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[2013] NSWCA 421
respondent. Application for leave dismissed with costs.
A former steelworker with mesothelioma obtained an order for BHP to discover more documents about what the company knew or should have known about asbestos dangers before 1990. BHP argued the trial judge used the old broad 'train of inquiry' test and made the request too wide. The Court of Appeal refused leave to appeal, saying the judge correctly understood that documents can be relevant if they help build a picture of corporate knowledge even if they do not mention the worker by name, and that appeals on discovery during a live trial in the Dust Diseases Tribunal should be rare. The decision confirms the narrowed relevance test introduced in 1996 still lets parties obtain material that rationally bears on facts in issue when combined with other evidence.
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Steven Douglas Dunning worked as a labourer and gunner in the Blast Furnace Department at BHP Billiton Ltd's Newcastle steelworks between 1979 and 1981. Between 1985 and 1992 he returned to the same site as an employee of various independent contractors. In March 2011 he commenced proceedings in the Dust Diseases Tribunal of New South Wales alleging that BHP had been negligent and in breach of statutory duty, causing him to develop malignant pleural mesothelioma. BHP's amended defence put all material allegations in issue except the diagnosis itself, while making a limited admission (relevant to aggravated and exemplary damages) that it knew or ought to have known that exposure to asbestos exceeding the applicable maximum allowable concentration (MAC) published by the NHMRC presented a risk of asbestos-related lung disease.
Orders for verified general discovery were made in 2011. BHP produced lists containing 206 then 213 documents. However, 33 documents previously listed were later struck through without any court order permitting amendment. The trial began in February 2013. After nine hearing days spread over several months, two events triggered a notice of motion for further discovery. First, BHP tendered or used in cross-examination a document that had not been discovered. Second, BHP itself informed the Tribunal it had located additional discoverable material. The primary judge (Kearns J) ruled on 4 September 2013 that BHP's discovery was inadequate. After the parties could not agree on categories, his Honour delivered a second ex tempore ruling on 5 September 2013 ordering discovery of 11 classes of documents. These classes were expressed broadly but with temporal limits (generally pre-31 December 1990), subject-matter limits (knowledge of risk, precautions, library contents, monitoring results, annual reports, correspondence between safety superintendents, and documents from the earlier Utting proceedings), and location neutrality ("wherever created or located").
BHP sought leave to appeal under s 32(4) of the Dust Diseases Tribunal Act 1989, contending that the orders involved errors of law: misapplication of the relevance test in Pt 23 of the Supreme Court Rules 1970 (SCR) (which applies in modified form in the Tribunal) and failure to comply with the requirement in r 3(2) that classes not be specified in more general terms than justified. The Court of Appeal (Macfarlan JA, Gleeson JA, Young AJA) heard the application on 26 November 2013, dismissed it with costs at the conclusion of argument, and delivered reasons on 10 December 2013. Gleeson JA's judgment is the principal one; Macfarlan JA and Young AJA expressly agreed.
The Court refused leave because BHP had not demonstrated the kind of error of principle or clear injustice that justifies appellate intervention in an interlocutory procedural decision made mid-trial in a specialist tribunal. Gleeson JA began by recalling the high threshold for leave: something more than mere arguability is required, and particular restraint applies to practice-and-procedure matters (Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177). The Dust Diseases Tribunal is statutorily obliged to act with expedition (Dust Diseases Tribunal Act 1989 s 33; DDTR r 7). Interfering nine days into a trial risked exactly the delay the legislation seeks to avoid.
On the substantive complaints, the Court held there was no misapplication of the Pt 23 relevance test. BHP fastened on the primary judge's statement that documents which "could inform the ultimate questions" were relevant even if not specific to Mr Dunning. Gleeson JA read this passage in context: the "ultimate questions" were those identified in BHP's own submissions (whether Mr Dunning was at foreseeable risk and what should have been done), while the judge's reference to "steps along the way" was an explicit acknowledgement that relevance is to facts in issue, not the elements of the cause of action. The statutory definition in r 1(d) asks whether a document "could, or contains material which could, rationally affect the assessment of the probability of the existence of that fact". That test is satisfied by material that, together with other evidence, forms part of an "evidentiary mosaic" (Lakatoi Universal Pty Ltd v Walker [1998] NSWSC 470, cited at [43]). Documents are not to be viewed in isolation as "mere islands without connection to the case".
The Wilson Report (a 1969 South Australian document concerning asbestos hazards at Whyalla shipyards) was a concrete example. Although it concerned a different site and an earlier MAC, it bore on BHP's actual knowledge of risks from asbestos dust in an industrial setting. The Court rejected the contention that the primary judge had conflated differently exposed classes of workers (Seltsam Pty Ltd v McNeill [2006] NSWCA 158 and CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 were distinguished on their facts). Similarly, documents indicating the contents of BHP's libraries were relevant to the "ought to have known" case; whether the corporation in fact aggregated that knowledge was a trial issue, not a discovery bar (Re Chisum Services Pty Ltd (1982) 7 ACLR 641; Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133, cited at [52]).
BHP's alternative argument that the categories offended r 3(2) also failed. The primary judge had been referred to Pt 23, expressly acknowledged its constraints, and had tightened some of Mr Dunning's proposed classes while rejecting BHP's narrower ones as "far too narrow". Having sat through nine days of evidence, Kearns J was best placed to assess what was "justified in the circumstances". No oppression submission had been advanced. Consequently, no question of general principle or injustice warranting leave arose. Young AJA added that the Tribunal's need for expedition reinforced the decision to refuse leave.
Prior to the 1996 amendments to Pt 23, the breadth of discovery in New South Wales was governed by the "train of inquiry" test articulated by Brett LJ in Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63: a document is discoverable if it may fairly lead to a train of inquiry that could advance a party's case or damage the opponent's. That test produced extensive and expensive discovery. The 1996 reform introduced the current r 1(d) definition, which Mason P and Priestley JA in National Australia Bank Ltd v Idoport Pty Ltd [2000] NSWCA 8 at [7] confirmed was intended to exclude the train of inquiry idea. Relevance is now tied directly to facts in issue and requires a rational effect on probability.
This judgment sits squarely within that post-1996 jurisprudence. It confirms that while the train of inquiry has been discarded, the new test is not so narrow that documents must, standing alone, prove a fact in issue. Inference and combination with other material remain permissible. The decision also illustrates the interaction between pleadings and discovery: an admission limited to MAC-exceeding exposures does not cabin discovery on actual knowledge, and particulars of "ought to have known" enquiries do not exhaust the actual-knowledge limb. Corporate-knowledge principles drawn from Re Chisum and Macquarie Bank are affirmed as live arguments at trial, not obstacles at the discovery stage.
After the decision, the law in New South Wales regarding discovery in asbestos cases in the Dust Diseases Tribunal continues to require classes to be framed by reference to the r 1(d) test and r 3(2) specificity. The judgment underscores that a trial judge's evaluative judgment on category width attracts significant deference on leave applications, particularly where the Tribunal has already heard evidence. The emphasis on the "evidentiary mosaic" provides practitioners with a practical touchstone when resisting overly atomistic relevance objections.
Paragraph [28] (primary judge, quoted and approved): "They are ultimate questions, but there are steps along the way before you get to those questions. The answer to those questions can be informed by documents that might not be specific to the plaintiff. It is no answer, in my view, to say that the documents lacked relevance for discovery purposes because they do not address the question as to whether this plaintiff was at a foreseeable risk of injury. They may not address that specific question, but if they provide information that is capable of informing that question, they are relevant for the purpose of discovery."
Plain-English translation: Foreseeability is ultimately about this worker, but you get there by answering smaller factual questions first. Documents about risks to similar workers or general corporate knowledge can help answer those smaller questions even if they never mention Mr Dunning by name. That is enough for discovery.
Paragraph [42]-[44]: "BHP's characterisation of individual documents, such as the Wilson Report, as 'mere islands without connection to the case' and thus irrelevant, ignored that the test of relevance under SCR Pt 23 r 1(d) includes documents containing materials which could rationally affect the assessment of the probability of the existence of fact in issue. Relevance in the defined sense, must take account of any inferences which might be able to be drawn from particular documents when considered in the light of other evidence, rather than as viewed in isolation. As observed by Rolfe J in Lakatoi … the parties are entitled to build up an evidentiary mosaic. Generally that cannot be done by the tender of only one piece of evidence. The primary judge's reference to relevant documents being those which were 'capable of informing' the question … did not, in my view, involve the discarded 'train of inquiry' approach to discovery."
Plain-English translation: You cannot dismiss a document as irrelevant simply because it does not, by itself, prove the whole case. If it is a tile that fits into a larger picture once other evidence is added, it meets the statutory test. The judge was not secretly reviving the old Peruvian Guano rule; he was applying the current rule correctly.
Paragraph [52]: "the knowledge of a corporation may arguably include any knowledge of circumstances which ought to have been but was not conveyed to the board of directors or relevant senior management by another servant or agent of the company, if there is a duty and opportunity by one employee or officer to communicate information to another."
Plain-English translation: A company cannot hide behind the fact that its left hand did not tell its right hand. If information existed somewhere in the organisation and should have gone up the chain, the company may be treated as having known it. That possibility justifies discovery even if the ultimate finding is for trial.
Paragraph [20]: "Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable."
Plain-English translation: We do not correct every arguable slip in a procedural ruling. There must be something bigger at stake, especially when the case is already running in a tribunal that Parliament wants to move quickly.
The decision is triggered where a defendant in Dust Diseases Tribunal proceedings has given apparently incomplete discovery, evidenced by the late production or use of documents at trial, deletions from verified lists without court leave, or affidavits from the plaintiff's solicitor identifying gaps after inspecting the opponent's files. It applies with particular force in asbestos negligence claims where the plaintiff's case includes both actual corporate knowledge and what the defendant ought to have known. Discovery categories that target pre-1990 knowledge of asbestos risks, contents of company libraries, workplace air monitoring, internal safety correspondence, annual reports, and documents from prior analogous proceedings will ordinarily be upheld if they are expressed by reference to facts in issue rather than unlimited general discovery. The precedent is engaged when the defendant argues that only documents specific to the plaintiff or his exact MAC exposure are relevant, or that documents must be viewed in isolation rather than as part of an evidentiary mosaic. It also applies to leave applications from mid-trial procedural rulings in the Tribunal: the combination of an expedited statutory regime, a part-heard matter, and an evaluative judgment by a judge who has seen the evidence weighs heavily against leave.
Although the judgment itself contains no post-2013 citations, its reasoning authoritatively interprets Pt 23 as it stood at the time and continues to bind single judges of the Supreme Court and the Tribunal. The Court of Appeal's endorsement of the "evidentiary mosaic" concept (drawn from Lakatoi) and its insistence that relevance includes material capable of supporting inferences in combination with other evidence has reinforced the post-1996 narrowing while preventing an overly restrictive interpretation. The decision's treatment of National Australia Bank v Idoport as settling the exclusion of the train of inquiry test has been absorbed into standard discovery practice in long-tail disease litigation. Its application of the Adam P Brown and Carolan leave principles to DDT discovery disputes has been followed in subsequent leave applications, confirming that appellate restraint is especially strong when the Tribunal is part-heard. The distinction drawn between discovery-stage relevance and ultimate trial findings on corporate knowledge (distinguishing McPherson's v Eaton) has guided later rulings separating the two inquiries. The judgment's emphasis on expedition under the Dust Diseases Tribunal Act has been cited to resist late interlocutory appeals that would disrupt scheduled trials.
The judgment leaves open the precise boundaries of corporate knowledge aggregation: while it accepts that information known to one employee with a duty to report may be attributed to the company, the factual thresholds for "duty and opportunity" remain for case-by-case determination at trial. Exactly how far a plaintiff's particulars of "enquiries that ought to have been made" can limit discovery on the actual-knowledge limb is not exhaustively defined; the Court accepted that actual knowledge was not limited on these pleadings but did not lay down a general rule for differently drafted statements of claim. The interaction between r 3(2) specificity and the breadth of classes expressed as "wherever created or located" and "relating to the knowledge of the Defendant prior to 31 December 1990" may still generate dispute in cases where the burden of review is said to be disproportionate, although BHP did not run an oppression case here. Whether a verified list that unilaterally deletes previously listed documents without court order automatically justifies further discovery as of right, or merely provides evidentiary support for an inference of inadequacy, is not settled by the reasons. Finally, the precise weight to be given to a primary judge's nine-day exposure to the evidence when assessing category width on leave applications may vary with the extent of overlap between the discovery debate and the live trial issues. These margins ensure that the decision, while clear on the core principles, will continue to require careful application by practitioners in future asbestos and occupational-disease discovery fights.
Date of Decision: 2013-09-05 00:00:00 Before: Kearns J File Number(s): DDT 79/2011
Judgment 1MACFARLAN JA: The reasons given by Gleeson JA for joining in the making on 26 November 2013 of an order dismissing with costs the Application for Leave to Appeal reflect my reasons for also joining in the making of that order. 2GLEESON JA: On 26 November 2013, the Court heard an application for leave to appeal by the defendant below against a decision of a judge of the Dust Diseases Tribunal of New South Wales (the Tribunal) that the defendant give further discovery in proceedings which were part heard before the primary judge. At the conclusion of the oral argument, the Court ordered that the application be dismissed with costs. The reasons for those orders were reserved. My reasons for joining in those orders now follow.
The proceedings below 3Between 1979 and 1981, the applicant (BHP) employed the respondent (Mr Dunning) as a labourer and gunner in the Blast Furnace Department of its steelworks at Newcastle. On occasions between 1985 and 1992, Mr Dunning also worked at the Newcastle steelworks as an employee of a number of independent contractor firms. Mr Dunning has developed mesothelioma. 4In March 2011, Mr Dunning commenced proceedings against BHP in the Tribunal claiming damages for negligence and breach of statutory duty. By its amended defence, BHP put in issue all the material allegations of the negligence and breach of statutory duty, other than that Mr Dunning has malignant pleural mesothelioma (but denied that such mesothelioma was caused or contributed to by any breach of duty on the part of BHP). 5BHP's defence also contained a limited admission, in response to Mr Dunning's claim for aggravated and exemplary damages. The admission was that BHP knew or ought to have known that exposure to asbestos which exceeded an applicable maximum allowable concentration (MAC) (specified in standards published by the National Health & Medical Research Council (NHMRC)) presented a risk of asbestos-related lung disease. 6On 22 August 2011, orders were made in the proceedings that BHP provide verified general discovery. On 1 December 2011, BHP filed a verified list of documents which listed 206 relevant documents (1/WB 111). Subsequently, on 27 March 2012, an order for further verified general discovery was made. Both of these orders were made without regard to the terms of Pt 23 of the Supreme Court Rules 1970 (SCR), which in a modified term applies in the Tribunal and limit discovery to classes of documents, rather than general discovery. 7BHP filed a verified amended list of documents on 11 October 2012, which listed 213 relevant documents, but, 33 of these documents, which had appeared in the original list of documents, had been deleted by way of a line ruled through the description of the documents. No order had been sought, let alone obtained, by BHP to amend its list of documents in this manner. 8The trial commenced in February 2013. After nine days of hearing, interspersed by a number of months, Mr Dunning applied for further discovery by a notice of motion filed on 4 September 2013. It appears that this application was precipitated by two events. First, during the course of cross-examination of a lay witness, Mr Parker, BHP made use of a document that had not been discovered. Secondly, BHP had informed the Court on the previous day that it had located further discoverable documents. 9On 4 September 2013, the primary judge (Kearns J) delivered a ruling that BHP's discovery was inadequate. The parties were given the opportunity to either agree on the classes of documents in respect of which further discovery was to be given, or put their alternative proposals to his Honour. The parties were unable to agree. They each proposed different categories of documents for further discovery. 10On 5 September 2013, the primary judge delivered a further ruling in which he ordered BHP to discover 11 classes of documents. These are set out at [36] below. 11On 21 October 2013, BHP applied for leave to appeal against the decision of Kearns J ordering further discovery. Leave is required by s 32(4) of the Dust Diseases Tribunal Act 1989 (DDT Act) in respect of an appeal from an interlocutory decision. There is no issue that the discovery order is an interlocutory decision. Subject to the requirement of leave, a right of appeal from the Tribunal to this Court is limited, relevantly in this case, to a decision of the Tribunal in point of law: s 32(1) DDT Act.
Proposed grounds of appeal 12The draft notice of appeal raises two grounds as follows: (1)that the finding that BHP had failed to comply properly with the orders for discovery previously made by the Tribunal was erroneous, or alternatively not supported by adequate reasons and was not reasonably open to his Honour. (2)that the primary judge erred in ordering further discovery because he failed to consider whether, or alternatively give adequate reasons for concluding that, the categories of documents specified by him were no more extensive than what was justified in the circumstances of the proceedings.
Summary of parties' contentions 13BHP's primary complaint was that the primary judge failed to follow the approach to discovery required by SCR Pt 23, as amended in 1996, which applied to proceedings in the Tribunal, subject to modifications by the Dust Diseases Tribunal Rules (DDTR). 14It was contended by BHP that his Honour misconceived the concept of relevance under SCR Pt 23 and adopted, in effect, the "train of inquiry" test of relevance. 15The error of law alleged by BHP was thus that the primary judge adopted a test for relevance which was too broad. Underlying this alleged error were said to be two further errors of law by the primary judge in (a) failing to appreciate that the foreseeability inquiry for the law of negligence is an individualised inquiry; and (b) failing to have regard to the principles of corporate knowledge to determine the relevance of documents. 16In the alternative to its primary complaint, BHP contended that the primary judge failed to limit the discovery categories so that they were no more extensive than what was justified in the circumstances of the case, as required by SCR Pt 23 r 3(2), and that this involved an error or law. 17Mr Dunning opposed the application for leave on a number of grounds. These included that the proposed appeal does not involve a matter of general principle but rather a matter of practice and procedure; that the ruling below did not finally determine the rights of the parties; that there was no error of principle nor would there be substantial injustice if leave was refused. It was further contended by Mr Dunning that the proposed appeal is against findings of fact, whereas an appeal is only permitted in the present circumstances in relation to a decision in point of law: s 32(1) DDT Act. 18Mr Dunning's submissions emphasised that there is no error of law in making a wrong finding of fact, unless there is no evidence to support that finding: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 342 per Mason CJ; Kostas & Anor v HIA Insurance Services Pty Ltd & Anor [2010] HCA 32; 241 CLR 390 at [91]. It was argued that it is necessary for BHP to establish that any factual findings about which it complains are "evidentially baseless": CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [26] per Allsop P. It was further argued that no challenge is permitted to his Honour's factual findings, so long as there was some basis in the evidence for the findings which are attacked, or for the inferences drawn by the primary judge: Amaba Pty Ltd v Booth [2010] NSWCA 344 at [21]-[22] per Basten JA. It was contended that BHP had not demonstrated error of this type in his Honour's factual findings.
Principles relevant to leave applications 19In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary judge was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 per Sheller JA; Zelden v Sewell [2011] NSWCA 56 at [22] per Campbell JA (Young JA agreeing). 20Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable: Carolan per Kirby P; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, Campbell JA (Young and Meagher JJA agreeing) at [46]. See also Lee v New South Wales Crime Commission [2012] NSWCA 276; 301 ALR 629 at [12] per Bathurst CJ (Macfarlan and Barrett JJA agreeing). 21Further, in relation to a matter involving one of practice and procedure, the application for leave is to be approached with the restraint applied by an appellate court when reviewing such decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177; In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323. This consideration has particular force in relation to an application for leave to appeal from a decision made during the course of the trial.
Discovery in the Tribunal 22It is common ground that the approach to discovery required by SCR Pt 23, as amended in 1996, applied to proceedings in the Tribunal, subject to modifications by the DDTR. Relevantly, r 7(3) DDTR requires discovery of discoverable documents which have been in the defendant's possession at any time, not only within six months prior to commencement of proceedings, as in SCR Pt 23 r 3(5)(a)(ii). 23Relevance is defined in r 1 of Pt 23: "1(a) ... (d) a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which 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." 24Subrules (1), (2) and (3) of rule 3 provide: "Order for discovery 3. (1) The Court may, on the application of a party or of its own motion, order that any party (party B) give discovery to any other party (party A) or parties (each of which is included in the expression "party A") of: (a) documents within a class or classes specified in the order; (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 shall 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; (b) by description of the nature of the documents and the period within which they were brought into existence; (c) in such other manner as the Court considers appropriate in the circumstances." 25As observed by Mason P and Priestley JA in National Australia Bank Ltd and others v Idoport Pty Ltd [2000] NSWCA 8 at [7], the definition of relevance in r 1(d) had the effect of excluding the "train of inquiry" idea as a factor in deciding relevance: see Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ. The "train of inquiry" test could make a document discoverable even if it did not advance one party's case, damage that of the other, or relate to an issue, whereas under the new rules, a document must be relevant to a fact in issue in the defined sense: National Australia Bank Ltd v Idoport Pty Ltd at [7].
Need for further discovery 26The primary judge gave ex tempore reasons for his ruling on 4 September 2013 that BHP should give further discovery. His Honour noted four matters relied upon by Mr Dunning as providing reasonable grounds for concern that discovery had not been undertaken by BHP in the way it should have been. These were: (1)the failure to discover what is referred to as the Wilson Report. This was a report of Dr K J Wilson, Principal Medical Officer, occupational health and safety relating to health hazards from asbestos in respect of BHP's site at Whyalla. This report was forwarded under cover of a letter dated 15 January 1969 from the Secretary of the Department of Public Health, South Australia, to the Manager of the Whyalla Shipbuilding and Engineering Works; (2)the failure to discover the Utting documents, being documents relating to proceedings between BHP and Mr Utting; (3)the deletion of documents that had earlier been discovered in BHP's original list of documents; (4)evidence by Ms Wade, solicitor for Mr Dunning, who had inspected 15 lever arch folders recently provided by BHP, and expressed the view that there were other documents that should have been discovered. 27I interpolate at this point that a curious feature of this discovery dispute is that a copy of the Wilson Report was in evidence before the primary judge. This document had been previously provided by the solicitors for BHP to Mr Dunning's solicitors upon request, but without any concession by BHP that the document was discoverable. 28The primary judge noted that BHP objected to further discovery on the grounds of relevance. After recording BHP's submission that foreseeability is an individualised inquiry, and the question was whether Mr Dunning was at risk and what could have been done to address any risk that he was exposed to, his Honour observed that: "They are ultimate questions, but there are steps along the way before you get to those questions. The answer to those questions can be informed by documents that might not be specific to the plaintiff. It is no answer, in my view, to say that the documents lacked relevance for discovery purposes because they do not address the question as to whether this plaintiff was at a foreseeable risk of injury. They may not address that specific question, but if they provide information that is capable of informing that question, they are relevant for the purpose of discovery." (emphasis added) 29The primary judge found that Mr Dunning's application for further discovery was justified by the Wilson Report and the Utting documents, or at least some of them. 30The primary judge rejected BHP's argument that the documents held in its libraries were not relevant because BHP cannot be expected to have knowledge of every single page in its library. His Honour reasoned that although it may not ultimately be established at trial that BHP had actual knowledge of the dangers of asbestos exposure, particularly light exposure causing mesothelioma, the fact that BHP was holding onto information was plainly one step in establishing what BHP knew, or ought to have known. 31The primary judge also rejected BHP's argument that having regard to the pleadings and particulars, including the admission by BHP referred to at [ REF _Ref373501852 \r \h * MERGEFORMAT 5] above, none of the material sought was relevant to the issue of foreseeability. The primary judge reasoned that Mr Dunning sought to establish that it was foreseeable that there was a risk to health of persons exposed to relatively light exposure and that the pleadings and particulars did not prevent him running a case in that way.
Categories for discovery 32The primary judge gave a further ex tempore judgment on 5 September 2013, when ruling on the categories for discovery. 33His Honour rejected the proposed categories put forward by BHP on the ground that they were far too narrow. Those suggested categories were limited as to (a) time, between 1 January 1968 and 1979; (b) location, being documents indicating the contents of libraries located at BHP Newcastle, Melbourne and Whyalla; and (c) subject matter, being documents relating to potential health risks to exposure to asbestos held at BHP Whyalla and Newcastle. 34His Honour then addressed the categories put forward by Mr Dunning. Ultimately, his Honour disallowed one category and amended the terms of some of the remaining categories of documents. 35His Honour considered that relevance for the purpose of discovery was not to be determined, or at least confined by, what Mr Dunning's working conditions were, nor was it to be confined by one view of BHP's case, that it is only exposure in excess of a particular threshold level, or maximum allowable concentration that created a foreseeable risk of injury. 36The primary judge ordered that BHP give discovery of the following classes of documents: "(1) Documents, wherever created or located, relating to the knowledge of the Defendant prior to 31 December 1990, of the risk of injury from the exposure to asbestos dust. (2) Documents, wherever created or located, relating to the availability prior to 31 December 1990 of precautions and measures to reduce or minimise the risk of injury from the inhalation of asbestos prior to December 1990. (3) Documents, wherever created or located, relating to the existence and content prior to 31 December 1990 of libraries maintained and operated by the Defendant. (3A) Documents prior to 31 December 1990 including all publications, books, journals, catalogues, articles, memoranda and reports relating to: (a) the risk of injury from the inhalation of asbestos dust; (b) the availability of measures to minimise or eliminate the generation and accumulation of industrial dust generally and asbestos dust specifically. (4) Documents, wherever created and located, discovered by the Defendant in the Utting proceedings. (5) Documents, wherever created and located, relating to the carrying out of and results from monitoring and testing of the atmosphere in the Blast Furnace Department of the Newcastle Steelworks prior to 31 December 1990. (6) Documents, wherever and whenever created and located, relating to any removal of asbestos after November 1979 from the Blast Furnace Department at the Newcastle Steelworks. (7) The Defendant's Annual Reports for the years 1969 to 1990. (8) Documents, wherever created and located, including the results of any asbestos survey, relating to the presence and use of asbestos containing products before 31 December 1990 at the Blast Furnace Department at the Newcastle Steelworks. (9) Correspondence, wherever created and located, prior to 31 December 1990 between the Defendant's Safety Superintendents relating to asbestos or the health effects of the inhalation of asbestos and the means of reducing asbestos dust in the workplace. (10) Documents, wherever created or located, relating to the purchase, distribution and use in the Blast Furnace Department at the Newcastle Steelworks during the period 1 January 1960 to 31 December 1990 of products containing asbestos."
Ultimate questions 37BHP's first complaint was that the primary judge's reference to documents which could inform the "ultimate questions" in the case, revealed misconception by his Honour because the phrase "ultimate questions" is apt to suggest relevance assessed by reference to the elements of the cause of action, whereas SCR 23.1(d) refers to relevance to the facts in issue. In my view, there is no substance in this complaint. 38First, a fair reading of the relevant passage of the primary judge's ruling reveals that his Honour's reference to "ultimate questions" was a reference to BHP's submission that foreseeability is an individualised inquiry and that the ultimate questions are whether Mr Dunning was at risk and what could have been done to address any risk that he was exposed to. 39Secondly, his Honour went on to draw a distinction between the "ultimate questions" in the proceedings and the "steps along the way" before one arrived at those questions. The latter was undoubtedly a reference to the facts in issue. His Honour did not misconceive the concept of relevance for the purpose of discovery, nor did he conflate the obligation of discovery with the elements of the cause of action, as contended by BHP.
Train of inquiry 40BHP's second complaint related to the asserted misconception by the primary judge of the test of relevance under Pt 23 SCR. It was submitted that his Honour's reference to documents which provided information "capable of informing" the issues, was redolent of the "train of inquiry" approach to discovery, which was excluded under SCR Pt 23. 41BHP contended that the primary judge's reasoning depended on a "train of inquiry" approach, because the documents exhibited to Ms Wade's affidavit could only be relevant if put in conjunction with other documents. Such documents were described by BHP as "mere islands without connection to the case", and thus did not satisfy the standard of direct relevance to issues in dispute. 42BHP's characterisation of individual documents, such as the Wilson Report, as "mere islands without connection to the case" and thus irrelevant, ignored that the test of relevance under SCR Pt 23 r 1(d) includes documents containing materials which could rationally affect the assessment of the probability of the existence of fact in issue. Relevance in the defined sense, must take account of any inferences which might be able to be drawn from particular documents when considered in the light of other evidence, rather than as viewed in isolation. 43As observed by Rolfe J in Lakatoi Universal Pty Ltd v Walker [1998] NSWSC 470, in a case relating to an application for access to subpoenaed documents, in determining the question of relevance, the Court must bear in mind that the parties are entitled to built up an evidentiary mosaic. Generally that cannot be done by the tender of only one piece of evidence. 44The primary judge's reference to relevant documents being those which were "capable of informing" the question of whether Mr Dunning was at a foreseeable risk of injury did not, in my view, involve the discarded "train of inquiry" approach to discovery. Nor did his Honour err in his approach to the foreseeability question. His Honour clearly accepted that the foreseeability issue was an individualised inquiry. The point which his Honour correctly made was that this did not mean that for the documents to be relevant they needed to relate specifically to Mr Dunning. Documents relevant to the facts in issue would encompass documents concerning whether there was a foreseeable risk of injury in respect of the class of persons of whom Mr Dunning was one. 45I do not consider that the primary judge's approach to relevance was arguably wrong, let alone raises a matter which warrants a grant of leave. Nor was the primary judge arguably wrong in concluding that BHP's discovery had been deficient. This finding was open to the primary judge on the evidence before him.
Other complaints 46BHP submitted that the primary judge analysed the pleadings and particulars in a way which left Mr Dunning's case on reasonable foreseeability at large and that this subverted the whole process of providing particulars, one specific purpose of which is to limit the ambit of discovery: Yorkshire Provident Life Assurance Company v Gilbert & Rivington [1895] 2 QB 148 and 152 and 154. 47In this regard, BHP pointed to two matters. First, that 16 of the further amended statement of claim and Mr Dunning's particulars alleged that BHP was negligent in failing to make inquiries of appropriate health authorities, including the NHMRC - and in failing to obtain and consult 370 named scientific and technical publications. BHP submitted that the issues of reasonable foreseeability should be limited to those particulars. 48Secondly, BHP pointed to the admission in [10.1]-[10.2] of its defence as also limiting the facts in issue. The admission was: "[10.1] That it knew or ought to have known that exposure to asbestos which exceeded an applicable MAC presented a risk of asbestos-related lung disease." 49It is to be observed that the admission made by BHP in its defence was only in respect of Mr Dunning's claim for aggravated and exemplary damages, and this Court was told that this claim was not being pursued by Mr Dunning. However, counsel for BHP contended that the BHP's admission remained relevant because it should be understood as relating to the whole of Mr Dunning's claim, albeit no formal amendment to the defence has been made in the proceedings below. Counsel for BHP also submitted that a technical approach should not be taken to the defence, and noted that no issue had been taken before the primary judge that the admission did not relate to the entirety of Mr Dunning's claim. Although the status of BHP's admission should be formally clarified in the proceedings below, the leave application should be approached, in my view, upon the basis of the concession of counsel for BHP as to the wider ambit of the admission. 50Relying upon this approach to its defence, BHP contended that the only documents which could be relevant to the issues in dispute on foreseeability were those demonstrating that BHP knew or ought to have known that exposures below the MAC could cause asbestos-related diseases, and that the primary judge had no regard to what it asserted was the limitation on the issues in dispute on foreseeability. 51It is to be accepted that the scope of discovery is confined by the pleadings and particulars. However, there are two limbs to Mr Dunning's case. The first is based on actual knowledge of BHP of the foreseeable risk of injury to Mr Dunning. The second is based on what BHP ought to have known. Although particulars had been provided of what enquiries BHP ought to have made, the ambit of Mr Dunning's case based on actual knowledge was not limited in any way. The existence of actual knowledge is a question of fact, the proof of which, in the absence of an admission by a party, is always a matter of inference: RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123 at 125. 52Further, the knowledge of a corporation may arguably include any knowledge of circumstances which ought to have been but was not conveyed to the board of directors or relevant senior management by another servant or agent of the company, if there is a duty and opportunity by one employee or officer to communicate information to another: see for example, Re Chisum Services Pty Ltd (1982) 7 ACLR 641 at 299; Macquarie Bank Ltd v Sixth-Fourth Throne Pty Ltd [1998] 3 VR 133; Australian Competition and Consumer Commissioner v Radio Rentals Ltd and Another [2005] FCA 1133; 146 FCR 292. 53Whether information in the possession of BHP can be aggregated in the present case, is properly a matter for the final hearing. There was no error by the primary judge in permitting discovery of documents which could be relied upon by Mr Dunning in support of such an argument. 54The primary judge expressly considered the significance of BHP's admission in its defence in his ruling of 4 September 2013 (WB 18). His Honour was entitled to take into account, as he did, his understanding of the case which Mr Dunning sought to make against BHP of knowledge of the dangers of asbestos exposure to persons, such as those in the position of Mr Dunning, particularly light exposure causing mesothelioma. 55BHP's also submitted that the Wilson Report was irrelevant for two reasons. First, because it referred to a different MAC level (in 1969) than the one applicable in 1979, and therefore could not rationally be of any assistance in determining whether BHP knew or ought to have known that the MAC as it stood in 1979 was unreliable. Secondly, because it concerned working conditions in the shipyards at Whyalla which were said to be different to the circumstances in which Mr Dunning worked at the steelworks in Newcastle. BHP argued that the primary judge had erred in conflating the risks to differently exposed classes of persons in determining the issue of foreseeability: Seltsam Pty Ltd v McNeill [2006] NSWCA 158 at [2] per Handley JA and [36], [38] to [40] and [101] per Bryson JA; CSR Ltd v Amaca Pty Ltd at [45]-[47] per Allsop P and [151]-[152] per Basten JA. 56These complaints do not, in my view, fairly reflect the primary judge's reasoning. His Honour was undoubtedly aware of the differences in the working conditions between the shipyards at Whyalla, at least insofar as they were referred to in the Wilson Report, and the steelworks in Newcastle. However, the working conditions had a common feature of use of asbestos products and exposure to asbestos dust in an industrial setting. I do not consider that the primary judge was arguably wrong in concluding that the Wilson Report was relevant to the issue of BHP's actual knowledge of the foreseeable risk of injury to persons, such as Mr Dunning, exposed to relatively light exposure to asbestos dust at BHP's Newcastle steelworks. 57In relation to the documents held in the BHP libraries, it was contended by BHP that the primary judge erred in stating that it was no answer to the relevance of such documents that BHP cannot be expected to have knowledge of every single page in its library. It was argued that the existence of a relevant publication in a library operated by BHP at the relevant time did not of itself establish that the content of that document was relevantly known, or to have been relevantly known, to BHP for the purposes of the proceedings: McPherson's v Eaton [2005] NSWCA 435; 65 NSWLR 187 at 205 [102]-[104] per Ipp JA. 58In my view, BHP's submissions conflated the arguments which may be available to it upon the final hearing with the question of relevance at the anterior stage of discovery. The primary judge was not arguably wrong to permit discovery of documents indicating the contents of BHP's libraries. Whether Mr Dunning would be able to make out a case of knowledge by BHP of the contents of any documents comprised in the BHP's libraries is a matter for argument at the hearing. 59No arguable error of law or question of principle has been demonstrated, in my view, with respect to the primary judge's approach to relevance for the purposes of discovery.
Proposed Ground 2 60Although BHP argued that compliance with the discovery order would involve a significant and substantial task, no submission was advanced before the primary judge, or on this application, that the primary judge erred because the discovery order was oppressive. 61Rather, BHP contended that the primary judge erred because he did not consider r 3(2) of SCR Pt 23, or even if he had, the orders could not be reasonably supported because the categories of documents were not sufficiently limited by either time period, location, subject matter or the pleadings and particulars. 62As to the first contention, it should not be accepted that the primary judge overlooked the rule. The terms of SCR Pt 23 were brought to his Honour's attention during oral argument (WB 398) and his Honour acknowledged that SCR Pt 23 limited the power of the Tribunal to give discovery to categories of documents, in his rulings both on 4 September (WB 18) and 5 September (WB 20). 63As to the second contention, I would not grant leave to appeal in respect of the primary judge's assessment of the specificity of the categories of discovery that were justified in the circumstances. This was a quintessential matter of practice and procedure. The primary judge had the advantage of having heard the proceedings for 9 days. The categories of discovery sought by Mr Dunning were largely directed to what actual knowledge BHP had concerning the risk to its employees in the workplace to exposure to asbestos dust. On the pleadings, a case based on actual knowledge of foreseeability of risk of injury to Mr Dunning was open. 64The delineation of the relevant time period, the location of documents and the subject matter of further discovery were all matters which the primary judge was uniquely placed to determine. 65In my view, no issue of principle, question of general importance or injustice which is reasonably clear in the sense of going beyond what is merely arguable has been demonstrated. 66For the above reasons, in my view, none of the matters sought to be raised by BHP warrant a grant of leave. 67YOUNG AJA: Basically, my view at the end of the hearing was that this was not a case which justified this Court giving leave to appeal in a case that was part heard in a tribunal which by the very nature of the case before it had to proceed with expedition and where the question was one of practice and procedure before that tribunal. 68This Court must be watchful to ensure that its jurisdiction to review is not made the instrument of delay and only should grant leave in such cases in the circumstances outlined by Gleeson JA in [19]-[21] above. 69Having now read in draft the reasons of Gleeson JA with which I agree, I am reinforced in the view that I took when I joined in the order of the Court.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2013
BHP Billiton Ltd
Dunning
[1998] NSWSC 470
(1978) 19 ALR 123
[1990] HCA 33
Application for leave dismissed with costs.