Stringer v BI (Contracting) Pty Ltd & Bradford Insulation (SA) Pty Limited (in Liquidation) - [2012] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
STRINGER v BI (CONTRACTING) PTY LTD & BRADFORD INSULATION (SA) PTY LIMITED (IN LIQUIDATION)
[2012] SADC 144
Reasons for Ruling of His Honour Judge Hannon
2 November 2012
PROCEDURE
Interlocutory application for further and better answers to pre-trial questions in proceedings for damages brought against the defendants under the Dust Diseases Act 2005; Consideration of relevant principles; Objections to questions disallowed and orders made that each defendant file answers to the questions to which objection was taken; application for orders for discovery and filing of affidavits with respect to alleged breaches of District Court Rule 113 refused; Plaintiff to have costs of and incidental to the application - whether those costs should be in part or in whole on an indemnity basis adjourned for further consideration.
Barber v Nominal Defendants (1989) LSJS 8; Barbarian Motorcycle Club Incorporated v Koithan and Anor (1984) 35 SASR 481; State of South Australia v White [2008] SASC 32; Pearce v Hall (1989) 52 SASR 568; Berri v Aultas Pty Ltd & Ors [1997] NSWDDT 266; Ratcliffe v Bridgestone Australia Limited (Unreported DC No 12 of 2009, 21 May 2009; Aspar Autoban Co-op Society v Divala Pty Ltd (1987) 74 ALR 550; Hansen v Border Morning Pty Ltd (1987) 9 NSWLR 44; Davies v Wallaby Grip Ltd [2011] SADC 54; Sunburst Properties Pty Ltd (In Liq) v Agwater Pty Lts & Ors [2005] SASC 393; NMFM Property Pty Ltd v Citibank Ltd [2001] FCA 480, considered.

STRINGER v BI (CONTRACTING) PTY LTD & BRADFORD INSULATION (SA) PTY LIMITED (IN LIQUIDATION)
[2012] SADC 144

The plaintiff Mr Stringer has issued proceedings against B.I. Contracting Pty Ltd (formerly known as Bradford Insulation (Contracting) Pty Limited) (“the first defendant”) and Bradford Insulation (SA) Pty Limited (in liquidation) (“the second defendant”) seeking damages against one or either or both of the defendants on the ground that as a result of their breach of statutory duty or negligence he suffered injury, loss and damage due to his contracting “asbestos related pleural disease” with a potential for the development of other conditions, including mesothelioma. The alleged injury falls within the definition of a “dust disease” for the purposes of the Dust Diseases Act 2005 (“the Act”).
This decision arises from an interlocutory application by the plaintiff for orders that the first and second defendants file and serve verified answers to pre-trial questions which have been served upon them. The questions were, for the most part, in the same form to each of the defendants, and are described in more detail below. They included questions as to whether either of the defendants employed the plaintiff between about 1958 and about 1966; if so, whether the plaintiff ever handled or sprayed products containing asbestos, and if so when; whether either of the defendants employed other persons in the installation of insulation products whether containing asbestos or not, and if so when; and whether any such activities involving the plaintiff or other employees took place in buildings located in and around Adelaide, and in particular, in three nominated locations. The defendants objected to answering these questions on various grounds including that they were vexatious, pertained to facts already admitted, were not relevant, sought only to elicit particulars, or pertained to the contents of a document.
The course of proceedings to date
I summarise the procedural background to provide the context in which the application is made and to identify the issues which remain in dispute. This background is taken from the pleadings and the contents of and exhibits to the affidavit of Mr Stuart, the solicitor for the plaintiff, sworn 3 October 2012 (“the Stuart affidavit”), which was received into evidence[1] together with an affidavit of Mr Hillary, the solicitor for the defendants, sworn 19 October 2012.[2]
[1] Exhibit P1.
[2] Exhibit P2.
Proceedings were initially issued against the first defendant only but the second defendant was later joined due to the plaintiff’s uncertainty as to whether one or the other or both entities employed him over the period alleged. The plaintiff alleged that at all material times between 1954 and 1966 the first defendant, and additionally or alternatively the second defendant, manufactured and/or supplied insulation material which contained asbestos in South Australia, and undertook insulation work with raw asbestos and/or products containing asbestos at premises located in Adelaide in South Australia. The plaintiff alleged that he was exposed to and inhaled asbestos as a consequence of such activities, and suffered injury and loss as a result. He alleged that this exposure occurred whilst he was employed by the first or the second defendant or both in carrying out insulation installation activities between about 1958 and about 1966.[3] In subsequent particulars, the plaintiff asserted that he was employed over this period by “Bradford Insulation”, and worked as a plasterer undertaking work as an asbestos sprayer in multiple buildings throughout Adelaide including “John Martins, Myers and Cox Foys”.[4]
[3] The plaintiff also alleged exposure occurred whilst he was employed by another entity from 1954 to 1958 in the vicinity of asbestos installation activities of the defendants but this allegation was not relevant to the application now before the court.
[4] Stuart affidavit para 16(c).
The defendants by their defences admitted only that they were corporate entities but otherwise denied that the plaintiff was entitled to relief. In its response to the plaintiff’s notice to admit the first defendant asserted that it was first registered on 8 July 1960 “before which it has no knowledge”.[5] It admitted that on occasions between 1960 and 1975 it undertook insulation work with products which contained asbestos at premises located in Adelaide. It declined to admit either that it employed the plaintiff, or other employees engaged in duties involving handling or spraying of material which contained asbestos, referring to a lack of contemporaneous records in that regard due the effluxion of time. The second defendant’s response to a similar notice to admit was in much the same terms except that it denied undertaking any installation work using insulation products containing asbestos in buildings located in Adelaide.
[5] Para 2.2 of response to notice to admit.
During pre-trial procedures issues arose between the parties with respect to the failure of the defendants to file or serve various documents and to make disclosure and production of documents within time set by orders of the Court. A consequence was that the plaintiff sought an order by interlocutory application dated 10 August 2012 that the defence of the second defendant be struck out with damages to be assessed for failure to comply with Court orders.
By the time that application came before the Court on 28 August 2012, each of the defendants had made production of discovered documents and had responded to notices to admit. Certain admissions and concessions had been made by the defendants with the result that the plaintiff did not press for strike out orders.
One of the documents disclosed by the first defendant suggested that it was involved in asbestos spraying in Adelaide on at least one occasion in each of 1958 and 1959, as well as throughout the period from 1960 to 1966.[6] Another document entitled “Silbestos sprayed asbestos data manual” recorded the first defendant to be the insulation contractor for a job in Adelaide (date unspecified) involving the use of a Silbestos asbestos spraying machine. Other documents comprised folders relating to contracts over the period July 1962 to June 1964 inclusive, apparently being records of purchases of asbestos spraying machines and asbestos materials from various entities.[7]
[6] Document 1.1.2 in the first defendant’s supplementary list of documents entitled “Sprayed Asbestos Contracts carried out by Bradford Insulation (Contracting) Pty Limited” including a reference to “jobs” undertaken in 1958 and 1959. This may be a typed copy of document 1.1.1 which is not currently before the Court.
[7] Exhibits “E” and “F” to the affidavit of Mr Stuart.
The second defendant disclosed documents which included a reference to patents of asbestos spray material in 1956, and to private ledgers for the period July 1962 to June 1964 relating to purchases of asbestos material.[8] It also appeared to suggest that certain documents disclosed by the first defendant were relevant to its own activities, in that its response to the notice to admit facts filed 31 July 2012 stated that “the document” detailing sprayed insulation operations in which the second defendants employees were involved was contained in documents discovered by the first defendant,[9] this document later being identified as item 1.1.1 in the first defendant’s supplementary list.[10]
[8] Exhibit “H”, “I” and “J” to the affidavit of Mr Stuart.
[9] Para 20.1 of the second defendant’s response to the notice to admit.
[10] Second defendant’s answer to pre-trial question 7(a).
By 28 August 2012 the parties had refined the issues in dispute to the diagnosis and extent of the plaintiff’s condition, his alleged employment by the defendants and his exposure to asbestos during that time, and quantum. The plaintiff indicated that he wished to administer pre-trial examination by written questions of the defendants on some of these issues, and accordingly, at the directions hearing on 28 August 2012, an order was made that the plaintiff serve draft pre-trial questions on the defendants by 5 September 2012, and that by Wednesday 12 September 2012 the defendants inform the plaintiff and the Court whether they were prepared to answer those questions. A date was set for filing and service of the answers if the defendants were prepared to answer, or alternatively, if the defendants advised they were not prepared to answer them, it was proposed that a date be fixed for argument on the question of leave to serve the questions.
In due course, albeit beyond the time fixed by the Court for their response, the solicitor for the defendants advised the solicitor for the plaintiff by email that he was “not instructed to object to the plaintiff’s application to file and serve the interrogatories”[11] and later, in response to a request for clarification, that he was “instructed to answer the interrogatories”.[12] On 26 September 2012 each defendant through a corporate officer filed an affidavit which purported to be in answer to the pre-trial written questions of the plaintiff,[13] but which for the most part contained no answers but objections to the questions stating grounds upon which it was asserted they need not be answered.
[11] Email Lawson Smith to Stuart Lawyers 13 September 2012 at 3.40 pm – Exhibit “S” to Stuart affidavit.
[12] Email Lawson Smith to Stuart Lawyers 13 September 2012 at 4.34 pm – Exhibit “S” to Stuart affidavit.
[13] Each filed on 26 September 2012.
On the following day a further provisional admission was made by email from the solicitor for the defendants to the solicitor for the plaintiff as follows:
“The plaintiff alleges that between about 1958 and 1966 he was employed by the First Defendant and/or the Second Defendant. If the Court accepts that the Plaintiff was employed by “Bradford Insulation” between about 1958 and about 1966, the First and Second Defendants will concede that the Plaintiff was employed by one or other of the First and/or Second Defendants.”[14]
[14] Email Lawson Smith to Stuart Lawyers 27 September 2012 – Exhibit “P” to Stuart affidavit.
At the hearing of this application, counsel for the defendants, Mr Johns, summarised and refined the concessions or admissions of the defendants as follows:[15]
[15] Tr 2 – 4, 7 - 8.
If the plaintiff was employed by one or other of the defendants, they admit they owed a duty of care to him.
If the plaintiff was exposed to asbestos in employment with either one or both of the defendants, the defendants admit they breached the duty of care owed to him.
Whilst the defendants cannot say that the plaintiff was employed by either one or both of them, they cannot and will not call evidence contrary to any evidence the plaintiff might give about his employment relationship with them, or with entities under the umbrella of “Bradford Insulation” with respect to the period from 1958 to 1966.
The defendants undertook not to make any application for costs in so far as there might be a successful defendant on the employment issue.
The first defendant admitted that from 8 July 1960 to 1975 it conducted operations involving the spraying of asbestos.
The result is that “employment” by either of the defendants or “Bradford Insulation” over the period from 1958 to 1966 is not conceded unconditionally. The plaintiff must prove that allegation. If that is proven, he must establish that during that period of employment he was exposed to and inhaled asbestos fibres when working at various locations in Adelaide including at three identified buildings. That allegation has not been conceded by the admission of the first defendant as summarised above or made earlier, namely that it “conducted sprayed asbestos operations”,[16] or that between 1960 and 1975 it undertook insulation work with products which contained asbestos at premises located in Adelaide.[17]
[16] Email 27 September 2012.
[17] Response to notice to admit para 5.
It is against this background that the current application should be considered. Before doing so, I address the relevant legal principles and a procedural issue relating to the circumstances in which the defendants came to file their answers to the pre-trial questions.
Relevant legal principles
As a general principle, pre-trial questions, or what were formerly described as “interrogatories”, are a species of pre-trial discovery of facts undertaken so as to enable a party to obtain from their opponent admissions or evidence of material facts to be adduced at trial, or to appraise the strength and weakness of the case before trial, and thereby to assist in the fair disposal of the proceedings at or before trial and in saving costs: Barbarian Motorcycle Club Incorporated v Koithan and Anor.[18] The object of interrogatories has been alternatively stated to be the obtaining of discovery of material facts in order to support or establish proof of one party’s own case or to destroy the case of the other party, and to obtain admissions so as to narrow the necessary proof of issues raised in the pleadings with resultant savings in time and expense, and further to ascertain the case to be met at trial: State of South Australia v White.[19] However, as stated in Pearce v Hall,[20] given the availability of other interlocutory processes and other means of obtaining evidence, it should only be in fairly exceptional circumstances that a need for interrogation should arise. The need for the obtaining of leave recognises this limitation.
[18] (1984) 35 SASR 481 per King CJ at [483].
[19] [2008] SASC 32 per Duggan J at [15] and [16].
[20] (1989) 52 SASR 568 at 574.
The above cited cases arose from various types of general civil litigation. Such litigation falls into a different category than claims arising under the Act, where many cases are urgent and must be dealt with under a foreshortened time scale, as expeditiously as the proper administration of justice will allow, and unencumbered by unnecessary formalities of an evidentiary and procedural kind.[21] Moreover, as is typical of much of the litigation under the Act, the plaintiff bases his claim on events which allegedly occurred up to 50 years ago, which presents him with difficulties in proof notwithstanding the assistance he might gain from the evidentiary presumptions and special rules of evidence and procedure under s 8 of the Act. In the absence of admissions, the fact of employment, its location and the duties involved, and the alleged exposure to asbestos and the type of asbestos involved, and the period of exposure, might be matters only able to be proved as a result of the plaintiff’s evidence combined with discovery, responses to a notice to admit and answers to pre-trial questions.[22] Also of relevance is the fact that, given the injuries in the nature of those alleged, such as asbestos related pleural disease and pleural plaques, being a divisible condition, the length of the period of exposure in the employment of an alleged wrongdoer may be of particular importance both as to diagnosis and quantum, as opposed to cases of mesothelioma, for example, where exposure with one entity over a very limited period may be enough to establish causation and an entitlement to full damages.
[21] Sections 4 and 5 of the Act.
[22] See the comments of O’Meally J in Berri v Aultas Pty Ltd & Ors [1997] NSWDDT 266 cited by Master Bampton in Ratcliffe v Bridgestone Australia Limited (unreported) District Court decision no 12 of 2009 dated 21 May 2009.
A procedural issue
There was no formal application by the plaintiff for an order under r 150(1) of the District Court Rules (“the Rules’) for the pre-trial examination of the defendants and no such order was made. This formality appears to have been overlooked when, following the directions hearing on 28 August 2012 referred to above, the defendants, after being given the opportunity to consider the pre-trial questions proposed by the plaintiff, had their solicitor advise that his instructions were to answer the interrogatories. In the circumstances, that response can only be taken to be a concession by the defendants that it was appropriate for the Court to make an order for pre-trial examination in terms of the questions proposed. Counsel for the defendants quite properly conceded this in his submissions.[23] For the sake of completeness, an order should have been made in the terms provided by r 150(1).
[23] Tr 18.
Even if the defendants had not made this concession, I would have found this to be a proper case for the making of an order for pre-trial questions having regard to the principles outlined above. The plaintiff has obtained discovery and production of documents, and has sought to narrow the factual issues through delivery of notices to admit. It would appear that the plaintiff cannot obtain more information on those issues from other sources, and it would be unfair to him to have to go to trial without the benefit of answers to pre-trial questions on these topics. The pre-trial questions are relatively concise and are confined to the outstanding issues, and in general terms are sufficiently relevant and important to justify the administration of pre-trial examination: Barber v Nominal Defendants.[24]
[24] (1989) 153 LSJS 8 at 11.
Accordingly, I have remedied the procedural irregularity described above by making a retrospective order for pre-trial examination of the defendants by written questions in the form of those served by the solicitors for the plaintiff on the solicitors for the defendants on 3 September 2012.
The plaintiff contended that as a result of the advice from the solicitor for the defendant that his instructions were to answer the interrogatories, the defendants had waived their right to make any objection to the questions put to them. I am not prepared to accept that contention given the irregularity referred to above. Although the objections now raised by the defendants to the pre-trial questions would have been more appropriately raised before any answers were given so as to be dealt in the context of deciding whether an order should be made under r 150(1) for pre-trial examination in the form of the questions proposed, it is appropriate to consider the objections now made.

In the circumstances, the application now before the Court will be treated as an application by the plaintiff under r 151(4) for orders disallowing the objections raised by the defendants and requiring them to answer each of the particular questions not answered, or alternatively, to make further and better answers to the questions.
Consideration of the questions and the objections
Under r 151(3) of the Rules objection may be taken to a question on any ground upon which an objection might properly be made if the question were asked in the course of the trial. The various grounds raised by the defendants would appear to fall within this broad category, in that they include grounds asserting variously that questions are not relevant, are too wide, are oppressive or vexatious, are a request for particulars, seek answers in relation to admitted facts or on questions of law, or involve questions as to the content of documents.
In dealing with objections to pre-trial questions, it is accepted that the application of the test as to whether a question is objectionable involves a considerable degree of discretionary judgment by the Court.[25]
[25] Barbarian Motorcycle Club per King CJ at [484]; State of South Australia v White per Duggan J at [9].
There were ten separate questions put to the first defendant and seven to the second defendant. Questions one to six were in fairly similar terms to each defendant. I will first address the questions put to the first defendant. My conclusions on those will apply to many of the questions to the second defendant.
The first question was whether, at any time during the period between 1958 and 1966specified, the first defendant employed the plaintiff. The first defendant objected on the ground that the question was vexatious, in that a materially similar assertion had been responded to in its answers to the notice to admit, the response being that the first defendant had no knowledge that the plaintiff was employed by it, and that it was first registered on 8 July 1960.
Given the matters remaining at issue, the question is not vexatious in the sense understood by the authorities, being a question administered without sufficient grounds for the purpose of causing trouble or annoyance,[26] or calculated to cause distress or annoyance to the party interrogated.[27] The fact that the same assertion was responded to negatively in the response to the notice to admit does not mean that the first defendant need not be required to address the question. Under r 155(5), questions of a company must be answered by an officer with authority to answer questions on its behalf, and further, such an officer must make proper inquiries of all servants or agents of the company and answer from his or her own knowledge and on the basis of such information as is received and which it is believed is true.[28] A greater obligation is placed upon a party in this respect compared with a response to a notice to admit: Davies v Wallaby Grip Ltd. [29] The fact that a pre-trial question is on the same topic as already asserted in a notice and subsequently denied is not, of itself, a proper basis for objection.
[26] Aspar Autoban Co-op Society v Divala Pty Ltd (1987) 74 ALR 550 at 554 per Woodward J.
[27] Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 56.
[28] Refer to Lunn “Civil Procedure”, commentary at 6R 151.25.
[29] [2011] SADC 54 per McCusker J at [14].
That is even more so given that, following the first defendant’s response to the assertion in the notice to admit as to the plaintiff’s employment between about 1958 and about 1966, the first defendant disclosed documentation which on its face indicated a link between it and insulation installation activities in buildings in Adelaide in 1958 and 1959, and admitted that it conducted sprayed asbestos operations, although the period and place were not specified. Moreover, the first defendant, through its solicitors, made the provisional concession that if the Court accepted the plaintiff was employed by “Bradford Insulation” between about 1958 and 1966, the first defendant would concede that the plaintiff was employed by one or other of the first and/or second defendants.
Accordingly, given that, among other things, the purpose of pre-trial questions is to identify and narrow areas of factual dispute, it is not objectionable, whether on the ground that the question is vexatious or otherwise, for the plaintiff to put question one again to the first defendant. That is so despite the first defendant’s assertion that it was first registered on 8 July 1960, for a proper answer to the question must address any period of time between about 1958 and about 1966.
The objection by the first defendant to question one is disallowed, and the first defendant is required to answer it. If that answer is in the affirmative, all of the various subparagraphs under question two must be answered. The same outcome must apply with respect to the first and second questions to the second defendant.
Question three asked the following of the first defendant:
“At any time between 1958 and 1966, did you employ persons to undertake the spraying of asbestos, or products containing asbestos, in buildings located in and around Adelaide in the State of South Australia?”
The first defendant objected on the ground that the question pertained to facts already admitted by the first defendant and that the remainder of the question was not relevant to the issues put by the plaintiff to the first defendant in the Statement Claim. Each ground of objection is disallowed. The objection based upon the previous response to the notice to admit must fail for the reasons expressed with respect to question one. Further, even though the question is directed to employment by the first defendant of “persons” other than the plaintiff in the activities identified, it is relevant nevertheless in that the answer to that question may provide a link to the chain of evidence which the plaintiff must establish. Accordingly, the objection is disallowed and the first defendant is required to answer question three, and if the answer is in the affirmative, question four must be answered.
The third question put to the second defendant was the same. Objection was made on the ground that the question was not relevant to the issues in the statement of claim. That cannot be so. The question as to whether at any time between 1958 and 1966, the second defendant employed persons to undertake the spraying of asbestos is relevant, particularly given that, after denying the plaintiff’s assertion in its notice to admit that in the period between about 1958 and about 1966 the second defendant installed insulation products that contained asbestos in buildings in Adelaide in South Australia, the second defendant stated in para 20.1 of its response that a document detailing the sprayed insulation operations in which its employees were involved was contained in a document discovered by the first defendant, this being document 1.1.1 of the supplementary list, referred to above. Further, the relevance of the question is reinforced by the second defendant’s concession, in answer to interrogatory 7(c), that the reference in para 20.1 of the response to the notice to admit to spraying activities in which the second defendant’s employees were “involved” indicated that such operations, if conducted by the second defendant (which was not admitted), could have been carried out by employees of the second defendant (which was also not admitted).
Accordingly I disallow the second defendant’s objection to question three and require it to answer that question, and if the answer is in the affirmative, to answer question four.
Question five to the first defendant was the same as question three except with an additional reference to three specific building locations described as “John Martins, Cox Foys and Myers”. The objection was that the question was for the purpose of eliciting particulars. The question does not seek to elicit particulars of matters pleaded by the second defendant, but seeks to narrow the broad admission by the first defendant in para 5 of its response to the notice to admit that on occasions between 1960 and 1975 it undertook insulation work with products which contained asbestos at premises located in Adelaide. The first defendant’s objection is disallowed and it is required to answer the question, and if the answer is in the affirmative, to also answer question six.
The same outcome must apply to a similar objection to questions five and six to the second defendant.
There were four further questions to the first defendant. Question seven was introduced with a reference to an annexure being a copy of the first and fifth pages of document 1.1.13 discovered by the first defendant in its list of documents filed 23 December 2011. The front page of the document referred to and contained a representation of a “Silbestos spraying machine” embossed with the logo “Silbestos sprayed asbestos”. The other page referred to “Bradford Insulation (Contracting) Pty Limited” as the proposed “insulation contractor” for the task of spraying mineral fibres in a proposed new workroom for RM Williams Pty Ltd at Nailsworth. Three sub-questions (a) to (c) were put to the first defendant with respect to the product known as “Silbestos”, the questions being whether it contained asbestos, whether at any time between 1958 and 1966 the first defendant employed persons to undertake the spraying of “Silbestos” in buildings located in and around Adelaide, and if so, the period or periods the employees undertook such work.
The first defendant objected to the first question on the ground that it pertained to the contents of the annexed document, and to the second and third questions on the ground that the question sought only to elicit particulars.
The objection that question (a) pertains to the contents of a document is disallowed. Whilst the question makes reference to a document discovered by the first defendant, it does not ask questions as to its content, but rather, wider questions as to the content of the product and the use of it by the first defendant’s employees during the time of the plaintiff’s alleged exposure to asbestos. The question is clearly relevant. So too are questions (b) and (c), and for the reasons explained with respect to question five above, they do not improperly seek merely to elicit particulars. The questions are directed to factual matters which are relevant to the proceedings. The distinction between particulars and answers to questions must be borne in mind: Pearce.[30] Accordingly, the first defendant’s objection to each of the three parts of question seven is disallowed and the first defendant is required to answer the questions.
[30] Cited above, at 572.
Question eight to the first defendant was introduced by reference to document 1.1.2 discovered by the first defendant which appears to describe a list of “sprayed asbestos contracts” carried out by the first defendant at various locations in Adelaide, with a reference to one job in each of 1958 and 1959, and to multiple jobs from 1960 onwards. There were then six questions, objection being taken to the first three. Those questions asked whether the document related to work undertaken by employees of the first defendant or the second defendant or both of them. In each instance the first defendant objected on the ground that the question was not relevant to the issues in the statement of claim.
This objection is disallowed. The document in question appears to list various asbestos spraying jobs carried out by the first defendant in premises in Adelaide, one of which is identified as Cox Foys. It has been suggested that the document is a typewritten copy of a similar hand written list (item 1.1.1) which the second defendant referred to as containing a list of operations in which its employees might have been involved, although that was not admitted. Given the matters in issue as identified above, and the continuing confusion over employment and the activities in which each of the defendant’s were involved, and the time span, the questions are relevant and the first defendant is required to answer them.
Question nine to the first defendant contrasted the admission by the first defendant in para five of its response to the notice to admit that it conducted insulation operations using asbestos in Adelaide from 1960 to 1975, and its denial that it did so for the period from 1958 to 1966, with the contents of document 1.1.1 as described, and asked again whether it sprayed asbestos in buildings in Adelaide between 1958 and 1966. The first defendant objected on the ground that the question pertained to facts already admitted. Given that the plaintiff’s exposure over that period remains an issue, and that the document described appears to contradict the position previously taken by the first defendant, the question is relevant, and goes beyond what has been admitted. The objection is disallowed and the first defendant is required to answer the question. If the answer is in the affirmative, it must also answer question ten.
I turn now to the one outstanding question of the second defendant, question seven, which contains eight sub-questions being paragraphs (a) to (h) inclusive. Those questions are prefaced by a reference to both paragraph 20 of the second defendant’s response to the plaintiff’s notice to admit facts, being the denial that in the period 1958 to 1966 it installed insulation products that contained asbestos in buildings located in Adelaide, and to the statement in para 20.1 of the response, already described above, that a document detailing the sprayed insulation operations in which the second defendant’s employees were “involved” was contained in documents discovered by the first defendant.
Questions (a), (b) and (c) were answered, and identified the “document” to which the second defendant referred and what it meant by use of the word “involved”. The last four questions being (e), (f), (g) and (h) were similar in content. Question (e) asked whether during at any time in the period 1960-1966 the second defendant undertook “sprayed insulation” work in buildings located in Adelaide, and (f) asked the same question but with the additional reference to sprayed insulation work with insulation containing asbestos. Questions (g) and (h) asked the same two questions in relation to the period 1958-1960.
The second defendant objected to each question on the ground that it was vexatious in that a materially similar assertion had been made in the plaintiff’s notice to admit, and inferentially, had been denied.
Given the further disclosure of information by the admissions recorded above, and the greater obligation on the second defendant in answering pre-trial questions compared with responding to a notice to admit, as already explained, and the relevance of the questions to the matters in issue, namely whether the plaintiff was employed by the second defendant, and whether during the alleged employment, the plaintiff was exposed to sprayed insulation operations commencing over the period from 1958 to 1966, the objections are disallowed. The second defendant is required to answer the last four parts of question seven.
Other matters
Discovery
The plaintiff sought an order that the second defendant discover the documents identified at paras 1.1.1 and 1.1.2 of the first defendant’s supplementary list of documents. He contended that because, as described above, the second defendant in para 20.1 of its notice to admit made reference to those documents as possibly relating to activities of its employees, it ought to formally disclose them by means of supplementary discovery. The plaintiff may technically be correct in this submission, but I see no need for an order in that regard. The documents have been discovered by the first defendant, and the plaintiff can make such use of them as he wishes in the case he brings against each defendant. I decline to make the order.
Compliance with District Court Rule 113
The plaintiff contended that the history of this matter reveals that collectively the first and the second defendants have failed to comply with time limits set by the Rules or various orders of the Court setting time frames for procedural actions on eleven occasions.[31] These orders related to matters such as the time for filing defences and lists of documents, for serving medical reports, and providing copies of discovered documents. The defendants did not dispute the alleged non-compliance. The plaintiff contended that these persistent failures to comply with time limits, together with the inconsistent conduct of the defendants in having their solicitors advise that their instructions were to “answer the interrogatories”, only to file answering documents which objected to almost all but one pre-trial question each, constituted “playing games”,[32] and resulted in unnecessary expense and a waste of the Court’s time so as to call for some action by the Court indicative of its disapproval.
[31] Stuart affidavit paras 63 and 64.
[32] Stuart affidavit paras 73 – 75.
The plaintiff contended that the defendants’ conduct and that of their lawyers was in breach of their obligation under r 113(1) to assist the Court in the orderly progress of the proceedings, and contravened some of the specific obligations outlined in r 113(2). The remedy sought by the plaintiff was that each of Mr Hillary, the solicitor with conduct of the matter on behalf of the defendants, and an officer of each of the first and second defendants, file and serve an affidavit explaining the reasons behind each of the breaches of the Court orders and stating whether the deponent believed there had been compliance with r 113(1) of the Rules. The purpose was to expose the allegedly non-compliant conduct of the defendants and their lawyers to scrutiny.
In my view it is not appropriate to make the orders sought. The note to r 113(1) provides that “[T]he powers to enforce compliance, or to penalise non-compliance, with this rule, and indeed the rules generally, conferred by rr 12 and 13 should be noted”. That is, the consequence of a breach of the duties imposed by r 113(1) may sound in orders under rr 12 and 13 which penalise non-compliance, whether by striking out pleadings or otherwise. In those circumstances an explanation for the allegedly non-compliant conduct would normally be sought and considered in deciding whether an order under rr 12 or 13 should be made. In the present circumstances, I am not inclined to make an order that there be a “stand alone” explanation for the delays unless it is relevant to an application seeking the exercise of particular powers of the Court under rr 12 and 13 or some other rule.
Costs of this application
The plaintiff seeks costs of and incidental to this application on an indemnity basis and that such costs be paid within 14 days of their agreement or assessment as to quantum. Given the outcome of the plaintiff’s interlocutory application, I consider the plaintiff is entitled at least to party/party costs of and incidental to the application, despite that I have not acceded to the application for orders for discovery or the filing of affidavits relating to non-compliance with r 113. Those matters took up very little time. The plaintiff succeeded on the main issue. The question is whether there are special and unusual features which justify the Court in going further and ordering that such costs be paid on an indemnity basis.
The grounds upon which the plaintiff invited the Court to so proceed are the history of repeated non-compliance with earlier procedural orders of the Court, and the fact that the defendants appeared, in effect, to renege on their initial advice that the proposed pre-trial questions would be answered.
As to the latter point, I observe that if the defendants wished to avoid giving a misleading impression by having their lawyer advise that the interrogatories would be answered, they should have indicated that although they were not opposed to the making of an order for pre-trial examination under r 150(1), they reserved the right to object to certain specific questions. Had they done so, the Court would have had the option of considering such objections in the context of deciding whether to make an order for pre-trial examination either in accordance with the plaintiff’s draft or with some amendments. The notification by the defendants of their objections only after stating the questions would be answered caused delay in the proceedings and extra expense to the plaintiff. In my view the conduct of the defendants through their lawyers on this aspect of the matter was unreasonable.

As noted by Gray J in Sunburst Properties Pty Ltd (in liq) v Agwater Pty Ltd & Ors (No 2),[33] unreasonable conduct is sufficient to enliven the discretion to award costs on an indemnity basis. It is not necessary that the conduct also be vexatious. Further, the Court is entitled to order indemnity costs if satisfied that it ought to mark its disapproval of inappropriate conduct on the part of the party ordered to pay costs.
[33] [2005] SASC 393 at [8].
The fact that there has been unreasonable conduct by the defendants as found does not mean that the plaintiff is thus entitled to indemnity costs. In considering whether it is satisfied that such an order should be made, the Court must have regard to the facts and circumstances of the particular case.[34] Relevant circumstances may encompass the conduct of a party as a litigant throughout the proceedings: NMFM Property Pty Ltd v Citibank Ltd.[35] In this regard the full history of non-compliance with Court orders of which the plaintiff complains may be relevant. The instances of non-compliance by the defendants with Court orders detailed in the Stuart affidavit occurred over the period from November 2011 to September 2012. The only explanation proffered at the hearing of this application was with respect to those failures related to the order made on 24 October 2011 for the disclosure of expert reports by 16 December 2011. It was said that disclosure could not be made within the time limited as the defendants were unable to arrange for the plaintiff to attend upon their nominated medical expert at a sufficiently early time. The plaintiff disputed the validity of this explanation on the basis that there was significant and unnecessary delay in the defendants making arrangements for the plaintiff to be seen by their medical expert.
[34] Per Gray J in Sunburst Properties at [7].
[35] [2001] FCA 480 per Lindgren J at [56] and [63].
The non-compliance by the defendants with Court orders, and the late objection to the content of the pre-trial questions, has caused delay and expense in the context of a claim brought under procedures which are intended to be expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind, and to allow cases to be dealt with expeditiously. Moreover, the non-compliance occurred in circumstances where the defendants were allegedly aware through the solicitors for the plaintiff from May 2011 that the plaintiff may have malignant mesothelioma, and where undoubtedly they had known since 1 March 2012 through their own medical expert[36] that the plaintiff was suffering not only from ongoing breathlessness due to pleural plaques related to exposure to asbestos, but also from left pleural thickening which was possibly a benign condition or possibly due to a newly developed mesothelioma. It is well known that the latter condition is a result of asbestos exposure, and that it is an unpredictable condition which can cause death within months if it takes an aggressive form.
[36] Report of Dr R Antic dated 1 March 2011 – Exhibit “A” to the Stuart affidavit.
For these reasons I am of the provisional view that there are grounds upon which I might consider exercising my discretion under r 264(5)(b) of the Rules to order that the defendants pay the plaintiff’s costs of and incidental to the interlocutory application of 3 October 2012 on an indemnity basis. However the material before me may not provide the full picture. I note there is affidavit material additional to the Stuart affidavit put on file by the solicitors for the plaintiff which adds further background to the procedural defaults. That material comprises affidavits of Mr Stuart filed 21 October 2011,[37] 14 December 2011, 17 July 2012[38] and 16 August 2012. It may be appropriate that I consider this material as well. I am reluctant to act on it at this stage as the affidavits were not formally tendered in these proceedings. I propose to invite the plaintiff to tender them if he so wishes, and if so, to hear from the defendants in that regard. If the affidavits are admitted, I would give the defendants the opportunity to make a response if so advised either by filing affidavits and/or by making further submissions.
[37] In particular paras 24 – 42.
[38] In particular paras 5 – 19.
I note that if an order for indemnity costs is made, it must have regard to the principle that the purpose of such an award is to compensate and not to punish. My provisional view is that any such order should be limited to providing for indemnity costs in relation to the extra expense to which the plaintiff has been put in these interlocutory proceedings by the unreasonable approach taken by the defendants in indicating that the pre-trial questions would be answered only to later take objections which should have been raised at the outset. It may be that an earlier indication of the attitude of the defendants to the pre-trial questions would not have obviated the need for most of the argument which took place before me, and if that is so, that aspect of the proceedings arguably should not be subject to an order for indemnity costs.
The parties are invited to address me on these matters if they wish at the next directions hearing date mentioned below.
The plaintiff also seeks an order that costs as agreed or assessed be paid within 14 days. Under r 265(1) the Court may deal with costs at any stage of the proceedings. However, under r 265(2), subject to any order of the Court to the contrary, an order for costs is not to be enforced until after the principal proceedings have been concluded. It is not appropriate that I interfere with the application of this rule unless the interests of justice so require. In my view, on the material before me at present, the interests of justice do not require payment before conclusion of the proceedings despite the unreasonable conduct of the defendants as found. The interlocutory proceedings have not determined any discrete aspect of the action. Once the pre-trial questions have been dealt with, the matter should be ready to be listed for trial without further delay. The plaintiff is being represented on the basis of a “no win no fee’ arrangement.[39] In all the circumstances, subject to hearing further from the parties, I am of the provisional view that the order for costs should not be enforceable until after the principal proceedings have been concluded.
[39] Stuart affidavit para 13.
Conclusion
I make an order with retrospective effect from 13 September 2012 that the plaintiff be permitted to undertake pre-trial examination of the defendants in the terms of the questions served upon them in accordance with my order dated 28 August 2012. I waive the requirement under r 150(2)(a) that the written questions be filed with the Court.
The first defendant’s objections to questions one, two, three, four, five, six, seven, eight (a), (b) and (c), nine and ten are disallowed. The first defendant is required to file and serve answers to those questions within 14 days and I so order.
The second defendant’s objections to questions one, two, three, four, five, six and seven (e), (f), (g) and (h) are disallowed. The second defendant is required to file and serve answers to those questions within 14 days and I so order.
I decline to order that the second defendant make further discovery.
I decline to order that any of Mr Hillary or an officer of the first or second defendant file an affidavit explaining whether and why there has been non-compliance with r 113.
I order that the first and second defendants pay the plaintiff’s costs of and incidental to the interlocutory application dated 3 October 2012.
I reserve the questions as to whether all or part of those costs should be paid on an indemnity basis and as to whether they be paid before the principal proceedings have been concluded pending further evidence and/or submissions.
I list the interlocutory application and the proceedings generally for further directions on Monday 26 November 2012 at 2.00 pm.