;
(b)the plaintiff was required to access the scaffold walkway;
(c)the plaintiff had not previously accessed the scaffold walkway;
(d)the scaffold walkway had some areas of floor made from plywood and the plaintiff was watching his step;
(e)the plaintiff was walking along the scaffold walkway when he collided with a 60 cm - 80 cm horizontal section of scaffold tubing that was protruding into the walkway (commonly referred to as a scaffold tie);
(f)the protruding scaffold tie was at a height that was just above the rim of the plaintiff's hard hat; and
(g)as a result of colliding with the protruding scaffold tie, the plaintiff lost his balance, fell, and in the process of trying to regain his balance, injured his right arm at or around his right elbow.
In correspondence, the plaintiff was asked some questions as to how and why he was watching his step, what type of flooring was laid, whether he could see where he was walking, where he had walked from, how often had he been on the scaffolding, how many levels of scaffolding there were at the site etc. The plaintiff provided answers to these requests for particulars prior to the trial of the action.
All of the defendants deny the circumstances of the accident and plead that if the plaintiff was injured, it was because he failed to walk on the scaffold walkway in a safe manner and failed to keep a proper lookout as to where he was walking, and separately, that he contributed to his injuries by reason of these matters.

As the pleadings reveal, the central issue in the trial of the action was whether the plaintiff accidently walked into a protruding scaffold tie on the scaffold walkway whilst working at the Claremont Football Ground on 9 January 2017, and thus, injured himself. It was not disputed that scaffold ties were commonly used to tie the scaffold structure to the Grandstand for the purposes of providing support to the scaffold structure. A related issue concerned the condition of the scaffold walkway, because on the plaintiff's case, he was watching his step at the time of the accident. And on the defendants' cases, the plaintiff was contributorily negligent because he did not take sufficient care and did not watch his step carefully enough.
Photographs depicting the scaffold and scaffold walkway on 9 January 2017 would obviously be relevant to the matters in issue. So too would photographs of the scaffold prior to 9 January 2017 and photographs after 9 January 2017, though ordinarily, the further removed from the accident, the less probative such photographs are likely to be. Here, the defendants' cases were, in part, that all of scaffold walkways were cleared of debris and materials just prior to the Christmas break, so that the plaintiff should not have been concerned about his footing on the day of the accident, being his first day back at work after the Christmas/New Year break. Evidence of these matters was led at the trial of the matter.
As the trial unfolded, much evidence was led about the construction of the scaffold, the tying of the scaffold to the Grandstand and the opening and closing of scaffold walkways. It was not in dispute that the tying of the scaffold to the Grandstand was common practice, though the circumstances in which it occurred was disputed (e.g. for how long, and when it occurred). Further, much evidence was led about various inspections that occurred at the construction site, including of the scaffold walkways, and what they revealed. Much of this was also disputed.

Reasonable grounds to believe documents sought exist and are relevant

I am satisfied that there are reasonable grounds for being fairly certain that documents exist (in this case, the balance of the 1,000 to 2,000 photographs) that are relevant to a matter in issue between the parties that ought to have been disclosed. The following matters bear on this.
First, taking Mr Morrison's evidence at face value, it is not clear to me how or on what basis he chose the 50 or so photographs from which the first defendant ultimately discovered. Further, it is not clear to me how or on what basis Mr Morrison - or more particularly, the first defendant's solicitors determined that the 1,000 to 2,000 photographs provided to them were not relevant to an issue between the parties.
Secondly, there was no evidence before the court to the effect that the first defendant had reviewed the 1,000 to 2,000 photographs and determined that they were not relevant to an issue in the matter. The first defendant has not sworn an affidavit of discovery verifying the list of documents discovered.
Thirdly, the first defendant's position from the bar table was to the effect that Mr Davies had reviewed all of the 1,000 to 2,000 photographs and determined that they were not relevant to an issue in the matter. If I accept that position at face value, I continue to have concerns with the review Mr Davies or his firm performed. In this regard, I have earlier referred to Mr Davies' purported discharge of his discovery obligations during the nearly two years before the trial of the matter and my concerns as to how those obligations were discharged.
Fourthly, as matters developed during the discovery hearing, counsel for the first defendant submitted that the plaintiff's application sought photographs of the 'scaffolding'. The first defendant submitted that it was incumbent on the plaintiff to demonstrate that the photographs sought depicted the scaffolding, and not other parts of the site. This submission came back to Mr Morrison's evidence and the fact that the plaintiff did not cross-examine him at the trial to the effect that some or all of the remaining undisclosed photographs depicted the scaffolding.
In my view, this submission has several difficulties.
First, the first defendant did not file any evidence about the remaining photographs provided to it and what they revealed.
Secondly, in his evidence Mr Morrison did not describe the content of the photographs he located. Instead, the descriptions were given to him by examining and cross-examining counsel. In the circumstances, I accept that it is possible that the photographs Mr Morrison provided to the first defendant included photographs of the site generally, and not of the scaffold. However, if that were true, then in my view, it was incumbent on the first defendant to lead evidence of that fact. The plaintiff is not in a position to do so. The fact that the first defendant led no evidence on the issue counts against it.
Thirdly, the first defendant has discovered about 54 or so photographs of the construction site in circumstances where there is evidence of another 1,000 to 2,000 photographs that may be relevant. By my calculations, that equates to around 2% of the photographs. Why only 2% of the photographs taken of the site would include the scaffold was not explained. Counsel for the first defendant was asked about the number of photographs taken and what else they may have shown. Counsel did not explain what the non-discovered photographs revealed. Why around 98% of the photographs taken of the construction site did not include the scaffold was not clear to me. Against the background history of this matter, the trial of the action, and the photographs the first defendant did produce, the unexplained difference between the percentage of relevant photographs and non‑relevant photographs tended in favour of further and better discovery on my consideration of the matter.

Conclusion

In response to the plaintiff's application for further and better discovery, the first defendant's first main submission at the discovery hearing was that it had given full discovery. That submission was not supported by affidavit evidence. Further, the first defendant has not sworn an affidavit of discovery verifying the list of documents discovered. In contradistinction, the documents annexed to Mr Posa's affidavit raise concerns regarding the way in which the first defendant's solicitors have discharged their discovery obligations, as I have identified above.
The first defendant's second main submission was that the 1,000 to 2,000 photographs sought were not relevant to a matter in issue, or alternatively, did not only contain photographs of the scaffold (that being what was specified in the plaintiff's chambers summons). In effect, the photographs did not exclusively show the scaffold, but also showed the site, and other aspects of the site.
In my view, photographs of the construction site, both with and without the scaffold, are, to one degree or another, relevant and should have been discovered. Photographs closer in time to the date of accident would, at least at face value, have greater probative value. However, one can readily see how more remote in time photographs may bear on the matter - especially given the evidence of witnesses for the second and third defendants as to the site inspections they performed. In this regard, it was not disputed that there were some problems with a scaffold tie protruding into a scaffold walkway in October 2016, which was the subject of an inspection, review and other documentation. And at the trial, the plaintiff was asked questions about the height of the scaffold and the height of the Grandstand at various points in time, how he accessed the scaffold and from where, how he entered the site and from where, how he accessed various concrete columns and from where, how he accessed the various levels on the south and west parts of the scaffold and from where. Photographs of the site more broadly (and not just the scaffold) may assist with these matters and therefore, be relevant.
It may also be the case that some photographs are less relevant because, for example, they do not show the relevant area, or because they are superseded by other photographs that better capture the relevant area. This involves a subjective judgment by the person reviewing the photographs, in the first instance. Such judgments are prone to disagreement. Instead of leaving this to the first defendant's solicitors, and risk delaying the determination of the litigation, consistent with case management objectives contained in O 1 r 4B of the RSC, the photographs should be produced to the plaintiff's and second and third defendants' solicitors without delay, and thereafter, the recipients of the photographs can determine their significance to their respective cases.
I observe here that during the trial, the parties tendered numerous photographs showing different parts of the scaffold and walkways. By way of example, the plaintiff tendered a photograph of the scaffold showing the western side, which was marked up by the plaintiff, and Mr Kyle Wohlan (a witness who was working on the day that the plaintiff was injured) and Mr Paul Hough (a witness for the third defendant who was involved in erecting and dismantling the scaffold) (exhibits 1.9.12, 1.9.12.1, 1.9.12.2, 1.9.12.3 and 1.9.12.4, which is image IMG_1117). The first defendant's book of documents contained the same photographs, or almost identical photographs, at pages 117 ‑ 120 (being documents 4.41 to 4.44, which show images IMG_1115 to IMG_1118). In substance, there were several similar images and yet only one of the images was tendered at the trial.
Although photographs that do not include the scaffold fall outside of the parameters of the plaintiff's chambers summons - because of the express reference to the scaffold in the orders sought that is not the end of the matter. Under O 26 r 7(3) of the RSC, the court may at any time, of its own motion, order a party to give discovery: Perpetual, [6], [7] and [91]. Here, I have concerns with the discovery that the first defendant has given to date. And here, it is not disputed that the photographs exist: what is put in issue is their content. I have already addressed this above. The court's discretionary power is expressly subject to case flow management considerations as specified in O 1 r 4B of the RSC. Given the background and history of the matter, its current status, and the issues raised at the trial, I am satisfied that orders for further discovery of photographs relating to the construction site are in the interests of justice and the just determination of the action.
I am conscious that the parties have closed their cases and that an order for further discovery in the circumstances will likely delay the finalisation of the matter and require the parties to incur further costs. However, the plaintiff's application has been made before judgment has been handed down and so the action has not yet been finalised. The central role of discovery to ensure that parties are accorded a fair trial militates in favour of the proposed orders.
In the circumstances, having regard to the history of the matter, Mr Posa's affidavit evidence, the absence of an affidavit of discovery from the first defendant or any evidence from the first defendant at the discovery hearing, Mr Morrison's evidence, and case flow management considerations, I am satisfied that the plaintiff has established that there are reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in the possession, custody or power of the first defendant, that they are relevant to a matter in issue and should have been disclosed. The first defendant should produce them without delay.
It seems to me that the preferable way forward is for the first defendant to produce the balance of the photographs of the construction site provided to its solicitors by Mr Morrison and that the matter be brought back for further orders once the plaintiff has had an opportunity to review and inspect the photographs and consider the way forward (including whether it wishes to seek leave to reopen its case).

Orders

At the conclusion of the plaintiff's application, the following orders were made:
1.By 9 May 2022, the first defendant shall file and serve on each other party an electronic copy of the 1,000 to 2,000 photographs (including all metadata) mentioned in the evidence of Mr Morrison at pages 460 to 461 of the transcript of the trial in the action.
2.By 12 May 2022, the first defendant shall:
(a)make a list of the documents which are or have been in that party's possession, custody or power relating to any matter in question in the action;
(b)swear an affidavit verifying that list; and
(c)serve a copy of each document on each other party, not already provided, which may be provided in electronic form (including all metadata).
3.The plaintiff shall file any application for leave to reopen its case, together with a supporting affidavit and outline of written submissions on or before 19 May 2022.
4.If one or more of the defendants opposes the plaintiff's application to reopen, then that defendant shall file and serve an outline of written submissions and affidavit in support on or before 26 May 2022.
5.The matter shall be relisted for hearing the plaintiff's application on 27 May 2022 at 2.15 pm.
6.The hearing listed for 9 May 2022 shall be vacated.
7.The first defendant to pay the plaintiff's, second defendant's and third defendant's costs of the plaintiff's application, such costs to be taxed, if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SZ
Associate to Commissioner Collins
20 MAY 2022