Reed v Amaca Pty Ltd Formerly James Hardie & Coy Pty Ltd
[2010] WASC 14
•4 FEBRUARY 2010
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 demonstrate a) what the Defendant knew about such a risk and b) whether it had the capacity, capability and means of communicating such a risk in a manner that was reasonable and practicable in all the circumstances [12] ‑ [14].
Discovery given by Amaca
On 12 May 2009 Amaca gave informal discovery by providing a list of discoverable documents. At [9] of the second schedule of the informal list Amaca stated that among the documents it has had, but has not now in its possession, custody or power relating to the matters in issue in the action, are certain documents contained within what is referred to as 'the Reid Family Papers', held by the State Library of New South Wales. On 28 August 2009 the plaintiff's solicitors wrote to Amaca's solicitors requiring Amaca to give discovery verified by affidavit. The plaintiff's solicitors said that Amaca needed to provide further and better discovery for the following reasons:
1.In your list dated 12 May 2009 your Second Schedule identifies documents related to matters in question in these proceedings that your client had, but no longer has, in its possession custody or power. You make reference at paragraph 9 (page 238) to 'certain documents within the collection of documents known as "Reid Family Papers", and held by the State Library of New South Wales'.
2.At paragraph 9(d) it states that the collection 'was kept by Mr Reid in his office in Sydney'.
3.Paragraph's 9(f) and (g) describe a process whereby James Hardie Industries' internal lawyers determined which documents were discoverable, copied them and included them in the list which forms part of the First Schedule in your list dated 12 May 2009. The inference is of course that James Hardie Industries' internal lawyers formed a view, albeit in 1993-1994, that the remainder of the documents were not discoverable. Has Minter Ellison also formed that view as to discoverability in these proceedings?
4.I have not personally inspected the 'Reid Family Papers' but as you know lawyers other than me from Slater & Gordon have done so. I am informed that there are over 160 Boxes in that collection and the vast majority of the documents are records of James Hardie Industries. In fact the State Library of New South Wales' own file refers to the collection as being largely James Hardie Industries' records, not 'Reid Family Papers' as you describe them. Do you maintain that these 160 boxes were really kept in Mr Reid's office?
5.I have enclosed two documents that are contained within the 'Reid Family Papers' but not within your First Schedule list. In the first document Amaca is advised by its consultants to edit a television advertisement for its asbestos cement products to eliminate the visible dust produced by a tradesman scoring an asbestos cement board in order to avoid James Hardie products being branded unsafe. In the second, James Hardie confirms research being undertaken among consumer and trade groups about asbestos awareness, including in Perth. There are many dozens of other, even more relevant documents, including one in which a James Hardie executive described warning labels in mid‑1982 as 'innocuous' and reported: 'Field reports indicate there has been no reaction.' The Plaintiff maintains these documents are relevant to matters in question in these proceedings. They are important to Mr Reed's claim.
6.On the face of it, the 1993‑1994 inspection and copying process was flawed. Further, Amaca had its lawyers, Holman Webb, inspect the 'Reid Family Papers' in 1999 and that law firm removed from the library overnight dozens of the boxes for copying. Presumably Amaca has retained copies of these further relevant documents.
7.The New South Wales State Library file records an understanding between James Hardie Industries and the library that James Hardie is able to temporarily repossess the originals themselves at any time should James Hardie think it necessary. For the purposes of discovery then the library collection remains within the Defendant's power. In other words there exists a right of access over the documents which allows the Defendant to conveniently and reasonably quickly inspect and copy the documents thereby enabling the discharge by the Defendant of its Order 26 obligations.
The plaintiff alleged that Amaca maintains power over the Reid Family Papers for the purposes of O 26 of the Rules of the Supreme Court and should give further and better discovery of those documents.
Amaca gave discovery verified by affidavit sworn by Agustin Torlaschi on 19 October 2009. Paragraph 10 of the second schedule of the list of documents is in the following terms:
Certain documents within the collection of documents known as the 'Reid Family Papers', and held by the State Library of New South Wales. In respect of these documents:
(a)Mr Reid was a director of James Hardie Industry Limited from 1964 until 1973, and its chairman from 1973 until 1996;
(b)during his lifetime Mr Reid had acquired, collected and maintained a large number of different documents and objects relevant to the history of his family and the activities of companies within the James Hardie group. The Reid family had been involved in the James Hardies for several generations. Many of these documents and objects were of purely personal interest, including, for example, records relating to the migration of the Reid family to Australia;
(c)other documents were obtained by Mr Reid in his capacity as a director of James Hardie Industries Limited, which, in probability, would have included documents relating to Amaca;
(d)this collection of documents and objects was kept by Mr Reid in his office in Sydney;
(e)Mr Reid maintained that the documents and objects kept by him were his personal property, having been acquired by him privately or in his role as a director of James Hardie Industries Limited;
(f)in 1993 and 1994 Amaca undertook a comprehensive collection of documents for the purposes of providing full discovery. Even although Mr Reid maintained that the documents in his office were his personal property, internal lawyers employed by James Hardie Industries Limited required that the documents and objects be examined to determine whether they were discoverable;
(g)the documents were collected, moved and then stored at premises in Annandale. During 1993 or 1994 the documents were examined at Annandale by internal lawyers employed by James Hardie Industries Limited and by independent lawyers retained by or on behalf of Amaca. Any documents which those lawyers advised were discoverable, or potentially discoverable, were copied and included in the documents eventually to be discovered by Amaca. The decision as to whether or not individual documents were to be discovered was reviewed by internal lawyers retained by James Hardie Industries limited, by independent solicitors retained by or on behalf of Amaca, and by an independent barrister familiar with the issues raised, Brian Ferrari;
(h)during 1993 and 1994 Mr Reid made a decision to donate his collection of documents and objects ‑ which are usually described as the Reid family papers ‑ to the State Library of NSW. The collection was made the subject of an absolute gift by Mr Reid to the State Library on 27 June 1994;
(i)as part of his gift to the library, Mr Reid agreed to a protocol under which interested parties could examine the collection. The State Library has a copy of the protocol and interested parties may apply for access to the documents. Access has been sought and granted to lawyers representing litigants in asbestos‑related litigation;
(j)some of the documents within the Reid family papers may previously have been in the possession, custody or control of Amaca. Those which the lawyers advised were discoverable were copied and discovered in Amaca's standard list of documents and included in Schedule 1 Part 1;
(k)if there are other documents which were previously in the possession, custody or control of Amaca they are not documents which are discoverable, based upon the advice received by Amaca. These documents would have last been in the possession, custody or control of Amaca at or about the date of their making, as it is probable they were soon thereafter provided to Mr Reid.
The present application
The plaintiff now seeks an order that within seven days:
The Defendant, pursuant to Order 26 Rule 6(1) of the Rules of the Supreme Court 1971 do make a further list of documents, verified by affidavit, which enumerates and describes each and every relevant document contained within the documents otherwise described as 'The Reid Family Papers' at paragraph 10 of the Second Schedule in Attachment 'A' referred to in the Affidavit of Agustin Torlaschi dated 19 October 2009.
Counsel for the plaintiff relies on O 26 r 7 and the inherent jurisdiction of the court as well as O 26 r 6.
Alternatively, the plaintiff submits that the court should exercise its power under O 29 r 2(1) to order Amaca to take steps to obtain access to and inspect the Reid Family Papers and give further and better discovery of the documents in the Reid Family Papers that relate to the matters in issue in this action (ts 11).
Amaca submits that it has complied with its obligation to give discovery. Amaca submits that the Reid Family Papers are no longer in the possession, custody or power of Amaca. Furthermore, Amaca submits that there is no utility in the orders sought by the plaintiff since the documents in the Reid Family Papers have been examined, copied, listed and assessed for their potential use in these and other proceedings by the plaintiff's solicitors, Slater & Gordon.
Plaintiff's case
The plaintiff submits that the Reid Family Papers are within the power of Amaca and that Amaca has failed to give discovery of documents within the Reid Family Papers that relate to matters in issue in this action. There are two steps in the plaintiff's argument that the papers are in the power of Amaca. First, the plaintiff says that the documents are in the power of ABN 60 Pty Ltd (formerly James Hardie Industries Ltd) because ABN 60 has an immediate legal right to demand possession of them from the State Library of New South Wales. The plaintiff says that the Reid Family Papers were given to the State Library on conditions that give ABN 60 the right to inspect the documents. Secondly, the plaintiff says that the documents are within the power of Amaca because Amaca and ABN 60 have a common shareholder and common directors.
Discovery given by Amaca
A party obliged to make discovery should search diligently to identify all discoverable documents in the party's possession, custody or power. What are reasonable enquiries will depend on the circumstances of each case, including the necessity for the discovery. It is not necessary to go to such lengths as would be oppressive: Re McGorm; Ex parte Cooperative Building Society of South Australia (1989) 20 FCR 387; (1989) 86 ALR 275; Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282.
In schedule 2 of the list of documents verified by affidavit of Mr Torlaschi of 19 October 2009 Amaca describes steps it has taken to identify all discoverable documents in its possession, custody or power. Mr Torlaschi says that Amaca has endeavoured to collect and compile all documents potentially relevant to any asbestos related litigation. The documents contained in schedule 1 pt 1 of the list are a standard list of documents that has been produced on behalf of Amaca and is used in litigation around Australia.
Mr Torlaschi describes the steps taken to compile the standard list of documents. Mr Torlaschi says that in 1993 and 1994 Amaca undertook a comprehensive collection of documents for the purposes of providing full discovery. Even though Mr Reid maintained that the documents in his office were his personal property, internal lawyers employed by James Hardie Industries Ltd required that the documents and objects be examined to determine whether they were discoverable. The documents were collected and examined by internal lawyers and by independent lawyers retained by or on behalf of Amaca. Any documents which those lawyers advised were discoverable, or potentially discoverable, were copied and included in the documents eventually to be discovered by Amaca. The decision as to whether or not individual documents were to be discovered was reviewed by internal lawyers, by independent solicitors retained by or on behalf of Amaca and by an independent barrister familiar with the issues raised. Mr Torlaschi says that some of the documents within the Reid Family Papers may have previously been in the possession, custody or power of Amaca. Those which the lawyers advised were discoverable were copied and discovered in Amaca's standard list of documents and included in schedule 1 pt 1. Mr Torlaschi says that if there are other documents which were previously in the possession, custody or power of Amaca they are not documents which are discoverable, based upon the advice received by Amaca.
I accept that in 1993 and 1994 Amaca made reasonable efforts to examine and identify all discoverable documents in the possession, custody and power of Amaca including documents in the actual possession of James Hardie Industries Ltd and documents held by Mr Reid in his office that subsequently were included in the Reid Family Papers. I also accept that the compilation of a standard list of documents in asbestos litigation was a reasonable means of satisfying Amaca's discovery obligations.
Nevertheless, Amaca has failed to discover documents in the Reid Family Papers that relate to matters in question in this action. Mr Magazanik's affidavit demonstrates that there are relevant documents within the Reid Family Papers that have not been discovered by Amaca and that are relevant to the issues identified by Mr Magazanik in [12] ‑ [14] of his affidavit. The plaintiff says that those documents are in the power of Amaca. Before addressing that issue I will consider who has control of the Reid Family Papers.
The Reid Family Papers
The Reid Family Papers were given to the State Library in 1994. Mr Reid signed a form entitled 'Donor Form'. The form refers to taxation incentives for the arts scheme and s 78 of the Income Tax Assessment 1936. The form states that it is to be completed and certified by the donor at the time the gift is made and that the officer accepting the gift on behalf of the institution is to sign the form and submit it, with other documents relating to the gift, to the Committee on Taxation Incentives for the Arts. The form contains a certificate by the donor in which the donor certifies that, 'I have title to the property I am gifting, and that I am now transferring the unencumbered legal title to the Donee Institution' and that 'full custody and control of the property is being transferred in perpetuity to the Donee Institution'. The form, dated 27 June 1994, was indorsed by the authorised officer of the State Library, Mr Brunton, the curator of manuscripts.
Mr Magazanik's affidavit annexes letters and forms that refer to conditions and restrictions of access to the Reid Family Papers. In a letter of 10 October 1994 to Mr Gellert, a manager of James Hardie Industries Ltd, Mr Brunton wrote: 'I look forward to receiving the forms specifying the conditions of access to the collection'. Mr Reid responded to that letter on 28 October 1994 in which he suggested the conditions of access that should apply to anyone who wishes to have access to the papers. In a letter of 21 November 1994 to Mr Reid, Mr Brunton acknowledged Mr Reid's letter regarding the access conditions to the collection of records recently presented to the State Library and stated: 'We will, of course, strictly observe these conditions'. The conditions are found on a State Library form which refers to the 'James Hardie Industries Ltd Collection' and the letter from Mr Reid of 28 October 1994. In the body of the form under the heading 'Restriction' appears:
Anyone who wishes to have access to the papers
(a)Should seek in writing the approval of the Managing Director of James Hardie Industries Limited for the time being
(b)Should negotiate with the said Managing Director the conditions under which access should be gained (in co‑operation with the State Library of NSW)
(c)Set out the purposes of the proposed study and have them approved by the said Managing Director
(d)Set out any proposed publication of the results of the proposed study and have them also approved by the said Managing Director.
Any decision by the said Managing Director shall be non negotiable and final.
Those conditions of access have been observed by the State Library. On 7 May 2008 Slater & Gordon wrote to Mr Booth, the chief executive officer of ABN 60. Slater & Gordon wrote:
I am writing to formally request that you grant Slater & Gordon access to the records held at the State Library.
The library has informed us, and you have confirmed to Mr Magazanik, that a condition of the bequest to the library was that permission to access the documents has to be obtained from the General Manager of James Hardie Industries. I understand that position is held by you.
We are making this request in general terms and not with reference to a specific matter. However, should you require that this request be made with respect to a specific case I refer you to Smith v Amaca CIV 1613 of 2007 in the Western Australian Supreme Court. In that matter Amaca has provided the Plaintiff with an informal discovery list. Schedule 2 of that list, part 7, makes reference to the documents 'correctly known as the Reid Family papers' which were gifted 'absolutely' to the library in 1994.
Mr Booth subsequently gave consent and solicitors from Slater & Gordon, including Mr Magazanik, attended the State Library and examined the papers.
If property is gifted with a request or exhortation that the property be used in a particular way or subject to some restriction then the request or exhortation might be given one or other of a number of different interpretations. It may amount to a moral obligation or a wish so that the donee takes an absolute beneficial interest in the property free of any legally binding obligation. Another possibility is that it may amount to a condition upon and subject to which the donee takes the gift: see The Countess of Bective v The Federal Commissioner of Taxation (1932) 47 CLR 417, (Dixon J) (418) ‑ (420). It is a question of construction. The construction depends on all the circumstances including the language used to describe the obligation, the nature of the property given, the characteristics of the obligation itself and when the request was made or obligation imposed.
In this case, the evidence concerning the gift, the terms on which it was made and the circumstances in which it was made is incomplete. The donor form contains a certificate by Mr Reid that he was transferring the unencumbered legal title to the State Library and that full custody and control of the property was transferred in perpetuity to the State Library. The certificate was indorsed by the State Library. There is no evidence of communications between Mr Reid and James Hardie Industries Ltd on the one hand and the State Library on the other hand preceding the date of the donor form. The letters and documents referring to conditions of access that are in evidence are all dated after the donor form was signed on 27 June 1994.
I find that the conditions of access or restrictions of access to the Reid Family Papers amount to a wish by the donor and gives rise to a moral obligation assumed by the State Library to observe the specified conditions of access. However, the State Library took an absolute beneficial interest in the papers free of any legally binding obligation to observe the specified access conditions.
Are the documents in the power of Amaca?
In Lonrho Ltd v Shell Petroleum Co Ltd (No 1) [1980] 1 WLR 627, Lord Diplock said:
… the expression 'power' must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in O 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future (635) ‑ (636).
The House of Lords held that documents in the possession of subsidiary companies were not in the power of their parent companies, since the parents had no presently enforceable legal right and would have to alter the subsidiaries' articles of association to obtain the subsidiaries' documents without their consent.
What Lord Diplock said should not be treated as stating exhaustively the content of the expression 'power'. Lord Diplock himself recognised that situations not embraced by the formulation set out above might fall within the scope of the discovery rule. His Lordship went on to say:
In dismissing the subsidiaries appeal on its own special facts, I expressly decline any invitation to roam any further into the general law of discovery. In particular, I say nothing about one man companies in which a natural person and/or his nominees are the sole shareholders and directors. It may be that, depending upon their own particular facts, different considerations may apply to these (636) ‑ (637).
In Taylor v Santos (1998) 71 SASR 434; (1998) 199 LSJS 122, Doyle CJ said that the court should be cautious in extending the concept of power beyond the concept of a presently enforceable legal right, even though it may be appropriate to do so. The Chief Justice expressed the view that the obligation to discover a document is limited to a document that the person in question has the legal power or actual and immediate ability to inspect, even though the document is the property of or is held by another person (437) ‑ (438). The Chief Justice said:
But, in my opinion, the obligation to discover hinges upon having a right or actual and immediate ability to examine the document. A person does not have that right or actual immediate ability if the person is able to inspect the document only if a third person, who has control of the document, agrees to permit inspection, or agrees to refrain from so exercising that person's control as to prevent inspection (438).
If the State Library had taken the gift of the Reid Family Papers subject to a condition which permitted ABN 60 to inspect the documents then the documents would be within the power of ABN 60 for the purposes of the discovery rule. However, where the right of a person to inspect documents depends upon the exercise of the discretion of a third party then the documents are not within the power of the person for the purposes of the rule: see also Re Lombard Shipping and Forwarding Ltd [1993] BCLC 238; [1992] BCC 700.
ABN 60 does not have the legal power or the actual and immediate ability to inspect the Reid Family Papers. Those documents are the property of the State Library. ABN 60 can only inspect the documents with the consent of the State Library. The State Library has, in effect, stated that it will allow any person to inspect the papers if ABN 60 agrees. However, ABN 60 does not have the legal right to inspect the documents without the consent of the State Library.
A second issue is whether Amaca, as distinct from ABN 60, has the right to inspect the documents. There may be circumstances where documents in the physical possession of one company are, as a matter of fact, within the power of another company in the group. However, it is unnecessary to consider that issue because I am not satisfied that the Reid Family Papers are within the power of ABN 60.
Order to take steps to obtain access to documents
The plaintiff submits that if the Reid Family Papers are not within the power of Amaca the court should order Amaca to take steps to obtain access to and inspect the papers and give further and better discovery of the documents in the papers that relate to the matters in issue in this action. The court has power under O 29 r 2(1) to direct a party to take steps to obtain access to and discover documents which are in the possession, power or control of a third party where there is a real likelihood that the party to the action would be given access to the documents upon request. The rule confers upon the court power to make such orders, or give such directions to lead to the efficient and timely disposal of proceedings as it may consider just and expedient: Absolute Analogue v Sundance Resources Ltd [2008] WASC 259 [32].
In the exercise of my discretion I decline to make such an order in this case. I do so for the same reasons that I decline to exercise my discretion to require Amaca to make a further list of documents as sought by the plaintiff, if the power to do so is enlivened.
A party is not entitled to discovery as of right
A party does not have a right to discovery or further and better discovery, it is a matter of discretion. The necessity for further and better discovery is a relevant factor in the exercise of the discretion to make an order. Order 1 r 4A provides in general terms that interlocutory processes, such as discovery, should not extend beyond what is reasonably required for the fair and just determination of the issues in contention between the parties and the preparation of the case for trial.
Exercise of discretion
The court should order further and better discovery if, and only if, that is necessary for fairly disposing of the action. I decline to do so for three reasons. First, Slater & Gordon have examined those parts of the Reid Family Papers that are likely to contain relevant documents. To require Amaca to inspect the Reid Family Papers and file a further affidavit would place on Amaca a burden disproportionate to the benefit to the plaintiff. Second, the plaintiff's solicitors can themselves inspect the Reid Family Papers. Third, the plaintiff has delayed in bringing the application and it is now too close to the commencement of the trial.
Inspection of Reid Family Papers by Slater & Gordon
Counsel for Amaca says that Slater & Gordon have examined the Reid Family Papers and have assessed for themselves their relevance.
Mr Peter Gordon, senior partner of Slater & Gordon, gave evidence in proceedings in the Supreme Court of Victoria concerning the examination of the Reid Family Papers by Slater & Gordon solicitors. The evidence of Mr Magazanik shows that the examination of documents referred to by Mr Gordon took place in May 2008. In evidence Mr Gordon said that he had organised for a number of solicitors to go to the library, and over a course of days they photocopied the documents. Mr Gordon then gave the following evidence:
And so you've got a copy of all the documents in the Reid Family Papers?‑--I'm not sure I've got a copy of all of the documents. I understand there are over 160 boxes or approximately 160 boxes, and I think that the lawyers from Slater & Gordon who attended the task sought to confine themselves to the documents which were relevant to asbestos litigation.
Right?---And I think we ended up with perhaps two or three lever arch folders of information.
So the whole process about the discovery of the Read Family documents has been carried out, in your opinion, successfully?---Mr Watson, I'm not sure that we've actually completed it, but we've certainly attended to a number of days and we've uncovered a large number of documents which form the subject of this application.
Further inspection and affidavit by Amaca is disproportionate
To require Amaca to examine all of the Reid Family Papers for the purpose of ascertaining whether there are any discoverable documents amongst them that have not been included in schedule 1 pt 1 of Amaca's list, and to then give discovery of those documents would place on Amaca a burden disproportionate to the benefit to the plaintiff in obtaining discovery of such further relevant documents as might be identified by Amaca on conducting such an examination. The Reid Family Papers consist of 150 or possibly 160 archive boxes together with other materials and objects. Mr Magazanik's affidavit and the evidence of Mr Gordon to the Supreme Court of Victoria show that a number of Slater & Gordon solicitors were occupied for at least four days examining the Reid Family Papers. To undertake an examination that would enable an officer of Amaca to swear that each and every document contained within the Reid Family Papers had been examined and assessed for relevance would take a reasonably sized team of lawyers significantly more than four days to complete.
Slater & Gordon have examined the Reid Family Papers. They did so in May 2008. Counsel for Amaca submitted, in effect, that Slater & Gordon have examined that part of the collection that is likely to contain documents relevant to asbestos litigation. Counsel for the plaintiff submitted, in effect, that the evidence is that Slater & Gordon have examined some part but not the whole of the Reid Family Papers and the evidence does not disclose how much, or what parts, of the collection Slater & Gordon have not examined.
Mr Magazanik deposes that he did not have the time or opportunity to examine the entire collection. Amaca requested that Mr Magazanik be available for cross‑examination. Unfortunately, he was unavailable because he was out of the State and the imminent commencement of the trial required the application to be dealt with immediately and not adjourned to enable Mr Magazanik to be cross‑examined in relation to how much of the collection he had inspected.
Mr Gordon told the Supreme Court of Victoria that he was not sure that Slater & Gordon's solicitors had actually completed the examination of the collection. However, the evidence of Mr Gordon is to the effect that the Slater & Gordon solicitors examined the documents contained in those parts of the collection that were potentially relevant to asbestos litigation. There is a list of the documents within the collection compiled by the State Library. The list contains generic descriptions of the documents rather than an individual description of each document. However, the list would assist a solicitor to identify the archive boxes that contain documents that might be relevant to asbestos litigation. The plaintiff has not adduced evidence to establish what part or parts of the Reid Family Papers Slater & Gordon have not examined. Slater & Gordon have not considered it necessary to return to the State Library to complete their examination commenced in May 2008. I find that Slater & Gordon have examined those parts of the Reid Family Papers that are likely to contain documents relevant to the matters in issue in this action.
The plaintiff's solicitors could have examined the whole of the Reid Family Papers. They have examined that part or parts of the collection that are likely to contain documents relevant to asbestos litigation. They have not considered it necessary to return to the State Library to complete their examination of the collection. Those facts do not preclude the court from requiring Amaca to inspect the Reid Family Papers and make a further list of documents as sought by the plaintiff. However, I take those matters into account in deciding that the further discovery sought by the plaintiff is not necessary for disposing fairly of the action.
Plaintiff can access the documents
The fact that a plaintiff can obtain the information elsewhere is not in itself an objection to requiring a defendant to give discovery of documents within its possession, custody or power. However, it is a factor to be taken into account by the court in exercising its discretion whether to require the defendant to make discovery or further and better discovery.
In this case, the plaintiff can inspect the Reid Family Papers with the consent of the State Library. The State Library has given that consent. If that consent is no longer operative then the evidence establishes that the State Library will give its consent providing that ABN 60 gives that consent. ABN 60 has given its consent. If a further consent by ABN 60 is required there is no reason to believe that it would not be given. If such consent was refused that would be grounds for the plaintiff to renew his application. The plaintiff submits that the burden of inspecting the Reid Family Papers should fall upon Amaca not him. That might be so in different circumstances, however, the plaintiff has delayed in bringing this application. It is to that matter to which I now turn.
Delay
The third reason for declining to exercise my discretion to require Amaca to make a further list is that the plaintiff has delayed in bringing this application until the trial is imminent. This action was commenced in April 2009. Amaca gave informal discovery on 12 May 2009. The plaintiff's solicitors were then aware of the Reid Family Papers and any deficiencies in Amaca's informal discovery relating to those papers. The plaintiff did not question the adequacy of that discovery in relation to the Reid Family Papers until 28 August 2009 when it requested that Amaca give discovery by affidavit. That discovery was given on 22 October 2009. It was not until 5 November 2009 that the plaintiff brought its present application. The trial of this action was listed to commence on 30 November 2009. It is not practicable to delay the commencement of the trial. On 30 October 2009 the plaintiff's medical practitioner estimated the plaintiff's life expectancy to be two to four weeks, ranging up to six to eight weeks.
The trial is an expedited trial. It may reasonably be assumed that the parties' time and resources are being employed in preparation for the trial. It would be an additional burden on Amaca to require it to inspect the Reid Family Papers and make a further affidavit at this time. That burden is disproportionate to the likely benefit to the plaintiff.
Conclusion
For the reasons stated I decline to exercise my discretion to order Amaca to take steps to obtain access to the Reid Family Papers, inspect them and make a further affidavit of discovery identifying each document within the collection that is relevant to a matter in issue in this action.
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