Foote v State of SA - [2014] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
FOOTE & ANOR v STATE OF SA & ORS
[2014] SADC 122
Judgment of His Honour Judge Gilchrist
10 September 2014
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - THE APPLICATION AND THE ORDER
Application by State for discovery on oath from third party and defendant under r145 of the Supreme and District Court Rules 2006 (the 2006 Rules) - whether there has been a procedural irregularity in respect of the application - whether there is reason to doubt that the third party and the defendant have fully complied with their obligations to disclose and produce documents considered.
Held: assuming without deciding that there is no procedural irregularity compliance with the rules is dispensed with. Subject to clarification regarding the defence of the third party and the defendant there is a reasonable basis for doubting for the disclosure made is adequate. Further consideration adjourned pending clarification of the defence of the third party and the defendant.
Supreme Court Civil Rules 2006 r145, referred to.
Ceneavenue Pty Ltd v Martin [2008] SASC 332; Ceneavenjue Pty Ltd v Martin [2008] SASC 332, applied.

FOOTE & ANOR v STATE OF SA & ORS
[2014] SADC 122

This is an application made by the State of South Australia seeking an order that the third parties[1] verify discovery on oath. The application is made pursuant to r 145 of the 2006 Rules. Rule 145(1) provides:
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.
[1] I refer to Bradford Insulation (SA) Pty Ltd (in liquidation) and BI (contracting) Pty Ltd as the third parties even though in one action they are defendants.
At issue is whether the criterion for the invocation of this rule has been met.
The application is supported by an affidavit of Kathleen Moloney sworn on 17 June 2014. Ms Moloney’s affidavit reveals that in their lists of documents the third parties have provided some documentation indicating the identity of a number of their employees who worked at the plant which suggests that some may have worked there for extended periods. They also include the minutes of a Bradford Insulation Board meeting conducted in 1959. The minutes record that medical report prepared by Dr Munro-Ford was tabled and discussed. The minutes suggest that the report may have discussed dangers associated with asbestos.
The lists of documents do not contain any employment records concerning the identified employees nor do they include Dr Munro-Ford’s report. The claimants have made a number of specific requests that these documents be discovered. These requests have been denied.
The third parties contend that the application should be refused because the formal requirements as prescribed by the Rules.
That submission is of no substance. In a jurisdiction, in which time can be of the essence, there is no place to insist upon strict compliance with the procedural obligations prescribed by the Rules unless that non-compliance genuinely prejudices the other party. In this case, assuming without deciding that the strict requirements have not been complied with, there is no hint of prejudice to the third parties. To the extent that it is necessary to waive compliance I do so.
I turn to the merits of the application.
In both actions the State seeks to recover from the third parties monies paid by it to settle actions taken against it for damages for personal injuries that allegedly arose as a result of exposure to asbestos at its plant in Port Augusta to Mr Benbow and Mr Foote.
The third parties have denied liability.
At trial an issue that might need to be determined is the extent of the third parties’ use of asbestos at the plant. If liability against the third parties is established an issue of apportionment as between the State and the third parties might arise. In connection with that issue it might be necessary to have regard to their relative culpability which in turn might require a determination of the relative extent of the knowledge as between the State and the third parties of the dangers associated with asbestos.
Documents that might identify when the third parties employees might have worked at the plant and documents that might indicate when and what the third parties’ had been informed about the dangers associated with asbestos are clearly relevant and if they are in the possession custody or power of the third parties they must be discovered.
The assertion made by the third parties through the submissions that they have made in connection with this application is that the documents in question have fallen out of their possession. Implicit in that submission, the lists that the third parties have provided, and their response to the specific request outlined above, is an assertion by them that these documents either no longer exist or if they do, that they are no longer in their custody or power to produce. In essence that is the assertion that the State wants the third parties to verify on oath.
In Ceneavenue Pty Ltd v Martin White J discussed the relevant rule and how it is to be applied. He said:
I consider that the expression ‘reason to doubt whether a party has fully complied with the party’s obligations to disclose and produce documents’ in r 145 implies a presumption that there has been compliance with a party’s disclosure obligations. Hence, it will be incumbent upon an applicant for further and better disclosure to point to matters which indicate that the Court should not give effect to that presumption. It is not necessary for the Court to be convinced that the plaintiffs’ disclosure is inadequate, or to be satisfied on the balance of probabilities that it is inadequate. It is sufficient if the Court is satisfied that there is a reasonable basis for doubting that the disclosure made is adequate. This will require a degree of satisfaction going beyond the mere possibility that the plaintiffs’ disclosure is inadequate.
An applicant may establish the doubt by demonstrating, amongst other things, that the party making the disclosure has proceeded under some form of misconception, whether as to the nature of the issues arising on the pleadings, or as to the documents which may be directly relevant to those issues, or as to the reach of the rules concerning possession. It may also satisfy the evidential onus by pointing to the documents which one would expect to have come into existence in the circumstances of the case by reason of ordinary commercial practice or experience, by reference to the pleadings themselves or by reference to other documents already disclosed.[2]
[2] [2008] SASC 332 at paras 11-12.
As can be seen from White J’s analysis in Ceneavenue a party to proceedings does not have an automatic right to an order under r 145. To obtain such an order it is not sufficient for the party, or indeed for the Court, to believe that there is a possibility that the other parties’ disclosure is inadequate. There must be more. Not much more, but more.
The State application is founded upon a number of bases.
It contends that a description given by the third parties in connection with documents no longer in their possession of “business records other than those discovered with the list of documents” is too broad.
It points to the fact that the third parties filed supplementary lists of documents. It submits that this creates an inference of inadequacy and that that is enough to support a finding that to there is a reasonable basis for doubting that the disclosure made to date is adequate.
It contends that the third parties admit spraying some asbestos only for a limited time. It says that this suggests that the third parties are in possession of some evidence to support that assertion and it raises a reasonable possibility that they have in their possession some documents to back up that assertion. It submits that this also provides a reasonable basis for doubting that the disclosure made to date is adequate.
It submits that there is no evidence to suggest that it would be an onerous task for the third parties to depose its discovery by affidavit.
Consideration
I do not regard the mere assertion that Dr Munro-Ford’s report is no longer in the possession of the third parties as providing a reasonable basis for doubting that the disclosure made to date is adequate. Nor do I regard the mere assertion that only some details of some of their employees who allegedly worked at the plant at relevant times remain in their possession custody or power raises such a doubt.
It is not in the least surprising that records of Board meetings held over half a century ago and employment records of employees who worked at a particular plant more than twenty years ago would be incomplete.
I am not concerned by the third parties’ description in connection with documents no longer in their possession of “business records other than those discovered with the list of documents”. That simply suggests that they acknowledge that there must have been other business records but they do not know what they were.
I am not concerned by the fact of the filing of a supplementary list. On the face of it, it does no more than reflect an acknowledgement by the third parties and their solicitors of the ongoing nature of the obligation to make discovery.
However, upon reflection, I was troubled by the third parties’ apparent assertion that it only sprayed asbestos for a limited time. It to my mind raised a reasonable possibility that they have in their possession some documents to back up that assertion.
If the third parties maintained that assertion my tentative view was that the threshold test as postulated by White J in Ceneavenue would have been met. I was, however, unsure whether the third parties continued to assert that they only sprayed asbestos for a limited time. I resolved that it would not therefore be appropriate to contemplate making an order pursuant to r 145 until that has been clarified. I therefore adjourned further consideration of the application. At a further directions hearing conducted on Friday 5 September 2014 it became apparent that the third parties were not maintaining that assertion. As such discovery on this issue is no longer in dispute.
The application is dismissed.