BHP Billiton Ltd v Dunning

[2013] NSWCA 421

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

BHP Billiton Ltd v Dunning [2013] NSWCA 421

Hearing dates:

26 November 2013

Decision date:

10 December 2013

Before:

Macfarlan JA at [1];
Gleeson JA at [2];
Young AJA at [67]

Decision:

Application for leave dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - discovery and inspection of documents - applicant seeking leave to appeal against a decision of a judge of the Dust Diseases Tribunal of NSW on a matter of practice and procedure - Part 23 Supreme Court Rules 1970 - whether the primary judge's reference to documents which could inform the ultimate questions was misconceived - whether the primary judge incorrectly relied upon the train of inquiry test in ordering discovery

Legislation Cited:

Dust Diseases Tribunal Act 1989, s 33
Dust Diseases Tribunal Rules, r 7
Supreme Court Rules 1970, Pt 23, rr 1, 3

Cases Cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Amaba Pty Ltd v Booth [2010] NSWCA 344
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Australian Competition and Consumer Commissioner v Radio Rentals Ltd and Another [2005] FCA 1133; 146 FCR 292
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kostas & Anor v HIA Insurance Services Pty Ltd & Anor [2010] HCA 32; 241 CLR 390
Lakatoi Universal Pty Ltd v Walker [1998] NSWSC 470
Lee v New South Wales Crime Commission [2012] NSWCA 276
Macquarie Bank Ltd v Sixth-Fourth Throne Pty Ltd [1998] 3 VR 133
McPherson's v Eaton [2005] NSWCA 435; 65 NSWLR 187
National Australia Bank Ltd and others v Idoport Pty Ltd [2000] NSWCA 8
RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123
Re Chisum Services Pty Ltd (1982) (1982) 7 ACLR 641
Seltsam Pty Ltd v McNeill [2006] NSWCA 158
Yorkshire Provident Life Assurance Company v Gilbert & Rivington [1895] 2 QB 148
Zelden v Sewell [2011] NSWCA 56

Category:

Principal judgment

Parties:

BHP Billiton Limited (Applicant)
Jake Douglas Dunning as Tutor for Steven Douglas Dunning (Respondent)

Representation:

Counsel:
G Parker SC with D Talintyre (Applicant)
P Semmler QC with S Tzouganatos (Respondent)
Solicitors:
Piper Alderman (Applicant)
Slater & Gordon (Respondent)

File Number(s):

2013/287847

 Decision under appeal 

Jurisdiction:

9115

Citation:

Jake Douglas Dunning as Tutor for Steven Douglas Dunning v BHP Billiton Limited

Date of Decision:

2013-09-05 00:00:00

Before:

Kearns J

File Number(s):

DDT 79/2011

Judgment

1. MACFARLAN JA: The reasons given by Gleeson JA for joining in the making on 26 November 2013 of an order dismissing with costs the Application for Leave to Appeal reflect my reasons for also joining in the making of that order.

1. GLEESON JA: On 26 November 2013, the Court heard an application for leave to appeal by the defendant below against a decision of a judge of the Dust Diseases Tribunal of New South Wales (the Tribunal) that the defendant give further discovery in proceedings which were part heard before the primary judge. At the conclusion of the oral argument, the Court ordered that the application be dismissed with costs. The reasons for those orders were reserved. My reasons for joining in those orders now follow.

The proceedings below

1. Between 1979 and 1981, the applicant (BHP) employed the respondent (Mr Dunning) as a labourer and gunner in the Blast Furnace Department of its steelworks at Newcastle. On occasions between 1985 and 1992, Mr Dunning also worked at the Newcastle steelworks as an employee of a number of independent contractor firms. Mr Dunning has developed mesothelioma.

1. In March 2011, Mr Dunning commenced proceedings against BHP in the Tribunal claiming damages for negligence and breach of statutory duty. By its amended defence, BHP put in issue all the material allegations of the negligence and breach of statutory duty, other than that Mr Dunning has malignant pleural mesothelioma (but denied that such mesothelioma was caused or contributed to by any breach of duty on the part of BHP).

1. BHP's defence also contained a limited admission, in response to Mr Dunning's claim for aggravated and exemplary damages. The admission was that BHP knew or ought to have known that exposure to asbestos which exceeded an applicable maximum allowable concentration (MAC) (specified in standards published by the National Health & Medical Research Council (NHMRC)) presented a risk of asbestos-related lung disease.

1. On 22 August 2011, orders were made in the proceedings that BHP provide verified general discovery. On 1 December 2011, BHP filed a verified list of documents which listed 206 relevant documents (1/WB 111). Subsequently, on 27 March 2012, an order for further verified general discovery was made. Both of these orders were made without regard to the terms of Pt 23 of the Supreme Court Rules 1970 (SCR), which in a modified term applies in the Tribunal and limit discovery to classes of documents, rather than general discovery.

1. BHP filed a verified amended list of documents on 11 October 2012, which listed 213 relevant documents, but, 33 of these documents, which had appeared in the original list of documents, had been deleted by way of a line ruled through the description of the documents. No order had been sought, let alone obtained, by BHP to amend its list of documents in this manner.

1. The trial commenced in February 2013. After nine days of hearing, interspersed by a number of months, Mr Dunning applied for further discovery by a notice of motion filed on 4 September 2013. It appears that this application was precipitated by two events. First, during the course of cross-examination of a lay witness, Mr Parker, BHP made use of a document that had not been discovered. Secondly, BHP had informed the Court on the previous day that it had located further discoverable documents.

1. On 4 September 2013, the primary judge (Kearns J) delivered a ruling that BHP's discovery was inadequate. The parties were given the opportunity to either agree on the classes of documents in respect of which further discovery was to be given, or put their alternative proposals to his Honour. The parties were unable to agree. They each proposed different categories of documents for further discovery.

1. On 5 September 2013, the primary judge delivered a further ruling in which he ordered BHP to discover 11 classes of documents. These are set out at [36] below.

1. On 21 October 2013, BHP applied for leave to appeal against the decision of Kearns J ordering further discovery. Leave is required by s 32(4) of the Dust Diseases Tribunal Act 1989 (DDT Act) in respect of an appeal from an interlocutory decision. There is no issue that the discovery order is an interlocutory decision. Subject to the requirement of leave, a right of appeal from the Tribunal to this Court is limited, relevantly in this case, to a decision of the Tribunal in point of law: s 32(1) DDT Act.

Proposed grounds of appeal

1. The draft notice of appeal raises two grounds as follows:

(1)   that the finding that BHP had failed to comply properly with the orders for discovery previously made by the Tribunal was erroneous, or alternatively not supported by adequate reasons and was not reasonably open to his Honour.

(2)   that the primary judge erred in ordering further discovery because he failed to consider whether, or alternatively give adequate reasons for concluding that, the categories of documents specified by him were no more extensive than what was justified in the circumstances of the proceedings.

Summary of parties' contentions

1. BHP's primary complaint was that the primary judge failed to follow the approach to discovery required by SCR Pt 23, as amended in 1996, which applied to proceedings in the Tribunal, subject to modifications by the Dust Diseases Tribunal Rules (DDTR).

1. It was contended by BHP that his Honour misconceived the concept of relevance under SCR Pt 23 and adopted, in effect, the "train of inquiry" test of relevance.

1. The error of law alleged by BHP was thus that the primary judge adopted a test for relevance which was too broad. Underlying this alleged error were said to be two further errors of law by the primary judge in (a) failing to appreciate that the foreseeability inquiry for the law of negligence is an individualised inquiry; and (b) failing to have regard to the principles of corporate knowledge to determine the relevance of documents.

1. In the alternative to its primary complaint, BHP contended that the primary judge failed to limit the discovery categories so that they were no more extensive than what was justified in the circumstances of the case, as required by SCR Pt 23 r 3(2), and that this involved an error or law.

1. Mr Dunning opposed the application for leave on a number of grounds. These included that the proposed appeal does not involve a matter of general principle but rather a matter of practice and procedure; that the ruling below did not finally determine the rights of the parties; that there was no error of principle nor would there be substantial injustice if leave was refused. It was further contended by Mr Dunning that the proposed appeal is against findings of fact, whereas an appeal is only permitted in the present circumstances in relation to a decision in point of law: s 32(1) DDT Act.

1. Mr Dunning's submissions emphasised that there is no error of law in making a wrong finding of fact, unless there is no evidence to support that finding: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 342 per Mason CJ; Kostas & Anor v HIA Insurance Services Pty Ltd & Anor [2010] HCA 32; 241 CLR 390 at [91]. It was argued that it is necessary for BHP to establish that any factual findings about which it complains are "evidentially baseless": CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [26] per Allsop P. It was further argued that no challenge is permitted to his Honour's factual findings, so long as there was some basis in the evidence for the findings which are attacked, or for the inferences drawn by the primary judge: Amaba Pty Ltd v Booth [2010] NSWCA 344 at [21]-[22] per Basten JA. It was contended that BHP had not demonstrated error of this type in his Honour's factual findings.

Principles relevant to leave applications

1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary judge was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Ltdt/as Bennetts Green Bowl [1995] NSWCA 69 per Sheller JA; Zelden v Sewell [2011] NSWCA 56 at [22] per Campbell JA (Young JA agreeing).

1. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable: Carolan per Kirby P; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, Campbell JA (Young and Meagher JJA agreeing) at [46]. See also Lee v New South Wales Crime Commission [2012] NSWCA 276; 301 ALR 629 at [12] per Bathurst CJ (Macfarlan and Barrett JJA agreeing).

1. Further, in relation to a matter involving one of practice and procedure, the application for leave is to be approached with the restraint applied by an appellate court when reviewing such decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177; In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323. This consideration has particular force in relation to an application for leave to appeal from a decision made during the course of the trial.

Discovery in the Tribunal

1. It is common ground that the approach to discovery required by SCR Pt 23, as amended in 1996, applied to proceedings in the Tribunal, subject to modifications by the DDTR. Relevantly, r 7(3) DDTR requires discovery of discoverable documents which have been in the defendant's possession at any time, not only within six months prior to commencement of proceedings, as in SCR Pt 23 r 3(5)(a)(ii).

1. Relevance is defined in r 1 of Pt 23:

"1(a) ...

(d) a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which 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."

1. Subrules (1), (2) and (3) of rule 3 provide:

"Order for discovery

3. (1) The Court may, on the application of a party or of its own

motion, order that any party (party B) give discovery to any other

party (party A) or parties (each of which is included in the

expression "party A") of:

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

(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 shall 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;

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

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

1. As observed by Mason P and Priestley JA in National Australia Bank Ltd and others v Idoport Pty Ltd [2000] NSWCA 8 at [7], the definition of relevance in r 1(d) had the effect of excluding the "train of inquiry" idea as a factor in deciding relevance: see Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ. The "train of inquiry" test could make a document discoverable even if it did not advance one party's case, damage that of the other, or relate to an issue, whereas under the new rules, a document must be relevant to a fact in issue in the defined sense: National Australia Bank Ltd v Idoport Pty Ltd at [7].

Primary judge's reasons

Need for further discovery

1. The primary judge gave ex tempore reasons for his ruling on 4 September 2013 that BHP should give further discovery. His Honour noted four matters relied upon by Mr Dunning as providing reasonable grounds for concern that discovery had not been undertaken by BHP in the way it should have been. These were:

(1)   the failure to discover what is referred to as the Wilson Report. This was a report of Dr K J Wilson, Principal Medical Officer, occupational health and safety relating to health hazards from asbestos in respect of BHP's site at Whyalla. This report was forwarded under cover of a letter dated 15 January 1969 from the Secretary of the Department of Public Health, South Australia, to the Manager of the Whyalla Shipbuilding and Engineering Works;

(2)   the failure to discover the Utting documents, being documents relating to proceedings between BHP and Mr Utting;

(3)   the deletion of documents that had earlier been discovered in BHP's original list of documents;

(4)   evidence by Ms Wade, solicitor for Mr Dunning, who had inspected 15 lever arch folders recently provided by BHP, and expressed the view that there were other documents that should have been discovered.

1. I interpolate at this point that a curious feature of this discovery dispute is that a copy of the Wilson Report was in evidence before the primary judge. This document had been previously provided by the solicitors for BHP to Mr Dunning's solicitors upon request, but without any concession by BHP that the document was discoverable.

1. The primary judge noted that BHP objected to further discovery on the grounds of relevance. After recording BHP's submission that foreseeability is an individualised inquiry, and the question was whether Mr Dunning was at risk and what could have been done to address any risk that he was exposed to, his Honour observed that:

"They are ultimate questions, but there are steps along the way before you get to those questions. The answer to those questions can be informed by documents that might not be specific to the plaintiff. It is no answer, in my view, to say that the documents lacked relevance for discovery purposes because they do not address the question as to whether this plaintiff was at a foreseeable risk of injury. They may not address that specific question, but if they provide information that is capable of informing that question, they are relevant for the purpose of discovery." (emphasis added)

1. The primary judge found that Mr Dunning's application for further discovery was justified by the Wilson Report and the Utting documents, or at least some of them.

1. The primary judge rejected BHP's argument that the documents held in its libraries were not relevant because BHP cannot be expected to have knowledge of every single page in its library. His Honour reasoned that although it may not ultimately be established at trial that BHP had actual knowledge of the dangers of asbestos exposure, particularly light exposure causing mesothelioma, the fact that BHP was holding onto information was plainly one step in establishing what BHP knew, or ought to have known.

1. The primary judge also rejected BHP's argument that having regard to the pleadings and particulars, including the admission by BHP referred to at [ REF _Ref373501852 \r \h \* MERGEFORMAT 5] above, none of the material sought was relevant to the issue of foreseeability. The primary judge reasoned that Mr Dunning sought to establish that it was foreseeable that there was a risk to health of persons exposed to relatively light exposure and that the pleadings and particulars did not prevent him running a case in that way.

Categories for discovery

1. The primary judge gave a further ex tempore judgment on 5 September 2013, when ruling on the categories for discovery.

1. His Honour rejected the proposed categories put forward by BHP on the ground that they were far too narrow. Those suggested categories were limited as to (a) time, between 1 January 1968 and 1979; (b) location, being documents indicating the contents of libraries located at BHP Newcastle, Melbourne and Whyalla; and (c) subject matter, being documents relating to potential health risks to exposure to asbestos held at BHP Whyalla and Newcastle.

1. His Honour then addressed the categories put forward by Mr Dunning. Ultimately, his Honour disallowed one category and amended the terms of some of the remaining categories of documents.

1. His Honour considered that relevance for the purpose of discovery was not to be determined, or at least confined by, what Mr Dunning's working conditions were, nor was it to be confined by one view of BHP's case, that it is only exposure in excess of a particular threshold level, or maximum allowable concentration that created a foreseeable risk of injury.

1. The primary judge ordered that BHP give discovery of the following classes of documents:

"(1) Documents, wherever created or located, relating to the knowledge of the Defendant prior to 31 December 1990, of the risk of injury from the exposure to asbestos dust.

(2) Documents, wherever created or located, relating to the availability prior to 31 December 1990 of precautions and measures to reduce or minimise the risk of injury from the inhalation of asbestos prior to December 1990.

(3) Documents, wherever created or located, relating to the existence and content prior to 31 December 1990 of libraries maintained and operated by the Defendant.

(3A) Documents prior to 31 December 1990 including all publications, books, journals, catalogues, articles, memoranda and reports relating to:

(a) the risk of injury from the inhalation of asbestos dust;

(b) the availability of measures to minimise or eliminate the generation and accumulation of industrial dust generally and asbestos dust specifically.

(4) Documents, wherever created and located, discovered by the Defendant in the Utting proceedings.

(5) Documents, wherever created and located, relating to the carrying out of and results from monitoring and testing of the atmosphere in the Blast Furnace Department of the Newcastle Steelworks prior to 31 December 1990.

(6) Documents, wherever and whenever created and located, relating to any removal of asbestos after November 1979 from the Blast Furnace Department at the Newcastle Steelworks.

(7) The Defendant's Annual Reports for the years 1969 to 1990.

(8) Documents, wherever created and located, including the results of any asbestos survey, relating to the presence and use of asbestos containing products before 31 December 1990 at the Blast Furnace Department at the Newcastle Steelworks.

(9) Correspondence, wherever created and located, prior to 31 December 1990 between the Defendant's Safety Superintendents relating to asbestos or the health effects of the inhalation of asbestos and the means of reducing asbestos dust in the workplace.

(10) Documents, wherever created or located, relating to the purchase, distribution and use in the Blast Furnace Department at the Newcastle Steelworks during the period 1 January 1960 to 31 December 1990 of products containing asbestos."

Proposed Ground 1

Ultimate questions

1. BHP's first complaint was that the primary judge's reference to documents which could inform the "ultimate questions" in the case, revealed misconception by his Honour because the phrase "ultimate questions" is apt to suggest relevance assessed by reference to the elements of the cause of action, whereas SCR 23.1(d) refers to relevance to the facts in issue. In my view, there is no substance in this complaint.

1. First, a fair reading of the relevant passage of the primary judge's ruling reveals that his Honour's reference to "ultimate questions" was a reference to BHP's submission that foreseeability is an individualised inquiry and that the ultimate questions are whether Mr Dunning was at risk and what could have been done to address any risk that he was exposed to.

1. Secondly, his Honour went on to draw a distinction between the "ultimate questions" in the proceedings and the "steps along the way" before one arrived at those questions. The latter was undoubtedly a reference to the facts in issue. His Honour did not misconceive the concept of relevance for the purpose of discovery, nor did he conflate the obligation of discovery with the elements of the cause of action, as contended by BHP.

Train of inquiry

1. BHP's second complaint related to the asserted misconception by the primary judge of the test of relevance under Pt 23 SCR. It was submitted that his Honour's reference to documents which provided information "capable of informing" the issues, was redolent of the "train of inquiry" approach to discovery, which was excluded under SCR Pt 23.

1. BHP contended that the primary judge's reasoning depended on a "train of inquiry" approach, because the documents exhibited to Ms Wade's affidavit could only be relevant if put in conjunction with other documents. Such documents were described by BHP as "mere islands without connection to the case", and thus did not satisfy the standard of direct relevance to issues in dispute.

1. BHP's characterisation of individual documents, such as the Wilson Report, as "mere islands without connection to the case" and thus irrelevant, ignored that the test of relevance under SCR Pt 23 r 1(d) includes documents containing materials which could rationally affect the assessment of the probability of the existence of fact in issue. Relevance in the defined sense, must take account of any inferences which might be able to be drawn from particular documents when considered in the light of other evidence, rather than as viewed in isolation.

1. As observed by Rolfe J in Lakatoi Universal Pty Ltd v Walker [1998] NSWSC 470, in a case relating to an application for access to subpoenaed documents, in determining the question of relevance, the Court must bear in mind that the parties are entitled to built up an evidentiary mosaic. Generally that cannot be done by the tender of only one piece of evidence.

1. The primary judge's reference to relevant documents being those which were "capable of informing" the question of whether Mr Dunning was at a foreseeable risk of injury did not, in my view, involve the discarded "train of inquiry" approach to discovery. Nor did his Honour err in his approach to the foreseeability question. His Honour clearly accepted that the foreseeability issue was an individualised inquiry. The point which his Honour correctly made was that this did not mean that for the documents to be relevant they needed to relate specifically to Mr Dunning. Documents relevant to the facts in issue would encompass documents concerning whether there was a foreseeable risk of injury in respect of the class of persons of whom Mr Dunning was one.

1. I do not consider that the primary judge's approach to relevance was arguably wrong, let alone raises a matter which warrants a grant of leave. Nor was the primary judge arguably wrong in concluding that BHP's discovery had been deficient. This finding was open to the primary judge on the evidence before him.

Other complaints

1. BHP submitted that the primary judge analysed the pleadings and particulars in a way which left Mr Dunning's case on reasonable foreseeability at large and that this subverted the whole process of providing particulars, one specific purpose of which is to limit the ambit of discovery: Yorkshire Provident Life Assurance Company v Gilbert & Rivington [1895] 2 QB 148 and 152 and 154.

1. In this regard, BHP pointed to two matters. First, that [16](j) of the further amended statement of claim and Mr Dunning's particulars alleged that BHP was negligent in failing to make inquiries of appropriate health authorities, including the NHMRC - and in failing to obtain and consult 370 named scientific and technical publications. BHP submitted that the issues of reasonable foreseeability should be limited to those particulars.

1. Secondly, BHP pointed to the admission in [10.1]-[10.2] of its defence as also limiting the facts in issue. The admission was:

"[10.1] That it knew or ought to have known that exposure to asbestos which exceeded an applicable MAC presented a risk of asbestos-related lung disease."

1. It is to be observed that the admission made by BHP in its defence was only in respect of Mr Dunning's claim for aggravated and exemplary damages, and this Court was told that this claim was not being pursued by Mr Dunning. However, counsel for BHP contended that the BHP's admission remained relevant because it should be understood as relating to the whole of Mr Dunning's claim, albeit no formal amendment to the defence has been made in the proceedings below. Counsel for BHP also submitted that a technical approach should not be taken to the defence, and noted that no issue had been taken before the primary judge that the admission did not relate to the entirety of Mr Dunning's claim. Although the status of BHP's admission should be formally clarified in the proceedings below, the leave application should be approached, in my view, upon the basis of the concession of counsel for BHP as to the wider ambit of the admission.

1. Relying upon this approach to its defence, BHP contended that the only documents which could be relevant to the issues in dispute on foreseeability were those demonstrating that BHP knew or ought to have known that exposures below the MAC could cause asbestos-related diseases, and that the primary judge had no regard to what it asserted was the limitation on the issues in dispute on foreseeability.

1. It is to be accepted that the scope of discovery is confined by the pleadings and particulars. However, there are two limbs to Mr Dunning's case. The first is based on actual knowledge of BHP of the foreseeable risk of injury to Mr Dunning. The second is based on what BHP ought to have known. Although particulars had been provided of what enquiries BHP ought to have made, the ambit of Mr Dunning's case based on actual knowledge was not limited in any way. The existence of actual knowledge is a question of fact, the proof of which, in the absence of an admission by a party, is always a matter of inference: RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123 at 125.

1. Further, the knowledge of a corporation may arguably include any knowledge of circumstances which ought to have been but was not conveyed to the board of directors or relevant senior management by another servant or agent of the company, if there is a duty and opportunity by one employee or officer to communicate information to another: see for example, Re Chisum Services Pty Ltd (1982) 7 ACLR 641 at 299; Macquarie Bank Ltd v Sixth-Fourth Throne Pty Ltd [1998] 3 VR 133; Australian Competition and Consumer Commissioner v Radio Rentals Ltd and Another [2005] FCA 1133; 146 FCR 292.

1. Whether information in the possession of BHP can be aggregated in the present case, is properly a matter for the final hearing. There was no error by the primary judge in permitting discovery of documents which could be relied upon by Mr Dunning in support of such an argument.

1. The primary judge expressly considered the significance of BHP's admission in its defence in his ruling of 4 September 2013 (WB 18). His Honour was entitled to take into account, as he did, his understanding of the case which Mr Dunning sought to make against BHP of knowledge of the dangers of asbestos exposure to persons, such as those in the position of Mr Dunning, particularly light exposure causing mesothelioma.

1. BHP's also submitted that the Wilson Report was irrelevant for two reasons. First, because it referred to a different MAC level (in 1969) than the one applicable in 1979, and therefore could not rationally be of any assistance in determining whether BHP knew or ought to have known that the MAC as it stood in 1979 was unreliable. Secondly, because it concerned working conditions in the shipyards at Whyalla which were said to be different to the circumstances in which Mr Dunning worked at the steelworks in Newcastle. BHP argued that the primary judge had erred in conflating the risks to differently exposed classes of persons in determining the issue of foreseeability: Seltsam Pty Ltd v McNeill [2006] NSWCA 158 at [2] per Handley JA and [36], [38] to [40] and [101] per Bryson JA; CSR Ltd v Amaca Pty Ltd at [45]-[47] per Allsop P and [151]-[152] per Basten JA.

1. These complaints do not, in my view, fairly reflect the primary judge's reasoning. His Honour was undoubtedly aware of the differences in the working conditions between the shipyards at Whyalla, at least insofar as they were referred to in the Wilson Report, and the steelworks in Newcastle. However, the working conditions had a common feature of use of asbestos products and exposure to asbestos dust in an industrial setting. I do not consider that the primary judge was arguably wrong in concluding that the Wilson Report was relevant to the issue of BHP's actual knowledge of the foreseeable risk of injury to persons, such as Mr Dunning, exposed to relatively light exposure to asbestos dust at BHP's Newcastle steelworks.

1. In relation to the documents held in the BHP libraries, it was contended by BHP that the primary judge erred in stating that it was no answer to the relevance of such documents that BHP cannot be expected to have knowledge of every single page in its library. It was argued that the existence of a relevant publication in a library operated by BHP at the relevant time did not of itself establish that the content of that document was relevantly known, or to have been relevantly known, to BHP for the purposes of the proceedings: McPherson's v Eaton [2005] NSWCA 435; 65 NSWLR 187 at 205 [102]-[104] per Ipp JA.

1. In my view, BHP's submissions conflated the arguments which may be available to it upon the final hearing with the question of relevance at the anterior stage of discovery. The primary judge was not arguably wrong to permit discovery of documents indicating the contents of BHP's libraries. Whether Mr Dunning would be able to make out a case of knowledge by BHP of the contents of any documents comprised in the BHP's libraries is a matter for argument at the hearing.

1. No arguable error of law or question of principle has been demonstrated, in my view, with respect to the primary judge's approach to relevance for the purposes of discovery.

Proposed Ground 2

1. Although BHP argued that compliance with the discovery order would involve a significant and substantial task, no submission was advanced before the primary judge, or on this application, that the primary judge erred because the discovery order was oppressive.

1. Rather, BHP contended that the primary judge erred because he did not consider r 3(2) of SCR Pt 23, or even if he had, the orders could not be reasonably supported because the categories of documents were not sufficiently limited by either time period, location, subject matter or the pleadings and particulars.

1. As to the first contention, it should not be accepted that the primary judge overlooked the rule. The terms of SCR Pt 23 were brought to his Honour's attention during oral argument (WB 398) and his Honour acknowledged that SCR Pt 23 limited the power of the Tribunal to give discovery to categories of documents, in his rulings both on 4 September (WB 18) and 5 September (WB 20).

1. As to the second contention, I would not grant leave to appeal in respect of the primary judge's assessment of the specificity of the categories of discovery that were justified in the circumstances. This was a quintessential matter of practice and procedure. The primary judge had the advantage of having heard the proceedings for 9 days. The categories of discovery sought by Mr Dunning were largely directed to what actual knowledge BHP had concerning the risk to its employees in the workplace to exposure to asbestos dust. On the pleadings, a case based on actual knowledge of foreseeability of risk of injury to Mr Dunning was open.

1. The delineation of the relevant time period, the location of documents and the subject matter of further discovery were all matters which the primary judge was uniquely placed to determine.

1. In my view, no issue of principle, question of general importance or injustice which is reasonably clear in the sense of going beyond what is merely arguable has been demonstrated.

1. For the above reasons, in my view, none of the matters sought to be raised by BHP warrant a grant of leave.

1. YOUNG AJA: Basically, my view at the end of the hearing was that this was not a case which justified this Court giving leave to appeal in a case that was part heard in a tribunal which by the very nature of the case before it had to proceed with expedition and where the question was one of practice and procedure before that tribunal.

1. This Court must be watchful to ensure that its jurisdiction to review is not made the instrument of delay and only should grant leave in such cases in the circumstances outlined by Gleeson JA in [19]-[21] above.

1. Having now read in draft the reasons of Gleeson JA with which I agree, I am reinforced in the view that I took when I joined in the order of the Court.

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Decision last updated: 10 December 2013