Badenoch v Granite Transformations Pty Limited

[2022] NSWDDT 8

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Badenoch v Granite Transformations Pty Limited and Ors [2022] NSWDDT 8

Hearing dates:

23 November 2022

Date of orders:

7 December 2022

Decision date:

07 December 2022

Before:

Strathdee, J

Decision:

(1)   The first defendant provide verified discovery of the following documents by 16 January 2023, unless previously provided formally or otherwise:

(a)   Any employment records of the plaintiff and/or sub-contract agreement with the plaintiff at the Clayton Workshop at 57 Sarton Road, Clayton North, Victoria, (Clayton Workshop) or Sunshine Workshop at factory 5, 42-46 Vella Drive, Sunshine West, Victoria (Sunshine Workshop) during the period from 1 January 2001 until 31 December 2003;

(b)   Any records relating to the plaintiff’s work for the first defendant and/or at the premises of the first defendant, whether via AJ Recruitment or otherwise, during the period from 1 January 2001 until 31 December 2003;

(c)   Any franchise or other agreement between the first defendant and:

- GT Business Pty Limited;

- GT Business Holdings Pty Limited;

- Hotel 25 Pty Limited;

- Cabritt Pty Limited;

- Granite Transformations Sunshine;

- Granite Transformations North Shore; and/or

- Trend S.p.A;

in force during the period from 1 January 2001 until 31 December 2003;

(d)   Any records documenting the relationship between first defendant and any other entity for which the plaintiff alleges that he undertook duties;

(e)   Any documents and/or agreements relating to the supply and/or facilitation of supply of granite by the first defendant to:

- GT Business Pty Limited;

- GT Business Holdings Pty Limited;

- Hotel 25 Pty Limited;

- Cabritt Pty Limited;

- Granite Transformations Sunshine; and/or

- Granite Transformations North Shore;

during the period from 1 January 2001 until 31 December 2003;

(f)   Any documents and/or agreements relating to the supply and/or facilitation of supply of granite manufactured by Trend S.p.A, during the period from 1 January 2001 until 31 December 2003;

(g)   Any documents relating to any and all use of the name or trademark “Granite Transformations” during the period from 1 January 2001 until 31 December 2003;

(h)   Any documents relating to any and all use of the name or trademark “Rocksolid Granit” during the period from 1 January 2001 until 31 December 2003;

(i)   Any documents relating to the training and/or accreditation of the Plaintiff from 1 January 2002 – 31 December 2023;

(j)   Any product manuals, notices, warnings and or safety data sheets pertaining to any engineered and natural stone products used at the Clayton Workshop and the Sunshine Workshop from 1 January 2002 – 31 December 2003;

(k)   Any receipts and invoices relating to all engineered and natural stone products purchased and/or used at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

(l)   Any documents relating to:-

(i)   The first defendant’s knowledge and means of knowledge of possible risk of injury from inhalation of dust including silica dust, during the period up to 31 December 2005;

(ii)   Any information and/or warnings provided to the Plaintiff or other workers carrying out fabrication and/or installations of silica containing engineered or natural stone products at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

(iii)   The provision of any personal protective equipment (PPE) to workers including the plaintiff, including the types of PPE supplied and the date of its provision, during the period from 1 January 2001 until 31 December 2003;

(iv)   Any reports or records regarding occupational hygiene (and/or health and safety) regarding the risk of injury from inhalation of dust including silica dust and the measures by which that risk might be minimised or obviated, during the period from 1 January 2001 until 31 December 2003;

(v)   Any evidence of air monitoring at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

(vi)   Any evidence of health surveillance of workers at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

(vii)   Any evidence of factory design, tools, machinery or fabrication methods implemented in order to protect workers including the Plaintiff from the risks of exposure to respirable crystalline silica dust (RCSD) during the period from 1 January 2001 until 31 December 2003;

(viii)   Any records or reports relating to interactions with relevant workplace health and safety authorities and/or health and safety advisors during the period from 1 January 2001 until 31 December 2003.

(2)   Costs of the Motion to be costs in the cause.

(3)   Matter listed for directions on 13 February 2023.

(4)   Liberty to apply.

Catchwords:

PROCEDURE – DUST DISEASES – discovery – facts in issue – whether discovery should be allowed when the matter is ready for hearing – pre-trial discovery – probative value – relevance to key facts in issue

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Dust Diseases Tribunal Rules 2019 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783

Commonwealth Bank of Australia v Goater [2016] NSWSC 710

Harper v Sydney Local Area Health District (No 2) [2020] NSWDDT 11

Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788

ICAP Pty Ltd v Moebes [2009] NSWSC 306

Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Phillips v Phillips [1879] 140 LT 815

Category:

Procedural rulings

Parties:

Kevin George Badenoch (Plaintiff)
Granite Transformations Pty Limited (First Defendant)
Bizzaza Australia Pty Limited (Second Defendant)
Ceasarstone Australia Pty Limited (Third Defendant)
Smartstone Australia Pty Limited (Fourth Defendant)

Representation:

Counsel:
Mr A Giurtalis appeared for the Plaintiff
Mr J L Sharpe appeared for the First Defendant
Mr I Griscti appeared for the Fourth Defendant

Solicitors:
Mr J Walsh, Maurice Blackburn Lawyers (Plaintiff)
Mr K Michaelides, Robert James Lawyers (First Defendant)
Mr C Bodenstein, HBM Lawyers (Fourth Defendant)

File Number(s):

2021/337182

Judgment

1. By Notice of Motion filed in the Dust Diseases Tribunal of New South Wales (‘the Tribunal’) on 22 November 2022, Kevin George Badenoch (‘the plaintiff’) seeks the following orders:

1. The defendants and cross-defendants each give discovery of the documents described in the Short Minutes of Order annexed hereto and marked “A”, pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The second defendant to file its Defence by 12 December 2022.

3. The defendants to file and serve any further cross-claims by 13 January 2023.

4. Matter listed for directions on 13 February 2023.

5. Liberty to apply.

2. The Motion hearing proceeded only in regard to the first defendant to provide verified discovery.

3. In support of the Motion, the plaintiff reads the affidavit of Mr Jonathan Walsh, solicitor, affirmed 21 November 2022 (Exhibit 1 on the Notice of Motion).

4. The classes of documents in respect of which verified discovery is sought from the first defendant are described in paragraph 2 of the plaintiff’s Short Minutes of Order, filed with the above Notice of Motion.

5. The first defendant, Granite Transformations Pty Limited, opposes the order sought by the plaintiff, and reads the affidavit of Kristine Connie Michaelides affirmed 22 November 2022 (Exhibit 2 on the Notice of Motion).

6. The fourth defendant appeared but as it has no cross-claim against the first defendant, no relevant submissions were made on its behalf.

7. The second and third defendants did not appear on the Motion, and do not oppose the orders proposed for verified discovery, which are contained in the Short Minutes of Order that are annexure A to the Notice of Motion.

Background

8. By Amended Statement of Claim filed 6 June 2022, the plaintiff brings proceedings in the Tribunal, by which he seeks provisional damages in respect of the following conditions:

1. Silica related lymphadenopathy;

2. Silica related emphysema;

3. Systemic sclerosis;

4. Raynaud’s syndrome; and

5. Silica induced scleroderma.

9. The plaintiff alleges that he contracted the above conditions as a consequence of exposure to and inhalation of silica dust, caused by the negligence of the defendants, as well as breaches of statutory and contractual duties.

10. Insofar as is relevant to the first defendant, the plaintiff alleges that:

1. From about early 2002 until about late 2003, he carried out work for and/or on behalf of the first defendant as a stonemason, process worker, installer and labourer (Amended Statement of Claim [5]);

2. During the above period, he worked with and around engineered stone products manufactured and/or supplied by the first defendant (Amended Statement of Claim [5]); and

3. In or around 2005, he carried out work for and/or on behalf of “My Kitchen Transformation” as a stonemason, process worker, installer and labourer, during which he worked with and around engineered stone products manufactured and/or supplied by the first defendant and second defendant (Amended Statement of Claim [6]).

11. In support of the allegations, the plaintiff has made and served on the first defendant two (2) statutory declarations, being:

1. Statutory Declaration dated 19 November 2020 (Annexure “JW-1” to the affidavit of Jonathan Walsh affirmed 21 November 2022) which became Exhibit 1 (‘the first statutory declaration’); and

2. Statutory Declaration dated 23 June 2022 (Annexure “JW-2” to the affidavit of Jonathan Walsh (‘the second statutory declaration’).

12. The content of the affidavits whilst relevant, is repeated in the submissions and I do not propose to repeat them here.

13. The first defendant filed an Amended Statement of Defence (‘ASOD’) on 21 November 2022 pursuant to leave that I granted. The amendments relate to allegations made by the first defendant and can be summarised as follows:

• that the plaintiff “may have carried out work for” the first defendant as an employee or independent contractor for various businesses: ASOD [3](a) and (b);

• the granite that “may have been used” by various companies was manufactured by an Italian Company using the trademark “Rocksolid Granit”: ASOD [3](c);

• The first defendant “may have facilitated the supply of the granite that may have been used” by various businesses: ASOD 3(d);

• The plaintiff was “trained and accredited by the first defendant for the installation of Rocksolid Granit”: ASOD 3(e);

• The plaintiff “may have performed work as an installer of Rocksolid Granit either as an employee or independent contractor”: ASOD [3](e); and

• It alleges that it was “not foreseeable that the plaintiff would not perform his duties as an employee or as an independent contractor in accordance with the instructions and accreditation provided by the first defendant to the plaintiff”: ASOD 12(a).

14. The first defendant provides the following chronology and submissions:

1. It is to be remembered that that this is not an application for Pre-Trial Discovery, to which different principles may apply.

2. The proceedings were commenced over 12 months ago, on 21 November 2021.

3. The plaintiff amended his Statement of Claim on 6 June 2022.

4. The plaintiff has provided detailed particulars of his claim as against the first defendant, in addition to his Statutory Declarations.

5. Having completed his enquiries, the plaintiff approached the Tribunal with a view to having the matter listed for hearing and sought a mediation. In other words, the plaintiff had satisfied himself of being ready for trial and so advised the Tribunal.

6. At the outset, the plaintiff must satisfy the Tribunal of “special reasons”: Rule 21.8 of the Uniform Civil Procedure Rules 2002 (NSW).

7. In this case the plaintiff satisfied himself that he was ready and able to proceed without discovery, given that he took no steps to obtain an order for Discovery until after the Mediation which the plaintiff insisted upon.

8. Notwithstanding the plaintiff’s assurance that the matter was one ready for trial and that a Mediation take place, the plaintiff now asserts a need to obtain verified Discovery from the first defendant.

9. However, the plaintiff is required to demonstrate “special reasons”.

10. It is submitted that the Tribunal will have regard to ss 56–59 of the Civil Procedure Act 2005 (NSW), and in particular to s 56 which provides:

“Section 56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.”

Relevant Legislation

15. The Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) relevantly provides:

“21.1   Definitions

(cf SCR Part 23, rule 1; DCR Part 22, rule 1)

(1)  In this Division:

excluded document, in relation to proceedings the subject of an order for discovery, means any of the following documents:

(a)   any document filed in the proceedings,

(b)   any document served on party A after the commencement of the proceedings,

(c)   any document that wholly came into existence after the commencement of the proceedings,

(d)   any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included,

(e)   any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents,

but does not include any document that the court declares not to be an excluded document for the purposes of those proceedings.

list of documents means a list of documents referred to in rule 21.3.

order for discovery means an order referred to in rule 21.2.

party A means a party to whom another party is giving discovery, or being ordered to give discovery, of documents.

party B means a party who is giving discovery, or being ordered to give discovery, of documents.

party B’s affidavit means an affidavit prepared in relation to the list of documents under rule 21.4.

Note:   See the Dictionary for further definitions including, in particular, a definition of possession.

(2)  For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

21.2   Order for discovery

(cf SCR Part 23, rule 3(1), (2) and (3); DCR Part 22, rule 3(1), (2) and (3))

(1)  The court may order that party B must give discovery to party A of:

(a)   documents within a class or classes specified in the order, or

(b)   one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2)  A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3)  Subject to subrule (2), a class of documents may be specified:

(a)   by relevance to one or more facts in issue, or

(b)   by description of the nature of the documents and the period within which they were brought into existence, or

(c)   in such other manner as the court considers appropriate in the circumstances.

(4)  An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

21.8   Personal injury claims

(cf SCR Part 23, rule 5; DCR Part 22, rule 5)

In any proceedings on a common law claim:

(a)   for damages arising out of the death of, or bodily injury to, any person, or

(b)   for contribution in respect of damages so arising,

an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise.”

16. However, the provisions of the UCPR are specifically altered by Rule 4 of the Dust Diseases Tribunal Rules 2019 (NSW), which provides:

“4 Discovery and inspection of documents

(1) Part 21 of the Uniform Civil Procedure Rules 2005 applies, subject to the adaptations specified in sub-rules (2), (3) and (4) and Rules 5 and 6, to proceedings before the Tribunal.

(2)   In Rule 21.3(2)(a)(ii) omit “within the last 6 months prior to the commencement of the proceedings” and insert “at any time”.

(3)   In Rule 21.4(2)(b) and Rule 21.4(3)(b) omit “within the last 6 months prior to the commencement of the proceedings” and insert “at any time”.

(4)   In Rule 21.8 omit “the court, for special reasons, orders otherwise” and insert “the order is necessary to ensure that the understanding issues in dispute are properly tried.”

17. Under Rule 21.2(4) of the Uniform Civil Procedure Rules 2005 (NSW), an order for discovery cannot be made “unless the document is relevant to a fact in issue” between the party seeking discovery and the party seeking to be discovered: Harper v Sydney Local Area Health District (No 2) [2020] NSWDDT 11.

18. To be discoverable, it must relate to a fact in issue between the party seeking discovery from another party: Phillips v Phillips [1879] 140 LT 815.

19. There is no need to find “special reasons” to order discovery in a personal injury claim in the Tribunal. The requirement which is part of r 21.8 in the UCPR has been removed by r 4(4) of the Dust Diseases Tribunal Rules 2019.

20. The relevant applicable legal principals were summarised by Bellew J in Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 at [19]:

“[19]   The parties were generally in agreement as to the principles which apply to an order for discovery. In the context of the present case, those principles may be summarised as follows:

(i)   discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22];

(ii)   the facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23;

(iii)    for the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138;

(iv)   the relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentiousfact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181;

(v)   discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan’s Fisheries Pty Ltd [2017] NSWSC 1262;

(vi)   discovery involves an “inroad”, in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338;

(vii) the discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra);

(viii)   although proper compliance with a party’s obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200;

(ix)   there is no entitlement to “chain of enquiry” discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264.”

21. In Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, in a decision delivered on 8 September 2011, President Allsop, as he then was, made the following observations:

“Additional Comments

101.   The material placed before the Court does, however, raise concerns about the use of discovery in defamation cases. … Parties should understand that the restriction on discovery now contained in Pt 21 is the current framework for discovery. Discovery (and its uncontrolled use) always contains (and contain) the risk of abuse and oppression. Discovery can be a highly expensive exercise. Courts in defamation, as in all other matters, including commercial matters, should be astute to ensure that it is not used as a weapon of oppression by wealthy litigants to oppress less well-funded parties. Even when all parties are well resourced, over-enthusiastic and unnecessary use of discovery impedes the due administration of justice and undermines confidence in the court system’s ability to resolve disputes justly, quickly and cheaply. Parties should understand that there is no entitlement to “chain of enquiry” discovery. If the discovery s being used abusively, the courts can and should control it…”

22. The principles were further considered in Commonwealth Bank of Australia v Goater [2016] NSWSC 710, a decision of Justice Adamson delivered on 3 June 2016 at [31]:

“Principles relating to discovery

31.   Discovery is a procedural tool which can be of substantial benefit in litigation. However, it can come at a substantial cost. It has, at times, been used, whether intentionally or otherwise, as a means of delaying proceedings, increasing costs disproportionately, or wearing out a party to litigation. This is particularly the case in respect of so-called “chain of enquiry” discovery which requires the party against whom an order for discovery is made to go through documents to ascertain if it might bear any relevance to the category: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101] per Allsop P. Where a notice to produce or subpoena could serve the forensic purpose just as well, it is to be preferred.

32. For these reasons, it is necessary, before an order for discovery is made, for the Court to be satisfied that it is in the interests of justice and consistent with the just, quick and cheap determination of the real issues in the proceedings, having regard to ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW).”

23. The issue was discussed in Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783, a decision of Ward CJ in EQ delivered on 10 December 2021 where her Honour stated as follows at [29]:

“The general discretion as to applications for discovery is to be exercised consistent with the overriding principles in the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) (see Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 per Allsop P as his Honour then was). Relevantly, his Honour noted that, in ordering discovery, the Court must consider the potential for discovery to give rise to oppressive and disproportionate costs to impede the overriding purpose (see at [101])”.

24. This is further discussed by her Honour at [81] and [82] where her Honour quotes a decision of Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [30]:

“81.   … “it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]”), in those contexts what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings…

82.   I also note at the outset what is meant by the concept of a “fishing expedition”, as explained in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, where it was said:

A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at the liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court, pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere “fishing expedition”.”

Discussion

25. The entitlement to an order for discovery requires that the plaintiff approach the application in a particular way, following the UCPR. That requires an identification of what issues are in dispute, because it is only when one does that, that one can come to grips with the relevant classes of documents, and whether the classes are broad, or a fishing expedition, or a chain of enquiry.

26. One has to keep firmly in mind what the issues between the parties are as if the classes of documents are not directed to the issues in dispute, then the request for the order would be prohibited as the classes could be a fishing expedition or a chain of enquiry, which are really meant to prohibit the same thing — an abuse of the Court’s power.

27. The first defendant contends that the plaintiff should obtain the documents by the issue of relevant subpoenas or Notices to Produce and discovery is unnecessary in the circumstances.

28. Furthermore, the first defendant notes that this is not pre-trial discovery, but a request made in circumstances where the plaintiff has approached the Court for orders with respect to setting a hearing date, as a mediation was unsuccessful. It is thus asserted that the plaintiff’s claim must be prepared to such a state as to be ready to go to hearing, and therefore discovery at this point is inappropriate.

29. To be discoverable, the documents must relate to a fact in issue between the party seeking discovery from another party: Phillips v Phillips [1879] 140 LT 815.

30. Under r 21.2(4) of the UCPR 2005, the Court cannot make an order for discovery “unless the document is relevant to a fact in issue” between the parties: Harper v Sydney Local Area Health District (No 2) [2020] NSWDDT 11.

31. In my view, the purpose of r 21.1(2) of the UCPR is a provision that the document is taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of a fact. If the documents or the class of documents might affect the probability of the existence of a fact, it has to be discovered. However, the documents don’t have to be admissible.

32. In Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306, Brereton J stated as follows:

[14] “There has been a tendency, since the introduction of the predecessor of UCPR r 21.2 (and its predecessor in the Supreme Court Rules), for classes of documents for discovery to be framed, not by reference to facts in issue, but by description of the type and (sometimes) the dates of the documents. While it is sometimes apparent that documents so described are relevant to a fact in issue, often it is not. Moreover, framing classes of documents for discovery in that way tends to distract Party B from focusing on the question of relevance to a fact in issue, and direct it towards whether or not the document fits within the description. It tends to confuse the process of discovery with that of a subpoena for production. As I have pointed out on more than one occasion, [5] for this reason it is usually preferable to draft classes of documents for discovery by reference to facts in issue rather than by description of the nature of the documents and the period within which they were brought into existence, because doing so makes the relevance of the class clear beyond doubt, and because it makes clear that Party B is required to make the necessary judgment as to relevance of any particular document. When drafted by reference to facts in issue the relevance of the class is immediately apparent. This is the principal way in which ASOF has propounded its case for discovery. Discovery in the form sought is not only specifically authorised (by UCPR r 21.2(3)(a)), but is the preferable means of framing such an order. Save as to the requirement that a class of documents not be specified in more general terms than justified in the circumstances, there is no limit to the width of a class. An order framed in terms of “the issues raised by para 18 of the cross-claim” is permissible and appropriate, at least if para 18 represents real issues in dispute in the proceedings.”

33. His Honour made the following comments with regard to the issue of necessity:

[16] “While UCPR r 21.2 does not itself contain a test of “necessity”, such a notion is contained in the Practice Note. Moreover, the concept of “necessity” as a test is not new in this context. Insofar as par 5 of the Practice Note provides that discovery will be ordered only where necessary, it reflects a longstanding requirement, formerly contained in the rules (and still provided, in respect of interrogatories, by UCPR r 22.1(4)), that discovery would be ordered only where it was necessary. This provision was consistently interpreted to mean, not “essential”, but “reasonably required for the fair disposition of the matter”. [6] The notion has been variously described as "what is reasonably necessary for the disposing fairly of the cause or matter", [7] or "necessary in the interests of a fair trial"; [8] or "reasonably required or legally ancillary" to the achievement of a fair trial, not "essential" but to be "subjected to the touchstone of reasonableness". [9] That approach has been applied to the similar phrase in the Practice Note: in Leighton International v Hodges; Thiess v Reinforced Earth, McDougall J said: [10]

In the context of the Practice Note, the disclosure (either pre-evidence or at all) must be shown to be reasonably necessary for disposing of the matter fairly or in the interests of a fair trial.”

[17]   “In that context, it is necessary to remember the purposes of discovery. While it is a common use of discovery to obtain evidence of Party B’s knowledge or conduct, that is far from its sole use or purpose. The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are “playing with all the cards face up on the table”. [11] Discovery has the consequence that Party B cannot adduce documentary evidence at trial which takes Party A by surprise. Thus, simply ascertaining what documents relevant to a fact in issue are in the possession of Party B and may be deployed at trial by that party, or may aid Party A’s case or harm Party B’s case, is a relevant and proper purpose of discovery. It is a means of a party ascertaining what the other party has in its hand, and thereby avoiding surprise.”

[18]   “One feature of discovery (that distinguishes it from a subpoena for production) is that it casts upon the party giving discovery, the obligation to disclose every document in his or her possession (within the relevant class) that relates to a fact in issue in the proceedings. It casts on Party B the obligation to identify the documents – as distinct from a subpoena where the issuing party must frame, relatively precisely, the description of the documents production of which is required. Once these features of discovery are appreciated, objections by EQT to the effect that ASOF’s application is in the nature of “trawling” or “fishing”, or that it requires EQT to review its documents and form its own view as to the relevance of a particular document to the specified issues, can be seen to be misconceived. Whilst those are legitimate objections to a subpoena for production, it is fundamental to the notion of discovery that Party B is required to disclose any of its documents that are relevant, and to make its own judgement as to relevance.”

Oppression

[29]   “Even when discovery was available as of right, the court could relieve a party from giving discovery the extent of which would be oppressive. [13] Under the current rules, the court will frame orders for discovery so that they are not oppressive. But oppression is not a mere factor of extent, time and cost: discovery is not oppressive merely because it is burdensome, but only if it is unnecessarily burdensome.”

[30]   “EQT adduced evidence that its lawyers would now need to review each and every one of the documents in the possession of ANZ and EQT that relate to Metal Storm before they can be discovered, and that it would incur legal costs in the order of $36,000 to $44,000 in reviewing its documents and drawing and certifying its list of documents.”

[31]   “In the context of commercial litigation of this kind and scale, I do not regard that as self-evidently oppressive.”

34. The first defendant submits that the plaintiff has not had regard to the overriding purpose of the provisions of the Civil Liability Act. Furthermore, the first defendant points out that there is no real basis for any order by the Tribunal, given the pleadings and particulars so far provided by the plaintiff.

35. Similarly, it is submitted that the plaintiff has not demonstrated any need or reason for discovery of the documents sought, and that the plaintiff has not demonstrated “special reasons”, nor demonstrated that unless he has discovery “that the outstanding issues in dispute are property tried” (r 4 (4) of the Dust Diseases Tribunal Rules 2019).

36. As stated above, the requirement for special reasons has been removed by r 4(4) of the Dust Diseases Tribunal Rules.

37. With regard to the heads of documents sought by the plaintiff, the first defendant makes the following submissions:

2(a) - In his Statement of Claim §5, the Plaintiff specifically does not allege employment or sub-contract. The Plaintiff has been an independent contractor in the period alleged against the First Defendant, when he worked for franchisees.

2(b) - In his Statement of Claim §5, the Plaintiff specifically does not allege performing any work at the premises of the First Defendant.

2(c) - If the plaintiff has asked for any such documents, the First Defendant would have provided any documents relating to franchise agreements. It is unclear what “other agreement”. The usual way for this to be achieved if not voluntarily provided is to issue a Notice to Produce, but the Plaintiff did not do so.

2(d) - The Plaintiff has provided detailed records as to the places and times when he worked, and the First Defendant has provided specific details of the alleged businesses for whom he allegedly worked. This is a fishing expedition and no more.

2(e) - If the plaintiff has asked for any such documents, the First Defendant would have provided any relevant documents, if still available. The usual way for this to be achieved if not voluntarily provided is to issue a Notice to Produce, but the Plaintiff did not do so.

2(f) - To what fact in issue does this go? However, if the plaintiff has asked for any such documents, the First Defendant would have provided any relevant documents if such documents existed. The usual way for this to be achieved if not voluntarily provided is to issue a Notice to Produce, but the Plaintiff did not do so.

2(g) - To what fact in issue does this go? The Plaintiff makes no allegation in his pleadings about this.

2(h) - To what fact in issue does this go? The Plaintiff makes no allegation in his pleadings about this.

2(i) - An Affidavit by Brenton Gee has been served on the Plaintiff, and it includes the accreditation process.

2(j) - The First Defendant had nothing to do with the workshops alleged. The Plaintiff makes no allegations in his Statement of Claim relating to the First Defendant.

2(k) - The First Defendant had nothing to do with the workshops alleged. The Plaintiff makes no allegations in his Statement of Claim relating to the First Defendant.

2(1) - An Affidavit by Brenton Gee has been served on the Plaintiff, and it includes all that is known by the First Defendant as to the operation of the named entities.

38. The defendant’s Supplementary Submissions in Reply to the Plaintiff’s Proposed Short Minutes as to Discovery are amendments to dates, which I am of the view are appropriate, and as such make the following amendments:

1. Paragraph 1 – by 20 January 2003.

2. Paragraph 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j), 2(k), 2(l)(ii) – (viii) – period from 1 January 2002 until 31 December 2003.

3. Paragraph 2(l)(i) – period from until 31 December 2005.

39. I accept that the first defendant has placed all matters in issue, and thus the discovered documents are relevant to the issues between the plaintiff and the first defendant. The documents sought may well provide additional information going to the issues between the parties and as such are necessary. Further, I am of the view that the documents sought are not so wide as to be regarded as a fishing expedition or oppressive, but I will make the amendments to the applicable dates as provided in the supplementary submissions by the first defendant.

40. I further accept that the Amended Defence filed by the first defendant with the leave of the Tribunal raises issues that were not pleaded in the earlier defence, and that requires some clarification.

41. I note that some of the documents in the list for verified discovery have been previously provided by the plaintiff, and I do not propose that these orders would require the discovery of material previously provided by the first defendant to the plaintiff.

ORDERS

42. I make the following orders:

1. The first defendant provide verified discovery of the following documents by 16 January 2023, unless previously provided formally or otherwise:

1. Any employment records of the plaintiff and/or sub-contract agreement with the plaintiff at the Clayton Workshop at 57 Sarton Road, Clayton North, Victoria, (Clayton Workshop) or Sunshine Workshop at factory 5, 42-46 Vella Drive, Sunshine West, Victoria (Sunshine Workshop) during the period from 1 January 2001 until 31 December 2003;

2. Any records relating to the plaintiff’s work for the first defendant and/or at the premises of the first defendant, whether via AJ Recruitment or otherwise, during the period from 1 January 2001 until 31 December 2003;

3. Any franchise or other agreement between the first defendant and:

- GT Business Pty Limited;

- GT Business Holdings Pty Limited;

- Hotel 25 Pty Limited;

- Cabritt Pty Limited;

- Granite Transformations Sunshine;

- Granite Transformations North Shore; and/or

- Trend S.p.A;

in force during the period from 1 January 2001 until 31 December 2003;

4. Any records documenting the relationship between first defendant and any other entity for which the plaintiff alleges that he undertook duties;

5. Any documents and/or agreements relating to the supply and/or facilitation of supply of granite by the first defendant to:

- GT Business Pty Limited;

- GT Business Holdings Pty Limited;

- Hotel 25 Pty Limited;

- Cabritt Pty Limited;

- Granite Transformations Sunshine; and/or

- Granite Transformations North Shore;

during the period from 1 January 2001 until 31 December 2003;

6. Any documents and/or agreements relating to the supply and/or facilitation of supply of granite manufactured by Trend S.p.A, during the period from 1 January 2001 until 31 December 2003;

7. Any documents relating to any and all use of the name or trademark “Granite Transformations” during the period from 1 January 2001 until 31 December 2003;

8. Any documents relating to any and all use of the name or trademark “Rocksolid Granit” during the period from 1 January 2001 until 31 December 2003;

9. Any documents relating to the training and/or accreditation of the Plaintiff from 1 January 2002 – 31 December 2023;

10. Any product manuals, notices, warnings and or safety data sheets pertaining to any engineered and natural stone products used at the Clayton Workshop and the Sunshine Workshop from 1 January 2002 – 31 December 2003;

11. Any receipts and invoices relating to all engineered and natural stone products purchased and/or used at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

12. Any documents relating to:-

1. The first defendant’s knowledge and means of knowledge of possible risk of injury from inhalation of dust including silica dust, during the period up to 31 December 2005;

2. Any information and/or warnings provided to the Plaintiff or other workers carrying out fabrication and/or installations of silica containing engineered or natural stone products at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

3. The provision of any personal protective equipment (PPE) to workers including the plaintiff, including the types of PPE supplied and the date of its provision, during the period from 1 January 2001 until 31 December 2003;

4. Any reports or records regarding occupational hygiene (and/or health and safety) regarding the risk of injury from inhalation of dust including silica dust and the measures by which that risk might be minimised or obviated, during the period from 1 January 2001 until 31 December 2003;

5. Any evidence of air monitoring at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

6. Any evidence of health surveillance of workers at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003;

7. Any evidence of factory design, tools, machinery or fabrication methods implemented in order to protect workers including the Plaintiff from the risks of exposure to respirable crystalline silica dust (RCSD) during the period from 1 January 2001 until 31 December 2003;

8. Any records or reports relating to interactions with relevant workplace health and safety authorities and/or health and safety advisors during the period from 1 January 2001 until 31 December 2003.

2. Costs of the Motion to be costs in the cause.

3. Matter listed for directions on 13 February 2023.

4. Liberty to apply.

Decision last updated: 07 December 2022