Little v Shell Refining Australia Pty Ltd - [2014] VSC 546

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2013 04699

GEOFFREY LITTLE and YVONNE LITTLE	Plaintiffs
v
SHELL REFINING (AUSTRALIA) PTY LTD (ACN 004 303 842) AND OTHERS (according to the schedule attached)	Defendants

---

JUDGE:	Zammit AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2014
DATE OF JUDGMENT:	28 October 2014
CASE MAY BE CITED AS:	Little v Shell Refining Australia Pty Ltd and Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 546

---

PRACTICE AND PROCEDURE – Discovery – Inadequate discovery – Destruction of documents – Unavailable documents – Application for strike out under s 89B Evidence (Miscellaneous Provisions) Act 1958 (Vic), ss 54 and 56 Civil Procedure Act 2010 (Vic), rr 24.02., 29.11, 29.12, 39.09 and 30.10 Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Comparison between common law and statute - British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased)) (2002) 7 VR 524 – Prejudice to plaintiff – Proportionality – Fairness to parties – Affidavit of documents – rr 29.02 and 29.04 Supreme Court (General Civil Procedure) Rules 2005 (Vic).

PRACTICE AND PROCEDURE – Interrogatories – Scope of interrogatories – Relevance – Inadequate answers – r 30.02(1) Supreme Court (General Civil Procedure) Rules 2006 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gordon	Slater & Gordon
For the Second Defendant	Mr D Bongiorno	Hunt & Hunt

HER HONOUR:

By summons filed 10 October 2014, the plaintiffs seek orders pursuant to:

(a)Section 89B of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’); and/or
(b)Section 56 of the Civil Procedure Act 2010 (‘CPA’); and/or
(c)the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), rules 24.02, 29.11, 29.12, 39.09 and 30.10; that:

(i) the second defendant’s defence be struck out or; alternatively that the plaintiffs’ allegations in paragraphs 7(d) and (e), 8(c), 11, 12, 13, 14, 17, 18, 22, 24, 28, 29 and 30 and particulars (cc) to (fff) and 31 and particulars (y) to (xx) of the Further Amended Statement of Claim (‘FASOC’) for the purposes of this proceeding be presumed to be true and proven and the corresponding non-admissions and denials or those allegations in the defence of the second defendants be struck out; and accordingly judgment be entered for the plaintiffs against the second defendant for damages to be assessed.

The plaintiffs rely upon the affidavit of Margaret Kent sworn 9 October 2004. The plaintiffs also rely upon written submissions filed on 22 October 2014. The second defendant, Alcoa of Australia Limited (‘Alcoa’) relies upon written submissions filed on 23 October 2014.

The proceeding is fixed for trial on 17 November 2014 on a seven day estimate.

In the FASOC filed 1 August 2014 it is alleged that Alcoa owned and operated an aluminium smelter at Point Henry and that it constructed, lined, relined and maintained carbon bake pits at the aluminium smelter, utilising asbestos blocks. Further, that Alcoa engaged contractors for the purpose of…

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 Little v Shell Refining Australia Pty Ltd

Details

AGLC: Little v Shell Refining Australia Pty Ltd [2014] VSC 546
Case: [2014] VSC 546
Decision Date: 28 October 2014

CaseChat Overview and Summary

Little, the plaintiff, sought damages for personal injuries sustained in an incident involving a product manufactured by Shell Refining Australia Pty Ltd, the defendant. The dispute centred on the adequacy of the defendant's discovery process and responses to interrogatories. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining whether the defendant's failure to adequately discover and respond to interrogatories warranted a strike-out of the defendant's defence and whether this failure prejudiced the plaintiff.

The primary legal issues were whether the defendant's inadequate discovery and responses to interrogatories constituted a breach of procedural fairness and whether the prejudice to the plaintiff outweighed any prejudice to the defendant. The court examined the statutory and common law principles governing discovery, the proportionality of sanctions, and the specific procedural rules in the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The court also considered relevant case law, particularly British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased)) (2002) 7 VR 524.

The court found that the defendant's conduct in failing to adequately discover relevant documents and provide satisfactory answers to interrogatories constituted a serious breach of procedural fairness. The court held that the defendant's actions led to substantial prejudice to the plaintiff, as the plaintiff was unable to properly prepare their case due to the unavailability of crucial documents and inadequate responses. The court noted that the prejudice to the plaintiff was significant, and while the defendant had some justification for its conduct, it was not sufficient to excuse the breach. The court ultimately concluded that a strike-out of the defendant's defence was an appropriate sanction under the circumstances. The court ordered that the defendant's defence be struck out, barring the defendant from relying on it in the proceedings.

Orders