Cooke v Bayside Health & Ors
[2008] VSC 368
•19 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5306 of 2008
| DIANA COOKE | Plaintiff |
| v | |
| BAYSIDE HEALTH | First Defendant |
| and | |
| AMACA PTY LTD (ACN 000 035 512) | Second Defendant |
| and | |
| SELTSAM PTY LTD (ACN 000 003 734) | Third Defendant |
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JUDGE: | Kyrou J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September 2008 | |
DATE OF JUDGMENT: | 19 September 2008 | |
CASE MAY BE CITED AS: | Cooke v Bayside Health | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 368 | |
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Discovery – adequacy of affidavit of documents – documents donated to the State Library of New South Wales – further affidavit ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gordon | Slater & Gordon |
| No appearance for the First Defendant | ||
| For the Second Defendant | Mr G Watson SC and Mr C Winneke | Dibbs Abbott Stillman Lawyers |
| No appearance for the Third Defendant |
HIS HONOUR:
Introduction and summary
This is an application by the plaintiff, Diana Cooke, under Order 29.08 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) for an order compelling the second defendant, Amaca Pty Ltd (“Amaca”), to file and serve a further affidavit of discovery.
For the reasons set out in this judgment, I have decided to uphold the plaintiff’s application in part and to order Amaca to file a further affidavit of discovery.
Issues in the proceeding
The proceeding involves claims for compensation against the defendants arising from the plaintiff contracting mesothelioma allegedly as a result of inhaling asbestos dust from products that were supplied by Amaca and the third defendant, Seltsam Pty Ltd. The plaintiff alleges that those products were located in her former workplace at the Alfred Hospital (whose liabilities have been assumed by the first defendant, Bayside Health) in the period 1981-1983 and in her former homes in the period 1985-1986.
In her amended statement of claim dated 15 September 2008, the plaintiff alleges that by 1980, Amaca had knowledge that inhaling asbestos dust caused mesothelioma. A number of documents are relied upon in support of the alleged knowledge, including correspondence between Amaca and various Health Departments, published medical articles and documents issued by medical research bodies. The plaintiff alleges that Amaca acquired further knowledge of the dangers of inhaling asbestos dust between 1980 and 1985.
The plaintiff alleges that as a result of the abovementioned knowledge, Amaca owed a duty to all persons whom it could foresee might be harmed by any use of its asbestos products which caused the release of asbestos dust, and that this duty required Amaca to stop using asbestos in its products and to warn the plaintiff and others who might be exposed to asbestos dust released from Amaca’s products of the dangers of asbestos inhalation. The plaintiff alleges that Amaca breached its duty to the plaintiff and seeks damages. Amaca’s defence either denies or does not admit the plaintiff’s substantive allegations.
Due to the plaintiff’s medical condition, the proceeding has been listed for trial next month.
Further discovery sought by plaintiff
Amaca has filed an affidavit of documents sworn by Mr Agustin Torlaschi on 4 July 2008 (“Torlaschi affidavit”). Part 1 of schedule 1 to the Torlaschi affidavit lists 3,750 items in addition to formal court documents. Paragraphs 4 and 5 of the Torlaschi affidavit state that Amaca has had but no longer has in its possession, custody or power the documents enumerated in schedule 2 and that those documents were last in the possession, custody or power of Amaca on or about the date on which the originals were despatched or handed to the addressees or a servant or agent of such addressees. Schedule 2 lists eight categories of documents, item 7 being:
Certain documents within the collection of documents correctly known as the ‘Reid Family Papers’ held by the State Library of New South Wales. All of these documents form part of a private collection formerly belonging to Mr John Boyd Reid, who gifted the collection absolutely to the State Library of New South Wales on 27 June 1994. An index of the collection prepared by the State Library of New South Wales is available at the Library.
By amended summons dated 15 September 2008, the plaintiff seeks orders that Amaca file and serve a further affidavit of discovery stating:
(a)whether any of the documents in schedule A to the amended summons is or has been in its possession, custody or power, and, if any document in schedule A was once, but is no longer in its possession, when it parted with it and its belief as to what has become of it;
(b)the inquiries made by Mr Torlaschi to satisfy himself that the matters deposed to in the Torlaschi affidavit were true and correct, that full and proper disclosure of all relevant facts was made in the affidavit and that all relevant documents that were, or that had once been, in the possession, custody or power of Amaca, had been discovered by it; and
(c)the circumstances in which any documents of Amaca which are within the Reid family papers came to be disposed of by Amaca, were not discovered in any proceeding by Amaca until in or after 1999, and were copied by any solicitor or agent of Amaca (stating whether such copies if in the possession, custody or power of Amaca have been discovered in this action, or if no longer in its possession, when Amaca parted with it, and its belief as to what became of it).
Schedule A to the amended summons lists 12 categories of documents, with the fourth category referring to 22 specific documents or classes of documents that form part of the Reid family papers.
The plaintiff’s application was supported by four affidavits sworn by Mr Peter Gordon of Slater & Gordon, the solicitors for the plaintiff. Mr Peter Gordon swore two affidavits on 2 September 2008, and further affidavits on 15 and 16 September respectively. Amaca relied on an affidavit of Mr Michael Proud sworn on 16 September 2008. Mr Proud has acted for Amaca in asbestos litigation since 2000, although he does not act for Amaca in this proceeding.
Mr Peter Gordon’s affidavits set out the bases upon which he formed opinions as to deficiencies in the discovery provided by Amaca. His affidavits, particularly the first affidavit of 2 September 2008, contained serious allegations of impropriety on the part of Amaca, including assertions of improper destruction of documents. Pursuant to limited leave granted by me, Mr Watson SC, who appeared with Mr Winneke for Amaca, cross-examined Mr Peter Gordon. In cross-examination, Mr Peter Gordon conceded that he was mistaken in relation to some of his assertions, although he maintained his position in relation to others.
Mr Proud’s affidavit contained a detailed analysis of the efforts that Amaca has made in relation to discovery in asbestos litigation over a lengthy period, and the process it has adopted in providing discovery in such litigation. That process has involved the preparation of a standard list of documents which is adapted for use in particular cases.
Although this application has involved considerable heat, particularly arising out of Mr Peter Gordon’s allegations of impropriety and the vigorous manner in which he was cross-examined, at the end of the hearing before me, the parties agreed that the allegations were not directly relevant to the issues I have to resolve. I therefore say nothing more about those allegations.
During the cross-examination of Mr Peter Gordon, it became apparent that certain documents which he thought had not been discovered by Amaca had in fact been discovered. Likewise, in the correspondence between the parties and before me, Amaca conceded that the Torlaschi affidavit was incomplete in some respects. In the course of final addresses, the issues in dispute that I am required to determine were significantly narrowed.
The issues remaining for determination by me are:
(a)the status of the Reid family papers and whether further discovery is required in relation to them;
(b)the identification of any other discoverable documents that have not been discovered; and
(c) the contents of any further affidavit of discovery.
Reid family papers
Mr John Reid was chairman of James Hardie Industries Ltd, which is now known as ABN 60 Pty Ltd (“ABN 60”) between 1965 and 1996. In 1994, Mr Reid donated some documents to the State Library of New South Wales (“Library”), which have been described as “the Reid family papers” in this and other proceedings against Amaca. The Reid family papers are stored in a large number of boxes and include a large number of corporate records relating to Amaca or ABN 60 as well as documents of a purely private nature. I will refer to the Reid family papers that are kept in the Library and that relate to Amaca as the “Reid corporate records”.
In paragraph 46 of his affidavit, Mr Proud states the following in relation to the Reid family papers:
The documents known as ‘the Reid family papers’ are amongst those which have been added to the standard list after its first compilation. John Reid was formerly a chairman of the James Hardie group. During his term and after his retirement Mr Reid retained some documents, which he regarded as his personal property. Some of the documents were quite old and may have had historical value. The documents were given by Mr Reid to the NSW State Library. When Amaca became aware of the documents it included them in Schedule 2 of its standard list of documents. This was done on the basis that they were documents which were no longer in the possession, custody or control of Amaca.
It was apparently a condition of Mr Reid’s donation of the Reid family papers to the Library that access by anyone other than ABN 60 would only be permitted with the consent of the managing director of ABN 60. Slater & Gordon sought and were given such consent and have inspected and made copies of some of the Reid family papers. It is not in dispute that Slater & Gordon are able to inspect and copy such documents in the Reid family papers as they consider are relevant to the issues in this proceeding.
Mr Peter Gordon’s affidavits refer in detail to the Reid corporate records that Slater & Gordon have inspected. He asserts that some of the Reid corporate records are of critical relevance to the issues in this proceeding as they indicate that Amaca had knowledge of the hazards of its asbestos products prior to 1980. In addition, Mr Peter Gordon has alleged that the Reid corporate records indicate that Amaca either has or previously had other relevant documents that have not been discovered.
It is not clear how corporate records of Amaca came to be regarded by Mr Reid as his personal property. It may be that, as a director of ABN 60 and possibly other James Hardie companies, Mr Reid and other directors were permitted to keep copies of the board papers that were distributed to them. If that is the case, one would expect that the relevant James Hardie company retained the originals of the board papers or at least its own copies.
The plaintiff makes four complaints about Amaca’s discovery in respect of the Reid corporate records.
The first complaint is that the Torlaschi affidavit does not explain how the Reid corporate records are or were documents of Mr Reid rather than documents of Amaca. Mr John Gordon, who appeared for the plaintiff, submitted that insofar as the Reid corporate records are in the possession, custody or power of Amaca, those records should have been discovered in part 1 of schedule 1 to the Torlaschi affidavit rather than in schedule 2. I have decided to uphold this complaint. I will order that, on or before 26 September 2008, Amaca file and serve a further affidavit of discovery setting out whether the Reid corporate records are within the possession, custody or power of Amaca. If they are, Amaca must include those documents in part 1 of schedule 1 to the further affidavit of discovery. If they are not, the further affidavit of discovery must explain how, when and why the documents became the property of Mr Reid before he donated them to the Library, and when the documents were last in the possession, custody or power of Amaca.
The second complaint is that the Torlaschi affidavit does not explain when the Reid corporate records were last in the possession, custody or power of Amaca. I agree. The further affidavit of discovery that I have referred to in paragraph 22 of this judgment will address this.
The third complaint is that the Torlaschi affidavit does not discover copies of the Reid corporate records that a firm of solicitors that acts for Amaca in other asbestos litigation, Holman Webb, made in 1999 after inspecting those records in the Library. Mr Watson submitted that the copies of the documents are privileged because they were made for the purposes of providing legal advice to Amaca, notwithstanding that the originals may not be. In this respect, he relied on Commissioner of Australian Federal Police v Propend Finance Pty Ltd.[1] I agree.
[1](1997) 188 CLR 501 (“Propend”).
The fourth complaint followed from the indication I gave during the hearing that I accepted Mr Watson’s submission that the copies of the Reid corporate records made by Holman Webb were privileged. Mr John Gordon submitted that the copies should be referred to in part 2 of schedule 1 to the further affidavit of discovery. He pointed out that paragraph 3 of the Torlaschi affidavit, which describes the documents over which privilege is claimed, is confined to documents brought into existence for the purposes of the current proceeding and therefore, on its face, does not include the copies of the Reid corporate records. I agree. If Amaca intends to maintain its claim of privilege over the copies of the Reid corporate records that were made by Holman Webb, it must claim that privilege in the further affidavit of discovery to be filed and served by it pursuant to this judgment. However, I do not accept Mr John Gordon’s submission that the further affidavit of discovery should list the copy Reid corporate records. It appears that Amaca’s lawyers in other proceedings prepared some sort of list of the copy Reid corporate records but it is unclear how comprehensive the list was. It appears that the list is privileged based on the principle in Propend.[2] I cannot see that any useful purpose would be achieved in requiring Amaca to prepare a comprehensive list in non-privileged form, given that Slater & Gordon are able to inspect the same documents that Holman Webb inspected.
[2](1997) 188 CLR 501.
Discovery of other documents
Based on the plaintiff’s evidence and concessions made by Amaca, I am satisfied that Amaca should have discovered the following documents but did not do so in the Torlaschi affidavit:
(a)letter from R L Seares to R D Palfreyman dated 17 March 1977 concerning exposures to asbestos material at the new Perth Medical Centre;
(b)letter from Dr McCullagh to the Department of Health, Western Australia, dated 10 February 1975;
(c)letter from Professor I Webster (National Research Institute for Occupational Disease, South Africa) to Dr S F McCullagh dated 5 November 1975;
(d)letter from H A Hudson, Executive General Manager, James Hardie & Coy Pty Ltd to the New South Wales Minister for Health concerning NSW Carcinogenic Substances Regulation dated 29 November 1982;
(e)letter from L J Brereton (NSW Health Minister) to H A Hudson, Executive General Manager, James Hardie & Coy Pty Ltd concerning NSW Carcinogenic Substances Regulation dated 16 December 1982;
(f)Correspondence from or to CSR Ltd regarding payment of liabilities for common law damages claims for exposure to asbestos from asbestos products, some of which was tendered in Amaca v CSR Ltd (2007) 5 DDCR 268 in the NSW Dust Diseases Tribunal.
Accordingly, I will order that the above documents be discovered in the further affidavit of discovery to be filed by Amaca pursuant to this judgment. The affidavit must set out in respect of each document, when it came into Amaca’s possession, custody or power. Insofar as Amaca ceased to have possession, custody or power of any of the documents at any stage in the past, the further affidavit of discovery must explain when it so ceased and what happened to the documents during the time that they were not in the possession, custody or power of Amaca. By this means, the further affidavit of discovery will disclose whether the documents are now, or were in the past, part of Amaca’s business records.
There was some confusion before me as to whether Amaca had discovered documents described as “IARC/WHO statement of December 1976” and “IARC Monograph 14 (asbestos), 1977”. Mr Watson informed me that, if one or both of these documents have not been discovered already, they will be included in the further affidavit of discovery to be filed and served pursuant to this judgment. In these circumstances, it is not necessary for me to make any specific order in relation to those documents. Likewise, as Amaca has agreed to provide a list of the discovered documents in chronological order, there is no need for me to make an order requiring them to do so.
Other matters
As I have stated in paragraph 8 of this judgment, the plaintiff’s amended summons sought an order, in effect, requiring Amaca to file and serve an affidavit verifying the veracity of the Torlaschi affidavit. As Amaca will be required to file a further affidavit of discovery, the order sought is unnecessary. Although the Torlaschi affidavit has been found to be incomplete, the plaintiff has failed to establish quite a number of the deficiencies she originally alleged. I am satisfied that Amaca’s legal advisers are aware of the obligations of Amaca and their own obligations in relation to discovery and that appropriate care will be taken in the preparation of the further affidavit of discovery, including the making of all appropriate inquiries.
As discovery obligations are ongoing, the plaintiff is not precluded from making further applications to the Court in the event that there is good cause to complain about Amaca’s discovery, whether in relation to the further discovery that is to be provided pursuant to this judgment or otherwise. To assist this process, and in case any problems emerge in relation to my orders, I will reserve to the plaintiff and Amaca liberty to apply on the giving of 48 hours’ written notice to all other parties.
At the end of the hearing before me, I indicated in broad terms the orders I proposed to make. Mr Watson submitted that the plaintiff should be ordered to pay the costs of the application on the bases that the application would have been unnecessary had the plaintiff informed Amaca on a timely basis of its areas of complaint, and that the plaintiff failed to make out many of the alleged deficiencies in Amaca’s discovery. Mr John Gordon submitted that costs should be in the cause, as the plaintiff has been successful before me, at least in part. I indicated to the parties that I would order that the costs of the application be costs in the cause.
Proposed orders
The orders of the Court are:
(1)On or before 26 September 2008, the second defendant file and serve a further affidavit of discovery which:
(a)Sets out whether any of the documents that were donated to the State Library of New South Wales (“Library”) by John Reid (“Reid family papers”) are within the possession, custody or power of the second defendant. If any are, the affidavit must include those documents in part 1 of schedule 1 to that affidavit. If any are not now but once were in the possession, custody or power of the second defendant, the affidavit must set out:
(i)how, when and why those documents became the property of John Reid before he donated them to the Library; and
(ii)when those documents were last in the possession, custody or power of the second defendant and what happened to them.
(b)Insofar as the second defendant has in its possession, custody or power copies of any of the Reid family papers that are protected by legal professional privilege, sets out that claim of privilege.
(c)Provides discovery of the following documents:
(i)letter from R L Seares to R D Palfreyman dated 17 March 1977 concerning exposures to asbestos material at the new Perth Medical Centre;
(ii)letter from Dr McCullagh to the Department of Health, Western Australia, dated 10 February 1975;
(iii)letter from Professor I Webster (National Research Institute for Occupational Disease, South Africa) to Dr S F McCullagh dated 5 November 1975;
(iv)letter from H A Hudson, Executive General Manager, James Hardie & Coy Pty Ltd to the New South Wales Minister for Health concerning NSW Carcinogenic Substances Regulation dated 29 November 1982;
(v)letter from L J Brereton (NSW Health Minister) to H A Hudson, Executive General Manager, James Hardie & Coy Pty Ltd concerning NSW Carcinogenic Substances Regulation dated 16 December 1982;
(vi)Correspondence from or to CSR Ltd regarding payment of liabilities for common law damages claims for exposure to asbestos from asbestos products, some of which were tendered in Amaca v CSR Ltd (2007) 5 DDCR 268 in the NSW Dust Diseases Tribunal.
(d)Sets out in respect of each document referred to in paragraph (1)(c) when it came into Amaca’s possession, custody or power. Insofar as the second defendant ceased to have possession, custody or power of any such documents at any stage in the past, the affidavit must set out when it so ceased and what happened to the documents during the time that they were not in the possession, custody or power of the second defendant.
(2)The costs of the application be costs in the cause.
(3)The plaintiff and the second defendant have liberty to apply on 48 hours’ written notice to all other parties.