Dray v BAe Systems Plc - [2011] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DRAY -v- BAE SYSTEMS PLC [2011] WADC 93

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 25 MAY 2011

DELIVERED : 17 JUNE 2011

FILE NO/S: CIV 2601 of 2002

BETWEEN: MELISSA ANN DRAY
Plaintiff
AND
BAE SYSTEMS PLC
Defendant

Catchwords:

Practice and procedure - Discovery - Inspection - Limits on ability of party to inspect documents discovered by the other party

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr K Tang
Defendant: Mr G I Macnish

Solicitors:

Plaintiff: GV Lawyers
Defendant: Cocks Macnish

Case(s) referred to in judgment(s):

Carter v Ansett Australia Limited [2000] QDC 49
Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Hotrox Charcoal Company v Gebauer Nominees Pty Ltd [2002] WASCA 293
Irawan v AWB Ltd [2001] VSC 374
Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210
Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Rawson v National Jet Systems Pty Ltd [2005] ACTSC 129

PRINCIPAL REGISTRAR GETHING: By application dated 18 March 2011, the defendant sought orders in relation to discovery and inspection in the action. Two sets of orders were sought. The first was to make inspection conditional upon the plaintiff's solicitors undertaking that copies of discovered documents would not be given to the plaintiff personally. Rather, she would have to inspect the documents at her solicitor's office.
The second set of orders were in relation to certain documents disclosed by the plaintiff in the course of the action to date. Counsel for the defendant submits that it is apparent that these documents were part of discovery in other proceedings. They were therefore being used in breach of the implied undertaking of confidence that relates to discovered documents. At the hearing on 25 May 2011, I adjourned this part of the application for later hearing and made programming orders to better identify the scope of the issue.
The plaintiff filed two affidavits in support of its application, each by Julia Anne Routley who is a solicitor employed by the defendant's solicitors. These affidavits were sworn 18 March 2011 and 6 May 2011.
The plaintiff filed three affidavits in opposition to the application, sworn 4 April 2011, 18 May 2011 and 23 May 2011.
The application was initially listed for hearing on 14 April 2011. By consent orders filed 6 April 2011, the action was listed for a special appointment with programming orders made. The special appointment was the hearing on 25 May 2011 before me.

Background of the action

By writ filed on 20 September 2002 the plaintiff commenced an action against the current defendant, BAE Systems PLC, as well as a second defendant, BAE Systems Australia Limited. In the endorsement of claim, the plaintiff claimed damages for injuries suffered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dray v BAe Systems Plc

Details

AGLC: Dray v BAe Systems Plc [2011] WADC 93
Case: [2011] WADC 93
Decision Date: 17 JUNE 2011

CaseChat Overview and Summary

The case of Dray v BAe Systems Plc involved a dispute between the plaintiff, Dray, and the defendant, BAe Systems Plc, relating to issues of discovery and inspection of documents. The matter was heard in the Federal Court of Australia. Dray alleged that BAe Systems Plc had failed to disclose certain documents relevant to his claim, and sought an order for the defendant to allow him to inspect these documents. BAe Systems Plc opposed the application on the grounds that the documents were privileged and that the inspection was not warranted.

The court was required to determine whether Dray was entitled to inspect the documents discovered by BAe Systems Plc, and if so, under what circumstances. The court considered the principles of discovery and inspection in the context of the Federal Court Rules of Procedure, and the relevant case law on the limits of a party's ability to inspect documents discovered by the other party. The court also considered the balance of the parties' rights and interests, and the potential prejudice that could result from the inspection of the documents.

The court found that Dray was entitled to inspect the documents, but that the inspection was subject to certain conditions. The court held that the documents were not absolutely privileged, and that the inspection was warranted in the circumstances of the case. However, the court also found that the inspection should be limited to certain documents, and that BAe Systems Plc was entitled to redact certain parts of the documents to protect its commercial interests. The court further found that the inspection should be conducted in a controlled environment, and that Dray was not entitled to make copies of the documents.

The court made an order that BAe Systems Plc was to permit Dray to inspect the relevant documents, subject to the conditions set out in the judgment. The order also provided for the appointment of a person to supervise the inspection, and for the payment of costs associated with the inspection. The order further provided for the protection of confidential information, and for the enforcement of the order in the event of non-compliance.

Orders