Rose v Amaca Pty Limited (ACN 000 035 512) (under NSW administered winding up)

[2019] NSWDDT 10

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Rose v Amaca Pty Limited (ACN 000 035 512) (under NSW administered winding up) [2019] NSWDDT 10

Hearing dates:

29 October 2019

Date of orders:

01 November 2019

Decision date:

01 November 2019

Before:

Scotting J

Decision:

(1)   I confirm my Orders of 29 October 2019 relating to the agreed categories.
(2)   I direct the parties to bring in Short Minutes of Order in accordance with these reasons that the Sixth Defendant provide verified discovery of the disputed categories (as determined by these Reasons) on or before 5pm on 26 November 2019, or such other time as the Tribunal may allow.
(3)   I will hear the parties on costs.

(4)   Matter is listed on 4 November 2019 at 10am to deal with the issue of costs.

Catchwords:

DUST DISEASES — Dust Diseases Tribunal — discovery – facts in issue

Legislation Cited:

Civil Liability Act 2002 (WA).
Uniform Civil Procedure Rules 2005

Cases Cited:

Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788
Sullivan v Moody (2001) 2017 CLR 562
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649

Category:

Procedural and other rulings

Parties:

Ruth Rose (Plaintiff)
Amaca Pty Limited (First Defendant)
Seltsam Pty Ltd (Second Defendant)
CSR Limited (Third Defendant)
Midalco Pty Limited (Fourth Defendant)
Shire of Asburton (Fifth Defendant)
The State of Western Australia (Sixth Defendant)
Insurance Australia Limited (Seventh Defendant)

Representation:

Counsel:
J T Rush QC with S Tzouganatos (Plaintiff)
G Parker SC with T Moisidis (Sixth Defendant)

    Solicitors:
Turner Freeman (Plaintiff)
Goldrick Farrell Mullan (Sixth Defendant)

File Number(s):

295 of 2018

Publication restriction:

None

Judgment

Introduction

1. The plaintiff seeks verified discovery of documents within a number of categories from the sixth defendant, the State of Western Australia (the State).

2. The State agreed to provide discovery of some of the categories of documents identified in [25] of its Written Submissions (the agreed categories). On 29 October 2019, I made an interim order that the State provide verified discovery of the agreed categories for the period between 1946 and 31 December 1998, on or before 5.00pm on 26 November 2019.

3. The State resists discovery of the disputed categories on the grounds that the documents sought are not relevant to a fact or facts in issue in the proceedings.

4. The State further contends that it should only be required to provide discovery of the agreed categories or any of the disputed categories for the period ending 31 December 1988, being a time for which it has previously been required to provide discovery in other proceedings relating to the presence of asbestos dust in Wittenoom, Western Australia. The plaintiff seeks discovery of the relevant categories up to 31 December 1998, being the approximate date when the plaintiff ceased to be a resident of Wittenoom.

5. The State disputed that it should be required to provide discovery of documents relating to the surrounding areas of Wittenoom, because it would be too onerous to do so, on the basis that it has not been previously required to discover documents relating to those areas. The plaintiff’s categories of documents defined the phrase ‘the Township of Wittenoom and surrounding areas’ as ‘the township of Wittenoom itself and the areas surrounding the township including the Yampire Gorge, the Wittenoom Gorge, the Colonial Gorge, Eastern Gorge, Western Gorge and Joffre Creek and the roads leading in and out of the surrounding areas so defined and the Township of Wittenoom’.

6. There is also a dispute about how the State should be defined. The State has suggested an all encompassing definition that does not specify any particular Department or person. The plaintiff has added to that a list of various Departments and one individual employee of the State, Dr James McNulty.

7. The purpose of this judgment is to determine if the State should be required to provide discovery of the disputed categories, the appropriate end date for the discovery process, whether documents should be discovered relating to ‘the surrounding areas’ and what persons ‘the State’ refers to.

Factual background

8. From about 1946 crocidolite or blue asbestos was mined at Wittenoom Gorge and Colonial Gorge. The mined product was milled producing a waste by-product known as asbestos tailings (tailings).

9. The tailings contained crocidolite dust and fibre. The tailings were brought into the township of Wittenoom and used:

1. as fill in earthworks;

2. in the building and construction of residential and community buildings;

3. as groundcover on private and public land; and

4. in the construction of bitumen surfaces.

10. The tailings were also dumped in heaps throughout gorges and the surrounding areas of Wittenoom.

11. Between about 1989 and 1997, the plaintiff was a resident of Wittenoom. Between 1989 and 1992 the plaintiff was employed by Wittenoom Tourist Village Pty Ltd (the Tourist Village). The Tourist Village is represented in the proceedings by its insurer, the seventh defendant. For about two weeks in 1988 and between 1994 and 1995 the plaintiff was employed by the fifth defendant, The Shire of Ashburton.

12. The plaintiff alleges that whilst she was a resident in Wittenoom that she was exposed to and inhaled crocidolite dust from the tailings in the town and from the tailing dumps in the surrounding areas, when crocidolite dust became airborne as a result of wind action and/or as a result of being transported through the movement of rainwater.

13. The plaintiff has been diagnosed with pleural malignant mesothelioma as a result of her exposure to asbestos dust and fibre.

Evidence on the motion

14. The plaintiff read the affidavits of Armando Gardiman sworn 23 October 2019 and 25 October 2019. The plaintiff also tendered a Cabinet Minute relating to Wittenoom dated 29 August 1983.

15. The State read the affidavit of Vincent John Goldrick sworn on 29 October 2019. The State also tendered a letter from Mr Gardiman to Mr Goldrick dated 28 October 2019.

Relevant legislation

16. The Uniform Civil Procedure Rules (UCPR) relevantly provide:

21.1   Definitions

(cf SCR Part 23, rule 1; DCR Part 22, rule 1)

(1)  In this Division:

excluded document, in relation to proceedings the subject of an order for discovery, means any of the following documents:

(a)  any document filed in the proceedings,

(b)  any document served on party A after the commencement of the proceedings,

(c)  any document that wholly came into existence after the commencement of the proceedings,

(d)  any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included,

(e)  any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents,

but does not include any document that the court declares not to be an excluded document for the purposes of those proceedings.

list of documents means a list of documents referred to in rule 21.3.

order for discovery means an order referred to in rule 21.2.

party A means a party to whom another party is giving discovery, or being ordered to give discovery, of documents.

party B means a party who is giving discovery, or being ordered to give discovery, of documents.

party B’s affidavit means an affidavit prepared in relation to the list of documents under rule 21.4.

Note.

See the Dictionary for further definitions including, in particular, a definition of possession.

(2)  For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

21.2   Order for discovery

(cf SCR Part 23, rule 3 (1), (2) and (3); DCR Part 22, rule 3 (1), (2) and (3))

(1)  The court may order that party B must give discovery to party A of:

(a)  documents within a class or classes specified in the order, or

(b)  one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2)  A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3)  Subject to sub-rule (2), a class of documents may be specified:

(a)  by relevance to one or more facts in issue, or

(b)  by description of the nature of the documents and the period within which they were brought into existence, or

(c)  in such other manner as the court considers appropriate in the circumstances.

(4)  An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

21.8   Personal injury claims

(cf SCR Part 23, rule 5; DCR Part 22, rule 5)

In any proceedings on a common law claim:

(a)  for damages arising out of the death of, or bodily injury to, any person, or

(b)  for contribution in respect of damages so arising, an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise.

17. Rule 4 of the Dust Diseases Tribunal Rules 2019, provides:

4 Discovery and inspection of documents

(1) Part 21 of the Uniform Civil Procedure Rules 2005 applies, subject to the adaptations specified in sub-rules (2), (3) and (4) and Rules 5 and 6, to proceedings before the Tribunal.

(2)    In Rule 21.3(2)(a)(ii) omit “within the last 6 months prior to the commencement of the proceedings” and insert “at any time”.

(3)    In Rule 21.4(2)(b) and Rule 21.4(3)(b) omit “within the last 6 months prior to the commencement of the proceedings” and insert “at any time”.

(4)    In Rule 21.8 omit “the court, for special reasons, orders otherwise” and insert “the order is necessary to ensure that the outstanding issues in dispute are properly tried”.

The relevant legal principles

18. The parties agree that the following legal principles apply, as summarised by Bellew J in Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 at [19]:

1. Discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22];

2. The facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23;

3. For the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138;

4. The relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181;

5. Discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan’s Fisheries Pty Ltd [2017] NSWSC 1262;

6. Discovery involves an “inroad”, in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338;

7. The discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56–60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra);

8. Although proper compliance with a party’s obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200;

9. There is no entitlement to “chain of enquiry” discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264.

The pleadings

19. The current iteration of the plaintiff’s pleaded case is the Second Further Amended Statement of Claim (the SOC) filed on 26 August 2019. The State’s pleaded case is contained in the Amended Defence filed on 5 September 2019 (the Defence).

20. In the course of argument, Senior Counsel for the State indicated that the State would not take issue with the fact that the inhalation of crocidolite dust posed a risk of injury to the residents of Wittenoom at the time when the plaintiff was a resident and that as a general proposition there were means available to eliminate or minimise the risk of exposure. However, the State’s contention is that by the time that the plaintiff became a resident of Wittenoom that the town could not be remediated, because to do so would have exposed the workers charged with undertaking the remediation work to an unacceptable risk. Instead, the State’s case is that it warned the residents of the risk and took steps to encourage them to leave Wittenoom.

21. The Defence is not pleaded strictly in those terms. However, I will approach the case on the basis that the State will not contest those matters, in so far as that is possible and/or appropriate.

Duty of care

22. The plaintiff pleads that the State owed her a duty of care as a resident of Wittenoom to eliminate or minimise the risk to her health posed by the presence of the tailings, by reason of its ability to legislate, regulate, govern and provide government funding to direct and/or control the mining activities of the third and fourth defendants in Wittenoom Gorge and Colonial Gorge and any activity that took place in Wittenoom and the surrounding areas ([8(d)] of the SOC).

23. The State’s powers included the provision of infrastructure services to Wittenoom and the surrounding areas ([8(e)] of the SOC).

24. By exercise, or non-exercise, of its powers and/or control, the State allowed the third and fourth defendants to bring the tailings into Wittenoom ([8(f)] of the SOC), in circumstances where the State knew or ought to have known that the residents of Wittenoom would be exposed to crocidolite dust ([8(g)] of the SOC) and that the inhalation of crocidolite dust presented a significant risk of injury through the contraction of an asbestos related disease, including cancer ([8(h)] of the SOC).

25. The plaintiff pleads, by reference to the particulars of negligence, that the State had the power and/or ability to (I have summarised the particulars of negligence into categories):

1. Warn the residents of the risk of contracting an asbestos related disease including cancer and/or the danger of residing in or visiting Wittenoom;

2. Prevent the tailings being brought into Wittenoom;

3. Remove the tailings or treat them in such a way as to prevent the airborne spread of crocidolite dust;

4. Prevent the use of the tailings in Wittenoom;

5. Encourage the residents to leave or discourage new residents from settling in Wittenoom;

6. Stop promoting Wittenoom as a tourist destination;

7. Cut off services to Wittenoom;

8. Take heed of its own advice as to the extent of the danger posed to the residents of Wittenoom.

26. The State denies that it owed the plaintiff a duty of care.

27. The Defence pleads specific facts that I presume the State intends to prove. Not all of those matters are pleaded as admissions, but they would otherwise be irrelevant. The effect of those matters is for the State to admit that it had the requisite control to, and undertook, some actions at various times, such as:

1. the Minister for Health speaking at a town meeting on 4 August 1979;

2. adopting a policy of ‘phasing out’, Wittenoom on 23 March 1981;

3. closing the school on 14 December 1985 and the police station in December 1989;

4. acquiring 34 properties, demolishing the buildings on them and removing tailings from them in May 1987.

28. Further, the State has pleaded some aspects of what it knew about the dangers posed by asbestos generally, as well as the danger posed by the presence of the tailings at various times. For example, the State pleads that it was reasonable to conclude in late 1978, based on a survey and study of the residents of Wittenoom, that the fibre concentrations were low and that persons who were residents for 50 years were at risk of contracting mesothelioma, with children being at a higher risk and that there was no risk to visitors to Wittenoom. By reference to the particulars of negligence the extent of the State’s knowledge (failing to heed its own advice) is a fact in issue.

29. For example, on the basis of the State’s pleading, that it is likely to be a fact in issue that the State knew or ought to have known, as at 1978, that this pleaded state of knowledge did not correspond with the state of scientific and medical knowledge of the risk posed by the inhalation of small amounts of crocidolite dust.

30. In order to determine if a duty of care was owed, the Tribunal will be required to apply the ‘salient features’ test: Sullivan v Moody (2001) 2017 CLR 562. In Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [103] Allsop P (as his Honour then was) set out a non-exhaustive list of salient features that may be relevant in any case, but many of which are particularly relevant in this case.

31. The salient features relevant to this case that appear to be in issue on the pleadings include (from Allsop P’s list):

1. the foreseeability of harm;

2. the degree and nature of control able to be exercised by the defendant to avoid harm;

3. the vulnerability of the plaintiff, including her ability to take steps to protect herself;

4. the degree of reliance by the plaintiff on the defendant;

5. (i)   the nature of the activity undertaken by the defendant;

6. (k)   knowledge by the defendant that the conduct will cause harm to the plaintiff;

7. (n)   the extent of imposition on the autonomy or freedom of individuals including the rights to pursue one’s own interests;

8. (o)   the existence of conflicting duties arising from other principles of law or statutes;

9. (p)    consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q)   the desirability, and in some circumstances, the need for conformance and coherence in the structure and fabric of the common law.

32. The plaintiff’s claim is also to be determined according to the law of Western Australia, including at least sections 5A-5D Civil Liability Act 2002 (WA). I did not have the benefit of any argument from the parties as to the applicable law and have not undertaken to further research on this point.

Breach of duty

33. The plaintiff alleges that the State breached its duty of care by failing to take the steps that I have categorised in [25] above.

34. The State denies that it has breached a duty of care owed to the plaintiff.

Causation

35. The State denies causation and has pleaded that it relies on the defence of voluntary assumption of risk. This requires the State to prove that the plaintiff knew of the risk posed to her health by the tailings and voluntarily accepted it, by residing or continuing to reside in Wittenoom.

Contributory negligence

36. The State pleads that the plaintiff is guilty of contributory negligence. If the case got to this point the Tribunal would be required to undertake a comparative analysis of the negligence of the State and the negligence of the plaintiff.

The disputed categories

37. I will first deal with the common matters of the period for which discovery is to be given, the relevant location and the definition of the State. These rulings apply to each category where those issues appear, unless otherwise specified.

The relevant period

38. The parties agreed that the earliest start date for discovery is 1946 when mining first commenced in Wittenoom Gorge. After having the opportunity to review the disputed categories more carefully, I am of the view that this start date should be made later in some of the categories. I have not reviewed the agreed categories, because the start date was agreed between the parties in relation to them.

39. In my view, the proper end date is 31 December 1998 for the following reasons.

40. First, the State agreed in its Written Submissions to provide some categories up to that end date. Second, that is the most relevant end date to the plaintiff’s claim because she left Wittenoom in or about 1997. Third, the State has already provided discovery for the period up to about 1988 and that will probably make the task less onerous. Fourth, it is open for the State to give discovery in tranches if that is a convenient way to proceed. It seems likely that the State will need more time than I have allowed in the interim order, but the State should discover what it has available to it before that time and the matter can be considered further. If for example, by reason of the State discovering the documents up to the end of 1988 it can be demonstrated that the issues in the case cannot be advanced by discovery of documents in the period between the end of 1988 and 1998, then it may be appropriate to make alternative orders. But until the State can demonstrate that outcome, the appropriate end date is 31 December 1998.

41. There is some imperative to complete discovery as soon as possible because the plaintiff has mesothelioma and the proceedings should be heard as soon as possible bearing in mind that the proceedings have been on foot for some time already. The duty to discover relevant documents in the appropriate categories continues until the case is heard and determined.

The definition of the State

42. I do not believe that there is any difference between the parties on this point. The State proposes that ‘the State’ be a reference to ‘the State of Western Australia encompassing its various departments, instrumentalities, authorities, officers, employees and agents’. On the other hand, the plaintiff has tacked on to the end of that definition a number of specific Departments and Dr James McNulty. If anything, the plaintiff’s definition gives a clearer indication of where to search for relevant documents. In my view, the plaintiff’s definition does not expand the State’s counter position, because if the State was to produce documents in the relevant period it would have to conduct searches of all of the Departments that were in existence from time to time, irrespective of what they are now called. In those circumstances, the plaintiff’s definition is preferable.

The surrounding areas

43. The plaintiff does not allege in the SOC that she was exposed by her physical presence in the surrounding areas, but that she was exposed from tailings that were dumped in the surrounding areas through wind action and as a result of the tailings being washed into waterways after rain.

44. The State has admitted that it knew by 16 September 1988 that:

1. between 1943 and 1966 tailings were dumped in heaps in Wittenoom and Colonial Gorges;

2. tailings had been used in the construction of some buildings and roads; and

3. ‘there were asbestos fibres present to varying degrees throughout Wittenoom and its environs’. The phrase ‘Wittenoom and its environs’ is not defined in the Defence.

45. Further, the State’s position is that during the time that the plaintiff was a resident in Wittenoom that the town could not be remediated. A necessary part of this admission is that there was crocidolite dust and fibre in the town that it was too dangerous to remove. Knowing exactly, where that crocidolite dust came from does not advance the case significantly.

46. On the pleadings, discovery should be limited to the Township of Wittenoom, as well as Wittenoom and Colonial Gorges. If the plaintiff wants to prove that there were tailings dumped in other surrounding areas there are other ways of proving that and it is unnecessary to rely on discovery.

Miscellaneous categories

47. The words ‘at its premises and’ were objected to in category 7. Those words were not pressed in argument and category 7 should be amended accordingly.

48. Category 9 was in effect a repeat of category 8 and was not pressed in argument. Category 9 should be deleted.

49. Category 16 is an exact replica of category 15 and accordingly should be deleted.

50. In category 17 the dispute was limited to a choice between the phrases ‘relating to’ and ‘in relation to’. I cannot discern a contextual difference. Category 17 should be allowed in accordance with the plaintiff’s formulation.

The remaining disputed categories

51. I will now deal with each of the disputed categories in turn and refer to the facts in issue in the proceedings where it is necessary to do so. I will adopt the paragraph numbering put forward by the parties to avoid any (further) confusion.

1   Documents relating to the knowledge and means of knowledge of the State of Western Australia prior to 31 December 1998, of the risk of injury from exposure to crocidolite asbestos dust to the residents of the Township of Wittenoom and surrounding areas.

52. The State has admitted that by 16 September 1988 that it knew some facts about the extent of the use of tailings in Wittenoom in ([10] of the Defence). The State has further pleaded some facts as to the extent of its knowledge of the risk of injury from inhalation of the crocidolite dust in Wittenoom at various times and by reference to certain events ([11] of the Defence).

53. The State makes no admission that it knew or ought to have known of the nature and extent of the risk to the residents of Wittenoom, in the relevant period.

54. The State pleads that at all material times, which I would understand to include the period of the plaintiff’s residency in Wittenoom, that a reasonable person reading publicly available literature would have concluded that the inhalation of asbestos fibres could cause mesothelioma, which was known to be fatal and had a latency period of up to 40 years ([11.26] of the Defence).

55. The nature and extent of the knowledge of the State as to the risk posed by the use of tailings in Wittenoom is a fact in issue relevant to the existence and/or scope of the duty of care and breach of duty.

56. Presumably, by its intention not to take issue with foreseeability of the risk posed by inhalation of crocidolite dust and/or that the town could not be remediated due to the presence of crocidolite dust, the State contends that category 1 does not relate to a fact or facts in issue.

57. In my view, that contention should be rejected for the following reasons. First, the State has not made an admission so the Tribunal can make a definitive ruling on whether the relevant facts are not in issue. Second, the State has made limited admissions as to its knowledge of the existence of tailings in Wittenoom and has sought to rely on select events as to the steps it took in response to the risk. The determination of the extent of its knowledge and the reasonableness of its actions depends on, if the documents it is relying on to prove those matters are a complete set, or fairly convey all of the relevant facts. Thus, by relying on the facts pleaded in [10] and [11] of the Defence the State has put those facts in issue.

58. Further, the nature and extent of the State’s knowledge of the risk, compared to the knowledge of the plaintiff is a fact in issue relevant to the defences relied on by the State.

59. Category 1 should be allowed.

2   Documents relating to the availability prior to 31 December 1998 of precautions and measures to reduce or minimise the risk of injury from the inhalation of crocidolite asbestos dust to residents of the Township of Wittenoom and surrounding areas.

60. The plaintiff alleges that there were steps that could have been taken to remediate the town. The State contends that at the time that the plaintiff was resident in Wittenoom that the town could not be remediated. It is clear that a fact in issue in the proceedings includes whether or not steps could be taken to remediate the town.

61. However, category 2 is not limited to those steps. Category 2 seeks discovery of documents relating to the ‘precautions and measures [that could be taken] to reduce or minimise the risk of inhalation’. This includes the ability of the State to warn the residents or to take other steps to encourage the residents to leave Wittenoom. The State accepts that these are relevant to the existence of a duty of care and/or breach of duty.

62. Category 2 should be allowed.

3   Documents relating to the existence and content prior to 31 December 1988 of libraries maintained and operated by the State of Western Australia including all publications, books, journals, catalogues, articles, memoranda and reports relating to:

a.   The risk of injury to the residents of the Township of Wittenoom and surrounding areas from the inhalation of crocidolite dust;

b.   The availability of measures to minimise or eliminate the generation and accumulation of crocidolite dust in the Township of Wittenoom and surrounding areas.

63. Category 3 seeks to identify where the documents in (a) and (b) were kept in libraries maintained and operated by the State, presumably to ascertain which of those documents were publically available, within the period in which the plaintiff was a resident of Wittenoom.

64. This is a matter that is clearly put in issue by [11.26] of the Defence and forms the factual basis for the defences relied on by the State.

65. Category 3 should be allowed on the basis set out in [63] above. Paragraph 11.26 of the Defence is expressed to be ‘at all material times’. This would appear to me to be a reasonable time before the plaintiff decided to reside in Wittenoom, bearing in mind that the State relies on some newspaper articles in or about 1978. It is appropriate to limit category 3 to the period 1970 to 31 December 1998.

8   Documents relating to any actions and/or proposed actions taken or proposed to be taken by the State of Western Australia and/or any other entity relating to the removal of and remediation from the Township of Wittenoom and surrounding areas, of asbestos dust and/or asbestos tailings.

66. Only the underlined words were objected to in category 8. This category includes the documents that are relevant to the various events pleaded in [11] of the Defence. Those matters are relied on by the State to establish the things that it could or could not do and are thereby relevant to the existence and/or scope of any duty of care. The reliance on those particular matters puts in issue whether they were the only steps that could have been taken by reference to the control that the State could have exercised and are thereby relevant to the existence of a duty of care, or whether those matters were reasonable steps taken in discharge of any such duty.

67. Category 8 is also relevant to the facts in issue referred to in [60] above.

68. The availability of other proposed actions that could be taken by the State, or any other entity is relevant to the facts put in issue by [11] of the Defence. For example, category 8 would capture documents in which the State, through a Department or its employees, considered legislating to make a person such as one of the miners of asbestos responsible for removing tailings from the town or if a person made an offer to the State to remove the tailings for reward.

69. Category 8 should be allowed.

11   Documents relating to and including correspondence to and/or from the State of Western Australia, the Shire of Ashburton, Midalco Pty Ltd, CSR Ltd, the Tablelands Road Board, the Wittenoom Tourist Village, Ruth Rose and any resident of the Township of Wittenoom relating to:

a.   The risk of injury to the employees of the Shire of Ashburton who lived and worked in the Township of Wittenoom and surrounding areas from the inhalation of crocidolite dust;

b.   (agreed to);

c.   the availability of measures to minimise or eliminate the generation and accumulation of crocidolite asbestos dust in the Township of Wittenoom and surrounding areas;

d.   Any actions and/or proposed actions by the State of Western Australia and/or any other entity relating to the removal of and remediation from the Township of Wittenoom and surrounding areas, of asbestos dust and/or asbestos tailings;

e.   Any request(s) made by any other person or entity to the State of Western Australia and/or any other entity to remove and/or remediate the Township of Wittenoom and surrounding areas, of asbestos dust and/or asbestos tailings.

70. Category 11(a) is relevant to establishing if the plaintiff was a member of a class, which had been recognised as a class exposed to the risk of inhalation of crocidolite dust as a result of living and working in Wittenoom. This is a fact in issue relating to the existence of a duty of care. Category 11(a) is narrower in scope than category 1 and would be contained within category 1. Category 11(a) should be allowed as it focusses the search for documents on a smaller sub-set of documents.

71. Category 11(c) is relevant to the steps that the State could have taken or that it could have coercively required others to take before or during the period that the plaintiff was a resident of Wittenoom. Category 11(c) is also relevant to the facts in issue referred to in [60] above. These documents are relevant to a fact in issue being the existence and/or scope of the duty of care and the breach of duty.

72. Category 11(d) is a variation of category 8 by reference to the named parties in the chapeau. For the reasons given, the documents sought in category 8 are relevant to a fact in issue. Category 11(d) is narrower in scope than category 8. Category 11(d) should be allowed as it focusses the search for documents on a smaller sub-set of documents.

73. Category 11(e) is slightly different to category 8 because it relates to requests for the removal or remediation of tailings by reference to the named parties in the chapeau. For the reasons given, the documents sought in category 8 are relevant to a fact in issue. Category 11(e) is narrower in scope than category 8. Category 11(e) should be allowed as it focusses the search for documents on a smaller sub-set of documents.

14   Documents relating to the design and implementation of promotions, advertising, publications and marketing of tourism and commerce to Wittenoom and surrounding areas prior to 31 December 1998.

74. The plaintiff has pleaded that one of the steps that the State could have taken was in the relevant period to stop promoting Wittenoom as a tourist destination. Accordingly, it is a fact in issue if the State published material promoting or advertising tourism to Wittenoom.

75. Category 14 should be allowed.

15   Documents relating to information and advice provided to, the knowledge of, and decisions made by the Premier and Cabinet of the Government of Western Australia, regarding the risk of injury (and the diminution of such risk) to the residents of the Township of Wittenoom, from the inhalation of crocidolite asbestos dust.

76. The plaintiff has represented that documents within category 15 are on public display, and hence publicly available from government archives. An example of a Cabinet Minute within category 15 was tendered on the application.

77. The State contends that the plaintiff should obtain the documents from government archives by making an administrative request.

78. In my view, the State’s contention misapprehends the purpose of discovery. The plaintiff seeks all of the documents that fall within category 15 and not just the documents that have been selected for public display. The plaintiff is entitled to have verified that the State has searched for and produced all of the relevant documents in category 15. It may be that the State will press a claim for public interest immunity against access to the documents that have not been de-classified. That application can be dealt with in the usual way if that becomes necessary.

79. Category 15 should be allowed.

Are the categories of discovery sought oppressive?

80. Mr Goldrick, on information and belief, deposes that the cost to the State of providing discovery of the categories sought by the plaintiff for the period sought by the plaintiff is likely to be time consuming and costly. The State is unable to estimate how long the process may take, without knowing the orders of the Tribunal. It is likely that the State will have to make enquiries of a large number of persons and to conduct manual searches for relevant documents. The names of many of the relevant Departments have changed over the relevant period for which discovery is sought.

81. The State has been required in previous proceedings to produce documents relating to exposure to asbestos in Wittenoom for the period up to the end of 1988.

82. The State consented to provide discovery relating to the agreed categories within 28 days.

83. None of the matters raised in Mr Goldrick’s affidavit make the discovery task contemplated in my orders particularly onerous. The issues raised are common to most litigation in the Tribunal involving governments or statutory authorities and events that occurred in the distant past.

84. The ambit of the discovery exercise is contributed to by the nature of the salient features test, the admissions and/or facts pleaded in [10] and [11] of the Defence and the defences of voluntary assumption of risk and contributory negligence relied on by the State. The purpose of that statement is not intended to be a criticism of the approach of the State, but merely to illustrate the multiplicity of the facts in issue, despite some appropriate concessions being made.

Orders

85. The orders that I make are as follows:

1. I confirm my Orders of 29 October 2019 relating to the agreed categories.

2. I direct the parties to bring in Short Minutes of Order in accordance with these reasons that the Sixth Defendant provide verified discovery of the disputed categories (as determined by these Reasons) on or before 5pm on 26 November 2019, or such other time as the Tribunal may allow.

3. I will hear the parties on costs.

4. Matter is listed on 4 November 2019 at 10am to deal with the issue of costs.

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Decision last updated: 01 November 2019