BR & BM Investments Pty Ltd ACN 008 128 612 v Genesee & Wyoming Australia Pty Ltd ACN 079 444 296
[2017] SASC 82
•5 June 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
BR & BM INVESTMENTS PTY LTD ACN 008 128 612 & ORS v GENESEE & WYOMING AUSTRALIA PTY LTD ACN 079 444 296 & ANOR
[2017] SASC 82
Judgment of The Honourable Justice Stanley
5 June 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
Appeal against interlocutory decision of a master dismissing applications for disclosure pursuant to rule 139 of the Supreme Court Civil Rules 2006 (SA) in circumstances where disclosure had not occurred pursuant to 6SCR 136.
The substantive action concerns a fire in a rail corridor at Wingfield that started on 6 January 2011. It is the plaintiffs’ case that (a) the first and third defendants should have maintained and operated the locomotives so that they did not emit sparks; and (b) the second and fourth defendants should have maintained the rail corridor so that it did not catch fire if sparks were emitted.
The documents sought go to the way the locomotives were maintained after the fire, either on the initiative of the first and third defendants or in response to communications from regulators or the second defendant, and communications from the first and third defendants as to the allocation of responsibility between them for maintaining the locomotives.
Held: Appeal allowed.
1. The operation of 6SCR 139 is not to be conditioned by the operation of 6SCR 136. The power conferred by 6SCR 139 is separate and discrete from the power conferred by 6SCR 136 (at [25]). Further, 6SCR 139 does deal with directly relevant documents, but is not confined to such documents (at [27]).
2. While questions of relevance are to be determined by reference to the pleadings, the question of whether a document or category of documents is relevant is to be determined by reference to an issue raised in the pleadings not to the pleading itself (at [35]).
3. Documents evidencing the extent of risk abatement measures taken in the period one year immediately subsequent to the fire may tend to prove or disprove facts which are in issue (at [45]).
Supreme Court Civil Rules 2006 (SA) r 32, r 116, r 117, r 136, r 139, r 145; Civil Liability Act 1936 (SA) s 32, referred to.
Highfield Property Investments Pty Ltd v Urban Construct (SA) Pty Ltd & Anor [2010] SASC 148, discussed.
House v The King (1936) 55 CLR 499; Scott v Johnson & Ors [2010] SASC 277; Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; Mulley v Manifold (1959) 103 CLR 341; Ceneavenue Pty Ltd v Martin [2008] SASC 332; Proude v Visic & Anor [2012] SASC 184; Southern Equities Corporation Limited (In Liq) v Arthur Andersen (No 5) [2001] SASC 335, considered.
BR & BM INVESTMENTS PTY LTD ACN 008 128 612 & ORS v GENESEE & WYOMING AUSTRALIA PTY LTD ACN 079 444 296 & ANOR
[2017] SASC 82Civil: Appeal against decision of a master
STANLEY J.
Introduction
The plaintiffs brought four separate applications seeking orders against each of the four defendants pursuant to 6SCR 139 of the Supreme Court Civil Rules 2006 (SA) (the Rules) for disclosure of classes of documents identified therein. A master of this Court dismissed the applications against the first to third defendants. The application against the fourth defendant was adjourned. The plaintiffs appeal those orders.[1]
[1] For convenience, I refer in these reasons to the appellants as plaintiffs and respondents as defendants.
For the reasons that follow, I would allow the appeal.
Background
The action concerns a fire in a rail corridor at Wingfield that started on 6 January 2011. The cause of the fire was sparks flying from two locomotives. The sparks ignited vegetation in the rail corridor, and the fire spread to the plaintiffs’ land. As a consequence, the three plaintiffs collectively claim damages in excess of $9 million for their resulting losses.
The first defendant owned the two locomotives from which the sparks are alleged to have been emitted. The second defendant owns the rail corridor, from which the fire escaped. The third defendant is the contractor responsible for maintaining the first defendant’s locomotives and rolling stock. The fourth defendant is the contractor responsible for maintaining the second defendant’s track (including slashing vegetation in the rail corridor).
The claim alleges the plaintiffs’ losses result from the negligence of the first to fourth defendants. The plaintiffs also allege breach of statutory duty by the first defendant.
It is the plaintiffs’ case that:
1the first and third defendants should have maintained and operated the locomotives so that they did not emit sparks; and
2the second and fourth defendants should have maintained the rail corridor so that it did not catch fire if sparks were emitted.
The plaintiffs previously obtained orders for pre‑action disclosure by each of the four defendants pursuant to 6SCR 32. Those orders were made by consent on 12 April 2013, 31 May 2013 and 28 June 2013.
On 12 April 2013, a master ordered that the third defendant disclose the following documents pursuant to 6SCR 32:
1any contract, arrangement or understanding between the third and fourth defendants concerning or relating to the maintenance and vegetation clearance of the third defendant’s land (as described in the Order) relating to the fire;
2records of maintenance (specifically vegetation clearance of the land) between 6 January 2009 and 6 January 2011;
3any communication to the fourth defendant regarding non-compliance with any obligation or duty to undertake vegetation clearance on the land between 6 January 2009 and 6 January 2011;
4any communication from any government or council body, authority or agency regarding vegetation clearance on the land between 6 January 2009 and 6 January 2011; and
5any report or communication concerning or relating to the cause of the fire.
On 31 May 2013, orders were made against the fourth defendant in substantially the same terms.
On 28 June 2013, a master ordered that the first defendant disclose the following documents (also pursuant to 6SCR 32):
1any report or communication concerning or relating to the ignition and/or spread of the fire;
2service, maintenance and testing records and communications concerning or relating to the two locomotives prepared or published during the period of two years prior to the fire;
3any recommendation or advice concerning or relating to the repair, maintenance, modification or improvement of the two locomotives communicated or published during the period of two years prior to the fire;
4any communication from any government or council authority or agency concerning or relating to the emission of ignitable material from the stacks of the two locomotives during the period of two years prior to the fire;
5any communication to the third defendant regarding maintenance and/or vegetation clearance of the land (as described in the Order) owned and/or controlled by the third defendant during the period of two years prior to the fire;
6any contract, arrangement or understanding with the second defendant concerning or relating to the servicing, maintenance and/or repair of the two locomotives in effect during the period of two years prior to the fire;
7any communication with the second defendant regarding any alleged breaches of any contract, arrangement or understanding during the period of two years prior to the fire by which the second defendant was to service, maintain or repair the two locomotives;
8any communication between the first and second defendants regarding or relating to the testing, servicing, maintenance, repair, modification or inspection of the two locomotives recommended or required to be undertaken following and as a result of the fire; and
9train records and log books for the two locomotives for the period of two years prior to the fire.
Except for orders numbered 5 and 9, on the same date (28 June 2013) the master made the same orders for disclosure against the second defendant.
Following these orders for pre-action disclosure against each of the four defendants, orders for non-party disclosure by both the South Australian Police and South Australian Metropolitan Fire Service were made on 7 April 2016. In broad terms, these orders concerned documents recording or relating to the origin, circumstances and/or cause of the fire and including all reports, photographs, statements, correspondence and file notes.
As I have noted, there were originally four applications brought by the plaintiffs pursuant to 6SCR 139. The master dismissed the applications brought against the first to third defendants. The plaintiffs appealed the orders made by the master dismissing those applications, but the appeal from the dismissal of the application against the second defendant was discontinued. There is no appeal in relation to the application against the fourth defendant as it was adjourned by the master. Accordingly, the appeal is confined to the applications against the first and third defendants.
The applications relevant to this appeal
The plaintiffs originally sought documents that pre and post-dated the fire of 6 January 2011.
As against the first defendant, the plaintiffs sought:
(a)documents relating to the investigation, maintenance, modification and/or repair of the two locomotives from 6 January 2011 to 6 January 2012;
(b)documents relating to whether the two locomotives were still in use from 6 January 2010 to 6 January 2012;
(c)communications from any government or council authority or agency relating to the emission of ignitable material from locomotives on or near the second defendant’s land (as defined in the application) from 6 January 2010 to 6 January 2012;
(d)communications between the first defendant and owners or occupiers of the land (as defined in the application) as to the actual or potential emission of ignitable materials from locomotives from 6 January 2010 to 6 January 2012; and
(e)documents relating to maintenance and/or clearance of vegetation on the land (as defined in the application) from 6 January 2011 to 6 January 2012.
As against the third defendant, the plaintiffs sought:
(a)documents relating to the operation, repair, modification and/or maintenance of the two locomotives from 6 January 2011 to 6 January 2012;
(b)communications from any government or council authority or agency relating to the emission of ignitable material from the stacks of locomotives in South Australia between 6 January 2011 and 6 January 2012; and
(c)communications between the first and third defendants regarding any actual or alleged breaches of any contract or agreement in relation to maintenance or repair of the two locomotives between 6 January 2011 and 6 January 2012.
Subsequently, the plaintiffs confined the application to the period of one year post-dating the fire on 6 January 2011. The first defendant has now disclosed copies of “movement logs” for that period. The plaintiffs also abandoned the application against the first defendant for the documents in categories (b) and (e).
Reasons of the master
The master noted that the applications were made pursuant to 6SCR 139 and that a general order for disclosure had not been made pursuant to 6SCR 136. He held that 6SCR 139 is subject to the overarching principle that documents are to be disclosed only if they are directly relevant to any issue raised in the pleadings. The master considered it was necessary to establish that the documents sought are directly relevant. He said that, in the absence of a pleading of changes in work practice relating to the maintenance of the locomotives or the rail corridor by the defendants, the documents sought by the plaintiffs are not directly relevant to any issue raised in the pleadings. The master found that the plaintiffs were not able to put evidence before the Court that there was, in fact, any change of practice by any of the defendants after 6 January 2011. The plaintiffs merely speculated or hoped that there may have been. He considered that the plaintiffs’ position was no better than there being merely a chance that a document will prove or disprove a fact or issue. He held there was no basis on which it could be concluded there were further directly relevant documents for the third defendant to disclose. In these circumstances, the plaintiffs had failed to establish an entitlement under the rules for an order for further disclosure.
Grounds of appeal
The plaintiffs submit that the master’s reasons for decision demonstrate the following errors:
1the decision was premised on the basis that proof as to the existence of the documents sought was required;
2that a change in post-fire practices had to be specifically pleaded in order to be in issue;
3there was no finding as to the relevance of the documents sought; and
4that the decision was based on an erroneous characterisation of the applications as speculative or fishing.
The grounds of appeal raise two issues. First, where a party has not given general disclosure pursuant to 6SCR 136, is it necessary that an applicant for an order under 6SCR 139 prove the existence of the document sought? Second, are the classes of documents sought by the plaintiffs relevant?
As this is an appeal from a discretionary judgment, it must be determined in accordance with the well understood principles described in House v The King:[2]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[2] House v The King (1936) 55 CLR 499 at 504 to 505.
6SCR 139
6SCR 139 confers a broad power on the Court in relation to disclosure of documents. It provides:
139—Court's power to regulate disclosure of documents
(1) The Court may, on application by an interested party—
(a)extend the obligation to disclose to classes of documents specified by the Court; or
Example—
The Court might extend the obligation of disclosure to documents that are only indirectly relevant to a particular issue arising in the action.
(b)order disclosure by reference to categories or issues;
(c)relieve a party from the obligation to disclose documents or limit the obligation to documents or classes of documents specified by the Court; or
(d)provide for disclosure of documents in separate stages; or
(e)require a list of documents to be arranged or indexed in a particular way; or
(f)require disclosure in the form of computer readable lists; or
(g)modify or regulate disclosure of documents in some other way.
(2) The Court may, on application by a party to a document disclosure agreement—
(a)make orders for the enforcement of obligations arising under the agreement; or
(b)cancel the agreement and require disclosure of documents in accordance with these Rules or the Court's order.
The rule allows the Court to enlarge or confine the scope of a party’s disclosure obligations as the justice of the case requires.[3] Sub-rules (1)(a) and (b) specifically enable the Court to order disclosure by classes or categories of documents.
[3] Scott v Johnson & Ors [2010] SASC 277 at [11].
The Court is empowered to regulate the manner and form of document disclosure.
The operation of 6SCR 139 is not to be conditioned by the operation of 6SCR 136. The power conferred by 6SCR 139 is separate and discrete from the power conferred by 6SCR 136. Moreover, 6SCR 139 confers upon the Court power that extends beyond the power in sub-rule (1)(a). While I accept that the power to extend the obligation to disclose documents in sub-rule (1)(a) is predicated upon the obligation created by 6SCR 136(1), the terms of the rest of 6SCR 139(1) indicate that the Court is empowered to make orders regulating the way in which disclosure can be made, including disclosure of directly relevant documents. Further, the terms of supplementary rule 138 which, subject to rules 136 and 139, permits the Court to order disclosure by categories of documents or specified issues, do not support an implied limitation on the scope of the operation of 6SCR 139 to documents other than directly relevant documents. In my view, there is no reason to limit the operation of 6SCR 139 in the way suggested by the master.
While Highfield Property Investments Pty Ltd v Urban Construct (SA) Pty Ltd & Anor[4] is authority for the proposition that 6SCR 139(1)(a) does not deal with directly relevant documents, the reasons of the master in that case do not address the operation of the rule as a whole. The rule should operate in a way which affords full amplitude to the meaning of its text. As was said in the judgment of the High Court in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc:[5]
It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.[6]
[4] [2010] SASC 148 at [4].
[5] (1994) 181 CLR 404 at 421.
[6] See also Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [47].
For the reasons explained above, 6SCR 139 does deal with directly relevant documents, but is not confined to such documents.
Further, on this analysis, there is no reason to condition the exercise of the powers conferred pursuant to 6SCR 139 on establishing that there had been non‑compliance with an extant disclosure obligation as was the case under earlier regimes or 6SCR 145.
The old regime provided for an application for further and better discovery where it was alleged that a party’s discovery was deficient. The approach to such an application is considered in Mulley v Manifold.[7] Menzies J considered the approach to an application for further and better discovery where discovery had been made and it was asserted that it was deficient. Menzies J said that, in circumstances where a party had already given discovery, a presumption arose that it had complied with its obligations. Accordingly, on an application for further and better discovery, the applicant for such an order bore the onus of satisfying the Court that the party making discovery had failed to comply properly with its obligations. An order for further and better discovery would only be made once the presumption had been displaced.[8]
[7] (1959) 103 CLR 341.
[8] (1959) 103 CLR 341 at 343-344.
In a similar way, 6SCR 145 confers a power on the Court to order disclosure if there is doubt as to whether a party has fully complied with its obligations. It provides:
145—Non-compliance with obligations of disclosure and production of documents
(1)If there is reason to doubt whether a party has fully complied with the party's obligations to disclose and produce documents under this Part, the Court may make orders the Court considers appropriate to ensure that the obligations have been fully complied with and, if necessary, to enforce those obligations.
(2)The Court may (for example)—
(a)require the party, or another person who may be in a position to provide relevant information, to appear before the Court for examination; or
(b)require the party to answer written questions relevant to ascertaining whether the party has made full disclosure.
The presumption of compliance created by 6SCR 145 requires an applicant to establish a reason to doubt that complete disclosure has taken place, which may be, for example, a reasonable basis to suppose the existence of relevant documents not yet disclosed.[9]
[9] See, for example, Scott v Johnson & Ors [2010] SASC 277 at [8]; Ceneavenue Pty Ltd v Martin [2008] SASC 332 at [11]-[12].
In this context, it is also relevant to note that the operation of 6SCR 145 is confined to circumstances where there is reason to doubt a party has fully complied with its obligations of disclosure under Chapter 7 Part 3 of 6SCR. Accordingly, it has no application to a failure to comply with the obligations to make disclosure pursuant to 6SCR 32 which contains its own remedy for non-compliance.[10]
[10] 6SCR 32(3).
The construction I have given to 6SCR 139 is also consistent with other parts of 6SCR, for example, 6SCR 116 and 6SCR 117. 6SCR 116 confers power upon the Court to manage litigation to the extent necessary to ensure that it is conducted fairly and as expeditiously and economically as is consistent with the proper administration of justice. 6SCR 117 grants the Court power to make any order it considers necessary for the proper conduct of a proceeding. As was noted in Proude v Visic & Anor[11] by Blue J:[12]
Rules 116 and 117 are not confined to trial or steps in preparation for or in connection with trial. They encompass the management of the litigation as a whole from commencement (or before) to final judgment (or beyond).
[11] [2012] SASC 184.
[12] [2012] SASC 184 at [22].
These rules underline the width of the powers conferred upon the Court by 6SCR to manage litigation as efficiently as the interests of justice permit. That approach contraindicates adopting a narrow construction of the rules which would inhibit the Court from making orders in relation to disclosure which the Court considers necessary for the just and proper conduct of proceedings.
It follows that the Court, in exercising the power conferred by 6SCR 139, is not constrained by any requirement that disclosure be confined to documents or categories of documents that are directly relevant to an issue raised in the pleadings. It is sufficient for the Court to make orders for disclosure pursuant to 6SCR 139 if documents or categories of documents are relevant to an issue raised in the pleadings. While questions of relevance are to be determined by reference to the pleadings, the question of whether a document or category of documents is relevant is to be determined by reference to an issue raised in the pleadings not to the pleading itself. As Bleby J said in Southern Equities Corporation Limited (In Liq) v Arthur Andersen (No 5):[13]
…there is a further qualification, in that the documents must be “directly” relevant. I doubt whether that qualification effectively narrows, for the purposes of discovery, ordinary concepts of relevance for the purpose of admissibility into evidence. In my opinion, it cannot mean, if the document is not itself proof of a fact in issue but is merely a piece of circumstantial evidence tending, along with other evidence, to prove the fact in issue, that it is not discoverable. Many a case is provable and in fact proved by circumstantial evidence, including documents…
[13] Southern Equities Corporation Limited (In Liq) v Arthur Andersen (No 5) [2001] SASC 335 at [10].
The discretionary issue in 6SCR 139 is whether the justice of the case requires that the other party be put to the task of disclosing a document or category of documents having regard to the burden imposed on that party by an order for disclosure. The Court must weigh the probative value of the document or category of documents against the trouble and expense of obtaining and disclosing those documents. As was said in Highfield Property Investments Pty Ltd v Urban Construct (SA) Pty Ltd & Anor:[14]
The wider the category or documents sought, the greater needs to be the justification for an order for their disclosure.
[14] [2010] SASC 148 at [11].
In determining an application pursuant to 6SCR 139, the Court does so by reference to what the justice of the case requires. That directs consideration to the issues of the relevance of the documents the subject of the application for disclosure and questions of how expensive or burdensome it would be for the party to whom the application is directed to make disclosure as sought. Obviously, if general disclosure has already been made in an action pursuant to 6SCR 136, that will be a factor relevant to the exercise of the Court’s discretion on an application pursuant to 6SCR 139.
Consideration
The plaintiffs allege that the first defendant was negligent in that it:
17.1Operated on the track locomotives 831 and 843 when it knew or ought reasonably to have known that both those locomotives were likely to cause to be emitted or expelled combusting or ignited material;
17.2Allowed the exhaust systems of locomotives 831 and 843 to build up carbon thereby increasing the risk of combusting or ignited material being expelled or emitted;
17.3Failed to monitor or properly monitor the usage of the locomotives 831 and 843 and thereby failed to recognise and act upon the fact that each locomotive had a build up of carbon in the exhaust system which carbon could when the locomotives travelled along the track be expelled in combusting or ignited form;
17.4Failed to undertake or authorise the undertaking of work to prevent or reduce the build up of carbon in the exhaust systems of locomotives 831 and 843;
17.5Failed to undertake or authorise the undertaking of work to remove carbon build up from the exhaust systems of locomotives 831 and 843;
17.6Failed to install and/or maintain efficient spark arrestors in locomotives 831 and 843;
17.7Failed to engage competent employees or contractors to operate the locomotives who would report that combusting and ignited material was being expelled from the stacks of locomotives 831 and 843;
17.8Failed to engage competent employees or contractors who having regard to the age and condition of locomotives 831 and 843 and the fact that locomotive 704 was not functioning would slowly increase the speed of the train as it approached the Central Diesel property and the AA Pallets property;
17.9Failed to engage competent employees or contractors to observe that following acceleration of the train as it travelled east-west over Magazine Road particles of combusting or ignited material were being emitted or expelled from the stacks of locomotives 831 and 843;
17.10Failed to exercise due care and skill in the servicing and maintenance of the locomotives.
They further allege that the first defendant was in breach of regulation 38 of the Fire and Emergency Services Regulations 2005.
The plaintiffs allege that the third defendant was negligent in that it failed to undertake work or request authority from the first defendant to undertake work to prevent, reduce or remove the build up of carbon in the exhaust systems of the locomotives 831 and 843.
The documents sought by the plaintiffs are defined by reference to time, place and equipment. They are:
1Documents of the first and third defendant relating to the investigation, maintenance and/or repair of locomotives 831 and 843 for the period of one year immediately subsequent to the fire.
2Communications from any government or council authority:
2.1 by the first defendant in relation to the emission of ignitable material from locomotives in the immediate vicinity of the fire, for the period of one year immediately subsequent to the fire.
2.2 by the third defendant in relation to the emission of ignitable materials from locomotives for the period of one year immediately subsequent to the fire.
3From the first defendant communications between the first defendant and the second defendant in relation to the emission of ignitable materials from locomotives for the period of one year immediately subsequent to the fire.
4From the third defendant communications between the first and third defendant regarding any actual or alleged breach of contract or agreement to maintain or repair the locomotives for the period of one year immediately subsequent to the fire.
The documents sought go to the way the locomotives were maintained after the fire, either on the initiative of the first and third defendants or in response to communications from regulators or the second defendant, and communications from the first and third defendants as to the allocation of responsibility between them for maintaining the locomotives. Measures to abate the risk of fire occurring, adopted by the defendants, or identified in the period immediately following the fire, whether by the defendants or regulators, as well as communications between the first and third defendants concerning any breach of the contract to maintain the locomotives, are likely to be relevant to the practicability of avoiding the risk before the event. They are relevant to the issue of breach of duty that is plainly in issue on the pleadings, namely, given the existence of a risk that harm may occur, what is the burden of taking precautions to avoid that risk?[15]
[15] Section 32(2)(c) of the Civil Liability Act 1936 (SA).
For the reasons explained, it was not necessary for the plaintiffs to establish that these documents existed, as the application was made pursuant to 6SCR 139 rather than 6SCR 145. Further, it was not necessary that the Court consider that these categories of documents are directly relevant to an issue raised in the pleadings.
The classes of documents sought are relevant to an issue arising on the pleadings, notwithstanding the absence of any pleading specifically relating to events subsequent to the fire.
Given the construction I adopt to the operation of 6SCR 139, it is unnecessary to decide whether the categories of documents sought can be characterised as directly relevant. I am satisfied they are relevant. Documents evidencing the extent of risk abatement measures taken in the period one year immediately subsequent to the fire may tend to prove or disprove facts which are in issue.[16]
[16] Southern Equities Corporation Ltd (in liq) v Arthur Andersen (No 5) [2001] SASC 335 at [10].
In considering otherwise, the master fell into error. Accordingly, the Court should exercise the discretion afresh.
Whether orders should be made as sought therefore turn on discretionary considerations of the kind identified above. An obvious consideration in that regard would be whether the party from whom disclosure is sought has already made general disclosure pursuant to 6SCR 136. In this case, that has not occurred. The absence of general disclosure pursuant to 6SCR 136 is a discretionary factor favouring the making of the orders sought pursuant to 6SCR 139.
In this context, I note that the defendants have not put on any evidence that the documents sought do not exist or concerning the burden that the orders sought for disclosure, if made, would cause them. The third defendant submits that documents sought in category (b) are unlikely to exist and the documents sought in paragraph (c), if they exist, will be in the custody, power or possession of the first defendant. There is no evidence before the Court in support of the submission relating to documents in category (b) and the fact that relevant documents might also be in the custody, power or possession of another party is not necessarily a proper basis to decline to order disclosure. I accept that that may give rise to discretionary considerations if there is evidence that the exercise of identifying documents for the purpose of disclosure would be unduly burdensome, but that is not the case here.
The fact that disclosure has been made pursuant to 6SCR 32 could be a relevant discretionary consideration. However, in this case, with one exception, there is no suggestion that the categories of documents sought by the plaintiffs pursuant to 6SCR 139 traverse documents that have already been the subject of disclosure pursuant to 6SCR 32. The plaintiffs seek disclosure by the third defendant of communications in the year following the fire from any government or council authority relating to the emission of ignitable material from the stacks of locomotives in South Australia. The third defendant had previously been ordered to disclose documents in the category of any report or communication concerning or relating to the cause of the fire. I do not accept that the order for disclosure now sought would necessarily cover the category of documents previously ordered to be disclosed. While there is potential for the category of documents now sought to fall within the category of documents previously disclosed, that is not necessarily the case. The range of documents contemplated in the category now sought is much narrower than the category of documents previously disclosed and may not fall within it at all.
In my view, however, a limitation must be placed on the obligation to make disclosure. The obligation to make disclosure in relation to post-fire events for the period from 6 January 2011 to 6 January 2012 must be confined to relevant communications and relevant documents brought into existence during that period, rather than relating to events that occurred during that period.
Conclusion
I would allow the appeal. I would order that the first defendant disclose the following categories of documents:
(a)documents in the period 6 January 2011 to 6 January 2012 relating to the investigation, maintenance, modification and/or repair of locomotives 831 and 843;
(b)communications in the period 6 January 2011 to 6 January 2012 from any government or council authority or agency relating to the emission of ignitable material from locomotives on or near the land owned by the second defendant between Dry Creek and Osborne, and being that section between Wyatt Street, Wingfield, and its continuation across the railway line in South Road, Wingfield (the Land); and
(c)communications in the period 6 January 2011 to 6 January 2012 between the first defendant and the second defendant in relation to actual or potential emission of ignitable materials from locomotives.
I would order the third defendant to make disclosure of the following categories of documents:
(a)documents in the period 6 January 2011 to 6 January 2012 relating to the operation, repair, modification and/or maintenance of locomotives 831 and 843;
(b)communications in the period 6 January 2011 to 6 January 2012 from any government or council authority or agency relating to the emission of ignitable material from the stacks of locomotives in South Australia; and
(c)communications in the period 6 January 2011 to 6 January 2012 between the third defendant and the first defendant regarding any actual or alleged breaches of any contract or agreement in relation to the maintenance or repair of locomotives 831 and 843.
I would hear the parties as to the question of costs.
0
9
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