Thompson v Western Water Services Pty Ltd (UGL Limited)
[2013] WADC 102
•20 JUNE 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: THOMPSON -v- WESTERN WATER SERVICES PTY LTD (UGL LIMITED) [2013] WADC 102
CORAM: DEPUTY REGISTRAR HOGAN
HEARD: 13 JUNE 2013
DELIVERED : 20 JUNE 2013
FILE NO/S: CIV 1087 of 2012
BETWEEN: DEAN ROBERT THOMPSON
Plaintiff
AND
WESTERN WATER SERVICES PTY LTD (UGL LIMITED)
Defendant
Catchwords:
Practice and procedure - Further and better discovery
Legislation:
District Court Rules (2005) (WA) r 46
Rules of the Supreme Court (1971) (WA) O 26
Result:
Further and better discovery ordered
Representation:
Counsel:
Plaintiff: Mr Lindsay-Temple
Defendant: Ms Melville
Solicitors:
Plaintiff: Chapmans
Defendant: SRB Legal
Case(s) referred to in judgment(s):
Airwaves Gold Coast Pty Ltd v Caneflight Enterprises Pty Ltd [2] [2013] WADC 28
Beechman Group Ltd v Bristol-Myers [1979] VR 273
Donaldson v Harris (1973) 4 SASR 299
Kent Coal Concessions Limited v Duguid [1910] 1 KB 904
Leighton Contractors Pty Ltd v Public Transport Authority (WA) [2007] WASC 65
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
DEPUTY REGISTRAR HOGAN: Mr Thompson (the plaintiff) alleges that on 25 November 2009, at a work location in Lewington Gardens, he was required to manually break up a reinforced liquid limestone driveway and to cut the driveway with a diamond blade cutter and remove it with a crowbar. He alleges the use of the crowbar caused him to fall and suffer injury. It is alleged that Western Water Services Pty Ltd (the defendant) is responsible for the accident on the basis that the plaintiff was required to dig manually when an excavator ought to have been utilised (statement of claim [10]).
Informal discovery has been completed by each party; however the plaintiff has sought, by chambers summons, amended 13 June 2013, the following orders:
1.The defendant within 14 days do provide copies of all timesheets and job sheets (whether computer generated or otherwise) it has in its possession custody or control with respect to the plaintiff for the six month period prior to the date of accident.
2.The defendant within 14 days do provide the documentation in its possession custody or control in relation to the work performed by any contractor engaged to provide excavation equipment and carrying out excavation work on each of the jobs assigned to the plaintiff whilst employed by the defendant within the six month period prior to the date of the accident.
3.The defendant pay the plaintiff's costs of this application in any event.
In support of the application the plaintiff relied upon the affidavit of Brieanna Kirsty Mercer sworn 6 May 2013.
The defendant relied upon the affidavit of Sharron Fiona Wise sworn 27 May 2013.
General principles
Pursuant to District Court Rules (2005) r 46(2) discovery is required of documents 'relating to any matter in question in the action'. The pleadings are the principle source of defining the matters in question in the proceedings.
Pursuant to Rules of the Supreme Court (1971) (RSC) O 26 r 15 if any party fails to give discovery the court may make such order for further discovery 'as it thinks just' and this principle is also applicable in proceedings commenced in the District Court (Airwaves Gold Coast Pty Ltd v Caneflight Enterprises Pty Ltd [2] [2013] WADC 28 [35] – [36]).
In considering whether to exercise the discretion to order better and further discovery regard should be had to the principles of case management. In relation to case management, in Leighton Contractors Pty Ltd v Public Transport Authority (WA) [2007] WASC 65, Le Miere J stated [18]:
Factors to be considered in making or framing an order for discovery depend upon the circumstances of each case but will often include the likely time, cost and inconvenience of making discovery of any documents or classes of documents by way of comparison with the amount of documents involved in the action, the relative importance or likely relevance of them in relation to any issue or issues in the action and the probable effect on the outcome of the action of a party obtaining access to the documents or class of documents. Generally, the court will try to avoid making discovery orders that would place an oppressive burden on a party such that it must devote disproportionate resources to the search for relevant documents.
Order 26 r 7(3) RSC provides that the court may order that discovery be limited to specified documents or specified classes of document, may order that discovery be limited to documents that are directly relevant to specified matters in question and may order that discovery be given at specified stages in the action.
Order 26 r 7(3) RSC evinces a policy of the rules that discovery should only be ordered to the extent that it is necessary for the attainment of justice.
The court has inherent power to order further discovery Kent Coal Concessions Limited v Duguid [1910] 1 KB 904, 915 – 916.
The scope of discovery is determined by a liberal construction of the pleadings, that is, if it helps explain the controversy between the parties: Donaldson v Harris (1973) 4 SASR 299.
The court has to be fairly certain that there are relevant documents which ought to have been discovered Beechman Group Ltd v Bristol-Myers [1979] VR 273.
Where the document sought is one referred to in an already discovered document it is reasonable to assume that it is relevant: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3].
The plaintiff
The plaintiff argued that in accordance with RSC O 26 r 7(3), to the extent that it is necessary for the attainment of justice, the court ought to exercise its broad discretionary power in relation to discovery both in its inherent jurisdiction and under the rules and make an order for discovery.
Counsel argued that the plaintiff, as directed by the defendant repaired water mains consistently and over an extended period requiring the utilisation of an excavator. Counsel argued that to deny discovery of documents evincing the utilisation of an excavator would require the court to hold prima facie that the plaintiff and defendant repaired water mains consistently and over an extended period by digging them by hand.
The plaintiff argued that the documents sought were relevant because the question of how often an excavator was requisitioned or utilised as a matter of course and procedural practice is relevant to the controversy between the parties and is reflected in the pleadings.
The defendant
Counsel for Western Water argued that the nature of the plaintiff's work was such that he was sent to different jobs at different locations on a daily basis and in that sense each job undertaken in the course of his employment was different and documents relating to past practices do not relate to the pleaded discrete incident and/or any matter in question in the action.
Counsel argued that the plaintiff had failed to explain the relevance of the documents sought to the allegations pleaded in the statement of claim, including the allegation that the defendant failed to provide adequate equipment (including but limited to an excavator) to allow the plaintiff to safely carry out the task he was performing on 25 November 2009.
The defendant claimed that the plaintiff had not identified with any particularity any past jobs that may have been relevant to the pleaded incident and had not explained how all documentation relating to each of the jobs could bear any relevance to what he appears to allege was a discrete failure to provide equipment on 25 November 2009.
The defendant argued that what is relevant in the proceedings is whether the defendant acted in such a way as to discharge its duty of care to the plaintiff in the circumstances on 25 November 2009. Relevant to that consideration is what a reasonable employer would have done in the circumstances.
The defendant argued that to discover the documents sought would involve significant time and costs and inconvenience and, within the context of arguable relevance, would impose upon the defendant an oppressive burden disproportionate to the value of the documents to the matters in issue in the proceedings.
The defendant submitted that the order as sought constituted a 'fishing expedition' given the broad terms of the order and the plaintiff's failure to identify with any specificity particular incidents which he says bear any relevance to the pleaded incident of 25 November 2009.
The defendant claimed to have produced all documents in its possession regarding the events of 25 November 2009 and its general procedures and argued that further documents sought by the plaintiff were not relevant.
Considerations
The defendant's list of documents dated 12 June 2013 included an example of a timesheet and associated computer printouts for the day of 2 November 2009.
For the purposes of this application the documents are best described as a timesheet and job sheets.
The plaintiff was unable to show how production of further timesheets would advance the plaintiff's case. The sample timesheet dated 2 November 2009 indicated that the plaintiff performed three different jobs on that day with a co-worker. The plaintiff was unable to convince me that production of the timesheets for a period of six months prior to the material date would be of any assistance in this matter and I am not prepared to order production of the further timesheets.
In relation to the job sheet the plaintiff drew attention to what appeared to be 'tabs' in the top third of the document which have headings such as 'operations', 'additional data', 'planning' and 'control'.
The plaintiff claimed that providing discovery of the documents referred in the 'tabs' may illicit sufficient information to identify the extent to which excavators were used as a matter of course and procedural practice.
I am guided by the words of Le Miere J:
That is the rules empower the court to require a party to give discovery not only of documents that are directly relevant to any matter in question but also of documents that relate to any matter in question in the sense that they may fairly led a party to a train of enquiry which may enable that party to advance its own case or to damage the case of its adversary.
Leighton Contractors Pty Ltd v Public Transport Authority (WA) [2007] WASC 65 [26].
and consider that the tabs may contain documents that fairly lead the plaintiff to a train of enquiry to advance his case.
The defendant was not able to state if the ‘tabs’ contained any further information.
Whilst I have to be fairly certain that there are relevant documents which ought to have been discovered Beechman Group Ltd v Bristol-Myers, the inability of the defendant to advise whether there are further documents within the 'tabs' does not lead me to draw an inference that I am unable to be fairly certain that there are other discoverable documents.
Where the document sought is one referred to in an already discovered document it is reasonable to assume that it is relevant: Youlden Enterprises Pty Ltd v Heealth Solutions (WA) Pty Ltd [3]. If there are documents attached to the tabs on the previously discovered job sheet then it is reasonable to assume that they are relevant.
I will order that the defendant give discovery of the documents attached to the 'tabs' for a period of one month prior to the accident. Once the documents have been discovered, the plaintiff may apply to the court for orders that the defendant give discovery of the 'tab' documents for the balance of the six month period sought. Subject to hearing from the parties, I would propose that discovery of the 'tab' documents should be given within 14 days and that the plaintiff have leave to apply for further orders within seven days thereafter.
The second order sought is that the defendant provide the documentation in its possession, custody or power in relation to the work performed by any contractor engaged to provide excavation equipment and carrying out excavation work on each of the jobs assigned to the plaintiff whilst employed by the defendant within the six month period prior to the date of the accident.
Whilst the defendant argued that the plaintiff has failed to identify with any particularity any past jobs that may have been relevant to the pleaded incident and did not explain how all documentation relating to each of the jobs could be relevant, the plaintiff argued that the defendant repaired water mains consistently and over an extended period requiring the utilisation of an excavator.
A liberal construction of the pleadings (Donaldson v Harris) would concur that the question of how often an excavator was requisitioned or utilised as a matter of course and procedural practice is relevant to the controversy between the parties. Consideration of past practices is germane to the question of what a reasonable employer would have done in the circumstances and discovery of documents relating thereto is relevant.
The plaintiff was given opportunity to narrow the terms of the order sought but even in its final form it would, if granted, require the defendant to produce a wide range of documentation regarding excavation work on a job to which the plaintiff was assigned.
Because of the potential for oppression I will grant the order in the terms sought but I will limit the time to a period of one month prior to the accident and, subject to hearing from the parties, order that the documents be produced within 21 days.
I will hear from the parties in relation to costs and regarding the orders to give effect to the decision.
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