Stevens v Amaca - [2024] VSC 443

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Stevens v Amaca

Details

AGLC: Stevens v Amaca [2024] VSC 443
Case: [2024] VSC 443
Decision Date: 30 July 2024

CaseChat Overview and Summary

Stevens v Amaca is a case involving a discovery dispute in the Supreme Court of Victoria. The plaintiff, Stevens, sought discovery of documents from the defendant, Amaca, in the course of a legal proceeding. The primary issue before the court was whether certain reports and transcripts from an expert witness in another proceeding were discoverable under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the Civil Procedure Act 2010 (Vic). The court needed to determine if these documents were in the possession, custody or control of the defendant and if they were relevant to the issues in the current proceeding.

The court considered whether the reports and transcripts in question were within the scope of discovery. The Supreme Court (General Civil Procedure) Rules 2015 (Vic) rule 29 and the Civil Procedure Act 2010 (Vic) sections 7, 24, 26, and 55 were central to the analysis. The court also referenced precedent cases, such as Werfel v Amaca Pty Limited and Suh v Cho, to assist in its determination. The court examined the relevance of the documents to the current proceeding and the extent to which they could assist in resolving the issues at hand.

The court concluded that the reports and transcripts from the expert witness were not discoverable as they were not in the possession, custody or control of the defendant and were not relevant to the issues in the current proceeding. The court found that the documents were not directly related to the matters being litigated and therefore did not fall within the scope of discovery. The court's reasoning was influenced by the principles established in the precedent cases and the provisions of the relevant statutes and rules. Ultimately, the court denied the plaintiff's application for discovery of the expert witness reports and transcripts.

The final orders of the court were that the plaintiff's application for discovery of the expert witness reports and transcripts was dismissed. The court did not find these documents to be within the scope of discovery, and thus, they were not to be produced by the defendant. This decision highlights the importance of relevance and possession in determining the scope of discovery in legal proceedings.

Orders