Cossey v Canberra Airport Pty Limited

[2022] ACTSC 70

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cossey v Canberra Airport Pty Limited

Citation:

[2022] ACTSC 70

Hearing Date:

1 April 2022

DecisionDate:

6 April 2022

Before:

Kennett J

Decision:

See [19]

Catchwords:

PROCEDURE – DISCOVERY AND INTERROGATORIES – Scope of Discovery – whether party has not, or may not have, adequately disclosed discoverable documents – whether order providing for further discovery should be made

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 605, 606, 607, 611

Cases Cited:

Mulley v Manifold (1959) 103 CLR 341

Talada Investments v Rivera Scaffolding [2017] ACTSC 160

Parties:

Matthew Cossey ( Plaintiff)

Canberra Airport Pty Limited ( First Defendant)

Qantas Airways Limited (Second Defendant)

Representation:

Counsel

A Muller ( Plaintiff)

C Painter ( First Defendant)

J Iliopoulos (Second Defendant)

Solicitors

AC Lawyers ( Plaintiff)

GSG Legal ( First Defendant)

HWL Ebsworth Lawyers (Second Defendant)

File Number:

SC 111 of 2021

KENNETT J:

Introduction

1. The plaintiff alleges that he sustained injury when he fell while descending the stairs of the Qantas Club Lounge (Qantas Lounge) at Canberra Airport on 26 August 2019. On 24 March 2021, he commenced a personal injury claim against the defendants. It is not in dispute that the first defendant leased the relevant part of the airport terminal building to the second defendant.

1. The present issues concern the obligations of the first defendant to discover documents to the plaintiff. The plaintiff’s solicitors served a notice requiring discovery on the solicitors for the first defendant in July 2021. There was some delay in the response to that notice, resulting in correspondence between the solicitors and the making of orders by consent. Eventually, on 2 February 2022, a verified list of discoverable documents was served on behalf of the first defendant. Issues then arose between the parties about the adequacy of that discovery. This led to the filing of an Application in Proceeding by the plaintiff on 4 March 2022. The application came before me on 1 April 2022, by which time there had been further correspondence between the parties’ solicitors.

1. The Application seeks an order that the first defendant “comply with the Plaintiff request for Discovery within seven (7) days”.

Principles

1. Rule 605 of the Court Procedures Rules 2006 (ACT) identifies the documents that are discoverable. The basic test, contained in r 605(1), is that a document that is or has been in the possession of a party to a proceeding is discoverable by that party if it relates, directly or indirectly, to a matter in issue in the proceeding or if it is mentioned in a pleading or notice filed in the proceeding. Under r 607, a party to a proceeding may serve on another party a notice requiring that party to disclose discoverable documents. Service of such a notice triggers the obligation to file a list of documents and an affidavit verifying that list. Under r 606, the court is empowered to make various orders in relation to disclosure. Relevantly, under r 606(1)(c), if the court considers that a party has not, or may not have, adequately disclosed discoverable documents, it may order the party to make further disclosure. There is also power under r 606(1)(g) to make any other order about disclosure or nondisclosure of documents that the court considers appropriate.

1. These powers are to be exercised sparingly.

1. In Talada Investments v Rivera Scaffolding [2017] ACTSC 160, Mossop J referred to the principles stated by Menzies J in Mulley v Manifold (1959) 103 CLR 341 at 343–344 (applying the Rules of the High Court as they then stood), and the influence of those principles in decisions concerning the rules of this Court. The rules considered by Menzies J included one which provided power to the Court to order compliance with a notice of discovery in circumstances where a party had made insufficient discovery. As to that rule, his Honour observed (citing earlier authority) that “it cannot be shown by a contentious affidavit that the discovery made is insufficient”. Insufficiency of discovery might be demonstrated from the pleadings, the affidavit of discovery, the documents referred to therein or any other source that constituted an admission of the existence of discoverable documents. Otherwise, “the affidavit of discovery is conclusive”. As observed by Mossop J at [15], that principle appears to find an echo in r 606(6), which prohibits reliance on an affidavit unless the court orders otherwise.

1. The rules that fell to be applied by Menzies J also included power to order a party to state by affidavit whether a particular document or class of documents was, or has been, in his or her possession, custody or power. That was understood by his Honour to be a partial relaxation of the general rule, permitting an application for further discovery based on evidence that there were or had been particular undiscovered documents in the possession of the relevant party which related to a matter in question. The rule did not provide the basis for ordering a further affidavit of discovery in general terms.

1. Against that background, the power to make orders under r 606(1) is not to be understood as authorising any general challenge to the affidavit verifying a list of documents. Resort to this power should be limited (at least ordinarily) to cases where either the likely existence of undiscovered documents can be inferred from the documents that have been discovered or from material already filed in the proceeding, or there are specific documents which the party seeking discovery has reason to think are or have been in the other party’s possession.

This case

1. The plaintiff wishes to be able to obtain expert reports opining on the sufficiency of the design and construction of the staircase upon which he fell. In a letter dated 31 January 2022 to the solicitors for the first respondent, the plaintiff’s solicitor identified certain documents that were “of pressing importance and interest”:

(a)“the building approval and approved plans that covered the construction of the stairs in question”;

(b)“any certification that your client holds in relation to the slip resistance of the landings and stairs”;

(c)“the final inspection report in relation to the construction of the area of the Qantas Lounge”; and

(d)“the final certificate of occupancy and use (or similar) issued by the airport building controller”.

1. After the first defendant’s list of documents was served, the plaintiff’s solicitor sought and were provided with electronic copies of certain of those documents. He then wrote to the first defendant’s solicitors on 25 February 2022, suggesting that their client had “potentially failed to produce all documents within its possession thereby failing to observe its obligations”. He noted the following points:

(a)The documents produced verified the engagement of three contractors in the construction of the Qantas Lounge, namely Woods Bagot (architect), Oricom (engineer, mechanical, electrical and fire services) and Construction Control (builder); yet contracts with those entities, which one would expect to be within the possession of the first defendant, had not been discovered.

(b)The building plans for construction of the Qantas Lounge (for approval by the relevant authority) had not been discovered.

(c)No final inspection report in respect of the works had been discovered.

(d)The final certificate of occupancy had not been discovered.

1. Counsel for the plaintiff agreed that the points made in the letter of 25 February represented a narrowing down of the class of documents which had been identified on 31 January as being of particular interest. On 25 February the plaintiff’s solicitor had the benefit of both the verified list and the actual documents. He was now identifying documents which, in his view, should exist and be in the first defendant’s possession but had not been discovered.

1. Having regard to the principles discussed above, I will not make any general order requiring the first defendant to comply with its discovery obligations. It has filed a verified list which, absent any specifically identified omissions, is to be taken at face value. It is necessary to consider, however, whether the apparent gaps suggested in the letter of 25 February 2022 justify the making of an order.

1. Before turning to these matters I note that, in the correspondence between the solicitors, there appears to have been a difference of view as to the relevance of some documents based on interpretation of the pleadings. That difference related to whether the case pleaded by the plaintiff alleged only that the treads used on the staircase were unsafe, or alleged defects in the design and construction of the staircase more broadly. However, Mr Painter, who appeared for the first defendant, properly accepted that documents relating to the design and construction of the staircase were discoverable under r 605 even if the current pleadings are properly understood to focus only on the treads used. It may be that, up to now, the first defendant has approached its obligation of discovery on a narrower basis. It is therefore appropriate to remind the parties of the continuing nature of the duty of discovery pursuant to r 611. If, upon further reflection, it becomes apparent that any document was wrongly omitted from the verified list, there is a duty to disclose that document.

1. I turn now to the specific points noted at [10] above.

1. To the suggestion that contracts with the three entities shown to have been involved in the construction of the Qantas Lounge had not been discovered, the solicitors for the first defendant responded on 8 March 2022 by identifying a document in the discovered material which verified those three entities as contractors. That document, which is item 8 in the verified list, is described therein as a building permit. This response, with respect, may have misunderstood the point that had been raised by the plaintiff’s solicitor. He had already observed that the three entities were identified in the discovered material as contractors, and was suggesting that the first defendant should therefore have in its possession copies of the relevant contracts. In my view, such an expectation is reasonable. Given the first defendant’s role and responsibilities in relation to the terminal building, it would be surprising if the first defendant were not a party to, or at least required to be provided with, any contracts for significant work on parts of the building. Of course, there may be reasons why that is not the case. However, absent clear evidence of those reasons, it is appropriate to order the first defendant to provide discovery of any documents in its possession, custody or control comprising or relating to the engagement of the three entities. If the first defendant in fact has no such documents, this can be confirmed by the verified list filed in accordance with the order.

1. I was not taken to any direct response by the first defendant to the observations that building plans for the construction of the Qantas Lounge and stairs and a final inspection report for the work had not been produced. I note that the letter of 8 March 2022 also states that the first defendant “was not involved in the design and/or the management of the fit out of the Qantas lounge at Canberra Airport and associated spaces”. That may explain why the first defendant was not in possession of any plans for the relevant work or any report on the quality of the work when it was completed. However, it is only an assertion in correspondence at this stage. There is a reasonable basis for inferring that the first defendant would have documents of this kind in its possession, or at least have ready access to them. If it does not, it is appropriate that that be verified by affidavit so that any arguments which might arise from such a state of affairs can be raised at the trial.

1. As to the last matter raised in the letter of 25 February 2022, the letter of 8 March 2022 asserts that a certificate of occupancy for the work carried out on the Qantas Lounge is to be found in item 11 of the verified list. That appears to be correct. Item 11 is described as “Certificate of Compliance for Occupation and Use – Canberra Airport Terminal – Southern Concourse dated 3 November 2010”. In these circumstances, I do not think there is a proper basis for ordering the first defendant to give further or specific discovery in relation to this document. (I note in passing that the fact that this document was in the first defendant’s possession tends to reinforce the basis for inferring that other documents relating to the design and carrying out of the building work would also be in its possession.)

1. The Application in Proceeding does not expressly seek costs, and the issue was not addressed in the submissions of the parties. I will reserve the question of costs.

Orders

1. The orders of the Court will be:

(1)The first defendant is to give discovery, within 14 days, of the following documents:

(i)contracts entered into with Woods Bagot, Oricom and Construction Control for work relating to the Qantas Club Lounge and staircase, including any variations to those contracts;

(ii)building plans for the construction of the Qantas Club Lounge and staircase; and

(iii)any final inspection report for the works referred to in (ii).

(2)Costs are reserved.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett

Associate:

Date: