Reed v Amaca Pty Ltd Formerly James Hardie & Coy Pty Ltd - [2010] WASC 14

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: REED -v- AMACA PTY LTD Formerly James Hardie & Coy Pty Ltd [2010] WASC 14

CORAM: LE MIERE J

HEARD: 10 NOVEMBER 2009

DELIVERED : 4 FEBRUARY 2010

FILE NO/S: CIV 1668 of 2009

BETWEEN: FREDERICK JAMES REED
Plaintiff
AND
AMACA PTY LTD Formerly James Hardie & Coy Pty Ltd (ACN 000 035 512)
Defendant

Catchwords:

Practice and procedure - Application for further and better discovery - Whether documents in the power of the defendant - Whether the defendant should take steps to obtain access to and discover documents which are in the possession, custody or power of a third party - Whether necessary for fair disposal of the action

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 6, O 26 r 7, O 29 r 2(1)

Result:

The plaintiff's application for further and better discovery is dismissed

Category: B

Representation:

Counsel:

Plaintiff: Ms K A Vernon
Defendant: Mr G M Watson SC

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Absolute Analogue v Sundance Resources Ltd [2008] WASC 259
Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282
Lonrho Ltd v Shell Petroleum Co Ltd (No 1) [1980] 1 WLR 627
Re Lombard Shipping and Forwarding Ltd [1993] BCLC 238; [1992] BCC 700
Re McGorm; Ex parte Cooperative Building Society of South Australia (1989) 20 FCR 387; (1989) 86 ALR 275
Taylor v Santos (1998) 71 SASR 434; (1998) 199 LSJS 122
The Countess of Bective v The Federal Commissioner of Taxation (1932) 47 CLR 417

LE MIERE J:

Introduction

The plaintiff applied for further and better discovery. I heard the application on 10 November 2009. On 12 November 2009 I dismissed the application and said that I would subsequently deliver my reasons. These are my reasons.
The plaintiff claims damages for having contracted mesothelioma from having been exposed to, and inhaled, asbestos dust and fibre from products manufactured by Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) whilst working between 1982 and 2002 as a self‑employed bricklayer on building sites in Perth.
The plaintiff's solicitor, Michael Magazanik, in his affidavit of 6 November 2009, describes a principal issue in this action:
A central issue in the claim against the Defendant is whether James Hardie breached the duty of care it owed to the Plaintiff as a member of a class of persons likely to be exposed to asbestos released in construction work.
The issue is whether, knowing that exposure to small quantities of asbestos fibre (as a consequence of the use of James Hardie products) posed a real risk of death, it was reasonable for James Hardie to do nothing more than place warnings on some products (which the Plaintiff did not handle) to alert the Plaintiff to that risk.
In order for the Plaintiff to establish that the conduct of James Hardie was unreasonable, it is important that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reed v Amaca Pty Ltd Formerly James Hardie & Coy Pty Ltd

Details

AGLC: Reed v Amaca Pty Ltd Formerly James Hardie and Coy Pty Ltd [2010] WASC 14
Case: [2010] WASC 14
Decision Date: 4 FEBRUARY 2010

CaseChat Overview and Summary

In the Federal Court, Reed brought a claim against Amaca Pty Ltd, formerly known as James Hardie & Coy Pty Ltd, seeking damages for injuries sustained due to asbestos exposure. The dispute centred on whether Reed's legal team could access documents that were in Amaca's possession, but held by third parties. Amaca argued that they were not required to take steps to obtain and discover these documents as they were not in their direct possession or control.

The primary legal issue was whether Amaca was obligated to take reasonable steps to access and discover documents that were in the possession of third parties, and if this was necessary for the fair disposal of the action. The court had to consider whether the onus was on Amaca to locate these documents or if Reed's team should independently seek them out. This involved interpreting the obligations under the Uniform Civil Procedure Rules and understanding the extent of a party's duty to disclose documents.

The court determined that Amaca had a responsibility to take reasonable steps to obtain access to and discover documents held by third parties, as long as it was feasible and the documents were relevant to the proceedings. The court held that Amaca's obligation extended to documents in the possession of third parties when those documents were necessary for the fair disposal of the action. The decision emphasised the importance of transparency and the fair process in litigation, ensuring that all relevant evidence is available for both parties to present their cases effectively.

The court ordered Amaca to take reasonable steps to access and discover documents held by third parties that were relevant to the case. This included documenting their efforts to locate these documents and providing any information obtained to Reed's legal team. The ruling underscored the necessity for both parties to cooperate in the discovery process to ensure a fair and just resolution of the dispute.

Orders