Bartley v Yuti Transport Services Pty Ltd
[2020] VCC 722
•25 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-03101
| MALCOLM BARTLEY | Plaintiff |
| v | |
| YUTI TRANSPORT SERVICES PTY LTD | First Defendant |
| and | |
| BARRO GROUP PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2020 | |
DATE OF RULING: | 25 May 2020 | |
CASE MAY BE CITED AS: | Bartley v Yuti Transport Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 722 | |
REASONS FOR RULING
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Subject:
Catchwords:
Legislation Cited: Civil Procedure Rules 2018;
Cases Cited: The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55; British Association of Glass Bottle Manufacturers v Nettlefold [1912] AC 709
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Anderson | Zaparas Lawyers |
| For the First Defendant | Ms G Hedges | Thomson Geer |
| For the Second Defendant | Ms S Crowther | Wotton Kearney |
HIS HONOUR:
Introduction
1 The plaintiff seeks further discovery from the second defendant, Barro Group Pty Ltd.
2 On 24 September 2014, Mr Bartley alleges injuring himself at the premises of the second defendant. At the time, he was employed by the first defendant. In his statement of claim, he alleges:[1]
“On 24 September 2014 the Plaintiff was attempting to step off the rear step of a cement truck in the wash bay area at the premises when he lost his footing on the uneven concrete surface, causing him to suffer injuries to his left ankle (“the incident”).”
[1]Paragraph 3.
3 His proceeding is listed for trial on 11 June 2020 by order of Judicial Registrar Gurry on 23 August 2019. Other orders were made at the same time including:
“8. By 4.00 pm on 17 October 2019 the party served with a Notice of Discovery must make discovery (including full inspection) of the following documents:
(a)each document referred to in the party’s pleadings or the particulars of the pleadings;
(b)any document which may be produced by the party during evidence at the trial;
(c)any document which may harm the party’s case;
(d)any document or class of documents which the other party reasonably requests the party to discover”.
4 It is noticeable that this order differs from rule 29.01.1(3) of the County Court Civil Procedure Rules 2018 (‘the Rules”):
“Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given –
(a) documents on which the party relies;
(b) documents that adversely affect the party’s own case;
(c) documents that adversely affect another party’s case;
(d) documents that support another party’s case.”
5 Sub-rule (5) sets out the matters to be considered in a party making a reasonable search.
6 Apparently, order (8) was what the parties wanted for the orders of the judicial registrar are described as “In Chambers Order” (based on correspondence dated 23 August 2019).
7 Paragraphs (a) and (b) of the order are likely to be the same documents as those described in paragraph (a) of the sub-rule. Paragraph (c) of the order is the same as (b) in the sub-rule. There is no direct equivalent of (c) of the sub-rule in the order although it too may be subsumed by (a) and (b) of the order. Paragraph (d) of the order is unique. R 29.01.1 was introduced to narrow the scope of discovery and overcome the effect of the Peruvian Guano case[2]. This is not the time to discuss the merits of the paragraph. Suffice to say, the plaintiff served a notice of Discovery in the standard form (Form 29A) without any additional requests.
[2]The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55, especially at 63.
8 On 16 October 2019, the second defendant swore and served an affidavit of documents. The structure of that affidavit follows Form 29B of the Rules. The second defendant’s defence does not refer to any document. No further and better particulars of that defence have been filed.
9 There the matter lay until the plaintiff’s solicitors wrote to the second defendant’s solicitors on 27 February 2020. The letter referred to two items in Schedule 1 of Part 1 of the affidavit for plainly, there had been an inspection of the discoverable documents. Item 3 disclosed the existence of a risk assessment and the photographs in item 12 showed significant works had been undertaken to the surface of the premises, including the wash bay area. The solicitors sought further discovery of risk assessments and all material relating to the works. There was no reply to this letter and it was followed up by a letter dated 22 April and 1 May. The 1 May letter said, in part:
“We understand through discussions with witnesses that your client held safety meetings and tool box talks for each of its sites being Springvale, Port Melbourne, Ringwood and Dandenong.
We seek production of both safety meetings and notes from tool box talks for each site for the periods of 24 September 2013 to 24 September 2015”.
10 Meanwhile, the second defendant’s solicitors replied on 1 May saying the second defendant could not locate the risk assessment referred to in the document discovered in item 3, let alone other risk assessments; it denied the wash bay area was defective and said no repairs were performed between August 2014 and 2016; and the reason for the 2016 works was “to maximise efficiency of the premises in mixing and delivering concrete”.
11 On 7 May, the plaintiff’s solicitors wrote again, seeking all documents relating to the 2016 works and the documents concerning safety meetings as sought on 1 May.
12 The second defendant’s solicitor wrote on 12 May in part, raising the objection its solicitor raised in the hearing for me, namely, the timing of these requests. Despite that, on 20 May, the solicitor wrote again and enclosed:
(a)Barro Group site health and safety meeting agenda and minutes from 16 September 2013 to 24 September 2014;
(b)Pronto Concrete Ringwood Injuries Register for 2014;
(c)photographs of the truck way bay at Pronto Concrete Ringwood dated 7 February 2020.
13 Looking behind an affidavit is a serious matter for one is questioning the accuracy of what someone has sworn. One assumes great care has been taken in preparing and swearing an affidavit of documents. Traditionally, the grounds for looking behind an affidavit of documents have been very narrow[3]:
“But while it is true that as a general rule you cannot go behind the affidavit in the absence of admissions in that or some other document, the rule is qualified where the basis on which the affidavit of documents has been made turns out to be wrong. If the party making the affidavit has misconceived his case, so that the Court is practically certain that if he had conceived it properly, and had acted upon a proper view of the law, he would have disclosed further documents, then the Court can refuse to recognize an affidavit as conclusive, and order a further affidavit.”
[3]British Association of Glass Bottle Manufacturers v Nettlefold [1912] AC 709 at 714 per Viscount Haldane LC.
14 R 29.08(2) of the Rules requires belief based on one or other of three sources of information: evidence, nature or circumstances of the case and documents filed in the proceeding. These too are narrow sources. The expression “nature or circumstances of the case” should be narrowly construed for otherwise it would tend to undermine the intention of the rule. The affidavit of the plaintiff’s solicitor does not apparently rely on any of the grounds. He relies on what photographs show and what unidentified witnesses have said, presumably in statements. In the absence of the second defendant’s response to the plaintiff’s correspondence, it is unlikely I would have made any order for further discovery.
15 In effect, the plaintiff alleges the surface where he trod was in poor condition. It was uneven. It had holes filled with slurry. There are allegations of negligence of what it did or failed to do. There are allegations of breach of statutory duties. The second defendant responded to the assertion of safety meetings by providing documents. Health and safety meetings of those working at the Ringwood premises are important. They enable issues regarding health and safety to be raised, discussed and changes recommended. In this case, these meetings produced documents. Those documents refer to checklists. Since the second defendant saw fit to provide some documents, it should have discovered the checklists. They should now be discovered for the period between 16 September 2013 and 24 September 2014.
16 There were significant surface changes to the premises in 2016. Naturally, the plaintiff was interested whether these changes were in any way caused by the alleged reason for his accident. The second defendant says not. However, the issue would be raised at trial. One expects the second defendant would seek to bolster its denial by tendering documents showing its intention. That would include the nature of the changes which might point to the reason. This should have been the subject of discovery.
17 Counsel for the plaintiff produced a proposal for the orders sought by the plaintiff. He withdrew the third category. The first and the second are broadly drawn, especially the first. I am not prepared to accede to these categories as drafted for these reasons. First, the second defendant has not discovered the documents sought in the first category. There is no basis in the material to look behind the affidavit except to the extent set out in the previous paragraph. Second, this is where the second defendant’s complaint about timing is relevant, which raises the concept of “reasonable search” in sub-rules (3) and (5). Discovery was made on 16 October 2019. Inspection was ordered to occur by 4.00 pm the next day. This issue of further discovery should have been raised and dealt with before the end of 2019. Raising it for the first time at the end of February this year with a summons returnable on 22 May 2020 is far too late bearing in mind a trial date of 11 June. It appears the second defendant has searched and located various documents including a file relating to the 2016 changes and it is that for which I will order discovery.
18 The plaintiff’s counsel sought costs in the cause. No one made any other submission on that point. I will make the costs of this summons costs in the cause.
19 I will make the following orders:
(a)order the second defendant to swear, file and serve a further affidavit of documents by 4.00 pm on Friday, 29 May 2020 discovering:
(i)all documents relating to the 2016 building works at the premises at 58-62 New Street, Ringwood; and
(ii)all monthly site checklists for the period between 16 September 2013 and 24 September 2014.
(b)the costs of this summons will be costs in the cause.
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