Weber v Wollongong Coal

[2022] NSWDDT 3

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Weber V Wollongong Coal & Ors [2022] NSWDDT 3

Hearing dates:

21 July 2022

Date of orders:

17 August 2022

Decision date:

17 August 2022

Before:

Strathdee J

Decision:

(1) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the first defendant to provide verified discovery of the classes of documents as set out in Annexure A to the Notice of Motion filed 6 July 2022, but limited to the period 28 February 1996 and 28 February 2019, within 28 days of this date.

(2) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the third defendant to provide verified discovery of the classes of documents as set out in Annexure C to the Notice of Motion filed 6 July 2022, within 28 days of this date.

(3) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the fourth defendant to provide verified discovery of the classes of documents as set out in paragraphs 7 to 10 of Annexure D to the Notice of Motion filed 6 July 2022, within 28 days of this date.

(4)   The first, third and fourth defendants are to pay the plaintiff’s costs of the Motion.

(5)   Matter listed part-heard before me for further directions at 10 am on 19 September 2022.

(6)   If the parties seek an alternate costs order, I ask that my Associate be notified within 21 days of this date.

Catchwords:

PROCEDURE – discovery – where all issues in the proceedings are in dispute – use of a subpoena – whether discovery is necessary – whether exceptional circumstances warrant discovery before service of evidence – whether documents sought are relevant in the resolution of the real issues in the proceedings – whether categories are oppressive – order for discovery granted

DUST DISEASES – Dust Diseases Tribunal – discovery – facts in issue in the proceedings

Legislation Cited:

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)

Civil Procedure Act 2005 (NSW)

Dust Diseases Tribunal Act 1989 (NSW)

Dust Diseases Tribunal Rules 2019 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783

Commonwealth Bank of Australia v Goater [2016] NSWSC 710

Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788

ICAP Pty Ltd v Moebes [2009] NSWSC 306

Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Category:

Procedural rulings

Parties:

Mark David Weber (Plaintiff)
Wollongong Coal Limited (First Defendant)
WDS (Mining) Pty Ltd (Second Defendant
CAS Mine Services Pty Ltd (Third Defendant)
Coal Mines Insurance Pty Ltd (Fourth Defendant)
QBE Insurance (Australia) Ltd (Fifth Defendant)

Representation:

Counsel:
Mr S Tzouganatos appeared for the Plaintiff
Mr G P F Rundle appeared for the First Defendant
Mr T Rowles appeared for the Third and Fourth Defendants
Mr J Sheller SC appeared for QBE Insurance (Australia)

Solicitors:
Ms J Wade, Slater & Gordon Lawyers (Plaintiff)
Mr M McDonald, McCabes Lawyers (First Defendant)
No appearance for the Second Defendant
Ms R Brewster, Sparke Helmore Lawyers (Third and Fourth Defendants)
Ms B Mason, Thompson Cooper Lawyers (QBE Insurance)

File Number(s):

2021/00230090 and 2022/00198728

Publication restriction:

None

Judgment

INTRODUCTION

1. By Amended Statement of Claim filed 28 March 2022, Tribunal file number 2021/230090, Mark David Weber (‘the plaintiff’) seeks damages for mixed dust pneumoconiosis and depression alleged to have been as a result of his work as a miner in premises owned and occupied by Wollongong Coal Limited (‘WCL’), the first defendant, while employed by it, but also at different times, employed by WDS (Mining) Pty Limited (‘WDS’), the second defendant, and CAS Mining Services Pty Ltd (‘CAS’) the third defendant. Coal Mines Insurance Pty Ltd (‘CMI’) the fourth defendant, is the employers’ indemnity insurer of WCL and CAS and is sued pursuant to the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).

2. By Notice of Motion filed 6 July 2022, and supported by the Affidavit of Joanne Louise Wade sworn 6 July 2022 (Exhibit A on the Motion), the plaintiff seeks orders inter alia against the first, third and fourth defendants as set out in paragraphs 1, 3 and 4 of the Notice of Motion, as follows:

“1. Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the First Defendant to provide verified discovery of the classes of documents as set out in Annexure A hereto, on or before Friday 12 August 2022.

3. Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the Third Defendant to provide verified discovery of the classes of documents as set out in Annexure C hereto, on or before Friday 12 August 2022.

4. Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the Fourth Defendant to provide verified discovery of the classes of documents as set out in paragraphs 7 and 10 of Annexure D hereto, on or before Friday 12 August 2022.”

3. By way of Summons filed 7 July 2022, and bearing the Tribunal file number 2022/198728, QBE Insurance (Australia) Ltd (‘QBE’) makes application to be joined as the fifth defendant to the proceedings. In support of the Summons, QBE relied on the Affidavit of Belinda Mason sworn 7 July 2022 with annexures.

4. Having read the submissions of the parties, and heard the oral arguments, I granted the plaintiff leave to file a Further Amended Statement of Claim joining QBE to the proceedings. The parties did not require reasons for that decision.

BACKGROUND

5. The plaintiff’s claim is one for provisional damages in respect of the pneumoconiosis and seeks an entitlement to claim further damages if he develops other lung diseases including cancer, under s 11A of the Dust Diseases Tribunal Act 1989 (NSW). The plaintiff also claims damages for a persistent depressive disorder on a final basis.

6. Mr Weber alleges he was employed:

1. by WDS from about August 2008 to September 2009 as an underground production panel operator including shuttle car operator, cable hand, and roof bolting rig operator at Number 4 Shaft Number 1 Colliery (owned and operated by WCL) and was exposed to and inhaled dust including coal and silica dust;

2. by WDS from September 2009 to about early 2010 as an underground production panel operator including miner driver, shuttle car operator and roof bolting rig operator at the South Bulli Number 1 Colliery (owned and operated by WCL) and was exposed to and inhaled dust, including coal and silica dust;

3. by WCL from about early 2010 to about September 2015 as an underground panel operator at South Bulli Number 1 Colliery and was exposed to and inhaled dust, including coal and silica dust; and

4. by CAS from about August 2017 to about February 2019 as an underground panel operator including miner driver, shuttle car operator and bolt rigging Operator at Wongawilli Colliery (owned and operated by WCL) and was exposed to and inhaled dust, including coal and silica dust.

7. At all material times WCL owned, occupied, managed and operated:

1. Number 4 Shaft Number 1 Colliery (‘Number 4 Shaft Number 1 Colliery’) at Cordeaux, New South Wales;

2. South Bulli Number 1 Colliery, Wonga Mains Project at Russell Vale, New South Wales (‘South Bulli Number 1 Colliery’); and

3. Wongawilli Colliery at Wongawilli, New South Wales (‘Wongawilli Colliery’).

8. In accordance with the Claims Resolution Process (‘CRP’), the proceedings have been to a mediation and did not resolve. As a requirement of the CRP, the defendants are to indicate the issues that are in dispute after the failed mediation and before the matter proceeds to trial.

9. The defendants accept that the plaintiff suffers from mixed dust pneumonoconiosis, however, have placed every other issue in dispute.

10. In its Defence filed 8 October 2021, WCL makes no admissions. In its Statement of Issues served 10 June 2022 WCL stated:

“In the absence of agreement from its respective insurers Wollongong Coal Ltd puts in issue liability, apportionment of liability and the assessment of damages, if any.”

11. The plaintiff submits, and I accept that as a consequence of the position of WCL, the plaintiff will have to prove, inter alia:

1. he was employed in the periods and performed work in the coal mines as alleged in his Amended Statement of Claim;

2. the nature and extent of the plaintiff’s exposure to dust including silica and coal dust;

3. that at all material times WCL knew or ought to have known that the plaintiff might be exposed to dust including coal and silica dust;

4. that at all material times including prior to August 2008 that the inhalation of dust including silica dust might cause lung injury including mixed dust pneumoconiosis;

5. that at all material times, including prior to August 2008, there were reasonable and available to WCL, practicable measures to obviate or minimise the plaintiff’s risk of injury from exposure to and inhalation of dust including silica and coal dust; and

6. his exposure to dust including silica and coal dust as alleged caused or made a material contribution to his mixed dust pneumoconiosis.

12. The plaintiff further submits that to prove the above matters, they will require access to documents that are or were at any time in the possession, custody or control of WCL, in the categories set out in Annexure A to the plaintiff’s Notice of Motion.

13. The plaintiff does not presently move on the Notice of Motion as it relates to WDS.

14. CAS filed a Defence on 8 October 2021 where it stated:

“a.   …The Third Defendant admits that the plaintiff was employed by the Third Defendant but does not admit the period of alleged employment or that the plaintiff was employed in the classification or at the location alleged.”

15. Otherwise, CAS makes no admissions.

16. In the Statement of Issues filed by CAS and CMI on 10 June 2022, these defendants agree that the plaintiff is suffering from mixed dust pneumoconiosis. All other matters are in dispute.

17. In its Defence filed 26 April 2022, CMI makes no admissions.

18. In summary, WCL, CAS and CMI deny negligence, breach of statutory duty and contractual duties, and causation.

RELEVANT LEGISLATION

19. The Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) relevantly provides:

“21.1   Definitions

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

(1)  In this Division:

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

(a)   any document filed in the proceedings,

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

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

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

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

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

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

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

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

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

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

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

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

21.2   Order for discovery

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

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

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

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

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

(3)  Subject to subrule (2), a class of documents may be specified:

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

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

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

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

21.8   Personal injury claims

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

In any proceedings on a common law claim:

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

(b)   for contribution in respect of damages so arising,

an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise.”

20. However, the provisions of the UCPR are specifically altered by Rule 4 of the Dust Diseases Tribunal Rules 2019 (NSW), which provides:

“4 Discovery and inspection of documents

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

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

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

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

21. The relevant applicable legal principals were summarised by Bellew J in Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 at [19]:

“[19]   The parties were generally in agreement as to the principles which apply to an order for discovery. In the context of the present case, those principles may be summarised as follows:

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

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

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

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

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

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

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

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

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

22. The first defendant submits that it would be oppressive for the Court to order that it discover documents as detailed in the Annexure A to the Motion as the period of time during which the documents are requested is very lengthy. During submissions and discussion, counsel for the first defendant and counsel for the plaintiff agreed that the time period for each of the categories be between 28 February 1996 and 28 February 2019.

23. The third and fourth defendants agree that the plaintiff has correctly set out the relevant law. However, they refer my attention to some additional authorities, which I will set out below.

24. In Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, in a decision delivered on 8 September 2011, President Allsop as he then was made the following observations:

“Additional Comments

101.   The material placed before the Court does, however, raise concerns about the use of discovery in defamation cases. … Parties should understand that the restriction on discovery now contained in Pt 21 is the current framework for discovery. Discovery (and its uncontrolled use) always contains (and contain) the risk of abuse and oppression. Discovery can be a highly expensive exercise. Courts in defamation, as in all other matters, including commercial matters, should be astute to ensure that it is not used as a weapon of oppression by wealthy litigants to oppress less well-funded parties. Even when all parties are well resourced, over-enthusiastic and unnecessary use of discovery impedes the due administration of justice and undermines confidence in the court system’s ability to resolve disputes justly, quickly and cheaply. Parties should understand that there is no entitlement to “chain of enquiry” discovery. If the discovery s being used abusively, the courts can and should control it…”

25. The principles were further considered in Commonwealth Bank of Australia v Goater [2016] NSWSC 710, a decision of Justice Adamson delivered on 3 June 2016 at [31]:

“Principles relating to discovery

31.   Discovery is a procedural tool which can be of substantial benefit in litigation. However, it can come at a substantial cost. It has, at times, been used, whether intentionally or otherwise, as a means of delaying proceedings, increasing costs disproportionately, or wearing out a party to litigation. This is particularly the case in respect of so-called “chain of enquiry” discovery which requires the party against whom an order for discovery is made to go through documents to ascertain if it might bear any relevance to the category: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101] per Allsop P. Where a notice to produce or subpoena could serve the forensic purpose just as well, it is to be preferred.

32. For these reasons, it is necessary, before an order for discovery is made, for the Court to be satisfied that it is in the interests of justice and consistent with the just, quick and cheap determination of the real issues in the proceedings, having regard to ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW).”

26. The issue was discussed in Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783, a decision of Ward CJ in EQ delivered on 10 December 2021 where her Honour stated as follows at [29]:

“The general discretion as to applications for discovery is to be exercised consistent with the overriding principles in the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) (see Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 per Allsop P as his Honour then was). Relevantly, his Honour noted that, in ordering discovery, the Court must consider the potential for discovery to give rise to oppressive and disproportionate costs to impede the overriding purpose (see at [101])”.

27. This is further discussed by her Honour at [81] and [82] where her Honour quotes a decision of Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [30]:

“81.   … “it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]”), in those contexts what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings…

82.   I also note at the outset what is meant by the concept of a “fishing expedition”, as explained in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, where it was said:

A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at the liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court, pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere “fishing expedition”.”

CLASSES OF DOCUMENTS

28. Annexure C to the Motion details the documents that the plaintiff seeks an order for discovery from the third defendant, CAS. Annexure D to the Motion details the documents that the plaintiff seeks an order for discovery from the fourth defendant, CMI.

29. I will deal with each of the disputed classes of documents in turn and refer to the issue in the proceedings where it is necessary to do so. I will use the numbering in the annexures to the Motion to avoid confusion.

Annexure “C” – CAS Mine Services

1. Documents relating to the knowledge and means of knowledge of CAS (and its officers, employees and agents) prior to 30 June 2019, of the risk of injury from exposure to dust including coal and silica dust.

CAS had made no admissions that it knew of the risk of injury from exposure to dust including coal and silica in the relevant period. The nature and extent of the knowledge of CAS as to the risk posed is in issue and the determination of the extent of its knowledge and the reasonableness of its actions depends upon the relevant facts, and having put all issues in dispute is relevant to an issue in dispute and should be allowed.

1. Documents relating to the knowledge and means of knowledge of CAS (and its officers, employees and agents) prior to 30 June 2019 of the risk of injury from exposure to dust including coal and silica dust to workers employed in coal mines including the Wongawilli Colliery at Wongawilli, New South Wales.

CAS had made no admissions that it knew of the risk of injury from exposure to dust including coal and silica in the relevant period in coal mines at the Wongawilli Colliery. The nature and extent of knowledge of CAS as to the risk posed is in issue and the determination of the extent of its knowledge and the reasonableness of its actions depends upon the relevant facts, and having put all issues in dispute is relevant to an issue in dispute and should be allowed.

1. Documents relating to the availability prior to 30 June 2019 of precautions and measures to reduce or minimise the risk of injury from the inhalation of dust including coal and silica dust.

This class of documents relates to the issue of preventability and the steps that could have been taken to minimise the risk of exposure. CAS has put all issues in dispute and I accept that the issue of preventability, and the precautions and measures that could have been taken to reduce or minimise the risk of inhalation, are relevant to the issues in dispute. Class 3 should be allowed.

1. Documents relating to the availability prior to 30 June 2019 of precautions and measures to reduce or minimise the risk of injury from the inhalation of dust including coal and silica dust to workers employed in coal mines including the…(sic)

This class seeks documents again relevant to the issue of preventability as in class 3. Class 4 similarly should be allowed.

1. Documents relating to the existence and content prior to 30 June 2019 of libraries maintained and operated by CAS including all publications, books, journals, catalogues, articles, memoranda and reports relating to:

(a)   The risk of injury from the inhalation of dust including coal and silica dust;

(b)   The risk of injury to workers employed in coal mines from the inhalation of dust including coal and silica dust at Wongawilli Colliery at Wongawilli, New South Wales.

(c)   The availability of measures to minimise or eliminate the generation and accumulation of dust including coal and silica dust at coal mines including at Wongawilli Colliery, Wongawilli, New South Wales.

Class 5 seeks to identify where the documents in (a), (b) and (c) were kept in libraries maintained and operated by CAS, presumably to ascertain which of those documents were publicly available during the time that the plaintiff was employed by CAS. As CAS has put all issues in dispute, class 5 should be allowed.

1. Documents in the period of 30 June 2019 relating to the inspection and maintenance of mechanical equipment including bolters, diggers and dozers operated by workers including the plaintiff at Wongawilli Colliery, Wongawilli, New South Wales.

This class of documents again relates to the issue of the nature and extent of the plaintiff’s exposure, and as this is in issue, class 6 should be allowed.

1. Documents relating to the performance of and results from monitoring and testing of the atmosphere at Wongawilli Colliery, Wongawilli, New South Wales, generally and inside machines including bolters, diggers and dozers, for dust including coal and silica dust.

This class of documents addresses the nature and extent of the plaintiff’s exposure to dust including silica and coal dust, which is in issue between the parties. These documents could include air or atmosphere testing or monitoring, and personal monitoring of the workers. Class 7 should be allowed.

1. Documents including the results of any dust survey(s), relating to the presence and extent of dust including coal and silica dust generally and inside the machines including bolters, diggers and dozers at the Wongawilli Colliery, New South Wales.

CAS has put everything in dispute and these documents would go to the issue as to whether any testing was performed in certain areas of the colliery, was any sampling done, if photographs were taken, whether videos of the atmosphere were made, and potentially any personal monitoring of the individual coal miner’s lapels, which all goes to the issue of the nature and extent of the plaintiff’s exposure. Class 8 should be allowed.

1. Documents relating to the diagnosis of any other workers employed at Wongawilli Colliery at Wongawilli, New South Wales, on or before 30 June 2019 with injuries attributable to dust, including but not limited to coal dust pneumoconiosis, mixed dust pneumoconiosis, silicosis and chronic obstructive pulmonary disease.

This class is relevant to the issue of foreseeability, and the issue of nature and extent of exposure, both of which CAS has put in dispute. The records of other workers who may have sustained injuries attributable to dust as particularised is also relevant to the issue of causation to see if there were any other workers at the same mines who have been exposed, which is in dispute and therefore class 9 should be allowed.

1. The employment and personnel records of Mark David Weber.

This class of documents addresses the issue of the plaintiff’s employment at the relevant times. This could include his employment card, contracts of employment, superannuation records, pre-employment medical assessments, X-Rays, assessment of his health or any accident that he may have sustained during his employment, and as CAS has put employment in issue, class 10 should be allowed.

Annexure “D” – Coal Mines Insurance Pty Ltd

1. Documents relating to the performance of and results from monitoring and testing of the atmosphere at Number 1 Colliery at Cordeaux, New South Wales; South Bulli Number 1 Colliery, at Russell Vale, New South Wales; and Wongawilli Colliery at Wongawilli, New South Wales, generally and inside machines including bolters, diggers and dozers, for dust including coal and silica dust.

Any records of air testing, atmosphere monitoring and personal monitoring of the workers is relevant to the issue of exposure and the nature and extent thereof. Class 7 should be allowed.

1. Documents including the results of any dust survey(s), relating to the presence and extent of dust including coal and silica dust generally and inside the machines including bolters, diggers and dozers at the:

a.   Number 1 Colliery at Cordeaux, New South Wales;

b.   South Bulli Number 1 Colliery, at Russell Vale, New South Wales; and

c.   Wongawilli Colliery at Wongawilli, New South Wales.

This class of documents would address the issue of the nature and extent of exposure and would also relate to knowledge and foreseeability. It might disclose air-testing, atmospheric testing, surveys and the like and class 8 should be allowed.

1. Documents relating to the diagnosis of any other workers employed at Number 1 Colliery at Cordeaux, New South Wales; South Bulli Number 1 Colliery at Russell Vale, New South Wales; and Wongawilli Colliery at Wongawilli, New South Wales, on or before 30 June 2019 with injuries attributable to dust, including but not limited to coal dust pneumoconiosis, mixed dust pneumoconiosis, silicosis and chronic obstructive pulmonary disease.

This class is relevant to the issue of foreseeability, and the issue of nature and extent of exposure, both of which CMI has put in dispute. The records of other workers who may have sustained injuries attributable to dust as particularised is also relevant to the issue of causation to see if there were any other workers at the same mines have been exposed, which is in dispute and therefore class 9 should be allowed.

1. The employment and personnel records of Mark David Weber.

This class of documents addresses the issue of the plaintiff’s employment at the relevant times. This could include his employment card, contracts of employment, pre-employment medical assessments, assessment of his health or any accident that he may have sustained during his employment, and as CMI has put employment in issue, class 10 should be allowed.

DISCUSSION

30. The entitlement to an order for discovery requires that the plaintiff approach the application in a particular way, following the UCPR. That requires an identification of what issues are in dispute, because it is only when one does that, that one can come to grips with the relevant classes of documents, and whether the classes are broad, or a fishing expedition, or a chain of enquiry.

31. One has to keep firmly in mind what the issues between the parties are as if the classes of documents are not directed to the issues in dispute, then the request for the order would be prohibited as the classes could be a fishing expedition or a chain of enquiry, which are really meant to prohibit the same thing — an abuse of the Court’s power.

32. CAS and CMI contend that the plaintiff should obtain the documents by the issue of relevant subpoena.

33. In my view, as the plaintiff had been requesting the relevant documents from CAS and/or CMI, and nothing was provided, then the appropriate course was to seek an order for discovery. The nature of discovery is such that the officers of the various defendants are required to search for all and any relevant documents, as advised by a lawyer acting in their interests. However, the obligation for discovery in r 21.3(2)(b) of the UCPR requires that if the documents are not found after a thorough search, that the details of where those documents may be – in particular to whom the documents may have been given or where the relevant defendant believes that the documents are, should be deposed to in an affidavit. This achieves far more than a subpoena can, and in circumstances that involve historical exposure, it is a necessary and appropriate step to take.

34. In my view, the purpose of r 21.1(2) of the UCPR is a provision that the document is taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of a fact. If the documents or the class of documents might affect the probability of the existence of a fact, it has to be discovered. However, the documents don’t have to be admissible.

35. In Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306, Brereton J stated as follows:

[14] “There has been a tendency, since the introduction of the predecessor of UCPR r 21.2 (and its predecessor in the Supreme Court Rules), for classes of documents for discovery to be framed, not by reference to facts in issue, but by description of the type and (sometimes) the dates of the documents. While it is sometimes apparent that documents so described are relevant to a fact in issue, often it is not. Moreover, framing classes of documents for discovery in that way tends to distract Party B from focusing on the question of relevance to a fact in issue, and direct it towards whether or not the document fits within the description. It tends to confuse the process of discovery with that of a subpoena for production. As I have pointed out on more than one occasion, [5] for this reason it is usually preferable to draft classes of documents for discovery by reference to facts in issue rather than by description of the nature of the documents and the period within which they were brought into existence, because doing so makes the relevance of the class clear beyond doubt, and because it makes clear that Party B is required to make the necessary judgment as to relevance of any particular document. When drafted by reference to facts in issue the relevance of the class is immediately apparent. This is the principal way in which ASOF has propounded its case for discovery. Discovery in the form sought is not only specifically authorised (by UCPR r 21.2(3)(a)), but is the preferable means of framing such an order. Save as to the requirement that a class of documents not be specified in more general terms than justified in the circumstances, there is no limit to the width of a class. An order framed in terms of “the issues raised by para 18 of the cross-claim” is permissible and appropriate, at least if para 18 represents real issues in dispute in the proceedings.”

36. His Honour made the following comments with regard to the issue of necessity:

[16] “While UCPR r 21.2 does not itself contain a test of “necessity”, such a notion is contained in the Practice Note. Moreover, the concept of “necessity” as a test is not new in this context. Insofar as par 5 of the Practice Note provides that discovery will be ordered only where necessary, it reflects a longstanding requirement, formerly contained in the rules (and still provided, in respect of interrogatories, by UCPR r 22.1(4)), that discovery would be ordered only where it was necessary. This provision was consistently interpreted to mean, not “essential”, but “reasonably required for the fair disposition of the matter”. [6] The notion has been variously described as "what is reasonably necessary for the disposing fairly of the cause or matter", [7] or "necessary in the interests of a fair trial"; [8] or "reasonably required or legally ancillary" to the achievement of a fair trial, not "essential" but to be "subjected to the touchstone of reasonableness". [9] That approach has been applied to the similar phrase in the Practice Note: in Leighton International v Hodges; Thiess v Reinforced Earth, McDougall J said: [10]

In the context of the Practice Note, the disclosure (either pre-evidence or at all) must be shown to be reasonably necessary for disposing of the matter fairly or in the interests of a fair trial.”

[17]   “In that context, it is necessary to remember the purposes of discovery. While it is a common use of discovery to obtain evidence of Party B’s knowledge or conduct, that is far from its sole use or purpose. The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are “playing with all the cards face up on the table”. [11] Discovery has the consequence that Party B cannot adduce documentary evidence at trial which takes Party A by surprise. Thus, simply ascertaining what documents relevant to a fact in issue are in the possession of Party B and may be deployed at trial by that party, or may aid Party A’s case or harm Party B’s case, is a relevant and proper purpose of discovery. It is a means of a party ascertaining what the other party has in its hand, and thereby avoiding surprise.”

[18]   “One feature of discovery (that distinguishes it from a subpoena for production) is that it casts upon the party giving discovery, the obligation to disclose every document in his or her possession (within the relevant class) that relates to a fact in issue in the proceedings. It casts on Party B the obligation to identify the documents – as distinct from a subpoena where the issuing party must frame, relatively precisely, the description of the documents production of which is required. Once these features of discovery are appreciated, objections by EQT to the effect that ASOF’s application is in the nature of “trawling” or “fishing”, or that it requires EQT to review its documents and form its own view as to the relevance of a particular document to the specified issues, can be seen to be misconceived. Whilst those are legitimate objections to a subpoena for production, it is fundamental to the notion of discovery that Party B is required to disclose any of its documents that are relevant, and to make its own judgement as to relevance.”

Oppression

[29]   “Even when discovery was available as of right, the court could relieve a party from giving discovery the extent of which would be oppressive. [13] Under the current rules, the court will frame orders for discovery so that they are not oppressive. But oppression is not a mere factor of extent, time and cost: discovery is not oppressive merely because it is burdensome, but only if it is unnecessarily burdensome.”

[30]   “EQT adduced evidence that its lawyers would now need to review each and every one of the documents in the possession of ANZ and EQT that relate to Metal Storm before they can be discovered, and that it would incur legal costs in the order of $36,000 to $44,000 in reviewing its documents and drawing and certifying its list of documents.”

[31]   “In the context of commercial litigation of this kind and scale, I do not regard that as self-evidently oppressive.”

37. Counsel for CAS and CMI read affidavits of Joanne Louise Wade sworn 6 July 2022 (Exhibit A on the Motion), Emma Honey sworn 19 July 2022 (Exhibit B on the Motion) and Neil Cussen sworn 20 July 2022 (Exhibit C on the Motion).

38. Ms Wade is the solicitor for the plaintiff and her affidavit sets out the procedural history of the matter and annexes relevant medical reports.

39. Mr Cussen is a partner at Cor Cordis and one of the joint liquidators for CAS and is authorised to swear an affidavit on its behalf. In his affidavit he states as follows:

[5]   “After due search and inquiry with the third defendant, I am informed and believe that it does not have any documents in categories 1 to 8 and 9 referred to at paragraph 4 above. I am informed and believe that if in existence these documents would have been held by the first defendant.”

[6]   “I have conducted inquiries with the third defendant’s company director to ascertain what documents are available in Category 10 referred to at paragraph 4 and am informed and believe that he does not have any documents in respect to Category 10 referred to at paragraph 4 above.”

[7]   “I have extracted the following records from the third defendant’s management accounts maintained by MYOB, which were provided to the liquidators after our appointment, and which have not been audited by the liquidators:

(i)   Employment details for the period July 2017 to June 2018;

(ii)   Payroll Activity Details for the period 31 May 2018 to 6 June 2019;

(iii)   Employee remuneration report dated 23 August 2021;

(iv)   Employee contact details.”

[8]   “I am not in possession of any other records with respect of Category 10 referred to at paragraph 4 above.”

40. I make the following observations about Mr Cussen’s affidavit. At [5] he makes no reference as to the documents that they previously held, nor where those documents are now, as required by rule 21 of the UCPR. He does not provide any detail as to what enquiries have been made, and one might wonder if the search was limited to CAS, particularly with the reference that he believes that the documents may be held by the first defendant.

41. That is insufficient for the purposes of discovery – details need to be provided as to where he thinks the documents may be, to whom the relevant documents may have been given, and any additional information as to the potential location of the documents. It is not sufficient to simply ask the defendant and then make no further enquiries. It is also insufficient that his enquiries were only of the third defendant.

42. Rule 21.4 of the UCPR requires that an affidavit and a certificate supporting the list of documents be provided with the discovery so that somebody has actually done this process in accordance with the rules, and a solicitor has given advice about what needs to be done to satisfy the order for discovery.

43. Rules 21.3 and 21.4 of the UCPR are limited in time, to a period of 6 months. However, as previously indicated, r 4(2) of the DDT Rules amends the UCPR r 21.3(2)(a)(ii) by omitting “within the last six months prior to the commencement of proceedings” and inserting “at any time”. This is a very important amendment, and it extends well beyond current possession.

44. At [6], Mr Cussen states that he has enquired of the third defendant’s company director to find out what documents may be available. At [8] he states he is not in possession of any other Category 10 documents. What is failing here is that Mr Cussen’s searches had been limited to the third defendant, he makes no reference as to whether documents were available 6 months, 12 months or 10 years ago, nor does he make any reference to where the relevant documents might be. He states that if the documents do exist, they would be in the possession of the first defendant. The obligation on Mr Cussen is such that if he had held the documents at any previous point in time, he needs to put them in the discovery list, and then indicate where he believes that they are. A defendant cannot escape its discovery obligations by stating they do not have anything as our documents are with CMI or Wollongong Coal. The enquiries and searches have to go well beyond the defendant, and to date they have not.

45. In her affidavit (Exhibit B on the Motion), Ms Honey states as follows:

[1]   “I am a legal specialist in the employ of the fourth defendant and I am duly authorised to swear this affidavit on its behalf.”

…

[4]   “The fourth defendant is a specialised insurance company responsible for managing compensation claims brought by those employed by employers in the NSW coal mining industry. It has been incorporated since 22 December 1921.”

[5]   “I am informed and believe that the fourth defendant does not hold any documents in categories 1 to 8 referred to at paragraph 3 above.”

[6]   “If in existence, the documents sought in category 10 referred to at paragraph 3 above would be held by the first, second and third defendants.”

[7]   “I am informed and believe that compensation claims managed by the fourth defendants are classified under “Claim Type”. There is a class of claims titled “Lung, Including Dust”.”

[8]   “I have undertaken a search of the fourth defendant’s case management system regarding the documents sought at category 9. I have searched for all claims under the “Claim Type” of “Lung, Including Dust”. This search has returned 284 claims. The earliest “Entry Date” or “Date of Injury” is from 1944.”

…

[12]   “To respond accurately to category 9, all 284 claims would need to be manually reviewed to determine the nature of the lung claim and whether the miner had periods of employment with any of the colliers referred to at paragraph 3 above.”

[13]   “To review each claim, a request would need to be made to a third-party document storage provider at a cost of $6.50 per claim for retrieval, delivery and refile.”

[14]   “I would approximate the time required to review each file and identify relevant employers at 30 minutes to 1 hour per file.”

[15]   “Until I have caused a review of the 284 claims, I cannot advise how many claims fall into category 9.”

46. The reference in [12] of Ms Honey’s affidavit is important. Those 284 claims may contain investigations about dust counts and masks, and if they are claims files, one would expect that the relevant documents may well be contained in them as to dust counts and masks for example. What is required by an order for discovery of those documents, is exactly what Ms Honey alludes to — that is, each of the 284 claims would need to be manually examined. I do not accept that the matters referred to in paragraphs 13, 14 and 15 of her affidavit would satisfy me that the order for discovery is burdensome or oppressive, given the context of this litigation (see Brereton J in Metal Storm — [29], [30] and [31].)

CONCLUSION

47. Accordingly, in my view:

1. There are significant issues in dispute of which relevant documents are likely to have been or which currently are in the possession, custody or under the control of the defendants;

2. Discovery of such documents is required for the fair disposition of the matter because the wider scope of the discovery obligation may catch documents which are relevant to the issues between the parties, in circumstances where the defendants have made no admissions, and have indicated that everything is in dispute;

3. R 21.2(2) of the UCPR provides that a class of documents must not be specified in more general terms than the Court considers to be justified in the circumstances. The plaintiff in this instance has specified the issues as fact, nature and extent of exposure, foreseeability, preventability and the classes are set out in that way to provide specificity.

4. Special reasons are not required before an order that the defendant provide verified discovery to be made in the proceedings;

5. Other than by seeking from WCL, CAS and CMI the provision of documents relevant to the issues identified above, the plaintiff has no other way of acquiring important evidence relevant to the issues in the proceedings;

6. The burden of discovery is not oppressive in the circumstances of this litigation;

7. I do not accept that in making an order for discovery I am subjecting the defendants to an exercise of immense cost, expense and delay in direct conflict with the principles set out in ss 56-59 of the Civil Procedure Act 2005 (NSW) in relation to the conduct of the proceedings.

8. In circumstances where the defendants have not made any useful admissions directed at the issue of liability, an order that WCL, CAS and CMI provide verified discovery of documents in certain categories is necessary so that “the outstanding issues in dispute are properly tried”.

48. I make the following orders:

1. Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) and Rule 4 of the Dust Diseases Tribunal Rules 2019, the first defendant to provide verified discovery of the classes of documents as set out in Annexure A to the Notice of Motion filed 6 July 2022, but limited to the period 28 February 1996 and 28 February 2019, within 28 days of this date.

2. Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) and Rule 4 of the Dust Diseases Tribunal Rules 2019, the third defendant to provide verified discovery of the classes of documents as set out in Annexure C to the Notice of Motion filed 6 July 2022, within 28 days of this date.

3. Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) and Rule 4 of the Dust Diseases Tribunal Rules 2019, the fourth defendant to provide verified discovery of the classes of documents as set out in paragraphs 7 to 10 of Annexure D to the Notice of Motion filed 6 July 2022, within 28 days of this date.

4. The first, third and fourth defendants are to pay the plaintiff’s costs of the Motion.

5. Matter listed part-heard before me for further directions at 10 am on 19 September 2022.

6. If the parties seek an alternate costs order, I ask that my Associate be notified within 21 days of this date.

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Decision last updated: 17 August 2022