Rebel Aerial Agriculture Pty Ltd v Civil Aviation Safety Authority

[2020] NSWSC 177

Supreme Court

New South Wales

Medium Neutral Citation:	Rebel Aerial Agriculture Pty Ltd v Civil Aviation Safety Authority [2020] NSWSC 177
Hearing dates:	19 February 2020
Date of orders:	05 March 2020
Decision date:	05 March 2020
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Parties directed to bring in short minutes of order
Catchwords:	PRACTICE & PROCEDURE – discovery – aircraft accident – where plaintiff alleges that the first defendant failed to perform statutory duties, among others, with respect to the maintenance and enforcement of appropriate testing procedures and airworthiness certification of certain aircraft – whether plaintiff entitled to discovery in nominated categories – whether categories relevant to the production of documents related to proof of a fact in issue
Legislation Cited:	Civil Aviation Regulations 1988 (Cth) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Goulthorpe v State of New South Wales [2000] NSWSC 329
Category:	Procedural and other rulings
Parties:	Rebel Aerial Agriculture Pty Ltd (Plaintiff) Civil Aviation Safety Authority (First Defendant)
Representation:	Counsel: D A Lloyd (Plaintiffs) I Harvey (First Defendant) J Darvall (Fourth to Seventh Defendants)   Solicitors: GSG Legal (Plaintiffs) Minter Ellison (First Defendant) HWL Ebsworth Lawyers (Second and Third Defendants) Maitland Lawyers (Fourth to Seventh Defendants)
File Number(s):	2019/228984
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By notice of motion filed on 9 December 2019, Rebel Aerial Agriculture Pty Ltd seeks an order that the Civil Aviation Safety Authority provide it with discovery in accordance with UCPR 21.2(1)(a) of the categories of documents described in a schedule to the motion. The motion is opposed.

2. The categories of documents have been further limited by agreement since the motion was filed. Rebel now seeks discovery of only the following categories:

“(a) All Documents evidencing any aviation industry surveillance activity conducted by or on behalf of the Civil Aviation Safety Authority (‘CASA’) for the period 1 July 2000 to 24 October 2013 with respect to maintenance carried out upon the wings or wing fittings of PZL Dromader Aircraft Model Numbers M18, M18A and M18B, including but not limited to Documents recording any assessment or safety related discussions undertaken by industry management, audit records or operational checks, the examination and testing of systems, procedures, sampling of products, data information and intelligence;

(b) All Documents evidencing any consideration given by or on behalf of CASA to the US Federal Aviation Authority (‘FAA’) Special Airworthiness Information Bulletin SAIB CE-00-27 issued on 11 July 2000;

(c) All Documents evidencing any consideration given by or on behalf of CASA to the FAA Airworthiness Directive AD 2000-18-12 issued on 5 September 2000;

(d) All Documents evidencing any consideration given by or on behalf of CASA to the ECI Procedure QP.00.36 (EC) approved on 11 September 2000;

(e) All Documents recording or referring to the letter dated 11 September 2000 from CASA to Australian NDT Services Pty Ltd (‘Australian NDT’) approving the ECI Procedure QP.00.36 (EC);

(f) All Documents evidencing any communication in September and October 2000 between CASA and PZL Mielec in relation to wing fitting inspections for PZL M18 aircraft being conducted by the Magnetic Particle Inspection (‘MPI’) method;

(g) All Documents recording or referring to the Airworthiness Directive AD/PZL/5 issued by CASA dated 19 October 2000 from 1 July 2000 to 24 October 2013;

(l) All Documents recording or referring to the CASA requirement on about 14 June 2011 for operators of PZL M18 Aircraft to inform CASA how hours of use of the aircraft were being factored for overweight operations;

(m) All Documents recording or referring to communications between CASA, David Black and/or Rebel Aerial Agriculture Pty Ltd and any other operators of PZL M18 Aircraft about the collation of data with regard to factoring time in service under STC maintenance manual supplement for the period 1 January 2013 to 24 October 2013;”

Background

3. On 24 October 2013, David Black was conducting a firebombing mission in a modified PZL Mielec M18A Dromader Registration No. VH-TZJ when one of its wings separated and the plane crashed. Mr Black was killed. Although the facts and legal relationships between or among the several parties to this, and related, litigation are complex, Rebel relevantly contends that CASA had certain statutory functions with respect to the certification and enforcement of airworthiness directives concerning aircraft flying in Australia, including the aeroplane in question. In very general terms, Rebel contends that CASA failed properly to take precautions in the exercise and performance of its statutory powers and functions with the result that the aeroplane was permitted to fly when it was not airworthy. Rebel alleges that the accident was the result of CASA’s negligence.

4. CASA denies that it was negligent or that it is liable in damages to Rebel.

5. However, having regard to the way in which CASA has framed some of its objections to the current application, it becomes necessary to describe the nature of the dispute in some more detail.

6. In early September 2000, the sixth defendant, Australian NDT Services Pty Ltd, applied to CASA for an approval of an Eddy Current Inspection (ECI) procedure in order to inspect for corrosion, pitting and cracks in the outboard lower attachment fittings of the aircraft. This application by Australian NDT was made in circumstances where:

1. the ECI procedure was different to the procedure identified in the service bulletin that had been issued by the aircraft manufacturer, which provided that the recommended procedure was magnetic particle inspection (MPI); and

2. prior to the application by Australian NDT to CASA in September 2000, the US Federal Aviation Authority had identified that for PZL M18 aircraft, the inspection and repairs ought to be performed in accordance with the service bulletin.

7. On 11 September 2000, CASA approved the ECI procedure contained in the procedure document proposed by Australian NDT.

8. On 19 October 2000, a little over a month after approving the ECI procedure the subject of Australian NDT’s application, in performance of its statutory function, CASA issued airworthiness directive AD/PZL/5. Contrary to the approval given to Australian NDT on 11 September 2000, this airworthiness directive required operators to inspect the centre to outboard wing attachment fittings for PZL M18 aircraft in accordance with the service bulletin. That airworthiness directive became effective on 25 October 2000 and remained in effect at all times between then and the accident.

9. Australian NDT and later Aviation NDT Services Pty Ltd, the fourth defendant, when conducting non-destructive testing on the aircraft, did so in accordance with a variation of the ECI procedure which was approved by CASA in September 2000.

10. A further aspect of the case against CASA is that in March 2009, CASA approved an Australian supplemental type certificate (STC) SVA 521, requiring operators to record service life factors for the aircraft the subject of the STC. On 14 June 2011, CASA required operators of PZL M18 aircraft to inform CASA how hours of use of the aircraft were being factored by overweight operations.

11. On 26 July 2013, CASA directed David Black as an operator of the aircraft to provide data collated accurately to factor time-in-service (TIS) under the STC maintenance manual.

12. The first aspect of the case against CASA brought by Rebel is that CASA owed it a duty of care and that CASA breached that duty by:

1. issuing the letter dated 11 September approving the use of the ECI procedure;

2. failing to include a requirement that the inspection should be done by removing the wings as stipulated in the airworthiness directive issued on 19 October 2000;

3. failing to notify Australian NDT after the issue of the airworthiness directive that the approval in the letter of 11 September 2000 was not an approved instruction under reg. 2A(4) Civil Aviation Regulations 1988;

4. failing to conduct regular surveillance and audits of Aviation NDT and Australian NDT from October 2000 until the accident in order to check whether they were complying with the airworthiness directive;

5. failing to issue a direction to David Black on 26 July 2013 for him to provide data to factor time-in-service for flights from at least the date on which the aircraft was imported into Australia.

13. Rebel also alleges that CASA owed and breached a statutory duty to Rebel and that Rebel has a private right of action against CASA for that breach because of CASA’s:

1. failure to conduct comprehensive aviation industry surveillance in the period from October 2000 until the date of the accident;

2. failure to comply with its duty to regard the safety of air navigation as the most important consideration in exercising its powers and performing its functions.

14. Rebel’s pleaded causes of action against CASA involve acts and omissions in the period from 11 September 2000 until the time of the accident.

The principles

15. The Court has a general discretion to order discovery in a property damage matter, consistently with the applicable provisions of the Uniform Civil Procedure Rules and the Civil Procedure Act 2005. A class of documents must not be specified “in more general terms than the court considers to be justified in the circumstances”: UCPR 21.2(2). An order for discovery “may not be made in respect of a document unless the document is relevant to a fact in issue”: UCPR 21.2(4). Documents that are not directly relevant but which merely lead to a line of inquiry are excluded. In cases involving a common law claim for damages arising out of death or bodily injury, the Court does not have the same general discretion as applies in cases of property damage and an order in the former case may not be made in relation to any document unless the court, for special reasons, orders otherwise: UCPR 21.8.

The evidence

16. Rebel read the affidavit of Mark Gray-Spencer sworn 9 December 2019. CASA relied on the affidavits of Nevin Rupert Agnew sworn 20 December 2019 and Gregory Williams sworn 20 December 2019. Mr Nevin is the solicitor on the record for CASA. Mr Williams is a solicitor in CASA’s legal branch. Part of Mr Williams’ evidence is as follows:

“2. I have considered the scope of the search and the resources that would be required for CASA to identify documents that may fall within the discovery categories. For this purpose, I have made inquiries of and been informed by officers in areas within CASA who may be best equipped to conduct, or assist with conducting, that search. I confirm that this statement is true to the best of my knowledge and belief.

3. From my consideration of the discovery categories and upon taking into account the information provided to me by CASA officers I have concluded that:

3.1 The discovery categories are wide-ranging and would require extensive physical and database searches to ascertain whether documents fall within the discovery categories.

3.2 A number of the discovery categories would require searches to be commenced for documents created from the year 2000 to the present time. As many CASA staff who may have created emails, file notes, diaries and other documents in the earlier part of this period have left the organisation, a thorough search for such documents would involve many work hours to ascertain whether such documents are locatable.

3.3 In respect of some of the discovery categories, as there is no defined time period limiting the scope of the search that would be required, excessive work hours would be required to undertake searches for documents that may fall within those discovery categories.

3.4 CASA’s records are held in paper and electronic format. Not all paper records have been converted to an electronic format. A search of paper records has to be manually conducted by knowledgeable individuals. CASA has a limited number of people with sufficient knowledge of CASA records of the kind covered by the discovery categories who could perform such manual searches.

3.5 Within CASA, electronic records of the kind that may be covered by the discovery categories have not been consistently titled/named. Therefore, any searching by keywords will not assuredly identify all related documents as they may have been titled differently.

3.6 Facsimiles of documents that may fall within the discovery categories may have faded over time due to the type of paper used in facsimile machines.

3.7 Paper records are not normally kept in CASA offices and are most often sent for archive storage off site. The recovery of paper records from archives will occasion some time delay as the relevant files will need to be identified, recovered and searched. The recovery time of the records from archives is outside of CASA’s control.

3.8 It is likely that, given the general and broad nature of the discovery categories and time frames where specified, the documents that fall within at least some of those categories will include information already available to the plaintiff. In respect of any documents containing that information which are of relevance to the current litigation, a more efficient way of ensuring that the plaintiff has a copy of such documents is for the plaintiff to clearly identify the documents by name or description of content so that CASA can undertake a specific search and produce those documents (if needed).

3.9 Documents that have been generated from outside CASA but which may still fall within one of the discovery categories may not be held by CASA where there is no statutory requirement for CASA to be provided with information to which those documents relate. However, a search to identify whether such documents are no longer held by CASA will also consume a number of work hours.

3.10 Some of the information being sought would be classified as commercial-in-confidence to various organisations who are party to these legal proceedings. This may require CASA to seek the consent of persons not party to the proceedings to determine the best way to handle production of those documents whether by claims for privilege, permissible redactions or by seeking rulings of the Court.

3.11 The discovery category search periods include the provision of documents which may include draft documents prepared for CASA’s defence of these legal proceedings which would be subject to privilege claims.

4. Having regard to the matters identified above, although it is difficult to estimate precisely the resources and time required to undertake document searches and to prepare a List of Documents, I am of the opinion that at least 1500 work hours would be required to be undertaken by a number of CASA officers to conduct searches for all documents that may fall within the discovery categories that are the subject of the plaintiff’s Notice of Motion.”

17. None of the deponents of these affidavits was cross-examined.

18. The parties have exchanged, and provided me with, helpful written submissions in relation to all of the categories that remain in dispute. Having regard to the manner in which they have approached the issues, it is convenient to deal with the evidence and submissions relating to each category in turn.

Category (a)

19. Mr Williams’ evidence with respect to this category is as follows:

“(a) This discovery category is based on premises that are incorrect, including:

(i) That CASA conducts industry surveillance that is targeted on a particular aircraft type.

(ii) That CASA has a legal obligation to hold records of who maintained what aircraft and when.

(b) To search for documents that may contain a reference to any assessment or safety related discussions undertaken by industry management (in relation to specific models of PZL Dromader aircraft) would entail an extensive search of both paper and electronic records held by CASA.

(c) To the extent that ‘audit records’ or ‘operational checks’ resulting from any aviation industry surveillance activity conducted by or on behalf of CASA for the period 1 July 2000 to 24 October 2013 may include reference to a component or part of a PZL Dromader aircraft, [it] would require close consideration of all paper and electronic records held by CASA in relation to such industry wide surveillance and any responsive document, if identified, would be likely to relate to commercial-in-confidence material of persons not party to this legal proceeding.

(d) To conduct the discovery category search as requested encounters the following difficulties:

(i) The audit titles will not include PZL-M18 reference,

(ii) There will be both paper and electronic records to search,

(iii) A manual search of the records is not likely to identify a reference to PZL-M18 in the records.

(e) It is not possible to give an accurate estimate of the time required to conduct the requested discovery category search. A very conservative estimate of time to conduct this discovery category search (if the incorrect premise of its formulation is ignored) would be at least 200 work hours provided each maintainer of PZL M18 aircraft can be clearly identified.”

20. CASA maintained that this category was “plainly in excess of what is reasonably required in the litigation”.

21. Rebel says that there is no substance to CASA’s objections. The fact that there is currently no evidence served in support of the pleaded allegations is irrelevant to the question of whether the documents that are sought might be relevant to a fact in issue. Moreover, Rebel disputes the suggestion that the pleaded allegations are not maintainable. No application to strike out the pleadings has been made.

22. In addition, Rebel notes CASA’s contention that it does not know the number of Dromader aircraft in operation in Australia over the relevant period on the one hand but says, inconsistently, that it would not be able to ascertain that number without considerable effort and resources on the other hand. Both positions cannot be correct.

Category (b)

23. Mr Williams’ evidence with respect to this category is as follows:

“There is no time period range provided which will increase the scope of the required search and how long it will take to achieve.

7.2 If the time period is limited to 12 months after the issue date of SAIB CE-00-27 (11 July 2000) and confined to a paper record search of retrievable documents from archive storage, it is estimated that such a search may take approximately 40 working hours of at least one CASA officer.

7.3 If the time period and scope of search is not so limited, the likely man hours required to search for all such records brought into existence from 11 July 2000 to the present, would be considerable greater.”

24. CASA maintained that this category “should be rejected as too wide and not reasonably related to an issue raised on the pleadings”. There is no temporal limitation, and no other restriction, on the nature of CASA’s consideration of the bulletin or the extension of the category to consideration by “or on behalf of” CASA.

25. Rebel emphasised that the SAIB issued by the FAA dealt with a limited issue restricted to PZL M18 aircraft. There is no reason to think that there would be a vast number of documents that dealt with or gave consideration to that bulletin. Moreover, this category should not be reduced by reference to time as Rebel’s case against CASA involves acts and omissions spanning more than 13 years.

Category (c)

26. Mr Williams’ evidence with respect to this category is as follows:

“8.1 This discovery category is not time limited.

8.2 If the time period is limited to 12 months after the issue of FAA AD 2000-18-12, the time required to undertake such a search limited to relevant paper files is estimated to be at least 40 work hours.

8.3 If the search is not so limited, making this an open ended research task, a significantly greater period of work hours will be required.”

27. CASA submitted that this category should be rejected for the same reasons as category (b). The breadth of the category is said to be neither reasonable nor supportable on the pleaded case.

28. Rebel repeated its submissions in relation to category (b).

Category (d)

29. Mr Williams’ evidence with respect to this category is as follows:

“9.1 It is estimated that at least 40 work hours will be required to attend to the tasks necessary to conduct the necessary search to identify relevant files and specific documents that meet the discovery category description.”

30. In response to this category, CASA contended that there are no facts pleaded to suggest that there was any basis upon which it should undertake an ambulatory or ongoing consideration of the ECI procedure as allegedly approved on 11 September 2000 beyond the alleged “possibility” that the sixth defendant might not have been aware of its obligation, after 19 October 2000, to comply with the CASA AD up to the time when it ceased its business in “approximately 2006”.

31. CASA submitted that this category should be appropriately confined both in time and contextually having regard to the pleadings to documents taken into account by CASA in its approval of the ECI procedure. CASA again maintained that this category is “disproportional to what is required for the conduct of this litigation”.

32. Rebel in turn repeated its submissions in relation to category (b).

Category (e)

33. Mr Williams’ evidence with respect to this category is as follows:

“10.1 This is a very broad request as it would include records in any CASA office and will require responsible CASA officers in each office to check their notes, diaries and other records.

10.2 It is difficult to estimate an accurate number of work hours that would be required for available officers to conduct this search. However, the estimate that may be given at this stage is that a search for documents in this discovery category would take at least 200 work hours.”

34. CASA submitted that, if Mr Williams’ assessment of the need to expend 200 hours on finding documents in this category is accepted, it is oppressive. CASA otherwise raised no objection to this category.

Category (f)

35. Mr Williams’ evidence with respect to this category is as follows:

“11.1 If this discovery category is limited to recorded communications between officers of CASA’s Airworthiness and Engineering Branch (as it existed at that time) and PZL Mielec that took place during the 2-month period stated, then a search for documents recording such communications and still held by CASA on paper files only would take approximately 20-40 work hours.”

36. CASA maintained that this category is also disproportionate to what is required for the conduct of this litigation.

37. Rebel repeated its submissions in relation to category (b).

Category (g)

38. Mr Williams’ evidence with respect to this category is as follows:

“12.1 This is a very broad discovery category as it would include records in any CASA office and will require each responsible CASA officer in that office to check accessible or available files, notes, diaries and other documents held in that office.

12.2 This will include searching records that may be commercial-in-confidence to organisations and individuals who are not a party to these legal proceedings.

12.3 This type of search would take at least 200 work hours.”

39. CASA submitted that this category has no relevant connection to an issue raised on the pleadings. CASA maintained that, contrary to Rebel’s submissions, the documents sought in this category are not limited “centrally” to the issue of “the circumstances in which CASA came to issue the (CASA aerial directive)”. The relevant issue is, on the contrary, said to be that which was raised in category (b). This category is also challenged as being oppressive and disproportionate.

40. Rebel expressed surprise at CASA’s contention that the documents in this category did not appear to have any relevance to the issues in dispute. One of Rebel’s most significant points against CASA is said to involve the circumstances in which CASA came to issue the airworthiness directive on 19 October 2000, where just a little over five weeks beforehand it had approved a testing procedure that was inconsistent with that directive. Rebel maintains its view that the documents are central to the issue.

Category (l)

41. Mr Williams’ evidence with respect to this category is as follows:

“17.1 A search for documents that fall within this discovery category will include a search for documented communications by third parties with CASA officers that are likely to record commercial-in-confidence information.

17.2 This will require a search of paper and electronic records held by CASA. It is estimated that a search for documents created between 14 June 2011 and before October 24, 2013 would take at least 40 work hours to undertake.”

42. CASA maintained that the relevant issue concerns its requirement that operators of PZL M18 aircraft provide information on the recording of time-in-service. CASA says that it has provided particulars of factual matters pertaining to this issue as “an element of its defence”. The category does not relate to anything raised in that defence. For example, CASA says that there is no pleading alleging that CASA required operators of PZL M18 aircraft to provide different or other information of the recording of time-in-service from that which it required from the operator of the aircraft in question here. The relevance of this category to an issue raised on the pleadings concerns, at most, CASA’s communications with the operator of that aeroplane or those who maintained it on 14 June 2011 concerning the matters raised in its defence.

43. CASA suggests that there is “plainly a capacity to narrow [this] category in a way that is compliant with the applicable rules”. Otherwise it is submitted that the category is not reasonably proportional to what is required for the conduct of the litigation.

44. Rebel acknowledged that this category is broad. However, the documents that are sought go to another important issue in the proceedings, namely the consideration given by CASA to the requirement that it imposed on 14 June 2011 for operators to inform it about factoring for overweight operations. Rebel contended that it would be difficult to narrow this category fairly to it.

Category (m)

45. Mr Williams’ evidence with respect to this category is as follows:

“18.1   The plaintiff should already have access to any record of communications relating to the subject of documents within this discovery category between David Black and/or Rebel Aerial Agriculture Pty Ltd and any other operators of PZL M18 aircraft.”

46. CASA submitted that the issue to which this category relates does not reasonably extend beyond communications between it and Rebel or between it and Mr Black and/or Rebel Ag Pty Ltd. It is not any part of Rebel’s case that an entity other than Rebel or Rebel Ag Pty Ltd operated the aeroplane in question at any time between 1 January 2013 and 24 October 2013. CASA does not object to discovery under this category if it is limited to recorded communications between CASA and Rebel and Mr Black and/or Rebel Ag Pty Ltd about the collation of the data referred to.

47. Rebel repeated its submissions in relation to category (l).

Further submissions

48. One of Rebel’s principal contentions is that, in seeking to constrain or limit the availability of discovery by reference to the pleadings, CASA has in fact not accurately identified the issues in dispute. Rebel maintained that the better approach is to have recourse to the pleaded allegations in the statement of claim, the vast majority of which CASA has put in dispute in its defence. In particular, CASA’s suggestion that the issue raised on the pleadings is whether “CASA conducted surveillance or audits of the fourth and sixth defendants in respect of specific maintenance required to be undertaken by them under the AD” is inaccurate. That accurately summarises only one of Rebel’s allegations about conducting regular surveillance or an audit of the fourth and sixth defendants: see paragraph 70(d) of the statement of claim. However, a further allegation is made at paragraph 74 of the statement of claim that CASA was under an obligation to conduct comprehensive aviation industry surveillance, including assessment of safety-related discussions taken by industry management at all levels. Rebel alleges at paragraph 75 of the statement of claim that CASA failed to comply with that obligation and particularises in paragraph 75(b), that in the period CASA knew or ought to have known that the use of the Eddy Current Inspection method for non-destructive testing of M18A Dromader aircraft was widespread. Rebel submitted that it cannot credibly be suggested that the issues in dispute with respect to CASA’s compliance with its obligations to conduct comprehensive aviation industry surveillance is limited to its surveillance or audits of the fourth and sixth defendants. Rebel contended that the failure by CASA to understand the nature of the case brought against it undermines a significant number of CASA’s objections to the categories of documents.

49. Furthermore, Rebel submitted that CASA’s several complaints about oppression ought to be rejected. The evidence of oppression upon which CASA relies is found in Mr Williams’ affidavit. He does no more than identify what would be involved in locating and discovering the documents sought in the categories. That evidence of itself is no evidence of oppression at all, because Mr Williams does not identify either the extent to which CASA has already located those documents for the purposes of the coronial inquest or more importantly, the extent to which CASA will need to obtain the documents sought for the purposes of its own defence of the proceedings in any event. Indeed, Mr Williams does not identify the extent to which CASA has already procured the documents for the purposes of pleading its defence to the statement of claim or running the case. Rebel maintained that there is no credible evidence of oppression caused by discovery of the remaining categories.

Consideration

50. In my opinion, many of the objections taken by CASA to the production of documents in the nominated categories proceed upon the argumentative basis, not that the categories do not relate to a fact in issue as determined by reference to the pleadings, but that CASA will ultimately be successful in defending the allegation or allegations that are made. Mr Williams’ evidence concerning the very first category, asserting that the category is based, in effect, on false premises, is an example of this. This category seems to me to be directly related to a fact that is or will be in issue in the proceedings, quite apart from whether or not Rebel or CASA succeeds in the final result.

51. I consider that Rebel is entitled to require CASA to give discovery in the nominated categories, subject only to the following modifications or exceptions:

1. The use of the word “evidencing” in categories (a), (b), (c), (d) and (f) should be deleted and replaced with the words “recording or referring to”. The requirement that CASA should have to form a view about whether or not a document “evidences” something is potentially burdensome and onerous and should not be imposed.

2. The words “and any other operators” should be deleted from category (m). These words are potentially likely to expand the inquiry or search too widely and are potentially burdensome and onerous and should not be imposed.

52. I am not persuaded that the present application is a fishing expedition or an attempt by Rebel to uncover a better or different case to the one that it has pleaded. I am in fact convinced that it is not. I was referred by CASA to Goulthorpe v State of New South Wales [2000] NSWSC 329 to which I have had particular regard in this context.

53. Nor am I satisfied that the task of searching for the documents in question is so onerous that CASA should not for that reason alone be relieved from undertaking it. That submission would be stronger if CASA were able to satisfy me that the documents were likely to be of limited utility, in the sense that the issues, to the proof of which they are directed, were not seriously in question or could patently be established in other ways. I do not presently see that the documents sought by Rebel can be characterised or limited in this way.

54. I am also not convinced that the efforts that will have to be made to find them are disproportionate to their significance. It is the nature of complex commercial litigation that documents abound. CASA undoubtedly has a sophisticated system of document storage and retrieval. Mr Williams does not suggest otherwise.

55. I should however indicate that I am unable meaningfully to comment upon Mr Williams’ estimate that the entire task will take or entail “at least 1,500 work hours” at a cost “of some $240,000”. Mr Williams was not cross-examined and there is no other evidence against, or by, which I could gauge the accuracy or reliability of his predictions.

56. Finally I note that there was a faint suggestion raised in the submissions made to me that Rebel may have been intending to have CASA discover the documents in order that they may be used for some collateral purpose. I did not perceive that issue to require a determination by me. If that perception is incorrect, no doubt it will be drawn to my attention.

57. In the circumstances I propose to invite the parties to provide me with short minutes of order giving effect to these reasons. Unless otherwise notified, it seems to me that the orders should include an order that Rebel’s costs of this application are to be paid by CASA.

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Decision last updated: 05 March 2020