Stevens v Amaca

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
DUST DISEASES LIST

S ECI 2023 01260

BETWEEN:

AMANDA STEVENS as the legal personal representative of the Estate of the Late STEVEN JOHN NEOPHYTOU	Plaintiff
v
AMACA PTY LIMITED (formerly JAMES HARDIE & COY PTY LIMITED) & ANOR (according to the attached Schedule)	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2024
DATE OF RULING:	30 July 2024
CASE MAY BE CITED AS:	Stevens v Amaca
MEDIUM NEUTRAL CITATION:	[2024] VSC 443

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PRACTICE AND PROCEDURE – Discovery – Scope of discovery – Whether documents are in the possession, custody or control of the defendant – Relevance of documents – Whether reports and transcripts from an expert witness in another proceeding ought to be discovered – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29 – Civil Procedure Act 2010 (Vic) ss 7, 24, 26, 55 - Werfel v Amaca Pty Limited [2019] SAET 159 – Suh v Cho [2013] VSC 491.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gordon of counsel	Segelov Taylor Lawyers
For the Defendant	Ms C Alden of counsel	Mills Oakley
For the Third Party	Lander & Rogers

TABLE OF CONTENTS

Summary

Plaintiff’s application

The current proceeding

Procedural background

Werfel proceeding

Submissions

Plaintiff’s submissions
Defendant’s submissions

Should the Reid Family Papers be discovered?

Should Ms Pascoe’s report and the transcript of her evidence be discovered?

Consideration

Conclusion

HER HONOUR:

This ruling determines whether the defendant should discover three categories of documents. Each category relates to another proceeding. The categories are an expert report, the transcript of evidence of an expert witness, and a tendered bundle of documents.

Summary

There are two key questions in this ruling. The questions and my respective answers follow.
(a)Should the Reid Family Papers be discovered by the defendant?
No, if they are no longer in the defendant’s possession. However, I will make a direction per s 55 of the Civil Procedure Act 2010 (‘the CPA’) that the defendant provide a catalogue of the documents forthwith to the plaintiff, if the same exists. I will also direct that the defendant co-operate with the plaintiff regarding access to the documents.
(b)Should Ms Pascoe’s report and the transcript of her evidence be discovered? Yes.

Plaintiff’s application

By summons filed on 24 May 2024 (‘the original summons’) and amended on 4 July 2024 (‘the amended summons’), the plaintiff seeks the defendant’s defence be struck out. In the alternative, the plaintiff seeks particular discovery of three categories of documents tendered in a proceeding heard in the South Australian Employment Tribunal (‘Tribunal’), Werfel v Amaca Pty Limited (‘Werfel Tribunal judgment’).[1]
[1][2019] SAET 159 (‘Werfel tribunal judgment’).
Firstly, the plaintiff seeks discovery of an expert report prepared by Ms Julie Pascoe dated January 2019 relied upon by the plaintiff and marked exhibit ‘P11’ in the Werfel Tribunal judgment (‘Ms Pascoe’s report’). Ms Pascoe had worked in marketing since 1982 and in her report expressed opinions concerning marketing campaigns she opined were available to Amaca Pty Limited (‘Amaca’). Ms Pascoe is now deceased.
Secondly, the plaintiff seeks discovery of the transcript of Ms Pascoe’s evidence given in the Werfel Tribunal judgment (‘transcript of Ms Pascoe’s evidence’).
Thirdly, the plaintiff seeks discovery of the Reid Family Papers (two volumes) relied upon by the plaintiff and marked exhibit ‘P13’ in the Werfel Tribunal judgment (‘Reid Family Papers’). It is common ground that the Reid Family Papers are a collection of documents acquired and collated by the late James Reid, director of James Hardie Industry Limited (now Amaca) between 1964 and 1973, and chairman between 1973 and 1996.[2]
[2]Affidavit of Rochelle Anne Mika sworn 14 June 2024 (‘defendant’s affidavit of documents’), Sch 2, [10]; Plaintiff’s written submissions filed 26 June 2024 (‘plaintiff’s written submissions’), [18].

The current proceeding

By further amended statement of claim filed on 14 May 2024, the plaintiff alleges, amongst other things:
(a)she is the legal personal representative of the estate of the late Steven Neophytou (the ‘deceased’) and brings this proceeding for the benefit of the deceased estate and beneficiaries;
(b)the deceased was exposed to and/or inhaled asbestos dust and fibres derived from the defendant’s asbestos cement sheets (‘AC sheets’) between 1977 and 1983 while in the care of his grandfather, who assisted with building and renovation work, in or about 2002 while cleaning, sanding and painting his grandmother’s house, and in or about 2006 while renovating his property;[3]
(c)the defendant owed the deceased a duty to take reasonable care to avoid any act or omissions that would expose him to a foreseeable risk of injury from handling and/or working with the defendant’s AC sheets;
(d)the deceased’s exposure to and inhalation of asbestos dust and fibres was caused by the negligence of the defendant, including its failure to implement a public and national campaign informing the public of the risks of interfering with asbestos cement building material;
(e)the defendant’s negligence caused or materially contributed to the deceased’s injury of malignant mesothelioma and caused the deceased, his dependents, and the plaintiff loss and damage.
[3]The plaintiff relies on the exposure in 2006 to prove causation as deposed to in the affidavit of Tanya Segelov affirmed 23 May 2024 (‘Segelov 23 May 24 affidavit’), [5].
By defence filed on 14 November 2023, the defendant:
(a)admits it manufactured, sold and/or supplied various asbestos cement building products in Victoria up until August 1982; and
(b)does not admit the deceased’s exposure to and inhalation of asbestos dust and fibres.
By its defence, the defendant denies that:
(a)when the premises were constructed, it was reasonably foreseeable for it to have known that the deceased would develop an injury from exposure to its products that contained asbestos and/or that the injury may develop over the course of the period alleged;
(b)if the deceased did inhale asbestos dust and fibres from a source for which it is responsible (which is not admitted), that it was reasonably foreseeable that such activities gave rise to a risk of injury for which it had to take some guard;
(c)it owed the deceased a duty of care;
(d)the deceased’s exposure to and inhalation of asbestos dust and fibres was caused by its negligence; and
(e)its negligence caused or contributed to the deceased’s injury.

Procedural background

This proceeding has been marred by interlocutory disputes, including disputes about the exchange of documents. It is unnecessary to reiterate the entire proceeding history.
On 30 March 2023, Mr Steven John Neophytou (referred to above as the deceased) commenced this proceeding by writ and statement of claim.
On 11 April 2023, Mr Neophytou passed away.[4] His widow, Amanda Stevens, filed an application seeking to be appointed as the plaintiff in this proceeding and seeking leave to amend the writ and statement of claim. Orders were made to this effect on 30 October 2023.
[4]Exhibit ‘A’ to the affidavit of Tanya Segelov affirmed 11 September 2023 (‘Segelov 11 Sep 23 affidavit’), 4 - 5.
On 30 October 2023, the plaintiff filed an amended writ and statement of claim.
On 14 November 2023, the defendant filed a defence.
On 28 November 2023, the plaintiff filed a further amended statement of claim.
On 8 December 2023, timetabling orders were made. They required, amongst other things, that the parties file and serve their respective affidavits of documents by 15 March 2024.
On 7 February 2024, the defendant filed a third party notice naming Homes Victoria.
On 3 May 2024, the plaintiff filed a notice to admit containing 20 ‘facts’ regarding the defendant's liability and its knowledge before 1990 (‘notice to admit’). The defendant filed a notice of dispute on 16 May 2024 (‘notice of dispute’) disputing, amongst other things, that by 1990 it knew there was no safe level of exposure to asbestos, that by 1990 it ought to have foreseen that there was a material risk of contracting mesothelioma from exposure to asbestos cement products and failed to make frequent public announcements of this risk. The defendant admitted that from June 1976, it included instructions for safe handling on all asbestos cement building products and that from October 1978, it included a warning label on all asbestos cement products.
On 14 May 2024, the plaintiff filed a further amended statement of claim with additional particulars of negligence.
On 24 May 2024, the plaintiff filed the original summons.
On 14 June 2024, the defendant filed an affidavit of documents sworn by Rochelle Anne Mika (‘defendant’s affidavit of documents’). This affidavit included a list of documents that the defendant had, but no longer has, in their possession, custody or power. The defendant’s solicitor has deposed that an unsealed copy of the defendant’s affidavit of documents was served on the plaintiff on 6 December 2023 and 13 March 2024.[5]
[5]Affidavit of Stuart Eustice sworn 14 June 2024 (‘Eustice 14 Jun 24 affidavit’), [2].
On 3 July 2024, the plaintiff filed a notice to produce, seeking various documents relied upon in the Werfel Tribunal proceeding. The defendant says the notice to produce ought be set aside.
At the hearing, the plaintiff sought leave to rely upon the amended summons and an amended notice to produce (this amended notice duplicating the categories of documents sought in the amended summons) dated 4 July 2024 (‘amended notice to produce’). The Court granted leave.
The plaintiff relies upon the affidavits of her solicitors, Tanya Segelov affirmed on 9 May 2024 (‘Segelov 9 May 24 affidavit’) and 23 May 2024 (‘Segelov 23 May 24 affidavit’), and David Taylor sworn on 25 June 2024 (‘Taylor affidavit’).
The defendant relies upon the affidavits of its solicitor, Stuart Eustice sworn on 14 June 2024 and 3 July 2024 (‘Eustice 14 Jun 24 affidavit’ and ‘Eustice 3 Jul 24 affidavit’ respectively).
The parties filed written submissions and made oral submissions at the hearing of the application.
Following the hearing, the parties were allowed to file further lists of authorities addressing the issues in dispute. Despite no Order being made, both the plaintiff and the defendant also filed further submissions, dated 10 July 2024 and 15 July 2024 respectively. Further, the defendant filed an affidavit of Caroline Mary Knight sworn 11 July 2024 (‘Knight affidavit’). Given each party filed further submissions, I have considered those submissions. I have not, however, considered the Knight affidavit. It is evidence filed without leave; it will be removed from the Court file.

Werfel proceeding

In the Werfel Tribunal judgment, the plaintiff alleged that he was exposed to asbestos manufactured by the defendant between 1994 and 1997 while working with fencing contractors and between 2000 and 2005 while renovating two of his own houses.[6]
[6]Werfel tribunal judgment, [18].
The plaintiff claimed that the defendant had been negligent in their failure to warn the public of the dangers of being exposed to asbestos fibres and as a result of its negligence, he had suffered from a rare form of mesothelioma.[7]
[7]Ibid, [9].
The Tribunal considered whether the defendant owed a duty of care to a person in a class of which the plaintiff was a member (e.g., fencers, home handymen, ‘do it yourself renovators’) and, if so, whether the duty of care had been breached insofar as it caused the plaintiff’s mesothelioma.[8]
[8]Ibid, [12].
The plaintiff relied upon Ms Pascoe’s report and her evidence at trial to illustrate how the defendant ‘could and should have communicated a suitable warning’ to the plaintiff and other class members.[9] Her evidence was accepted by the Tribunal,^[10] particularly ‘in light of the material contained in the Reid family papers.’[11]
[9]Ibid, [174], [187] - [189].
[10]Ibid, [174], [203].
[11]Ibid, [203].
The plaintiff tendered the Reid Family Papers to illustrate, among other things, the defendant’s advertising structure and campaigns and their knowledge and action, or inaction, in addressing the risks posed by asbestos.[12]
[12]Ibid, [176] - [182].
The Tribunal was satisfied that the defendant owed the plaintiff a duty of care and had breached this duty, resulting in the plaintiff’s injuries.[13]
[13]Ibid, [209].
On appeal, the Full Court of the Supreme Court of South Australia in Amaca Pty Ltd v Werfel (‘Werfel appeal judgment’)[14] dismissed the appeal regarding liability. The Full Court allowed part of the appeal concerning damages. As it is relevant to the plaintiff’s application, I will mention one aspect of the appeal judgment. The Full Court referred to the Reid Family Papers being ‘discovered for the first time in the course of Mr Werfel’s proceedings,’ disclosing the defendant’s approach to growing health concerns surrounding asbestos.[15] The question of whether the Reid Family Papers were discovered by the defendant or produced in some other way is pertinent to the plaintiff’s application here.

Submissions

[14][2020] SASCFC 125 (‘Werfel appeal judgment’).

[15]Werfel appeal judgment, [233].

Plaintiff’s submissions

Section 54 of the CPA provides that discovery of documents is in accordance with the Rules. The scope of discovery is identified in r 29.01.1 of the Supreme Court (General Civil Procedure) Rules 2010 (Vic) (‘Rules’). The Court must consider the cost and ease of retrieving documents.[16] This must be read in the context of s 29 of the CPA.
[16]Supreme Court (General Civil Procedure) Rules 2010 (Vic) (‘Rules’), 29.01.1(5)(c).
In circumstances where the defendant has three categories of documents in its possession that the plaintiff does not have, these documents must be discovered regardless of the potential adverse impact on the defendant’s case. The documents sought are central to the issues in dispute as articulated in the notice to admit and the notice of dispute. These issues centre on the defendant’s manufacturing of thick asbestos-compressed sheets between 1976 and 1977 and the defendant’s knowledge, acts and/or omissions concerning asbestos cement products before 1990. Despite the findings in both the Werfel Tribunal judgment and the Werfel appeal judgment, the defendant has decided to re-argue their duty, placing these documents squarely in issue. The documents are necessary for the plaintiff to brief the proposed experts.[17]
[17]Affidavit of Tanya Segelov affirmed 9 May 2024 (‘Segelov 9 May affidavit’), [14].
The defendant’s affidavit of documents deposes that in 1993 and 1994, the defendant retained independent lawyers and a barrister to review the Reid Family Papers and create copies of documents that were or may be discoverable. The remaining documents were donated to the State Library of New South Wales (‘State Library’).[18]
[18]Defendant’s affidavit of documents, Sch 2, [10].
The defendant has conceded that it updated schedule 1 of its ‘standard’ affidavit of documents following the Werfel Tribunal judgment.[19] Yet, the defendant has failed to include the Reid Family Papers despite knowing these documents were critical in the Werfel Tribunal judgment.
[19]Affidavit of Stuart Eustice sworn 3 July 2024 (‘Eustice 3 Jul 24 affidavit’), [2] - [3].
While the defendant submits that each case on liability must turn on its facts and the relevance of the documents to the issues in dispute, the issue of relevance goes towards admissibility, not discoverability. Even if the test is relevance; if the Reid Family Papers were considered relevant in the Werfel Tribunal judgment it may be inferred that they are relevant to the current proceeding.
On the practicality and costs of producing the Reid Family Papers: requiring the plaintiff to search 150 boxes in the State Library until it locates the documents believed to be the Reid Family Papers is contrary to the overarching obligations set out in the CPA. Requiring the plaintiff to apply to access the documents via the Tribunal does not guarantee the plaintiff will be granted access as a non-party, nor does it substitute the defendant’s discovery obligations. Further, obtaining the documents in this way would preclude proof of provenance at trial, for instance as a business record. The defendant has not deposed that the documents sought are not in its possession or control. The plaintiff relies on Cooke v Bayside Health (‘Cooke’)[20] to support its proposition that the documents ought to be discoverable.
[20][2008] VSC 368 (‘Cooke’).
In respect of Ms Pascoe: the plaintiff seeks to rely on her evidence and report under the Evidence Act 2008 (Vic) (‘Evidence Act’) as a prior representation. In other jurisdictions, legislative provisions in dust disease tribunal proceedings allow for evidence given in one proceeding to be relied upon in another. Although conceding these legislative provisions do not extend to Victoria, the plaintiff provided various authorities to support their proposition. I will discuss these authorities below.
Ms Pascoe’s evidence is based on the Reid Family Papers. The Werfel proceedings show that the evidence was central to the establishment of a duty of care and critical to the question of breach.

Defendant’s submissions

The touchstone for discovery is relevance, with this burden resting on the party bringing the application for particular discovery to identify how the documents sought are relevant to the issues in dispute. Section 55 of the Evidence Act defines a relevant document as one that could rationally affect the assessment of the probability of a fact in issue in the proceeding. The documents must be relevant to an issue.
Further, discovery must be proportionate not only to the issues in dispute, but to the burden or cost likely to be imposed by them. The Court must have regard to the overarching purpose of the CPA. Demands for peripheral documents cannot be entertained.[21] Solicitors are obliged to ensure documents not relevant are not discovered.[22] The plaintiff has failed to explain how the Reid Family Papers are relevant to the issues in the current proceeding in circumstances where the factual matrix is distinguishable from the Werfel Tribunal judgment, with a different period of exposure in a different State.
[21]Volunteer Fire Brigades Victoria v CFA [2016] VSC 573 (‘Volunteer Fire Brigades’), [34] - [36].
[22]EI Du Pont De Nemours & Co v Commissioner of Patents (1987) 16 FCR 423, 426.
In any event, the defendant has discovered all relevant documents in its possession, custody or power via its affidavit of documents. Schedule 1 of the affidavit of documents is a standard list of documents produced on behalf of Amaca and used in litigation around Australia as explained in the affidavit of documents.[23] This list was amended following Werfel.
[23]Defendant’s affidavit of documents, Sch 2, [8].
The Reid Family Papers are no longer in the possession of the defendant, as is deposed in the defendant’s affidavit of documents.[24] The restrictions on accessing the Reid Family Papers via the State Library have been removed.[25] It is therefore open to the plaintiff to access these documents.
[24]Ibid, Sch 2 [10].
[25]Eustice 3 Jul 24 affidavit, [6] - [7].
Regarding Ms Pascoe’s report and the transcript of her evidence: Ms Pascoe’s opinion was specific to the facts in the Werfel Tribunal judgment, particularly given the exposure occurred in South Australia. The report and transcript are specific to the facts in that case and are distinct from those in the current proceeding. Ms Pascoe’s report and evidence are therefore irrelevant. Ms Pascoe is now deceased. Further, an expert preparing a report for South Australian litigation would not have complied with order 44 of the Rules.

The plaintiff may apply under s 87 of the South Australian Employment Tribunal Act 2014 (SA) to request copies of the three categories of documents sought. This is the proper process for the plaintiff to pursue the request.

Should the Reid Family Papers be discovered?

Order 29 of the Rules applies to the discovery and inspection of documents.
Rule 29.04(1)(a) requires that for the purpose of making discovery, an affidavit of documents shall identify the documents which are or have been in the possession of the party making the affidavit.
Rule 29.01(2) defines ‘possession’ in Order 29 as ‘possession, custody or power’. Rule 29.10(4)(b) provides that a party is not required to produce a document referred to in the pleading or other document if the document is not in the party’s possession. The party must make an affidavit complying with r 29.10(4)(b).
Rule 29.01.1(3) outlines the scope of a party’s discovery obligation and provides that:
Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given –
(a)       documents on which the party relies;
(b)       documents that adversely affect the party’s own case;
(c)       documents that adversely affect another party’s case; and
(d)      documents that support another party’s case.
Rule 29.01.1(5) of the Rules identifies the factors to be considered in making a ‘reasonable search’:
For the purposes of paragraph (3), in making a reasonable search a party may take into account –
(a)       the nature and complexity of the proceeding;
(b)       the number of documents involved;
(c)       the ease and cost of retrieving a document;
(d)      the significance of any document to be found; and
(e)       any other relevant matter.
Sections 7, 26 and 55 of the CPA are all applicable. I gratefully adopt the principles given by J Forrest J in Volunteer Fire Brigades Victoria Inc v Country Fire Authority.[26]
[26]Volunteer Fire Brigades, [28] - [36]; see also Mullett v Nixon [2015] VSC 727, [10] - [12].
I agree that only relevant documents should be discovered. Further, that the ‘discovery of documents which are peripheral to the central issues cannot be entertained.’[27] The ‘key is ensuring the discovery exercise is proportionate not only to the relevance of the issues, but also to the likely cost to be incurred bearing in mind that it is the trial that is the focus of the proceeding and not the discovery fight.’[28]
[27]Volunteer Fire Brigades, [34].
[28]Ibid, [36].
The scope of discovery is identified in r 29.01.1(3). The test for discoverability is not s 55. Section 55 of the Evidence Act applies to the admissibility of evidence, not discoverability. It is contained in Chapter 3 of the Evidence Act, which is titled ‘Admissibility of evidence’. Section 55 outlines what evidence is relevant in a proceeding and s 56 provides that relevant evidence is admissible and evidence that is not relevant is inadmissible. In Volunteer Fire Brigades, J Forrest J dismissed a submission that the scope of discovery should be limited to documents admissible at trial under the provisions of the Evidence Act.[29] . J Forrest J stated:
39.Specifically, … it was said that such [documents] would necessarily contain subjective expressions of opinion or conjecture which would not ever be admissible at trial.
40.However, even with the introduction of the CPA, this is not how discovery works. Discovery has never been limited in such a way; discovery is an integral component in trial preparation. Discovery is not concerned with admissibility: it is part of the fact finding exercise in getting a case to trial. Indeed, often discovery may lead to a train of inquiry not confined to the tender (or putative tender) of a particular document in the course of a trial. Further, it may be that the document, or its contents can be deployed by a party in cross examination rather than part of its case. Much depends upon what happens at trial. One thing is clear: it is not for this Court on an interlocutory application to determine whether a potentially discoverable document will or will not be admissible at trial: that is the function of the trial judge.
41.As long as the document in the possession of a party goes to a real (and not peripheral) issue to be determined at the trial then, absent any proportionality consideration, it is relevant and ought to be discovered.[30]
[29]Ibid, [38].
[30]Volunteer Fire Brigades, [39] – [41].
Suppose a party does not have documents in its possession but may obtain them from a third party. In those circumstances, the Court has the power to make a ‘Sabre order’. I gratefully adopt the following principles given by Derham AsJ in Suh v Cho[31] after a thorough analysis of applicable authorities.
[31][2013] VSC 491 (‘Suh’).
74.In Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Co, (“Sabre”) Lockhart J held the power of the Federal Court to extend to directing a party to take steps to obtain access to and discover documents which are in the possession, power or control of a third person where there is a real likelihood that the party to the proceeding would be given access to the documents upon request. There are other cases to like effect: C.E. Heath Underwriting & Insurance (Australia) Pty Ltd v Fabric & Apparel Industries and Linfa Pty Ltd v Citibank Ltd.
75.A contrast is the decision of the court in Psalidis, a case decided under the Rules and before the passing of the Civil Procedure Act 2010. In that case, Cavanough J had before him an application for particular discovery under r 29.08, expanded, on appeal from an Associate Judge who refused to order discovery, to embrace reliance on r 1.14(1), r 34.01 and the approach taken by the Federal Court in Sabre.
76.In Psalidis, an insured lodged a claim under a critical illness policy issued by the defendant, seeking payment of a benefit because he had been diagnosed with a form of cancer. The insurer refused to pay, alleging that the insured had fraudulently failed to disclose that, in the six months before obtaining the policy, he had been diagnosed with a malignant melanoma which had been removed by a surgeon. In proceedings brought by the insured (and the trustee of a superannuation fund of which he was a member) the insurer applied for orders that the insured make particular discovery of his treating medical practitioners’ notes and all other documents made or received by those practitioners with respect to the melanoma. While the medical records were not in the insured’s possession or custody, the defendant submitted that they were in his power within the meaning of O 29 of the Supreme Court (General Civil Procedure) Rules2005.
77. Cavanough J held:
(a)The expression “power” in O 29 meant a presently enforceable legal right to obtain, from whoever actually held the document, inspection of it without the need to obtain the consent of anyone else. In the absence of a presently enforceable right, there was nothing in O 29 to compel a party to a proceeding to take steps that would enable him or her to acquire one in the future [27],[28];
(b)Documents which a party would be likely to obtain if it made a request (but which it had not presently an enforceable legal right to obtain) were not within that party's power. [33];
(c)A person’s right of access to his or her medical records under the Health Records Act 2001 was a legal right in a limited sense only. The right could not be directly enforced in the usual way in which legal rights were enforced, namely, in the ordinary courts. In some cases, it would not be able to be enforced at all, much less immediately. Overall, it did not answer the Lonrho description of a presently enforceable legal right of access to medical records. Nor did it provide to Victorians an actual and immediate ability to examine their medical records. [35]-[38], [80], [81];
(d)The restrictions and limitations on access to health records in the Health Records Act 2001 bore two relevant aspects. First, they established a range of exceptions by reference to which an organisation may legitimately refuse access to medical records. Second, they set up a special, exclusive, highly attenuated dispute resolution mechanism outside which the rights created by the Act were not enforceable at all. At least in combination, those aspects led to the court not being satisfied that the documents in question were within the insured's power. [82], [99];
(e)Since there was no real difficulty about using the ordinary processes of party-party discovery, third party discovery or subpoena to produce the relevant information or documents, the court refused to exercise its discretion to order the insured to discover the medical records pursuant to rr 1.14 and 34.01 of the Supreme Court (General Civil Procedure) Rules 2005. [124].
78.In reaching these conclusions and particularly the conclusion as to the meaning of ‘power’, his Honour carefully analysed the relevant authorities, including those to which I have referred above.
79.Psalidis, and the other cases to which I have referred, turn to some extent on their own facts and circumstances. The overall effect of them is, in my estimation, simply this: that notwithstanding the limitations on the discovery process arising from the requirement that the party have possession or custody of, or power over documents in question, the Court has power to direct a party to proceedings to take steps to obtain access to and discover documents which are in the possession, custody or power of a third person where the party has the legal power or actual and immediate ability to obtain the documents or where there is a real likelihood that the party to the proceeding would be given access to the documents upon request.
80.This is not to say that the Rules, which cover a variety of circumstances and are all premised on the parties having or having had “possession, custody or power” of documents, are thereby set aside. In ordinary circumstances, the Rules will be sufficient for the purposes of the litigation in question. Sometimes, however, they do not go far enough to do justice between the parties, and it is here that the broad ambit of the power of the Court given by s 55 of the Civil Procedure Act is relevant and may be applied.
…
84.The last matter that distinguishes this case from that dealt with in Psalidis is the introduction of the Civil Procedure Act2010 and the very wide power in s 55. Where the exercise of that power is in furtherance of the overarching purpose in relation to the conduct of civil proceedings, namely to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute, then it is justifiable to employ it…[32]
(underline added, citations removed)
[32]Suh, [74]-[80], [84].
On the evidence before me, it appears that the defendant does not own the Reid Family Papers.[33] They were the property of the late Mr Reid and are now the property of the State Library. Nothing suggests that the defendant (rather than Mr Werfel) discovered or otherwise produced the Reid Family Papers in the Werfel Tribunal proceeding. To the contrary, Mr Taylor, a solicitor of the firm that acted for Mr Werfel (although Mr Taylor had left the firm prior to Mr Werfel’s proceeding) deposed that in about 2009 and 2010 he attended the State Library over a period of several months to access the Reid Family Papers.[34]
[33]Cf Cooke where there was insufficient evidence on this issue and orders were made that Amaca provide an explanatory affidavit.
[34]Affidavit of David Taylor sworn 25 June 2024 (‘Taylor affidavit’), [3] - [5].
In Schedule 2 of its affidavit of documents, the defendant’s officer deposes that it had, but no longer has, the Reid Family Papers in its possession, and the State Library holds them,^[35] stating:
[35]Defendant’s affidavit of documents, Sch 2, [10](j), (k).
10.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.[36]
[36]Defendant’s affidavit of documents, Sch 2, [10].
The Reid Family Papers contain documents that are relevant to the proceeding and should be discovered. At first glance, the defendant has conceded they are discoverable by listing them in Schedule 2 of the defendant’s affidavit of documents. However, as iterated above, paragraph 10(k) of Schedule 2 of that document concludes such documents are not discoverable based on the legal advice referred to in paragraph 10(g), and has not retained copies of them.
I have no evidence about the precise content of the two volumes. However, the Werfel Tribunal proceeding, in which the documents were tendered (Exhibit P13) shows they include: a 1961 report from Berry Currie Advertising (NSW) Pty Limited regarding marketing asbestos cement in building materials focusing on advertising James Hardie’s product to the home handyman including a marketing analysis of jobs carried out in Melbourne,[37] a memorandum from Ron Bolton, an advertising manager and employee of James Hardie, on marketing services support for the sale of Versilux and his recommendations (not limited to South Australia), [38] a report from Peter Kenny Pty Limited regarding James Hardie’s flat sheet market in Victoria and other places in order to determine an advertising and merchandising plan,[39] an advertising and promotion proposal from 1970 by Singleton Palmer & Strauss McAllan and Involvement Sales Promotions referring to marketing to the home handyman,[40] a public relations plan for James Hardie to launch a handyman promotion in Victoria and New South Wales produced by Centrelink Public Relations Pty Limited in 1971,[41] a media recommendation by Singleton Palmer & Strauss McAllan Pty Ltd in 1971 for a handyman promotion in Victoria and New South Wales,[42] a document by Mr Bolton, James Hardie’s advertising manager, regarding program recommendations for community relations in 1975 and 1976 noting ‘most pressing is the need to contain unfortunate publicity about health hazards associated with asbestos dust’.[43]
[37]Werfel tribunal judgment, [177].
[38]Ibid, [178] - [179].
[39]Ibid, [180].
[40]Ibid, [180].
[41]Werfel Tribunal judgment, [181].
[42]Ibid, [181].
[43]Ibid, [181].
These documents are relevant to foreseeability and breach. Here, the plaintiff says he was first exposed to asbestos between 1977 and 1983. The examples above all predate that exposure. They also relate to Victoria. To the extent the defendant contends the documents are only relevant to South Australia or rendered irrelevant by date, that must be rejected. Other than deposing that its lawyers decided that the documents were not discoverable, and asserting that they are peripheral to the dispute in this proceeding, the defendant has not explained why the documents are irrelevant. For instance, it does not state that the documents relate to a particular subject matter beyond this proceeding.
I am satisfied that that the Reid Family Papers may support the plaintiff’s case and may adversely affect the defendant’s case. They fall within r 29 of the Rules. If the defendant has the Reid Family Papers in its possession then it should discover the documents within the two volumes insofar as they satisfy the criteria for discovery and are relevant to the issues in dispute. For instance, if there are documents specific to circumstances solely in South Australia, and not applicable to Victoria,[44] then they need not be discovered.
[44]See for example: Werfel tribunal judgment, [181], dot point one.
The question is whether a Sabre order should be made. It should not. There is ‘a real likelihood’ that both parties would be given access to the documents upon request. The evidence is that both parties can obtain the documents upon request from the State Library. There was once a requirement to obtain permission from James Hardie, but that is no longer the case.[45]
[45]Eustice 3 Jul 24 affidavit, [4] - [7]. This supersedes the evidence given about the need to obtain permission to access the documents in 2009-2010 in the Taylor affidavit.

Mr Taylor deposes that when he first examined the Reid Family Papers in 2009 or 2010, there was no computerised list on the catalogue, and the list accessible was inaccurate and incomplete. He could not access more than one box at a time, and copies could only be made by library staff. It took him more than 25 days to review the documents.[46]
[46]Taylor affidavit, [5](b)-(c).
Although I will not make a Sabre order, I will direct per s 55 of the CPA that if the defendant has a catalogue of the Reid Family Papers, it should provide it forthwith to the plaintiff. This is consistent with the overarching purpose of the CPA, and the obligation in s 24 for costs to be reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute.
Moreover, if it is costly and impractical for the plaintiff to copy relevant documents, but there is some arrangement between the State Library and the defendant that gives it special access without those impediments, then the defendant should co-operate with the plaintiff to ensure inspection of the documents can occur in a cost-effective and timely manner.
I must add this: if contrary to my reading of Schedule 2 of its affidavit of documents, the defendant retains copies of the documents, they ought be discovered forthwith. While there is no evidence before me to this effect, I am conscious of submissions made by the defendant at the hearing that contradict Schedule 2 of its affidavit of documents:
so other than the two volumes tendered in Werfel, which, of course, the defendant by reason of being a party to that proceeding has, it does not have in its possession custody or control or power those more broadly.[47]
[47]Transcript of 5 July 2024, 45.6 – 45.10.
For clarity, if the defendant has the Reid Family Papers, being the two volumes tendered in Werfel and sought by the plaintiff in the current application, these ought to be discovered insofar as they satisfy the criteria for discovery.

Should Ms Pascoe’s report and the transcript of her evidence be discovered?

As I have noted above, the parties were allowed to provide authorities in which a Court had ordered that expert reports produced in a dust disease proceeding be discovered in another dust disease proceeding (save for in jurisdictions in which this is permitted under legislation). I will now discuss these authorities.

Heath v B.I (Contracting) Pty Ltd (Supreme Court of Victoria, S ECI 2020 03137) (‘Heath’)

This proceeding concerned exposure to asbestos in Rundle Street, Adelaide in 1960, with the proceeding cross-vested from the Supreme Court of South Australia. In this application, the plaintiff sought particular discovery of transcripts of evidence and exhibits relied upon in seven other judgments and/or sought the defendant comply with r 29.04(1)(c) of the Rules.
As helpfully summarised by Keogh J in the hearing of the plaintiff’s application, the plaintiff sought three categories of documents, being:
(a)documents that illustrated the defendant’s corporate relationships, including business records;
(b)documents that illustrated the defendant’s knowledge as to risk of exposure, including the transcript of evidence given by Dr James McNulty, a former Mines Medical Officer of Western Australia and subsequently the Chief Medical Officer of Western Australia; and
(c)documents that showed what work occurred at Rundle Street during the relevant period, including transcripts of evidence given by Dr McNulty concerning the sort of exposure that might result from asbestos spraying.[48]
[48]Transcript of proceeding, Heath v B.I (Contracting) Pty Ltd (Supreme Court of Victoria, S ECI 2020 03137, Keogh J, 28 October 2020) (‘Heath transcript’), 24.19 – 25.11.
Keogh J observed that ‘on the face of it’ there appeared to be some documents that would fit the criteria for discovery.[49] It was proposed by Keogh J and accepted by counsel for the defendant, that the defendant would amend its defence and then turn its mind to ensuring its discovery obligations were met. In line with this reasoning, Orders made by the Court on 29 October 2020 required the defendant to discover the categories of documents outlined in the plaintiff’s summons that satisfied the criteria for discovery.
[49]Heath transcript, 26.16-26.18.
Keogh J’s observation supports the plaintiff’s contention that transcripts and exhibits from earlier judgments involving the defendant may be discoverable.

Zwiersen v Field & Hall Ltd & Ors [2016] VSC 16 (‘Zwiersen’) and Amaca Pty Ltd v CSR Ltd & Anor [2015] VSC 582 (‘Amaca v CSR’)

In Amaca v CSR, the plaintiff sought a contribution from two defendants regarding 204 payments made by the plaintiff in 204 separate settlements with employees of the State Electricity Commission of Victoria or associated persons.[50] The plaintiff tendered a witness statement of Mr Ron Hinton dated 2 June 2014 (‘Hinton 2 Jun 14 statement’) and a supplementary statement (‘Hinton supplementary statement’). Mr Hinton was an industrial chemist employed by James Hardie during the relevant period, who gave evidence supportive of the plaintiff’s arguments as to exposure.[51] As such, it appears he was a lay witness. Mr Hinton’s witness statements were admitted by consent and he was not required for cross-examination.[52] Macaulay J noted that the Hinton supplementary statement was filed by the plaintiff to overcome the defendant’s objections regarding the Hinton 2 Jun 14 statement.[53]
[50]Amaca Pty Ltd v CSR Ltd & Anor [2015] VSC 582 (‘Amaca v CSR’), [1].
[51]Ibid, [34] - [35].
[52]Ibid, [216(a)].
[53]Ibid, [35].
In Zwierson, the plaintiff’s claim against the defendants (save for the second defendant) resolved on the second day of trial, with the judgment concerning the contribution claims as amongst the defendants.[54] The first defendant in this proceeding was the plaintiff’s former employer, Field & Hall Pty Limited. It tendered a statement of Mr Ron Hinton dated 2 June 2014.^[55] I infer this is the same statement as the Hinton 2 Jun 14 statement relied upon in Amaca v CSR.
[54]Zwiersen v Field & Hall Ltd & Ors [2016] VSC 16 (‘Zwiersen’), [6].
[55]Zwiersen, [13].
The judgment in Zwierson records no controversy about the tendering of the Hinton 2 Jun 14 statement. Moreover, it is unclear if Amaca discovered the Hinton 2 Jun 14 statement or if Field & Hall Pty Limited obtained a copy of it by other means, such as via subpoena. There is no point of principle to be discerned.
In any event, the Hinton 2 Jun 14 statement is not an expert report and is therefore distinguishable from the current application.

Lowes v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2011] WASC 287 (‘Lowes’)

In this proceeding, the plaintiff sought to rely upon an affidavit of Dr James McNulty sworn on 13 November 2009[56] (‘McNulty 13 Nov 09 affidavit’). The affidavit was made in the proceeding but health difficulties prevented Dr McNulty from giving evidence.[57] The plaintiff sought to tender this affidavit pursuant to s 79C of the Evidence Act 1906 (WA) in circumstances where Dr McNulty was prevented from giving oral evidence.[58]
[56]Lowes v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2011] WASC 287 (‘Lowes’), [53(b)].
[57]Ibid, [86].
[58]Ibid, [86].
The defendant did not oppose the tendering of the McNulty 13 Nov 09 affidavit provided they be allowed to tender:
(a)a proof of evidence of Dr McNulty that was prepared for and received as an exhibit in Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263;
(b)a statement of evidence made by Dr McNulty that was prepared in connection with Nielsen v Seltsam Pty Ltd (a matter in the New South Wales Dust Diseases Tribunal (DDT) for which no judgment was published).[59]
[59]Ibid, [86(a)-(b)].
The plaintiff opposed this and indicated it would seek to tender the transcript of Dr McNulty’s oral evidence in Misiani v Welshpool Engineering Pty Ltd[60] (‘Misiani’).[61]
[60][2003] WASC 263 (‘Misiani’).
[61]Lowes, [87].
Corboy J held that all documents should be received as exhibits.[62] The McNulty 13 Nov 09 affidavit was admissible pursuant to s 79C of the Evidence Act 1906 (WA), as were the exhibits to that affidavit as either documents created by Dr McNulty or business records.[63]
[62]Ibid, [88].
[63]Ibid, [872].
Corboy J then considered the admission of Dr McNulty’s evidence from other proceedings, and whether the implied undertaking applied to prevent the use of the documents. Corboy J held that the witness statements prepared by Dr McNulty in other proceedings were admissible on the basis that:
(a)the plaintiff relied heavily upon the McNulty 13 Nov 09 affidavit and ‘in fairness’ the defendant should be able to rely upon other evidence of Dr McNulty’s opinion;
(b)the statements had been tendered as evidence in other proceedings, (supporting the notion that the implied undertaking had ceased to apply);
(c)Dr McNulty’s statements were provided in an ‘expert capacity’;
(d)the parties who obtained the statements in the other proceedings did not object (or were not in a position to object) to the use of the statements; and
(e)the plaintiff did not submit that the Court should use its discretion to exclude the witness statements.[64]
[64]Ibid, [879].
This authority supports the plaintiff’s submission that expert opinions from other proceedings can and have been admitted. However the circumstances are distinguishable. The McNulty 13 Nov 09 affidavit was prepared for the proceeding. The admission of Dr McNulty’s evidence in other proceedings was admitted to enable the defendant to ‘cast light on Dr McNulty’s opinions.’[65] The authority is relevant to admission of evidence rather than discoverability.
[65]Lowes, [879(a)].

Simpson v Midalco Pty Ltd (Supreme Court of Western Australia, No. 1814 of 1985) (‘Simpson’)

This ruling concerned a subpoena dispute. The plaintiff had issued a subpoena addressed to a non-party, CSR, seeking production of ‘documents 9 to 87’ which were ‘taken from lists of documents supplied by CSR in three other actions, two in this Court and one in Victoria, in which actions CSR is a defendant.’[66] The plaintiff’s solicitor knew of the list of these documents, which raised potential issues concerning the implied undertaking.
[66]Simpson v Midalco Pty Ltd (Supreme Court of Western Australia, No. 1814 of 1985) (‘Simpson’), 4.
Brinsden J held, in balancing the need for justice between the parties and CSR’s right to confidentiality, that the balance was tipped in favour of the parties in Simpson, ordering CSR produce documents 9 to 87.[67]
[67]Ibid, 4.
The facts in Simpson are distinguishable because they concern a non-party subpoena. They do not address the question of discovery. However, of note is the order for production because it may be discerned that Brinsden J considered there was a legitimate forensic purpose for the documents.

Walsh v CSR Limited & Anor (Supreme Court of Western Australia, CIV 1808 of 2020, List of Documents dated 2 October 2020) (‘Walsh’)

The plaintiff in the current proceeding has provided a List of Documents filed in the Supreme Court of Western Australia in Walsh. Items 326 to 330 are trial exhibits and transcripts of trials from five other proceedings in which either CSR Limited or Midalco Pty Ltd were defendants (including Simpson). It appears that CSR and Midalco discovered these documents. No authority is provided with this document to suggest that the defendants were compelled to discover them.

Cuthill v State Electricity Commission of Victoria [1981] VR 908 (‘Cuthill’)

This proceeding concerned an application made by the plaintiff for an extension of time to bring his asbestos-related claim, having allegedly been exposed to asbestos dust up until 1976. In the initial proceeding, the Court held that there was insufficient evidence to attribute knowledge of the risks of asbestos to the defendant before 1976.[68]
[68]Cuthill v State Electricity Commission of Victoria [1981] VR 908 (‘Cuthill’), 908.
In the appeal before the Full Court, the plaintiff sought to rely upon the judgment in Grove v Bestobell Industries Pty Ltd (‘Grove’),[69] specifically the medical opinion of Dr Ringrose as to the effects of asbestos and the precautions that should have been taken.
[69][1980] Qd. R. 12 (‘Grove’).
As the majority, Starke and Anderson JJ held:
It is to be remembered that the exercise is to ascertain whether evidence exists to support the plaintiff’s claim. Where better to find such evidence than in the judgment of a Court of co-ordinate jurisdiction? The truth of the facts stated is not proved but on the probabilities the existence of such facts was proved. The paragraphs of Dr Ringrose’s affidavit… were found by the Judge to be the personal, expert opinion of the doctor. In effect he says to medical experts the danger has been known for 25-30 years and the best precautions for 20 years. Australia is not such a large country that knowledge of facts in this industrial area over a long number of years in Queensland would not have filtered over the border. On the probabilities I would infer that such knowledge was known in Victoria during the same period and either was or ought to have been known to the respondent.[70]
(underline added)
[70]Cuthill, 912 - 913.
Brooking J agreed the appeal should be allowed, however firmly rejected the reliance on Grove.[71]
[71]Ibid, 915 - 917.
Cuthill is distinguishable. It concerned an application for extension of time. The plaintiff was not seeking discovery of Dr Ringrose’s report, nor was this ordered.

Wintle v Stevedoring Industry Finance Committee [2002] VSC 265 (‘Wintle’)

This plaintiff in this proceeding was the widow of the late George Wintle and the executrix of his estate. Mr Wintle had worked as a waterside foreman and died from pleural mesothelioma. The plaintiff sought an extension of time to commence proceedings. Mr Wintle had earlier been refused leave.
The plaintiff was allowed to rely upon three affidavits of Mr Wintle in two of his earlier applications, and a transcript from a de bene esse examination.[72]
[72]Wintle v Stevedoring Industry Finance Committee [2002] VSC 265 (‘Wintle’ ), [33] - [38], [40] - [41].
Ashley J held:
It is clear that this application is not to be treated as if it was the trial of an action. It would be wrong to analyse the material adduced on the application on the footing that the specified matters could only appear to the Court if the material persuaded the Court, on the balance of probabilities, that the plaintiff had proved those matters. Approaching the matter, as I have said I would do, on the basis of the applicability of the s. 23A analogy, it is enough if it appears to the Court that “evidence exists to support the plaintiff’s claim”; or “that there is evidence to establish the cause of action”; or again “whether evidence is available which gives the applicant’ a reasonable prospect of … establishing the cause of action’”.[73] (footnotes omitted)
[73]Ibid, [33].
Similar to Cuthill, the facts and circumstances are distinguishable. Wintle concerned an interlocutory application, not the discovery of expert evidence.
Turning now to the circumstances here.

Consideration

I will order that the defendant discover Ms Pascoe’s report and the transcript of her evidence.
Firstly, I am satisfied that these documents are in the possession of the defendant. Indeed, the defendant did not contend otherwise.
Secondly, reading the summary of the report in the Werfel proceedings[74] supports the relevance of the documents to breach of duty.[75] Similar issues regarding breach of duty are in dispute here. Accordingly, I reject the defendant’s suggestion that the documents are irrelevant or peripheral. I must add that the report does not appear to be confined to South Australia. The Pascoe report and evidence may support the plaintiff’s case and adversely affect the defendant’s case.
[74]Werfel tribunal judgment, [185] - [191].
[75]Werfel appeal judgment, [246] - [255], [314].
Thirdly, there is no evidence to suggest that discovery of the Pascoe report and transcript would cause the defendant to incur any disproportionate cost or that there is any practical impediment to locating the documents.
Fourthly, there may be questions as to the admissibility of these documents but they are for the trial judge to resolve. The Pascoe report was obtained on behalf of the plaintiff in the Werfel proceeding, not the defendant. The defendant here says it has never discovered the report. Ms Pascoe is now deceased. As the defendant says, the effect of s 91 of the Evidence Act is that the findings of fact in Werfel cannot be relied upon here. The plaintiff has indicated that they intend to use Ms Pascoe’s report and the transcript of her evidence to brief an expert witness.
Fifthly, given that the documents are in the defendant’s possession, the plaintiff should not be required to apply to the Tribunal for them.
As a matter of completeness, I must add that the implied undertaking no longer applies because there is public reference to the report and Ms Pascoe’s evidence in the Werfel proceedings.

Conclusion

The defendant ought to discover Ms Pascoe’s report and the transcript of her evidence. The defendant need not discover the Reid Family Papers given they are not in their possession. However, per s 55 of the CPA, the defendant must provide the plaintiff with a catalogue of documents, if one exists, and otherwise co-operate with the plaintiff as to access. I will also direct that the defendant co-operate with the plaintiff regarding access to the documents. Alternatively, if indeed the defendant does have the Reid Family Papers in its possession, then those documents falling within the scope of discovery per r 29.01.1(3) must be discovered.
The parties will be allowed to make submissions as to the orders consequential to this ruling, including costs.

SCHEDULE OF PARTIES

S ECI 2023 01260
BETWEEN:
AMANDA STEVENS as the legal personal representative of the Estate of the Late STEVEN JOHN NEOPHYTOU	Plaintiff
- v -
AMACA PTY LIMITED (formerly JAMES HARDIE & COY PTY LIMITED)	Defendant
- and -
HOMES VICTORIA	Third Party

[2024] VSC 443

30 July 2024