Amaca Pty Ltd v Werfel - [2019] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
AMACA PTY LTD v WERFEL & ANOR
[2019] SASC 29
Judgment of The Honourable Justice Nicholson
6 March 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER FOR FURTHER AND BETTER DISCOVERY
The appellant was formerly James Hardie & Coy Pty Ltd under which name it was a major distributor of asbestos building products in South Australia in the 1970s and early 1980s. The respondent has contracted malignant mesothelioma. By consent the matter has been listed for an expedited trial to commence on 3 April 2019.
A list of documents disclosed by the appellant was filed on 14 January 2019. It comprises more than 300 pages and more than 3,000 entries. The disclosure is vast. By interlocutory application filed on 6 February 2019, the respondent sought orders for further and better disclosure. On 12 February 2019, a Judge of the South Australian Employment Tribunal, being the Judge assigned to hear the trial, made ex tempore orders in the terms applied for.
On 20 February 2019, the appellant filed in this Court a notice of appeal against the orders made and including an application for permission to appeal, the orders below being interlocutory in nature. Given the proximity of the trial, the nature and extent of the further and better disclosure ordered, and the fact that it was ordered to be provided electronically by 4 March 2019, the argument on appeal was expedited.
Held:
1.       Permission to appeal allowed.
2.       Appeal allowed in part.
3.       The Judge’s orders 1(a), (c), (d) and (e) are set aside.
4.       The Judge’s order 1(b) is set aside and replaced with an order in these terms:
"The defendant is to provide further and better disclosure of the Report of the Special Commission of Inquiry into the Medical Research and Compensation Foundation dated September 2004 (the Jackson Report) by 11 March 2019."
5.       The Judge’s orders 2, 3, 4 and 5 are set aside.
6.       The respondent’s interlocutory application filed in the SAET on 6 February 2019 is otherwise dismissed.
7.       The interim stay with respect to the Judge’s order 4 made at the hearing on 1 March 2019 is vacated.
Supreme Court Civil Rules 2006 (SA) r 280; District Court Civil Rules 2006 (SA) r 4, r 136, r 145; Special Commissions of Inquiry Act 1983 (NSW) s 23; Dust Diseases Act 2005 (SA) s 11A, referred to.
Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185, discussed.

AMACA PTY LTD v WERFEL & ANOR
[2019] SASC 29
Appeal to a single Judge
NICHOLSON J.
Introduction

The appellant was formerly James Hardie & Coy Pty Ltd under which name it was a major distributor of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] SASC 29
Decision Date: 6 March 2019

CaseChat Overview and Summary

In Amaca Pty Ltd v Werfel, the appellant appealed an interlocutory judgment in the South Australian Employment Tribunal (SAET) that had ordered the appellant to provide further and better discovery of documents. The respondent sought further and better discovery on the basis that the appellant had failed to properly disclose certain documents, including a report by a Special Commission of Inquiry. The primary legal issue before the Court was whether the SAET Judge had erred in making the interlocutory orders sought by the respondent. The Court had to determine if the appellant had properly disclosed the documents as required by rule 136 of the SAET Rules. The Court found that the SAET Judge had not erred in making the orders for further and better discovery. The Judge was satisfied that the appellant had not properly disclosed the documents in question, and this justified the orders sought by the respondent. The Court also found that the appellant's obligation to disclose had not been observed with respect to certain categories of documents. Consequently, the appeal was allowed in part, and certain orders made by the SAET Judge were set aside, while others were replaced with new orders. The costs of the appeal and the argument before the Judge were to be determined in further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The decision appealed from is an interlocutory judgment. As such, the appeal lies to a single Judge of the Supreme Court.[2] I have treated the appeal as one requiring permission, by analogy with rule 288(1)(a)(ii) of the Supreme Court Civil Rules 2006 (SA). Ordinarily, permission will be granted to appeal against an interlocutory order where the Court is satisfied that the decision sought to be impugned is either wrong or attended with sufficient doubt to warrant its reconsideration on appeal and has the effect of working a substantial injustice on the appellant.[3] An appeal against a discretionary interlocutory order will be subject to the usual constraints as explained in House v The King.[4] An appellate court will only be entitled to revisit the discretion exercised where the primary Judge has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him or her, has mistaken the facts or has failed to take into account some material consideration or where the decision appealed from is unreasonable or plainly unjust.[2] See section 11A of the Dust Diseases Act 2005 (SA).[3] Duke Group v Arthur Young (1991) 4 ACSR 355; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185.[4] [1936] HCA 40, (1936) 55 CLR 499.Further background The respondent claims damages (including exemplary damages) against the appellant having alleged that his illness was caused by his inhalation of asbestos dust from asbestos cement building products manufactured by the appellant and in the following circumstances.[5](i)when he was employed as a fencer and required to handle, cut, drill and generally work with in situ corrugated asbestos cement sheets during the period between 1994 and about 1997;(ii)when he performed home renovations at a Pooraka address during which he disturbed in situ asbestos cement sheets in or about 2000/2001; and(iii)when he performed home renovations at a Parafield Gardens address where he again disturbed in situ asbestos cement sheets in or about 2004/2005.[5] The allegations of exposure are pleaded in more general terms in the statement of claim. The following are particulars provided by the plaintiff in later correspondence. The appellant ceased manufacturing asbestos cement building products in 1985 such that the products to which the respondent is said to have been exposed had been in situ long before his exposure occurred. As such, the respondent falls within a class of potential victims that has been referred to as “the third wave” of complainants. In the case of these complainants, the products had been sold and installed on building sites well before the fact of any exposure. The respondent in his Outline of Argument, summarised the allegations of the appellant’s negligence, material to the present dispute, in the following terms.(a)Failing to warn end users of the building materials manufactured or supplied by James Hardie such as the plaintiff of the risks associated with the use of the building materials knowing that such building materials were likely to be cut with implements, drilled, worked and handled manually and demolished thereby releasing asbestos dust fibre into the atmosphere.(b)Manufacturing the building materials and supplying the building materials in circumstances where there was a real risk that persons such as the plaintiff would inhale asbestos dust and fibre as a consequence of handling, drilling and demolishing the building materials.(c)Inducing customers to purchase the building materials by promotion, demonstration and instruction knowing that the building materials would require handling, cutting, drilling, sanding and working with and may be demolished thereby release dust into the atmosphere.(d)Failing to substitute non asbestos materials for the asbestos materials in the building materials manufactured and supplied by James Hardie.(e)Whilst possessing sufficient financial and personnel resources to do so and with knowledge of the risk to health from inhaling asbestos dust and fibre, failing to devise, organise, administer and implement out of its Australian headquarters located at Sydney, New South Wales a national scheme for warning end users of the building materials and those who may cut, drill, sand, demolish or otherwise interfere with the building materials of the risks to health from inhaling asbestos dust and fibre. Such a national scheme ought to have included the dissemination of warnings and/or information in newspapers, radio, television, magazines and hardware stores about the health risks of inhaling asbestos dust from cutting, drilling, sanding, demolishing or otherwise interfering with the building materials.(f)Failing to heed internal company warnings as to the likelihood of the incidence of asbestos diseases decades after exposure to persons exposed to small quantities of asbestos contained in the building materials. [Emphasis added](Emphasis in original)The legal basis for the application below

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

I set aside order 5 (“costs”) and will hear the parties on the questions of the costs of the argument before the Judge and the costs of the appeal.Conclusion I make the following orders:1.Permission to appeal allowed.2.Appeal allowed in part.3.The Judge’s orders 1(a), (c), (d) and (e) are set aside.4.The Judge’s order 1(b) is set aside and replaced with an order in these terms:The defendant is to provide further and better disclosure of the Report of the Special Commission of Inquiry into the Medical Research and Compensation Foundation dated September 2004 (the Jackson Report) by 11 March 2019.5.The Judge’s orders 2, 3, 4 and 5 are set aside.6.The respondent’s interlocutory application filed in the SAET on 6 February 2019 is otherwise dismissed.7.The interim stay with respect to the Judge’s order 4 made at the hearing on 1 March 2019 is vacated.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The Judge ultimately concluded that, on the basis of the evidence and arguments before her, she was satisfied that the orders sought in the application for further and better discovery should be made. Her Honour was also satisfied that disclosure should be on oath “because of the failures identified in the defendant’s existing list of documents”.[21] The Judge then proceeded to make the orders in the form sought in the interlocutory application and as set out earlier in these reasons.[21] Werfel v AMACA [2019] SAET 22 at [26].Consideration of the parties’ primary contentions on appeal The arguments of the parties ranged far and wide. To a degree, some of the appellant’s contentions might be seen as stepping outside the strict confines of the appeal grounds. Nevertheless, the appellant’s contentions were fully canvassed in its affidavit evidence and written and oral submissions relied on before the Judge and in its affidavit evidence and written submissions before me. For example, the issue of whether or not the orders, or some of the orders sought by the respondent, if made, would require such time and expense to comply with as, in all the circumstances, to be oppressive and unreasonable, was at all times a very significant issue before the Judge and before this Court on appeal, although it is not expressly referred to in the grounds of appeal. I am satisfied that the appellant’s contentions were matters properly raised by the appeal and that there is no unfairness in requiring the respondent to meet them. The parties’ primary contentions can be distilled and resolved as follows. It is convenient to deal with paragraphs (d) and (e) of order 1 first. There was simply no evidence before the Judge that the appellant’s obligation to disclose, as required by rule 136, had not been observed with respect to those two categories. As best I understand the respondent’s contention in this respect, it is to the effect that once her Honour became satisfied that there had not been a proper disclosure with respect to the categories in paragraphs (a) and/or (b) and/or (c) (discussed further below) that, in effect, meant that there had not been proper compliance generally with the respondent’s obligation to disclose pursuant to rule 136 and, as such, justified an order for further and better disclosure generally. Some support for this approach was sought to be obtained from the remarks of White J in Ceneavenue set out earlier in these reasons. I do not read his Honour’s reasons in that way. In my view, the identification of a document that should have been disclosed but has not been disclosed or of a class of documents that should have been disclosed or more fully disclosed but has not been may well be a pre-requisite to, and justify an order for, further and better discovery with respect to that document or that class. However, it would not necessarily follow that such a finding opens the door to an order for further and better discovery generally or in terms wider than otherwise would capture the established default. In Ceneavenue itself, White J went on to consider various categories with respect to which further and better discovery was sought and refused the application with respect to categories where no default had been established.