Lopresti v Ford Motor Company of Australia Ltd
[2007] WASC 206
•3 SEPTEMBER 2007
LOPRESTI -v- FORD MOTOR COMPANY OF AUSTRALIA LTD [2007] WASC 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 206 | |
| Case No: | CIV:1583/2003 | 11 JUNE 2007 | |
| Coram: | LE MIERE J | 3/09/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANTONINO LOPRESTI FORD MOTOR COMPANY OF AUSTRALIA LTD |
Catchwords: | Civil practice and procedure Discovery Application for further and better discovery Whether defendant has failed to properly fulfil discovery obligations Whether just and expedient for an order for further discovery to be made Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 26, O 29 Rules of the Supreme Court of the State of Victoria 1985 (Vic), O 14 |
Case References: | Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1980] 1 WLR 627 Palmdale Insurance Ltd (in liq) v El Grollo & Co Ltd (1987) VR 113 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
FORD MOTOR COMPANY OF AUSTRALIA LTD
Defendant
Catchwords:
Civil practice and procedure - Discovery - Application for further and better discovery - Whether defendant has failed to properly fulfil discovery obligations - Whether just and expedient for an order for further discovery to be made - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 26, O 29
Rules of the Supreme Court of the State of Victoria 1985 (Vic), O 14
Result:
Application dismissed
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Category: B
Representation:
Counsel:
Plaintiff : Mr J R C Gordon
Defendant : Mr N W McKerracher QC & Dr M J Maxwell
Solicitors:
Plaintiff : Slater & Gordon
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1980] 1 WLR 627
Palmdale Insurance Ltd (in liq) v El Grollo & Co Ltd (1987) VR 113
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1 LE MIERE J: The plaintiff has applied for orders that by way of a supplementary affidavit of discovery the defendant supply to the plaintiff a list of documents destroyed pursuant to its records management manual and the dates on which the documents were destroyed and provide certain other information to the plaintiff.
The action
2 The plaintiff was employed as a motor mechanic by two Ford dealerships between 1970 and 1987. The statement of claim alleges that the plaintiff suffers asbestosis as a result of having been exposed to, and having inhaled, asbestos dust, particles and fibres in the course of his work on brake linings and components manufactured or supplied by the defendant and components in motor vehicles manufactured by the defendant. The statement of claim alleges that the defendant knew or ought to have known of dangers of working on the brake products and that it breached its duty to the plaintiff by negligently exposing the plaintiff to the risk of inhalation of, and the inhalation of, asbestos dust and fibres. In its defence the defendant denies the plaintiff's claim as to knowledge, duty of care and negligence. The plaintiff says that the question of the defendant's knowledge of the dangers to product users from being exposed to asbestos from the defendant's products when used in the usual way is central and critical to the outcome of the action.
History of discovery
3 The defendant gave discovery verified by an affidavit sworn on 7 February 2003 by Susanna Ines Allen, the defendant's legal manager. The defendant's list of documents stated that the defendant had had, but did not then have, in its possession custody or power the documents relating to the matters in question in the action described in the second schedule and that the defendant had relinquished possession, custody and control of the documents so described in the manner and on the dates specified therein. The documents described in the second schedule were originals of documents filed at court, or served upon or sent to the plaintiff's solicitors by the defendant, in connection with the action. The defendant's list of documents did not make any mention of any records management policies or procedures of the defendant.
4 The defendant gave supplementary discovery verified by an affidavit affirmed on 9 April 2007 by Jennifer Linsten, the defendant's general counsel and company secretary.
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Ms Linsten's affidavit
5 Ms Linsten affirmed that to the best of her knowledge, information and belief the documents relating to the matters in question in this action enumerated in parts 1 and 2 of the defendant's affidavit of discovery of 7 February 2003, which was attachment JL1 to her affidavit, together with the further discovered documents set out in attachment JL2 to her affidavit represented all the discoverable documents that the defendant has in its possession, custody or power. In par 5(b) of her affidavit Ms Linsten affirmed that to the best of her knowledge, information and belief
the defendant may have had, but has not now, in its possession, custody or power documents which may have been relevant to the matters in question in this action, including documents in the following classes: purchase orders, invoices, correspondence, contracts, product specifications and other technical documents, staff training and occupational health and safety materials. These include any such documents that may have been provided to the defendant by the Ford Motor Company Ltd ('Ford (UK)') or the Ford Motor Company ('Ford (US)').
6 Ms Linsten affirmed that:
[S]ave for the defendant's documents listed in attachments 'JL1' and 'JL2':
(i) for the reasons set out below, I am not able to ascertain whether or not the defendant ever had any such documents described in paragraph 5(b) in its possession, custody or power and, if it did, when and in what manner they may have left the defendant's possession, custody or power; and
(ii) any such documents described in paragraph 5(b) above may have been disposed of, as described in paragraph 9 below.
7 Before referring to par 9 of Ms Linsten's affidavit, I observe that Ms Linsten further affirmed that to the best of her knowledge, information and belief the defendant did not have, and she believed had not ever had, an enforceable legal right to obtain documents that are, or were, within the power, custody or control of either the Ford Motor Co Ltd (Ford UK) or Ford Motor Co (Ford US).
8 Ms Linsten referred to investigations that were carried out by the defendant, and, on its behalf, by the defendant's solicitors, Clayton Utz, to ascertain, among other things, what documents were, or had been, in the defendant's possession, custody or power relating to the matters in question in the action and in respect of any relevant documents which had been, but were no longer, in the possession, custody or power of the defendant to establish what had become of them. Ms Linsten said that
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- those investigations were not limited to documents within Australia and included investigations into the defendant's obligation, if any, to discover documents potentially held by Ford US and Ford UK.
9 Ms Linsten affirmed, at [9] of her affidavit, the following:
Based on my own knowledge, and the information provided to me by Clayton Utz as a result of its investigations, I believe that:
(a) the types of documents which could reasonably have been supposed to have been created in connection with the defendant's business, and which may be relevant for the purposes of discovery in this action, include documents in the following classes: purchase orders, invoices, correspondence, contracts, product specifications and other technical documents, staff training and occupational health and safety materials;
(b) on 1 October 1989, the defendant introduced a records management policy ('the Records Management Policy'), and provided to each department within its organisation a manual prescribing the treatment of all records held on the defendant's behalf. A true copy of the 'Australian Records Management Manual' that relates to the Records Management Policy is now produced and shown to me and attached hereto marked 'JL3';
(c) the Australian Records Management Manual indicates that it may have superseded a previous issue, referred to in the document as the 'Initial Issue'. I have not been able to identify, or confirm whether there was, a pre-existing records management policy and do not know what, if any, records management policy may have been in place prior to 1989;
(d) in substance, the Australian Records Management Manual directed the defendant's personnel as follows:
(i) the procedures specified in the manual were to apply to all documents created before and after the policy came into force;
(ii) all of the defendant's records were to be retained or disposed of in accordance with the instructions contained in the manual;
(iii) the company was required by law to preserve all documents which are, or may be, relevant to litigation in which the company is involved;
(iv) each of the defendant's records was classified in accordance with the classes prescribed in the manual and a
- retention period prescribed for each class of documents; and
- (v) an annual review was to be conducted, during which all documents, the retention period for which had expired and which were not required to be retained for other reasons, such as potential relevance to litigation, were to be destroyed.
- (e) I am not personally familiar with the Records Management Policy and do not know about its operation in practice, or the extent to which the defendant may have adhered to its requirements, as set out in the Australian Records Management Manual;
(f) on 24 October 1997, the Records management Policy was suspended ('the Suspension Order'), until further notice, in relation to all records in the defendant's possession containing information relating to asbestos, or components containing asbestos; and
(g) all relevant documents which could reasonably have been supposed to have been created and retained by the defendant, which are not listed in attachments 'JL1' and 'JL2', may have been disposed of either pursuant to the Records Management Policy, prior to the issue of the Suspension Order in 1997, or in accordance with any practice that may have existed prior to that policy.
10 Ms Linsten then referred to a records archive held on behalf of the defendant's Product Engineering Division by Advance Record Management, at its depot near Lara, Victoria (the Lara Archives). Ms Linsten affirmed that the Lara Archives consisted of 387 boxes of documents. A process of reviewing those documents resulted in a number of documents being made available for inspection by the plaintiff. Ms Linsten affirmed that the review of the Lara Archives was part of an ongoing informal discovery process.
11 Ms Linsten affirmed that investigations carried out by the defendant and its solicitors revealed that, other than relevant documents already discovered, the defendant does not have any copies of Ford US or Ford UK documents relating to the matters in question in this action and she had not been able to identify any documentary, or other, evidence that the defendant ever did have copies of any such documents in its possession, custody or power.
12 In the final paragraph of her affidavit Ms Linsten affirmed that based on her knowledge of the defendant's business, she believes that the defendant's solicitors have pursued enquiries with 'all relevant people or places which could reasonably be supposed to have created or stored
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- documentary material that is relevant for the purposes of the defendant's discovery in this action', and the defendant's solicitors have identified 'all existing documents in the possession, custody or power of the defendant which are relevant for the purposes of discovery in this action'.
Mr Magazanik's affidavits
13 In an affidavit sworn on 1 June 2007 Mr Magazanik, a legal practitioner employed by the plaintiff's solicitors, set out the circumstances leading to this application. Those circumstances include the following. On 9 May 2007 the defendant's solicitors wrote to the plaintiff's solicitors, Slater and Gordon. The defendant's solicitors stated that upon filing and serving the defendant's supplementary affidavit of discovery it considered that it had fulfilled all of its discovery obligations. After receiving the defendant's solicitor's letter Mr Magazanik undertook a review of discovery affidavits provided by the defendant in other asbestos claims in which the plaintiffs had been represented by the plaintiff's solicitors.
14 In [42] and [43] of his affidavit and in Annexure MM16 to his affidavit Mr Magazanik set out the results of his review. On the application of the defendant, I struck out those paragraphs and that annexure on the grounds that they were hearsay and secondary evidence of documents. I gave the plaintiff leave to file and serve further affidavits concerning the matters raised in those paragraphs of Mr Magazanik's affidavit. Pursuant to that leave the plaintiff filed an affidavit of Mr Magazanik sworn on 19 June 2007.
15 In his affidavit of 19 June 2007, Mr Magazanik set out details of his review of discovery affidavits provided by the defendant in eight other asbestos-related claims brought in the Supreme Court of Victoria in which the plaintiff had been represented by Slater and Gordon. Having reviewed aspects of the defendant's discovery in each of those cases Mr Magazanik concluded in par 7 of his affidavit that by reason of the matters deposed to in his affidavit, in addition to the material in his original affidavit (sworn 1 June 2007), he believes that the defendant's failure to provide proper discovery in this matter and its failure to promptly and fully disclose the defendant's records management policy and document destruction to the plaintiff, is depriving the plaintiff of information which is necessary to determine the questions and controversy between the parties, and consequently is prejudicing the plaintiff's ability to prepare its case. The defendant objects to the whole of Mr Magazanik's affidavit of 19 June 2007. I will return to that issue later in these reasons.
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Plaintiff alleges defendant's discovery inadequate
16 After the defendant's solicitors' letter of 9 May 2007 there was further correspondence between the solicitors. In that correspondence Slater and Gordon referred to the defendant's discovery in this matter and in other matters, alleged that the defendant had concealed the existence of its record management policy and consequent document destruction and had failed to give proper discovery. The defendant's solicitors rejected the allegations and maintained that the defendant has given proper and adequate discovery.
The relief now sought
17 In his chamber summons the plaintiff seeks the following orders:
1. By [date], by way of a supplementary affidavit of discovery the defendant will:
(a) supply to the plaintiff a list of documents destroyed pursuant to its records management manual and the dates on which the documents were destroyed.
(b) disclose to the plaintiff which, if any, of the defendant's employees who were employed by the defendant during the period 1970 to 1987 in the legal, occupational health and safety, product liability, or medical areas (including consultants) were consulted by the deponent or its solicitors (recently or previously) as to the existence of any records (including documents sourced from Ford companies in the United State[s] or the United Kingdom) regarding asbestos knowledge or asbestos issues which were once in the possession, custody or power of the defendant.
(c) disclose to the plaintiff which, if any, of its employees who were employed during the period 1989 to 1997 and participated in the operation of the records management policy (as activity head, programme co-ordinator, functional records co-ordinator, area records co-ordinator or records representatives) have been questioned by the deponent or its solicitors as to whether documents relating to asbestos knowledge or issues were destroyed.
2. By [date] the defendant will provide to the plaintiff a copy of the suspension order which took effect on 24 October 1997. If not legible on the suspension order, the names and positions of the signatories to the suspension order will be supplied to the plaintiff in addition to the suspension order itself. The defendant will also
- provide to the plaintiff any subsequent renewals of the suspension order issued on 24 October 1997.
The plaintiff's case in overview
18 The plaintiff submitted the following. The evidence disclosed that Ford US and Ford UK had, or once had, documents concerning dangers from exposure to asbestos dust to users of, or workers on, brake products. The evidence led to the inference that relevant documents were received by the defendant from Ford US or Ford UK. The defendant's discovery is inadequate in that the defendant has failed to identify the documents that the defendant has had, but has not now, in its possession, custody or power, when it last had the documents in its possession, custody or power and what has become of them.
19 The plaintiff says that the affidavit of Ms Linsten of 9 April 2007 is insufficient to discharge the defendant's discovery obligations because Ms Linsten does not identify the documents that the defendant formerly had in its possession, custody or power, when it last had them or what has become of them. Furthermore, the plaintiff submits that Ms Linsten does not affirm that the defendant has made all proper enquiries to ascertain those matters.
20 Counsel for the plaintiff submitted that the orders the plaintiff seeks in its chamber summons were to address the insufficient enquiry made by the defendant and to require the defendant to put on an affidavit 'so that we can see whether the defendant's resistance to the application is based upon the fact that sufficient enquiries have been made of relevant people'. In the course of submissions counsel for the plaintiff conceded that perhaps the orders sought by the plaintiff went too far and that perhaps the defendant 'ought simply to be directed to put on an affidavit relating to what documents were once in its possession, custody or power and if no longer, what has become of them and when'. However, counsel submitted that some direction ought to be given to the defendant requiring it to depose as to the enquiries that have been made. Counsel submitted that the plaintiff would be content with the 'usual' order for further and better discovery provided that the defendant also deposed as to the enquiries that it has made in relation to the documents formerly, but no longer, in its possession, custody or power.
Mr Magazanik's affidavit of 19 June 2007
21 The defendant objects to Mr Magazanik's affidavit, sworn on 19 June 2007, on the grounds of relevance, hearsay or secondary evidence, and
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- breach of Slater and Gordon's implied undertaking not to use information or documents obtained by them in other litigation for any collateral or improper purpose.
22 The affidavit has seven paragraphs. The first five paragraphs refer to a review by Mr Magazanik of discovery affidavits provided by the defendant in other asbestos-related claims in which the plaintiffs have been represented by Slater and Gordon. The substance of that review is set out in par 6. Paragraph 7, to which I have earlier referred, sets out Mr Magazanik's conclusion based on his review. Paragraph 6 is divided into eight subparagraphs, each of which deals with one of the cases reviewed by Mr Magazanik.
23 The defendant's objection on the grounds of hearsay and secondary evidence appears to be confined to [6(g)] and [6(h)] of Mr Magazanik's affidavit. In those paragraphs Mr Magazanik refers to the defendant's discovery in two other cases but provides no other documentary evidence in support. The paragraphs contain hearsay and secondary evidence. They should be struck out on that ground.
24 The essence of the plaintiff's application is that the defendant has failed to give proper discovery in that it has failed to identify the documents it had, but no longer has, in its possession, custody or power, when it last had the documents and what has become of them and that the defendant has failed to make, or swear that it has made, proper enquiries in relation to those matters. The plaintiff has not submitted that the defendant has destroyed any discoverable documents since the commencement of this action or that the defendant has destroyed damaging documents under cover of its record management policy or that the defendant had adopted a strategy to achieve that purpose. The plaintiff has not alleged that the defendant's failure to disclose its records management policy or other document destruction policy or to disclose any discoverable documents in the present action and in the cases in the Supreme Court of Victoria reviewed by Mr Magazanik was a result of, or the manifestation of, a plan or policy by the defendant to destroy relevant documents or to fail to disclose the existence of the defendant's records management policy or other document destruction policy. The material in Mr Magazanik's affidavit is not relevant to the issues that fall for determination in the present application.
25 In the circumstances it is not necessary to determine whether or not the contents of Mr Magazanik's affidavit should be ruled inadmissible on the grounds of breach of Slater and Gordon's implied undertaking not to
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- use information or documents obtained by them in other litigation for any collateral or improper purpose.
The issues
26 The defendant's initial affidavit of discovery, verified by the affidavit of Ms Allen sworn 7 February 2003 is inadequate. That is conceded by the defendant. The defendant should be required to make a further and better affidavit of discovery unless it has complied with its discovery obligations by the defendant's supplementary affidavit of discovery affirmed by Ms Linsten on 9 April 2007 together with its annexures.
Adequacy of Ms Linsten's affidavit
27 The plaintiff submits that Ms Linsten's affidavit is inadequate because it fails to identify the documents the defendant had, but no longer has, in its possession, custody or power, when it last had those documents in its possession, custody or power and what has become of them and, in so far as Ms Linsten is unable to affirm any of those matters, the enquiries that she has made as to those matters.
28 In [5(b)] of her affidavit Ms Linsten affirms that the defendant may have had, but has not now, in its possession, custody or power documents which may have been relevant to the matters in question in this action including documents in the following classes: purchase orders, invoices, correspondence, contracts, product specifications and other technical documents, staff training and occupational health and safety materials. Ms Linsten affirms that these include any such documents that may have been provided to the defendant by Ford UK or Ford US.
29 Ms Linsten affirms in [5(d)] that the defendant does not presently have, and she believes has not ever had, an enforceable legal right to obtain documents that are, or were, within the power, custody or control of either Ford UK or Ford US.
30 In [7] Ms Linsten refers to investigations carried out by the defendant and its solicitors, Clayton Utz, to ascertain, amongst other things, what documents were, or had been, in the defendant's possession, custody or power relating to the matters in question in this action. In par 8 Ms Linsten affirms that those investigations were not limited to documents within Australia and included investigations into the defendant's obligation, if any, to discover documents potentially held by Ford US and Ford UK. In [14] Ms Linsten affirms that the investigations have revealed that, other than relevant documents already discovered, the
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- defendant does not now have any copies of Ford US or Ford UK documents relating to the matters in question in this action and that she has not been able to identify any documentary, or other, evidence that it ever did have copies of any such documents in its possession, custody or power.
31 In [15] Ms Linsten affirms that she is not able to ascertain whether or not the defendant ever had any such documents in its possession, custody or power and, if it did, when and in what manner they may have left the defendant's possession, custody or power.
32 A document is in the power of a party when it has a presently enforceable legal right to obtain inspection of it from whoever actually holds it without obtaining the consent of anyone else: Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1980] 1 WLR 627 at 635. There is no evidence that any documents held by, or in the possession, custody or power of Ford US or Ford UK are in the defendant's power to obtain or inspect.
33 An order to disclose the existence of payroll tax and income tax returns lodged with and held by tax authorities and to do what was reasonable to obtain them was made in Palmdale Insurance Ltd (in liq) v El Grollo & Co Ltd (1987) VR 113 117. Marks J held that the court had power to make such orders pursuant to the then O 14 r 5(3) of the Rules of the Supreme Court of the State of Victoria 1985 (Vic). The Victorian rules provided, in relation to cases in the commercial list, that upon the hearing of a summons for directions the judge may give such directions with respect to any interlocutory step or proceeding and otherwise as in his opinion are expedient for the just and speedy determination of the matters in issue in the action. The Rules of the Supreme Court 1971 (WA) O 29 r 2(1) is in similar terms. The rule provides that
in any proceedings the court may at any time of its own motion on notice to the parties or upon the hearing of a summons for directions or other application review the progress of the proceedings and make such orders or give such directions to lead to their efficient and timely disposal as it may consider just and expedient.
- That rule together with O 26 r 7 and the court's inherent jurisdiction confers upon the court sufficient power to make orders for discovery, or in aid of discovery, including orders that a defendant take such steps, make such requests and do such things as may reasonably be necessary to obtain documents or information concerning documents that were, but are no
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- longer, in the possession, custody or power of the party against whom the order is made.
34 In this case I decline to make orders directing the defendant to make further investigations about documents transmitted to the defendant by Ford US or Ford UK that are no longer in the possession, custody or power of the defendant. I do so for three reasons. First, there is no evidence that either Ford US or Ford UK has a record of documents transmitted to the defendant before 24 October 1997. That is the date on which the defendant suspended its records management policy. Ms Linsten's affidavit is to the effect that any relevant documents that the defendant may have had, but has not now, in its possession, custody or power are documents that may have been disposed of either pursuant to the defendant's records management policy prior to the suspension of the policy on 24 October 1997, or in accordance with any practice that may have existed prior to that policy.
35 Secondly, there is no evidence that Ford US or Ford UK is likely to search its records and provide information to the defendant concerning documents transmitted by that company to the defendant prior to 24 October 1997 in response to a request from the defendant that it do so. In Palmdale Insurance Ltd v El Grollo & Co Pty Ltd, Marks J considered that there was a real likelihood that the defendants would be provided access to the relevant records should they request it from the government departments that held them. There is no evidence that that is likely, or evidence from which that may be inferred, in this case.
36 Thirdly, there is no evidence of identifiable documents or classes of documents that were, but no longer are, in the possession, custody or power of the defendant and of which Ford US or Ford UK has a copy or a record of having sent the document to the defendant. In his affidavit of 1 June 2007 Mr Magazanik attaches a number of Ford US and Ford UK documents uncovered by the plaintiff's lawyers. Mr Magazanik says that the documents 'clearly and explicitly bear on knowledge of the dangers of asbestos in general and, in particular, the dangers to mechanics of exposure to brake dust'. However, the plaintiff has not identified particular documents, or classes of documents, that Ford US or Ford UK sent, or may have sent, to the defendant other than in the broad terms referred to by Mr Magazanik in his affidavit.
37 Mr Magazanik swore an affidavit on 11 June 2007 and attached to that affidavit a transcript of a deposition given in 1998 by Henry Lick, Manager of Industrial Hygiene for Ford US. In that deposition Mr Lick swears that he held that position for 11 years. He describes his role as:
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- I have the total responsibility for anything at Ford globally that has to relate to worker occupational health as it refers to the typical occupational health hazards … So things in the plants and/or with the products to a degree that affect the health of people come under my charge.
38 A further annexure to Mr Magazanik's affidavit of 11 June 2007 is a Ford US document entitled 'FAST evaluation of eleven Australian Ford brake linings'. That document consists of a report entitled 'FAST Procedure Friction and Wear Studies of Australian Ford Brake Linings' and an accompanying memorandum. The report states that friction and wear studies of five Australian Ford drum brake lining materials and six disc brake pad materials were undertaken to assess the usefulness of FAST (Friction Assessment and Screening Test) as a friction materials screening tool, and to enlarge 'our' knowledge of friction materials to include some of those manufactured and used outside of the United States. The report shows that, at least at the time the report was undertaken, Ford US had conducted tests of brake linings manufactured by the defendant. It might also be inferred from Mr Lick's deposition that Ford US has at times distributed information relating to worker occupational health and safety to Ford companies worldwide, including the defendant. However, there is still no evidence of the particular documents or classes of documents in relation to which the plaintiff submits Ford US should be asked to conduct an investigation other than in the broad terms referred to by Mr Magazanik.
39 It is not necessary or expedient to give to the defendant a direction requiring it to conduct the specified enquiries of Ford US and Ford UK for the purpose of the efficient and timely disposal of the action and it is not just and expedient to do so. Such a direction is not necessary for disposing fairly of the action.
40 There remains the question of whether the plaintiff has demonstrated that the defendant has failed to properly fulfil its discovery obligations and it is just and expedient for the fair and proper resolution of this action that the defendant be ordered to give further and better discovery verified by affidavit. I find that the plaintiff has failed to do so. Ms Linsten has affirmed that investigations have been carried out by the defendant, and, on its behalf, by Clayton Utz, to ascertain what documents were, or had been, in the defendant's possession, custody or power relating to the matters in question in this action and, in respect of any relevant documents which had been, but were no longer, in the possession, custody or power of the defendant, to establish what had become of them. Ms Linsten has affirmed that Clayton Utz have pursued enquiries with all
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- relevant people or places which would reasonably be supposed to have created or stored documentary material that is relevant for the purpose of the defendant's discovery in this action. There is no evidence that the defendant has failed to carry out proper or sufficient enquiries in relation to documents that may have been, but are no longer, in the defendant's possession, custody or power. In those circumstances, I decline to order that the defendant give further and better discovery. It is not necessary for disposing fairly of the action or for saving costs. To the contrary, it would add to the costs of the action unnecessarily.
Specific orders sought
41 The orders sought by the plaintiff in its chamber summons include an order that the defendant by way of a supplementary affidavit of discovery supply to the plaintiff a list of documents destroyed pursuant to its records management manual and the dates on which the documents were destroyed.
42 Ms Linsten has affirmed that, having carried out investigations, including enquiries with all relevant people or places which could reasonably be supposed to have created or stored documentary material that is relevant to the purposes of the defendant's discovery, the defendant can say no more than that it may have had, but has not now, in its possession, custody or power documents which may have been relevant to the matters in question in this action and if there are any such documents they have been disposed of either pursuant to the records management policy prior to 24 October 1997, or in accordance with any practice that may have existed prior to that policy. In those circumstances it is not expedient or necessary for the just and speedy determination of the matters in issue in this action that the defendant make a supplementary affidavit of discovery in the terms submitted by the plaintiff. To do so would add unnecessarily to the costs of the action.
43 The remaining orders sought by the plaintiff in par 1 of its chamber summons are, in effect, interrogatories as to the enquiries and investigations carried out by the defendant in discharge of its discovery obligation. No, or no sufficient, ground has been made out for the making of such an order.
44 The final order sought by the plaintiff in his chamber summons is an order that the defendant provide to the plaintiff a copy of the Suspension Order which took effect on 24 October 1997 and the names and positions of the signatories to the Suspension Order together with any subsequent renewals of the Suspension Order issued on 24 October 1997. The
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- defendant's records management policy, and its Suspension Order of 24 October 1997 are not themselves relevant to any matter in question in the action. No, or no sufficient, ground has been made out for the making of such an order.
Conclusion
45 The plaintiff's application is dismissed.
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