(re Floro) Bluescope Steel (AIS) Pty Limited v Amaca Pty Limited

[2007] NSWDDT 12

Dust Diseases Tribunal

of New South Wales

CITATION:

(re Floro) Bluescope Steel (AIS) Pty Limited v Amaca Pty Limited [2007] NSWDDT 12

PARTIES:

Bluescope Steel (AIS) Pty Limited
Amaca Pty Limited
Wallaby Grip Limited (settled 07/05/2007)
Wallaby Grip (BAE) Pty Limited (in liquidation) (settled 07/05/2007)

MATTER NUMBER(S):

166/2005/1 of

JUDGMENT OF:

Kearns J

CATCHWORDS:

Dust Diseases Tribunal :- cross-claim

subpoena to third party of documents apparently in possession of a party

onus of proof as to whether party in fact has possession of such documents

documents discovered in other proceedings

whether subpoena issued as a substitute for discovery

CASES CITED:

New South Wales Commissioner of Police v Tuxford (2002) NSWCA 139

DATES OF HEARING:

24 July 2007

EX TEMPORE JUDGMENT DATE:

24 July 2007

LEGAL REPRESENTATIVES:

Mr D A McLure, instructed by Piper Alderman, appeared for the applicant on the motion.

Mr J C Sheller, instructed by Phillips Fox, appeared for the respondent on the motion.

JUDGMENT:

KEARNS J

1. In proceedings part heard before me Amaca has issued a subpoena to BHP Billiton Limited, not a party to the proceedings. By virtue of that subpoena Amaca seeks that BHP produce a number of documents as follows:

1 The following documents contained in BHP Billiton Limited List of Documents filed in the Dust Diseases Tribunal of New South Wales:

1.1 Document number 113 - A letter dated 29 July 1943 from Superintendent to Acting General Manager, Iron & Steelworks, Newcastle regarding handling of certain insulation materials.

1.2 Document number 115 - A memorandum dated 29 October 1946 to the Chief General Manager, Melbourne regarding industrial matters - Newcastle.

1.3 Document number 116 - A letter dated 25 August 1949 from BHP to the Manager, Iron & Steelworks regarding SB25/28-insulation.

1.4 Document number 119 - A dated 1 August 1951 letter from Superintendent to the Manager, Newcastle regarding SB25/28-insulation.

1.5 Document number 120 - A letter dated 22 August 1951 from Sydney Manager to the Manager, Newcastle regarding SB25/28-insulation.

1.6 Document number 124 - A letter dated 26 June 1953 from Superintendent at Whyalla to the Manager, Iron & Steelworks re: SB25/28-insulation block and attached correspondence regarding insulation.

1.7 Document number 125 - A letter dated 26 June 1953 from Superintendent to the Manager, Iron & Steelworks, Newcastle regarding SB25/28-insulation blocks.

2. For the period 1 January 1950 to 31 December 1969:

2.1 All correspondence between The Broken Hill Proprietary Company Limited and Australian Iron & Steel Pty Ltd regarding:

2.1.1 The handling of asbestos products.

2.1.2 Safety issues associated with asbestos use.

2.1.3 Information pertaining to industrial safety generally.

2. It will be seen that the documents fall into two broad categories. The first category comprises specific and identified documents and the second category comprises more general documents covering a lengthy period. It has been agreed that that period should be shortened to cover the period 1 January 1950 to 30 June 1968. It is still a lengthy period.

3. BHP has brought a motion to have the subpoena set aside. Mr McLure who appears for BHP argues that a subpoena should not be used as a substitute for discovery and he relies on New South Wales Commissioner of Police v Tuxford (2002) NSWCA 139. That principle can be gathered from paras 18 and 19. He argues that the subpoena in this case is being used as a substitute for discovery and that is because every document sought, whether in the specific or the general category of documents, is a document that is in the hands of Bluescope Steel (AIS) Pty Limited, a party to the proceedings. That is evident from the description of the documents in the subpoena itself where there is reference to Iron and Steel Works and to Australian Iron and Steel Pty Limited. It is not in issue that those references are a reference to Bluescope Steel as it is now known.

4. Mr McLure also argues that the subpoena should be set aside because the documents sought are documents that were discovered in other proceedings and to have the documents produced and obtain access to them Amaca would need to be released from its implied undertaking in relation to the production of those documents on discovery in other proceedings. Mr Sheller, who appears for Amaca, argues that the implied undertaking does not really arise as Amaca has not had access in these proceedings to those documents. The process that occurred was that Amaca had access to a list of documents in other proceedings, mistakenly accessing that list thinking it was a standard list. From that list documents were identified and the current subpoena issued. Mr Sheller argues that the process would have been perfectly in order if, instead of Amaca mistakenly accessing that list, it had not done so and had subpoenaed it instead and then on the production of that subpoena the documents could have been identified and subsequently subpoenaed.

5. In answer to the argument that the subpoena is being used as a substitute for discovery Mr Sheller argues, as I understand it, that there is no principle that prevents a party subpoenaing a stranger to proceedings to produce documents that might already be in the possession of another party to the proceedings. He also argues that I should not assume that it is likely that Amaca would double up on its evidentiary proof of matters and that it would not be seeking these documents if it otherwise had them through Bluescope.

6. I am left in a position where there is no evidence before me at all as to whether the documents sought by Amaca are otherwise available to it through a subpoena or discovery process against Bluescope. Bluescope is a regular or not uncommon litigant in this Tribunal and it has taken advantage of the opportunity provided by the rules to provide a standard list of documents. Its standard list of documents is not before me on this application. I do not know whether or not there is included in it any one or more of the documents sought to be obtained by the subpoena. During the course of argument reference was made to the requirement of a legitimate forensic purpose in a subpoena though I am not sure that the argument went so far as to suggest that Amaca did not have a legitimate forensic purpose in seeking the documents that it did in the subpoena. I can envisage that it does have a legitimate forensic purpose in seeking the documents in the sense that they would be documents going to knowledge on the part of Bluescope as to the risks to health associated with the use of asbestos at a given time and also going to knowledge of Bluescope as to safety issues associated with the use of asbestos at a given time. It seems to me that that would be a legitimate forensic purpose.

7. It seems to me further, however, that if that is all that is sought from the documents sought to be subpoenaed that purpose would be satisfied if Bluescope had the documents in its possession. I would not see any further forensic purpose in proving that BHP had these documents in its possession. It seems to me therefore that when one combines that with the information on the face of the subpoena itself that would suggest that these documents ought to be in the hands of Bluescope then the process may be seen to be one that is being used as a substitute for discovery.

8. In Annexure L to the affidavit of Scott Andrew Hay of 16 July 2007 the solicitors for BHP invited the solicitors for Amaca to explain why it was necessary to seek the documents by way of subpoena when presumably they would have been available by way of discovery from Bluescope. That invitation was not responded to and I think it would be open to me to infer in the circumstances that the documents are available by way of discovery from Bluescope. If I were wrong in drawing that inference I think I can come to the same conclusion from the fact that there is no evidence before me at all as to whether these documents are available. It is in the control and power of Amaca to put before me information as to whether this material is otherwise available to it. It has not done so. Whether it be a legal onus or an evidentiary onus that it ought to do so I do not think matters. I accept for present purposes that it is an evidentiary onus and it must be an evidentiary onus because it is the one that is able to do something about putting such material before the court. It has not done so and accordingly I think I should come to the view that on the state of the evidence, unsatisfactory as it is, the documents are otherwise available or at least the contents of the document are otherwise available to Amaca through Bluescope.

9. In these circumstances I think I ought to set the subpoena aside. I do not find it necessary to resolve the argument about the implied undertaking arising from access to the list of documents from the other proceedings.

10. The order I make then is that the subpoena issued to BHP Billiton Limited filed on 21 May 2007 by Amaca Pty Limited be set aside. I order Amaca to pay BHP's costs of the motion.

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Mr D A McLure instructed by Piper Alderman appeared for the applicant on the motion.

Mr J C Sheller instructed by Phillips Fox appeared for the respondent on the motion.