Little v Shell Refining Australia Pty Ltd
[2014] VSC 546
•28 October 2014
| 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 |
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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 |
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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).
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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 constructing, lining and relining and maintaining of the carbon bake pits at the smelter, and that it engaged in or about 1965, Williams (Contractors) (‘Williams’) and in or about 1980, Crow Investment Pty Ltd (‘Crow’) (the third defendant).
The plaintiffs, the Littles, allege, amongst other things, that the first plaintiff was exposed to asbestos from Alcoa’s aluminium smelter at Port Henry in two distinct periods. In this matter the claims of both plaintiffs depend upon their establishing that the first plaintiff, Geoffrey Little, was exposed to asbestos while working at the aluminium smelter, firstly in 1965 as an employee of Williams, and again in 1980, when employed by the third defendant, Crow. The plaintiffs allege that every evening during these periods, Mrs Yvonne Little was exposed to asbestos from Mr Little’s clothing on his return home.
By its defence to the FASOC dated 7 August 2014 (‘the defence’), Alcoa:
(a)does not admit that the carbon bake pits were lined with asbestos blocks but admits retaining Williams in 1965; admits to retaining Crow in 1980 to reline the smelter’s carbon bake pits, and otherwise denies Mr Little’s exposure to asbestos blocks at all material times;
(b)does not admit that Mr Little was retained by Williams in 1965 or by Crow in 1980 for the purpose of constructing, lining, relining and maintaining the carbon bake pits at the aluminium smelter;
(c)denies Mr Little’s exposure to asbestos during the Williams’ work and/or the Crow employment and further denies that asbestos was used in the smelter’s carbon bake pits;
(d)denies that it did foresee, or should have foreseen, a risk of injury to Mr Little;
(e)does not admit owing a duty of care, denies negligence, denies allegations of negligence against Crow, and denies injury and loss.
The plaintiffs submit that in circumstances where Alcoa admits that Williams and Crow were contracted to work at the smelter, but does not admit the allegation of asbestos exposure, and where in answers to interrogatories, Alcoa denies that there was asbestos in the Port Henry plant at which Mr Little claims to have worked, the plaintiffs are left in an ‘evidential conundrum’. That is, the plaintiffs submit that it will be the word of Mr Little against, possibly, the word of some employee of Alcoa in relation to the issue of the existence of asbestos in the particular plant at the relevant time. The plaintiffs submit that ordinarily they would be assisted in discharging the burden of proof required by reference to records and particularly in a case such as this, Alcoa’s records of Alcoa’s knowledge of dangers at the plant.
The plaintiffs submit that in such circumstances discovery becomes critical to the plaintiffs’ ability to have a fair trial.
The plaintiffs submit that proper discovery means full discovery of all relevant documents and a full and proper explanation of documents that were once in Alcoa’s possession, custody or power, but which are no longer, when they were last held, and what became of them. The plaintiffs submit that the proper use of Schedule 2 to an affidavit of documents enables a plaintiff to point to documents once held, and seek an inference on the basis that the documents could have resolved the matter but have been put out of the party’s power to use by their unavailability.
The plaintiffs submit that there has been an absence of proper discovery by Alcoa and a failure to comply with the Rules and provide the necessary documents and/or explanation as required by the Rules.
Ms Kent’s affidavit sets out the interlocutory steps that have been undertaken relevant to this application:
(a)on 7 February 2014 the plaintiffs served interrogatories on Alcoa;
(b)Alcoa provided its first affidavit of documents sworn 7 March 2014. The list of documents in its possession, custody or power disclose the earliest dated document as from March 1969, two from 1972, one in 1974, and several from 1975. The vast majority post-dated the second exposure period. The affidavit of documents sworn 7 March 2014 deposes a belief that Alcoa has never had any other documents than those listed in Schedule 1 or 2;
(c)on 7 February 2014 the plaintiffs served interrogatories on Alcoa. On 17 March 2014 Alcoa served sworn answers to the plaintiffs’ interrogatories. In Answer 31, Alcoa admits being generally aware of the hazards of asbestos exposure before 1965 and that it had embarked upon an asbestos removal program throughout the aluminium smelter in the early 1970s. In other answers, the deponent denies that asbestos was used in the carbon bake pits in 1965 or 1980. In Answer 3, the deponent is unable to say if Crow was engaged to carry out work at the smelter;
(d)on 1 April 2014, Ms Kent wrote to Alcoa’s solicitors requesting further and better discovery with particular attention to the second schedule;
(e)on 12 June 2014, Alcoa provided further discovery by way of a further affidavit of documents sworn 12 June 2014. The affidavit contained no second schedule but deposed that ‘large numbers of documents have been lost and/or misplaced’ and that contracts with Crow and Williams were probably lost or disposed of many years ago; and
(f)following several exchanges of correspondence, Ms Kent wrote to Alcoa’s solicitors on 4 August 2014 requesting further and better answers to interrogatories. By letter dated 6 August 2014, Alcoa’s solicitors declined to provide further answers.
The plaintiffs submit that in light of:
(a)the absence of admissions and positive denials in Alcoa’s defence;
(b)Alcoa’s failure to provide documents which could verify (or otherwise) the allegations in the statement of claim or defence;
(c)Alcoa’s failure to provide a proper explanation as to what happened to the documents in its possession, custody and power, and when; and
(d)Alcoa’s failure to provide proper answers to interrogatories;
the plaintiffs are substantially prejudiced in the conduct of this litigation in which they would ordinarily be entitled to be assisted in the proof of their claim by Alcoa’s documents and admissions and answers to interrogatories.
Ms Kent deposes that Alcoa’s answers to interrogatories reveal that it was aware of the hazards of asbestos before 1965 and that because of the hazards it removed asbestos at the Point Henry plant commencing in the early 1970s and completing the task by the late 1970s. Ms Kent deposes to the belief that Alcoa is likely to have anticipated claims for compensation or damages for persons exposed to the hazard before 1965 and from the early 1970s. At paragraph 25 of her affidavit Ms Kent deposes that Alcoa has been involved in asbestos litigation for many years and this is confirmed by a search she has conducted of the Slater & Gordon database.
The plaintiffs submit:
(a)the failure to provide a proper and clear explanation of the destruction of the documents;
(b)the fact that Alcoa is a major multinational corporation, conducting a major industrial enterprise over 16 years;
(c)Alcoa was aware of the risk or danger of asbestos exposure in the 1950s and that by the 1970s it had removed all the asbestos from its plants;
(d)that from at least the early 1990s it had knowledge of actual litigation on foot against it; and
(e)the unavailability of the documents the plaintiffs now seek to rely upon entitle the plaintiffs to some remedial orders;
Alcoa’s defence should be struck out.
The plaintiffs rely on ss 89A, 89B and 89C of the Act for remedial orders in circumstances where it is said that the plaintiffs are faced with unfairness as to the result of the loss or destruction of Alcoa’s documents.
Common law position – McCabe
The common law position on destruction of documents was set out by the Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCabe (deceased)).[1]
[1](2002) 7 VR 524 (‘McCabe’); [2002] VSCA 197 (Phillips, Batt and Buchanan JA).
Where documents have been destroyed before the commencement of litigation, the conditions for court intervention in the form of strike out are:
(a) There has been a default in discovery:
(i) What are the terms of the order for discovery;
(ii) Has the defendant adopted a different interpretation of the order? If so, the defendant must be given an opportunity to comply with the order properly construed, before discovery is found to be defective;[2]
[2]Ibid [59].
(iii) What documents has the defendant discovered pursuant to the order?;
(iv) What documents has the defendant not discovered pursuant to the order?;
(v) Do the documents not discovered fall within the terms of the order properly construed?
(b) The defendant has given evidence as to when the destroyed documents were last in the possession of the defendant, and what became of them, to the best of its/his/her knowledge, information and belief. Alternatively, the defendant has been asked to give such evidence (in the form of a further affidavit of documents), but has failed to do so;[3]
[3]Ibid [54]-[55], [59], [64], [69]-[70], [184].
(c) It is established to the civil standard of proof that the destruction of documents amounts to:[4]
[4]Ibid [173], [175].
(i) an attempt to pervert the course of justice; or
(ii) criminal contempt of court (if there can be a contempt of court before any proceeding has been instituted, which the Court of Appeal did not decide); and
(d) The plaintiff is prejudiced by reason of the destruction of documents, and a strike out is proportionate to that prejudice.
The Court of Appeal said that in terms of further affidavits by the defendant as to the unavailable documents, it was the destruction of documents that was relevant and not the policy behind it.[5] This is at odds with the requirement of court intervention that destruction amounts to an attempt to pervert the course of justice. The policy behind destruction is squarely relevant to that question.
[5]Ibid [63].
As to remedy, the principle of proportionality applies. If the conditions for court intervention are met, the remedy must be proportionate to the prejudice suffered by the plaintiff by reason of the default in discovery.[6] In McCabe this meant that had relief been justified, the trial judge should have struck out only those paragraphs of the defence relevant to the issues affected by the destruction of the documents.[7] When considering the prejudice suffered by the plaintiff, the court must look at what documents the plaintiff does have, and what he/she will be able to establish with those documents.[8]
[6]Ibid [178].
[7]Ibid [187]-[191].
[8]Ibid [190].
According to the Court of Appeal, what a court may not do is give relief on the basis that there has been a default in discovery to such a degree and in circumstances so serious as gravely to prejudice the plaintiff in the conduct of the litigation.[9] The court may not use the criterion of a fair trial as the basis for awarding relief, although the notion of fair trial may inform the test that is used.[10]
[9]Ibid [143].
[10]Ibid [172].
The Court of Appeal did not consider the basis upon which a court might draw adverse inferences from the destruction of documents.[11]
Position under statute – Evidence (Miscellaneous Provisions) Act 1958 (Vic)
[11]Ibid [175].
The common law position has been modified by ss 89A, 89B, and 89C of the Act.
Under those provisions, the conditions for court intervention in favour of a plaintiff where documents have been destroyed are (that is, the conditions for the court’s discretion under s 89B to be enlivened):
(a)The documents are unavailable and no reproduction is available (this includes but is broader than destroyed documents) – s 89A; and
(b)It appears to the court that the unavailability is likely to cause unfairness to the plaintiff (s 89B).
Although not stated, it goes without saying that for relief under s 89B to be granted, the unavailable documents must all fall within a discovery order or subpoena.
If those conditions are met, the court’s discretion to give an order under s 89B is enlivened and the court may then make any ruling/order that it thinks necessary to ensure fairness to all parties to the proceeding, having regard to s 89C matters which guide the exercise of discretion. The s 89C matters are:
(a) the circumstances in which the documents became unavailable;
(b)the impact of the unavailability on the proceeding, including whether it will adversely affect the plaintiff’s ability to prove its case;
(c)any other matter the court considers relevant.[12]
[12]The Explanatory Memorandum to the Evidence (Document Unavailability) Bill 2006 (Vic) provides some examples of ‘any other matter’. Those examples are: whether litigation was contemplated or should reasonably have been anticipated at the time a new document was rendered unavailable; the reasons a document is unavailable; whether a party knew, or could reasonably have known, that the documents contained, or may have contained, evidence of legal wrongdoing or a breach of legal obligations; the nature of the relevant party’s activities, its size and mode of operation, organisational sophistication and its litigation history.
If those conditions are met, a court may make any ruling/order that it thinks necessary to ensure fairness to all parties to the proceeding.
When exercising the discretion under s 89B, the court will essentially weigh up the prejudice to the plaintiff, the conduct/knowledge of the defendant and the circumstances of unavailability.
So what is the difference between the new provisions and the common law position?
The new provisions apply to unavailable documents, not just destroyed documents. They pick up the following of the common law’s conditions for court intervention:
(a)the defendant has explained the circumstances of destruction or has been given an opportunity to explain the circumstances (s 89C(a));
(b)the plaintiff will suffer prejudice by reason of the unavailability (s 89C(b)); and
(c)proportionality between relief and prejudice (s 89B(1)).
The common law requirement that the plaintiff establish to the civil standard that the destruction of documents amounts to an attempt to pervert the course of justice, or criminal contempt of court (if open), was not picked up by the new provisions. In this way, the new provisions have remedied the rigours of the Court of Appeal’s approach in McCabe. The new provisions establish a more flexible balancing process to be undertaken by the court. Under the new provisions, the court’s discretion to grant relief is not enlivened until it is established that the defendant’s conduct amounted to an attempt to pervert the course of justice. Under the new provisions, the defendant’s conduct and the circumstances of destruction are to be considered at the discretion stage rather than the jurisdictional stage.
As above, under the new provisions the reasons for the documents, unavailability and the defendant’s involvement in the documents becoming unavailable are relevant at the discretion stages, where fairness to the parties is assessed. Accordingly, the results of this balancing process may produce results that would not have been obtained under the common law. For example, even where documents are innocently destroyed, the prejudice to the plaintiff may be such that relief under s 89B is necessary to ensure fairness to all parties.
When the court is looking at the prejudice to the plaintiff it should consider what documents the plaintiff already has, just as the court did in McCabe. The court is then required to consider what fairness to all the parties requires.
The new provisions were considered by Judge Lewitan in Kingisland Meatworks and Cellars Pty Ltd v Piero Mastromanno and Bonjust Pty Ltd.[13] The judge granted the defendants’ application under s 89B and struck out part of the plaintiff’s amended statement of claim due to the plaintiff destroying documents after the commencement of proceedings. Her Honour said:
Division 9 of the Evidence (Miscellaneous Provisions) Act 1958 enumerates the powers of a court to make any order or ruling necessary to ensure a fair trial where a document is unavailable. However whether or not a ruling or order is made is left to the discretion of the Court, subject to a consideration of the factors set out in s 89C. In light of the discretionary nature of the Act, it is a worthwhile exercise to consider how other courts have used or declined to use their discretion in such situations.
In Alder v Khoo &Anor, the Court of Appeal of Queensland upheld a decision by the Supreme Court of Queensland to reject the plaintiff’s application to strike out parts of the second defendant’s defence consequent on alleged non‑disclosure due to destruction of discoverable documents. In that case, Dalton J found that “there [was] no evidence that any of the documents destroyed were destroyed other than innocently” and despite that “[t]here [was] no doubt that all of the documents which [were] destroyed were relevant to the issues raised on the pleadings… [Her Honour could not] see that the destruction of the [subject document was] of such significance that it [would] prejudice a fair trial being held in the matter.” One critical factor that lead Her Honour to this conclusion was the existence of a multitude of other evidence which bore on the matters to which the destroyed documents related. The plaintiff had failed to show that they were “materially disadvantaged by the loss or destructions of documents.”
Similarly in Australian Finance Group Ltd v Accent Financial Group Pty Ltd. The applicant applied for judgment by reason of the respondent’s consistent failure to comply with Court orders and its destruction of documents. Whilst accepting that “even inadvertent destruction of documents may be a proper foundation for striking out an action, [RD Nicholson J did] not consider that the discretion to so strike out should presently be exercised [in that case].” The respondent claimed that documents had been destroyed as a matter of routine, based on a misunderstanding of the necessary period of retention requirements under the Corporations Act. His Honour concluded that “[he could not] see why that evidence should not be open to examination at trial and have such effect as its resulting weight (or lack of it) and credibility allows.”
The facts of this case can however be distinguished from both Adler and Australian Finance Group. First, Alex admitted to destroying the subject documents after the proceedings had commenced. He gave evidence that he did not appreciate the relevance of the documents to this proceeding at the time that he destroyed the documents (or caused the documents to be destroyed). I accept this may have been the case. With the exception of the family law proceedings in which he had become embroiled, there is no evidence that Alex was familiar with court processes and procedures. He runs a relatively small, unsophisticated operation and gave evidence of being a man of limited education. However it is unnecessary to make a final finding on whether or not the documents were intentionally or innocently destroyed. The case law makes it clear that it is the effect of the destruction of documents that is most relevant, not the intention. The crucial issue is that the documents are no longer in existence, and the defendants were never privy to their contents.
Second, the destroyed documents are critical to both the plaintiff being able to quantify its claim for lost profits and consequently to the defendants being able to defend the claim for loss of profits as set out in paragraph 13 of the amended statement of claim. The plaintiff relied on the figures provided by Bertram which gave an estimate of lost revenue based on an assumed formula. Without having access to these documents, the defendants could not test the amounts. Without access to these documents, quantifying the claimed loss of profits or loss of revenue is purely speculative. Furthermore the plaintiff has failed and refused to discover other financial documents which are relevant to the issue of the alleged damages or loss sustained by the plaintiff. Unlike Adler, there is not an abundance of other documents in existence which bear on the plaintiff’s loss of profit claim. Therefore, in order to ensure fairness to the defendants, I find it necessary to accede to the defendants’ submission and order that the Court ought to exclude the plaintiff’s claim for loss of profit as set out in paragraph 13 of the amended statement of claim.[14]
[13][2012] VCC 25.
[14]Ibid [171]-[175].
Judge Lewitan made the order under s 89B in the reasons for judgment (that is, the final judgment in the matter).
Decision
In submissions, counsel for Alcoa stated that Alcoa’s instructions remain that there are no further documents to be discovered but that Alcoa accepts that it may, to the extent possible, provide a further explanation of those documents no longer in its control. Alcoa has proposed a form of order requiring it to file and serve an affidavit supplementing paragraphs 4 and 5 of the affidavit of Ron Wimmer sworn on 12 June 2014, entitled ‘Further affidavit of documents’ and to otherwise comply with Order 29.04(1)(c) of the Rules.
Alcoa submits that with respect to the destruction of documents before the commencement of the proceeding, the criterion for the court’s intervention at common law and under the Rules (other than by the drawing of adverse inferences and the striking out of a pleading) is whether the ‘conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court occurring before the litigation was on foot’.[15] Alcoa accepts that the position at common law is tempered by:
(a)Section 89B of the Act, which allows the court to make certain orders where the unavailability of a document is likely to cause unfairness to a party to a proceeding; and
(b)Section 56 of the CPA allowing this court to make certain orders where discovery obligations have not been complied with.
[15]British American Tobacco Australia v Cowell (2002) 7 VR 524; [2002] VSCA 197 [175] (Phillips, Batt and Buchanan JJA).
Alcoa submits that in relation to s 89B of the Act and s 56 of the CPA:
(a)the powers conferred by these sections are broad;
(b)given the breadth of these powers, they should only be exercised after a full consideration of the circumstances in which those powers are enlivened; including:
(ii) the circumstances in which the relevant documents have become unavailable; and
(iii) the bearing or prejudice that unavailability has in the proceedings at hand.
(c) these powers should only be exercised on a summary (interlocutory) basis in very limited circumstances.[16]
[16]Second defendant’s written submissions at [12].
Alcoa submits that as the Court of Appeal considered in McCabe,[17] any orders of this nature should be proportional and tailored to the prejudice occasioned to other litigants by that conduct offending the Rules.[18] Alcoa submits that the only offending conduct in this case is Alcoa’s failure to comply with rule 29.04(1)(c), and that as such the appropriate course in this instance is simply to order a further affidavit. Alcoa submits that an order under either s 89B of the Act or s 56 of the CPA would be precipitous and that upon provision of Alcoa’s further affidavit, the plaintiffs may re‑agitate this application at trial and that it can then be determined by the trial judge.
[17](2002) 7 VR 524; [2002] VSCA 197 (Phillips, Batt and Buchanan JJA).
[18]Ibid [176]-[192] (Phillips, Batt and Buchanan JJA).
Alcoa concedes that its discovery, and in particular the second schedule in both affidavits of documents, is inadequate. Alcoa has failed to state in the affidavits when it parted with documents, when the said documents were destroyed or lost, or any belief as to what has become of the documents.
Material documents which once were, but are no longer in the possession of a party making discovery must be disclosed in the party’s affidavit of documents (r 29.02(1)). Alcoa must to the extent possible, state when it parted with the document/s and the deponent must depose to his or her belief of what has become of the documents (r 29.04(c)).
At this stage, there is not sufficient evidence, nor is it appropriate to draw any adverse inference in relation to Alcoa’s conduct, namely its failure to comply with its discovery obligations under the Rules.
Under the CPA, s 54 considers that unless a court otherwise orders, discovery of documents in a civil proceeding is to be in accordance with the Rules of the court. As noted, Alcoa concedes that it has not fully complied with its obligations under the Rules. The plaintiffs would now have the court make orders in effect striking out Alcoa’s defence, and having this matter referred for an assessment of damages. Section 56 of the CPA gives the court a broad discretion in relation to sanctions it can impose. Section 56(1) states:
A court may make any order or give any direction it considers appropriate if the court finds that there has been –
(a) a failure to comply with discovery obligations; …
Section 56(2) then goes on to list orders the court may make or directions it may give, including preventing a party from taking any step in a civil proceeding (s 56(2)(d)) or dismissing any part of the claim or defence of a party who has failed to comply with discovery obligations (s 56(2)(j)).
The proceeding was commenced on 10 September 2014. Alcoa’s first affidavit of documents was sworn 7 March 2014 and the second affidavit of documents was sworn on 12 June 2014. It was only after the filing of the plaintiffs’ summons dated 9 October 2014 that Alcoa has conceded that it should file and serve a third affidavit of documents setting out the circumstances surrounding the said destruction of relevant documents. I note that the trial date is 17 November 2014.
In order to enliven the court’s discretion under s 89B of the Act the court needs to be satisfied that the documents are unavailable and no reproduction is available and it appears that the unavailability is likely to cause unfairness to the plaintiffs.
From the evidence before the court it would seem that Alcoa had relevant documents which have been destroyed and are unavailable and no reproduction is available. Ms Kent deposes that in part Alcoa’s failure to provide documents which could verify (or otherwise) the allegations in the statement of claim will substantially prejudice the plaintiffs in their conduct of the proceeding, in which they would ordinarily be, and are entitled to be, assisted in proof of their claim by documents of Alcoa.[19] The evidence is ambiguous in how specifically the documents will assist. There is no evidence of how the small number of documents discovered assist or otherwise the plaintiffs in their case. In Kingsland Meatworks and Cellars Pty Ltd v Piero Mastromanno and Bonjust Pty Ltd,[20] Judge Lewitan was able to point to specific documents that were destroyed and the impact of the destruction on the defendant’s ability to test the amounts claimed by the plaintiff for loss of profits. In the current case, the plaintiffs make an ambit complaint about ‘documents’ being unavailable and that therefore the plaintiffs are prejudiced. I consider that at an interlocutory stage the plaintiffs must be able to target their grievances in relation to the unavailability of documents with more specificity as to how the conduct of their case is prejudiced. The plaintiffs also concede that the general prejudice complained of is also due to Alcoa’s failure to provide adequate answers to interrogatories.
[19]Affidavit of Margaret Kent sworn 9 October 2014 [22].
[20][2012] VCC 25.
At this stage I do not consider that the court’s discretion under s 89B of the Act is enlivened. Even if it were, I do not consider the circumstances justify the court exercising its discretion to make the orders sought by the plaintiffs, to strike out Alcoa’s defence.
The court does not have any evidence about the circumstances in which the documents became unavailable. It is not clear on the current evidence what the impact of the unavailability on the proceeding will be and whether it will adversely affect the plaintiffs’ ability to prove their case.
I do not consider that it would be proportionate at this point in time to strike out Alcoa’s defence. In my opinion, whether inferences can or cannot be made about the unavailability and/or destruction of the documents, is a matter best left for trial and after the provision of a third affidavit of documents.
I consider the way to ensure fairness to the parties at this stage is to require Alcoa to file and serve forthwith a third affidavit of documents. Alcoa’s third affidavit of documents should provide details of:
(a)when the said documents were destroyed;
(b)what documents have been lost or destroyed; and
(c)how those documents came to be lost and/or destroyed.
Interrogatories
The plaintiffs submit that Alcoa’s answers to interrogatories are inadequate. In particular, the answers to interrogatories 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31 and 32. The plaintiffs submit that in circumstances where the documents have been lost and destroyed there is an even greater onus on Alcoa to provide proper and full answers to interrogatories.
Interrogatory 16 and the related interrogatories 17, 18, 19, 20, 21 and 22, ask:
16.During the exposure period at the smelter, did the second defendant employ, retain or engage contractors;
(a) to carry out work on the smelter;
(b) to use asbestos materials at the smelter?
In Alcoa’s answers to interrogatories, the deponent, Ron Wimmer objects to answering the interrogatory on the grounds that it is too wide, vague, vexatious and not relevant to the issues between the parties.
In a letter dated 6 August 2014, Alcoa’s solicitors say in relation to answers to interrogatories 16 to 22:
In accordance with previous discussions and in particular our client’s answer to interrogatory 23 we confirm that it is our client’s position that your client was simply not exposed to asbestos doing the work he described. Against this background, we maintain our objection to further and better answers to interrogatories 16 to 22.
Rule 30.02(1) provides that any party may serve interrogatories on another party relating to any question between them in the proceeding. An interrogatory relates to a question if it has some association or connection with the question. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of facts directly in issue.[21]
[21]Marriott v Chamberlain (1886) 17 QBD 154 [164] per Lord Esher MR.
The paramount consideration in considering relevance for the purpose of interrogatories is the relevance of the enquiry to the questions in dispute, and whether the information sought to be obtained by the question is strictly relevant to those questions and materially important for the purpose of establishing the interrogating party’s case.
Interrogatory 16 requires Alcoa to depose to whether it employed or retained or engaged contractors to carry out work at the aluminium smelter or that used asbestos materials at the smelter. This is in the context where Alcoa has admitted that it employed Williams and Crow, and it had a program for the removal of asbestos at the plant.
In light of Alcoa’s denials and non‑admissions, it has essentially put all matters in issue, other than the engagement of Mr Little’s employers, and positively denies any asbestos exposure. Alcoa’s case is that no asbestos blocks were ever used in the carbon bake pits. In its answers to interrogatories, Alcoa admits being generally aware of the hazards of asbestos exposure before 1965 and that it had embarked on an asbestos removal program throughout the smelter in the early 1970s. The deponent to Alcoa’s answers to interrogatories otherwise denies that asbestos was used in the carbon bake pits in 1965 or 1980.
I consider the interrogatory is relevant given the denial of the use of asbestos in the carbon bake pits and the denial that the first plaintiff was exposed to asbestos. The issue of whether or not contractors were employed, engaged or retained by Alcoa to work at the smelter and to use asbestos materials at the smelter is relevant as to the issues of the use of asbestos at the plant and the use of asbestos in the carbon bake pits generally and as such has a connection to the issue in dispute in this case. Accordingly, I consider that Alcoa should provide further and better answers to interrogatories 16, 17, 18, 19, 20, 21 and 22.
Interrogatory 23 asks:
During the exposure period did the second defendant ever warn or advise:
(a) the plaintiff;
(b)any officer or employee of any contractor engaged by the second defendant to work at the smelter;
(c)any officer or employee of the said defendant;
(d)any person carting asbestos blocks at the smelter;
(e)any person installing asbestos blocks at the smelter;
(f)any person working in the carbon bake pits at the smelter;
of any risk or danger associated with exposure to or inhalation of asbestos in the course of their work at, or during the time they were at, the smelter?
In answer to 23, the deponent deposes:
Asbestos blocks were not used in the carbon bake pits. As such it is unlikely that any warnings were ever issued to anyone working in the area about the hazards associated with cutting or installing asbestos blocks in the course of their work in the carbon bake area of the smelter.
Interrogatory 23 asks a broader question not confined solely to asbestos in the carbon bake pits. Again, I consider that given the issues in dispute in this matter, interrogatory 23 is relevant and goes to the very issue of what warnings and advice Alcoa gave and therefore discloses an awareness of the need to warn of dangers associated with exposure to, or inhalation of asbestos. Accordingly, I consider Alcoa should provide further and better answers to interrogatory 23 and the related interrogatory 24.
Interrogatory 25 asks:
At any time during the exposure period was the second defendant aware of any risk or danger from or associated with:
(a) exposure to asbestos;
(b) inhalation of asbestos;
(c) cutting asbestos blocks;
(d)exposure to asbestos from the washing of the clothes of an asbestos‑exposed worker?
Alcoa’s answer to interrogatories 25(a), (b) and (c) state:
At all relevant times the second defendant was aware of relevant occupational health and safety exposure standards, relating to asbestos and from the early 1970s it implemented a program to remove asbestos from its smelter. Insofar as Point Henry is concerned, the program had largely been completed by the late 1970s so that by this stage the only asbestos remaining in the smelter was not a source of airborne dust.
In relation to sub‑paragraph (d) the deponent states ‘I believe not’.
In a further explanation in a letter dated 6 August 2014 in relation to the further and better answers to interrogatories 25 to 28, Alcoa’s solicitors state:
You have an admission from our client that it was aware of the relevant occupational health and safety standards. This is meant to encompass the standards imposed by legislation. What further concessions do you say that our client should have made?
I consider interrogatory 25 to be relevant. It is reasonable to require Alcoa to provide a proper answer as to what occupational health and safety exposure standards it was aware of and, specifically, which legislation it refers to. I consider that Alcoa should provide further and better answers to interrogatories 25 and the related interrogatories, 26, 27 and 28.
Interrogatories 31 and 32 request that Alcoa refer to two articles that consider occupational domestic exposure to asbestos, including circumstances such as those of the second plaintiff where history is given of a wife who washed her husband’s work clothes. Knowledge of the articles would go to the issue of awareness of exposure in such circumstances. Alcoa’s answer to interrogatories 31 and 32 is that it was generally aware of literature relating to the hazards of asbestos exposure prior to the exposure period and had embarked upon the asbestos removal program throughout its smelter in the early 1970s. Staff, employers and contractors were well aware of the reasons for the program and the hazards associated with the use of asbestos. The further and better answers provided to paragraphs 31 and 32 are non-responsive to the actual interrogatory asked. I consider that Alcoa should provide further and better answers to interrogatories 31 and 32.
Conclusion
In summary, I consider that Alcoa’s discovery is deficient and that Alcoa should provide a third affidavit of documents. I do not consider any orders should be made pursuant to the Act. I consider that striking out Alcoa’s defence at this stage is not proportionate to the offending conduct under the Rules.
I make the following orders:
1. The second defendant is to file and serve a further further affidavit by 5 November 2014;
2. The second defendant is to file and serve a list of witnesses and outlines of evidence of the witnesses by 6 November 2014;
3. The second defendant is to file and serve further and better answers to interrogatories 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30 and 31 by 5 November 2014.
Subject to hearing any submissions from the parties, I make the following observations. I consider there was a proper basis for the plaintiffs to file the current summons. The plaintiffs endeavoured to obtain further discovery and Alcoa only now concedes its discovery is deficient. I have found that the second defendant’s answers to interrogatories are inadequate.
SCHEDULE OF PARTIES
| GEOFFREY LITTLE | First Plaintiff |
| YVONNE LITTLE | Second Plaintiff |
| - and - | |
| SHELL REFINING (AUSTRALIA) PROPRIETARY LIMITED (ACN 004 303 842) | First Defendant |
| ALCOA OF AUSTRALIA LIMITED (ACN 004 879 298) | Second Defendant |
| CROW INVESTMENTS PTY LTD (ACN 004 149 008) | Third Defendant |
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