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[2024] VSC 273
General information, not legal advice.
Supreme Court of Victoria
2024-05-30
Goulden AsJ
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Discovery - Discovery by categories - Parties unable to agree categories - Whether formulation of categories means they are unduly wide or oppressive - Relevance of documents to claims for private nuisance seeking aggravated and exemplary damages, and for breach of s 25 of the Environmental Protection Act 2017 (Vic) - Whether general discovery or discovery by category appropriate - General discovery ordered.
1 This matter comes before me as a discovery dispute that has arisen following the making of orders for the exchange of categories of discovery in this proceeding by Keogh J on 3 November 2023.
2 Specifically, by the 3 November orders, the parties were required to exchange their proposals for any categories of discovery, to respond to the respective proposals they received, and to confer and use their best endeavours to agree on proposed discovery orders. To the extent there was agreement, discovery of an initial tranche was to be made by 16 February 2024, and if there was a dispute, it was to be referred to another judicial officer for determination.
3 The parties exchanged letters in November in which they each set out their proposed categories for discovery.
4 By his solicitor's letter dated 26 November 2023, the plaintiff requested production of all documents in the defendant's 'possession' and 'any document within the meaning of r 29.01.1(3) of the [S_upreme Court (General Civil Procedure) Rules 2015_].'[1] The plaintiff conceded in the hearing that this was in fact a request for general discovery in accordance with the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').[2] The plaintiff then identified nine categories of documents that it expected the defendant to produce in compliance with r 29.01.1(3). Those nine categories as set out in paragraph 2 of the letter were:
5 The defendant objects to providing general discovery on the basis that the Court has ordered that discovery proceed by category. Its response to the nine categories of documents identified in the letter is summarised in the Scott Schedule filed on 28 February 2024. The defendant objects to every category proposed by the plaintiff. It does so on the basis of an overarching submission that the documents are either not relevant to any issue in dispute on the pleadings, or each request is oppressive because the proposed wording of the categories is unduly wide and oppressive.[3] The defendant submits that the Court should decline to order the discovery requested by the plaintiff, and to the extent the Court orders discovery, it should adopt the alternative categories that have been proposed by the defendant in the Scott Schedule (being alternatives in respect of all categories other than for categories 2(b) and 2(i)).
6 The defendant made its request of the plaintiff on 24 November 2023,[4] seeking 15 categories of discovery. The plaintiff objected to one of those categories, being:
Any document recording, referring to or otherwise relating to:
- the Plaintiff's purchase of 16 Railway Place, Numurkah, including any contract for sale executed by the Plaintiff and any document provided to the Plaintiff in the course of, or as part of, his purchase of 16 Railway Place, Numurkah;
- the terms on which the Plaintiff purchased 16 Railway Place, Numurkah;
- the valuation of 16 Railway Place, Numurkah at the time of its purchase by the Plaintiff, including the basis on which the purchase price was calculated;
- any advertising material or statement(s) concerning the sale of 16 Railway Place, Numurkah immediately prior, or during, its purchase by the Plaintiff.
7 The plaintiff submits that the documents sought by this category are not relevant to the issues in dispute in the proceeding.
8 The plaintiff and his partner and daughter originally commenced this proceeding by writ filed 1 December 2021. By orders made on 13 July 2023, the proceeding was amended to allow it to continue as a group proceeding. Mr Green is the named plaintiff and representative of group members.
9 The plaintiff owns a property in which he and his family reside within about 100m of the defendant's Numurkah based oilseed processing factory ('Factory'). The group members are defined to comprise, broadly, those who own or occupy land within 1km of the Factory and who have suffered loss and damage as a consequence of the offensive odours and/or noise emitted from the Factory or caused by the defendant's oilseed processing operations.
10 The Factory uses mechanical, thermal and chemical processes to crush, refine, bleach and deodorise, large volumes of oilseed. Its operations are regulated by licenses issued under the Environment Protection Act 2017 _(_Vic) ('EP Act') and Moira Shire Council planning controls.
11 The Factory operates 24 hours per day, seven days per week. The plaintiff claims that, in its operation, the Factory has, since at least January 2017, continuously emitted excessively loud noise and continuously emitted offensive odour.
12 By his amended statement of claim dated 14 March 2024 the plaintiff claims:
(a) in nuisance, that the emissions over his property have caused a substantial and unreasonable interference with the use and enjoyment of his property and of the affected land of group members;
(b) the defendant owes a duty under s 25 of the EP Act, defined in paragraph 23 of the statement of claim as the 'General Environment Duty' ('GED'), to minimise the risks of harm to the plaintiff's and group members' health or the environment from pollution so far as reasonably practicable, which duty has been breached by its conduct in permitting the alleged emissions.
13 The plaintiff seeks damages including exemplary and aggravated damages.
14 Absent another order to the contrary, the discovery obligation in r 29.01.1(3) of the Rules is to discover the following documents of which the party is, after reasonable search, aware:
(a) documents on which the party relies;
(b) documents that adversely affect the party's own case;
(c) documents that adversely affect another party's case; and
(d) documents that support another party's case.
15 In addition to various powers within Order 29 of the Rules, the Court is given an overriding discretion under s 55(1) of the Civil Procedure Act 2010 (Vic) ('CPA') to 'give any directions in relation to discovery that it considers necessary or appropriate'. In making such directions, including those specifically identified in ss 55(2) and (3), the Court is to have regard to the overarching purpose in s 7 of the CPA, that is, to facilitate 'the just, efficient, timely and cost effective resolution of the real issues in dispute'.
16 The Court's powers in relation to discovery are broad, and any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.[5] The ultimate task for the Court is to 'ensure discovery remains proportionate and limited to documents which are directly relevant to the issues in dispute'.[6]
Plaintiff's Application for 'General Discovery'
18 Counsel for the plaintiff clarified during the hearing that the requests made in the 26 November letter, and listed in the Scott Schedule as the plaintiff's categories 1 and 2, were for the provision of general discovery, with the nine categories described in the hearing as a 'fallback position.'[9]
19 The defendant opposes general discovery. In its submissions opposing the plaintiff's request dated 5 March 2024 and at the hearing, the defendant submitted that the plaintiff previously sought an order for general discovery and the Court declined to make it. The defendant has also submitted that the order for discovery by category was consistent with the Court's 'usual practice'.[10] The defendant further submits that 'the Court should not countenance the Plaintiff's attempt to disregard the Court's previous determination on this question.'[11]
20 I do not accept the submission that discovery by category was ordered by the Court consistently with the Court's 'usual practice', predicated as it was on provisions in the Practice Note for the Commercial Court.[12] Further, while admittedly, the plaintiff somewhat clumsily cast his request for general discovery as if it was a request for discovery by category so as to make it appear consistent with the regime that had been established in the 3 November orders, I do not accept the defendant's characterisation, in its submissions, that the plaintiff was attempting to 'disregard the Court's previous determination on this question.'[13] The affidavit of Mr James Clarke of Ashurst, solicitors for the defendant, included within its bundle exhibit the transcript from the 3 November 2023 case management hearing.[14] A fair reading of that transcript does not suggest that general discovery was sought by the plaintiff and specifically declined. Plainly from his Honour's observations he did not see any difficulty with general discovery in this case and he did not decline to order it. In fact, his Honour stated:
But it really has to start with the plaintiff getting access to some documents and I don't understand how that can be terribly difficult. [15]
This was in the context of the defendant seeking orders relating to the delivery of expert evidence in advance of any discovery. When that was resisted on the basis that the plaintiff needed some documents to prepare its expert evidence, what was then urged upon his Honour by the defendant as being preferrable, at least as a start, was for there to instead be the exchange of proposals and orders for conferral by the parties, whom, his Honour accepted, had a greater understanding of what's necessary to discover for the purposes of both of their cases, in the expectation that this would lead to agreement on some categories and to discovery being exchanged, and the proceeding progressing, more swiftly. The Court accordingly made orders for a process by which categories might be agreed. The orders to be made subsequently for the provision of discovery hinged on agreement being reached.
21 It is also clear from the transcript that his Honour apprehended exactly what has regrettably transpired. That is, his Honour stated variously:
So I don't have any difficulty with that, but it shouldn't - it doesn't need to be a drawn out process.[16]
...
But it seems to me that if we can initiate this sort of conferral process pretty quickly, then we can start to make some good process with this case.[17]
...
...but before I let you go, I can see there's some sense in what's being proposed. What I wouldn't want to have happen is that you have, let's say 10 categories of discovery and there's agreement about seven of them and disagreement about three of them and the whole thing gets put off to the next case management conference.[18]
...
To the extent that there's agreement, the process should just naturally start because that will enable us all to move along with the case.[19]
22 To progress the proceeding, his Honour required the parties to use their best endeavours to agree upon their discovery orders as far as possible, and for the delivery of an initial tranche of that agreed discovery to be provided by mid-February 2024. His Honour also allowed for those discrete categories which were disputed to be referred for determination by another judicial officer - the intention being that the dispute would not hold up the initial tranche. The plaintiff and the defendant did engage in respect of the nine categories in the plaintiff's initial request, including by conferring as required by the 3 November orders, but not a single one of those categories could be agreed. So as matters have transpired, there has been no exchange of any initial tranche of discovery, and the progress of the proceeding has stalled.
23 The dispute that has ultimately been referred to me is far broader than a dispute concerning a few categories amongst a longer list, as was contemplated. On the one hand, the scope of the dispute concerns the entirety of the plaintiff's request for discovery. The overarching submission of the defendant is that each requested category seeks irrelevant documents and/or is oppressive. The written submissions filed by the parties together totalled 70 pages. The affidavits and exhibits relied upon in respect of the discovery dispute totalled together over 250 pages. The hearing lasted for close to a full day, with experienced counsel briefed for each party. It is apparent from the written submissions and those made orally at the hearing that each party takes a fundamentally different view as to the question of relevance of the documents identified by the plaintiff's 'fallback' categories. In consequence of the dispute, as at the time of this ruling more than six months has passed since the making of the 3 November orders. That delay in the progress of the proceeding is entirely unsatisfactory.
24 In all of the circumstances and faced with the unappealing but realistic prospect that if the plaintiff is now ordered to redraw his categories this discovery dispute will continue to drag on, I am satisfied that the Court can, or even should, entertain the plaintiff's request that discovery proceed instead by way of general discovery, that is, despite what was envisaged by the 3 November orders.
The 'Fallback' Categories sought by the Plaintiff
25 The plaintiff seeks discovery of documents within the nine 'fallback' categories on the basis that the documents sought are relevant to the issues in dispute in the proceeding. As noted above, the plaintiff pleads a private nuisance, and breach by the defendant of its GED under s 25 of the EP Act.
26 A person commits a private nuisance if that person interferes with another person's use or enjoyment of their land in a way that is both substantial and unreasonable.[20] In Uren v Bald Hills Wind Farm Pty Ltd ('Uren'),[21] Richards J explained that the question of whether an interference is substantial is a question of fact, and the question of whether it is unreasonable is an objective one.[22] Quoting the Court of Appeal of Western Australia in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management ('Southern Properties'),[23] her Honour further explained:
that the [latter] question is to be answered by "weighing the respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable."[24]
27 The considerations relevant to an assessment of the reasonableness of the interference were spelt out in Southern Properties as follows:
To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the claimant's land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered. [25]
28 The plaintiff's counsel pointed to an overlap in respect of the above considerations, most particularly the relevance of reasonable precautions, with the content of the GED. The GED is set out in s 25 of the EP Act and states:
(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.
29 Section 6(2) of the EP Act sets out matters to which regard must be had in determining what is (or was) reasonably practicable in relation to the minimisation of risks of harm to human health or the environment comprising:
(a) the likelihood of those risks eventuating;
(b) the degree of harm that would result if those risks eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;
(d) the availability and suitability of ways to eliminate or reduce those risks;
(e) the cost of eliminating those risks.
30 The first category requested (as identified in paragraph 2(a) of the 27 November letter) was '[a]ny document which records, refers to or relates to GrainCorp's operating licences since 1 January 2017.'
31 The defendant complains that the category is unduly wide and oppressive because:
(a) it uses the formulation 'any document which records, refers to or relates to';
(b) it is not limited to the defendant's Factory operations, but casts a net over all of the defendant's operating licences; and
(c) is not limited to operating licences which regulate or control operations by reference to emissions of odour or noise.
32 The defendant says further that the category as presently drafted would require the defendant to search for and review a significant volume of documents, none of which would be relevant to any issue in the proceeding. The defendant proposes in the alternative that the defendant discover its Discharge Licence 1116 and Operating Licence OL000001116, as amended from time to time since 1 January 2017.
33 A discovery category formulated using the words 'any document which records, refers to or relates to' will, in many cases, mandate searches for documents and a review task that is unduly wide in its scope, burdensome to the discovering party and disproportionate. That is particularly the case, as here, where the party undertaking the searches is a corporate defendant of substantial size and with significantly sized document repositories, such that the collation and review task quickly becomes time consuming and expensive. There is often little return as the documents produced may be relevant within the boundaries of the category but are not relevant to the issues in dispute in the proceeding. The proposed category is made worse by the other imprecise wording used in its drafting, so as to expand the scope of the documents sought by the category significantly beyond those that could ever be relevant to the issues in dispute.
34 Any operating licence which has governed or controlled the operations at the Factory since 1 January 2017 and which relates to the emission of noise or odour from those operations is relevant to this case and should be discovered. This will certainly encompass the defendant's Discharge Licence 1116 and Operating Licence OL000001116 the subject of its proposed alternative category. However, the plaintiff, in agreeing that the category should be confined, seeks comfort that there are no other licences and so initially sought an expression of the alternative category that was more generic. Then, during the hearing, referring to an amended operating licence that had been issued to the defendant more recently, the plaintiff's counsel also requested all correspondence with the Environment Protection Authority ('EPA') concerning the issue of that licence.
35 I am not satisfied that the alternative formulation suggested by the defendant by which it will be required to produce only the two licences identified therein is sufficiently broad to ensure disclosure to the plaintiff of documents relevant to the issues raised in his claim. In other words, the alternative formulation takes the matter too far the other way. As was submitted by the plaintiff, such licences are likely to contain conditions in respect of emissions from the Factory, compliance with which will be relevant to the reasonableness of the alleged interference with the plaintiff's property and to matters relevant to determining whether there has a been a breach of the GED. Accordingly, communications such as those with the EPA in respect of the specific licences and their conditions regarding odour or noise emissions, whether before or after their issue, will also be relevant. Any alternative formulation should be sufficiently generic to capture any other relevant licences, of which the plaintiff is unaware, and relevant communications discussing them.
36 Accordingly, whilst I will not order discovery in accordance with the plaintiff's proposed category, I do not consider the alternative formulation is sufficient. The applicable licences and communication discussing them of the nature described above would, however, be discoverable if an order for general discovery is made, or if a more precise category could be formulated. I will address the consequences of this finding later in these reasons.
37 The second category requested (as identified in paragraph 2(b) of the 27 November letter) was:
=[a]ny document which records, refers to or relates or otherwise sets out the basis on which GrainCorp has operated since 1 January 2017 including the mechanical, chemical and thermal processes which GrainCorp has used from time-to-time to manufacture oilseed at the factory.
38 The defendant complains that this category is unduly wide and oppressive because:
(a) it again uses the formulation 'any document which records, refers to or relates to';
(b) it is vague because it is unclear what is meant by documents which 'otherwise set out the basis on which GrainCorp has operated';
(c) it is not limited to operations at the Factory.
39 The defendant says the documents sought are also not relevant. The defendant does not propose an alternative formulation of this category on the basis that other discovered documents will answer the category.
40 In his amended statement of claim at paragraph 8(b), the plaintiff pleads that the defendant uses 'mechanical, thermal and chemical processes to crush, refine, bleach and deodorise oilseed onsite.'[26] The plaintiff further alleges at paragraph 9 that the operations cause the emission of 'excessively loud noise'. The particulars to paragraph 9 refer to machinery noise, auger noise, steam hissing noise, sirens and announcements, reverse beepers and noise from trucks. The amended statement of claim also complains, at paragraph 15, that the process causes the continuous emission of odour, particularised as having a grainy smell with a strong chemical undertone and on occasion, putrid like sewage, and/or like mould, and/or like wet wood, and/or like cooking yeast, and/or nutty. The plaintiff relies on those same particulars, together with others, to particularise its allegation of breach by the defendant of the GED at paragraph 24 of his amended statement of claim. The plaintiff's counsel described the purpose of the requested category as being for the plaintiff to obtain a description of the manufacturing processes and equipment used by the defendant so that the plaintiff can brief an expert, and that expert can consider whether any part of those processes is likely to produce excessive noise or odour emissions that may travel beyond the boundary of the Factory.[27]
41 To address its unduly wide scope, the plaintiff's counsel attempted to reformulate the category during the hearing. Counsel for the defendant made submissions about the appropriateness of the Court engaging in the redrafting exercise to which I shall return, however, he also submitted that the defendant's manufacturing processes, and hence the category which seeks documents that describe them, are not relevant on the pleadings. In particular, the defendant says that the manufacturing processes identified in paragraph 8(b) of the amended statement of claim are admitted in its defence, and so there is no relevant joining of issue as to the manufacturing processes used. The defendant says the plaintiff's case concerns the emission of noise or odour, not how they emanate.
42 I am satisfied that the documents the plaintiff intends to seek by the category are relevant. In terms of assessing the unreasonableness of the interference having regard to the considerations identified in Southern Properties and Uren for determining whether there is a nuisance, it will be necessary to understand how the noise or odour emanates so as to consider, having regard to the processes in use, whether reasonable precautions have been taken to minimise that risk of interference.[28] If for example, a piece of equipment could be installed or part of the process altered to attenuate noise emissions, the plaintiff would be entitled to understand whether such equipment or altered process was in use at the Factory. For that reason too, such documents would be relevant, as the plaintiff submitted, to determining whether the defendant has breached the GED. In the Court's view, the plaintiff is entitled to the discovery of documents which describe or identify the mechanical, thermal and chemical processes that are used at the Factory in order to crush, refine, bleach and deodorise oilseed onsite. Such information about those processes will be vital for the plaintiff to brief his experts to give evidence in the proceeding.
43 Despite my view that the documents the plaintiff intends to seek are relevant, I will not order that the defendant make discovery in accordance with the category as it has been drafted. This category has the same vices as that above in that it is unduly broad and the defendant will be required to search for and review, and ultimately disclose, a significant volume of documents, a large or very large proportion of which are not likely to be relevant. As noted above, the defendant did not propose an alternative formulation, submitting the documents were not relevant, and cautioned the Court against re-drafting the plaintiff's category. The documents the plaintiff intends to seek would, however, be discoverable if an order for general discovery is made, or if a more precise category could be formulated.
44 The third category requested (as identified in paragraph 2(c) of the 27 November letter) was '[a]ny document which records, refers to or relates to grain crush volumes at the GrainCorp factory since 1 January 2017.'
45 In his amended statement of claim at paragraph 8(c), the plaintiff alleges that the Factory has significantly increased its oilseed crush and processing volumes since 1 July 2016. The plaintiff included particulars describing annual crush volumes, which the plaintiff's solicitor deposes to having derived from publicly available records.
46 The defendant admits the increase in production, and also admits annual crush volumes in its defence, and so it submits there is no joinder of issue, such that documents recording the crush volumes (on an annual or more frequent basis) are not relevant. As with the other categories the defendant also objects to the unduly wide and oppressive wording of the category, in particular its use of the phrase 'any document which records, refers to or relates to'. An alternative formulation proposed by the defendant is to make discovery of 'an extract from Graincorp's finance system recording annual processing volumes at the Graincorp factory since 1 January 2017'.[29]
47 The plaintiff submits that despite its admissions, the defendant denies that it has caused a nuisance, and it denies it has breached its GED. The plaintiff argues in respect of the proposed category that daily crush volume data would reflect the intensity of the defendant's manufacturing processes on any given day. Just as the actual manufacturing processes are relevant to assessing the reasonableness of the interference and to the alleged breach of the GED, so too would the intensity of the use of those processes be relevant.
48 Although the proposed category suffers the same vice as the others such that I will not order discovery in accordance with it, I do accept that documents recording the daily processing volumes would be relevant to the plaintiff's case for the reasons submitted by the plaintiff.
49 In connection with its 2015 development proposal for a site upgrade to increase processing volumes, the defendant applied to the EPA for a works approval to increase its oilseed production at Numurkah by increasing 'crush capacity from 720 tonne/day (grain receipt) to 1,000 tonne/day.'[30] In other words, daily crush volume data was, for the purposes of that application and at that time, a relevant metric measured or forecast by the defendant. I raise this only because it means the defendant may be possessed of such data and not because its use in connection with the development approval application renders it relevant in and of itself. In my view if the defendant held daily crush volume data, documents recording it would be discoverable in the proceeding if a more precise category had been formulated, or if general discovery was ordered.
50 The fourth category requested (as identified in paragraph 2(d) of the 27 November letter) was '[a]ny document which records, refers to or relates to GrainCorp's emissions of noise and/or odour since 1 January 2017.'
51 I accept the defendant's submissions in relation to this category that not every document which merely records, refers or relates to, emissions of noise and/or odour at the Factory will satisfy the test of relevance for the purposes of the proceeding. In part, the problem with the category is the use, again, of the phrase 'any document which records, refers to or relates to' which is extremely broad. However, there is also a problem in that the category is not confined to emissions of noise or smell which exceed a standard or which possess a particular quality. In the pleading, the plaintiff complains about noise that is 'excessively loud', or odour that is 'offensive' or 'pungent'; he does not, nor could he, complain that every emission of noise or odour creates the nuisance.
52 In its alternative formulation as set out in the Scott Schedule, the defendant proposed to limit the discovery to its monitoring records for noise and odour emissions at the Factory since 1 January 2017. Such monitoring records are certainly relevant, however, as was submitted by the plaintiff, other documents, for example, correspondence or internal memoranda which discuss the results recorded in those monitoring records, may also be relevant to the plaintiff's case in nuisance, particularly the unreasonableness of the interference and his claim for aggravated damages and his claim for breach of the GED. For this reason the alternative formulation is too narrow.
53 Although the proposed category suffers the same vice as the others such that I will not order discovery in accordance with it, for the reasons above, I do accept that the monitoring records and documents which analyse, discuss or otherwise consider the results recorded, are relevant to the plaintiff's case. Therefore, such documents would be discoverable if a more precise category could be formulated, or if general discovery orders were to be made.
54 The fifth category requested (as identified in paragraph 2(e) of the 27 November letter) was '[a]ny document which records, refers to or relates to or otherwise sets out the basis on which GrainCorp has taken precautions to minimise the risk of harm to neighbours in Numurkah from its manufacture of oilseed since 1 January 2017.'
55 The defendant made the same objection to the wording of this category on the basis that it was unduly broad and oppressive, especially in respect of its repeat use of the formulation 'any documents which records, refers or relates to.' The defendant proposed an alternative formulation to discover documents which record the nature of the precautions, or the basis upon which it has taken precautions, to minimise the risk of harm to its neighbours arising from noise and emissions at the Factory since 1 July 2021. The amended date reflects the defendant's submission that such documents cannot be relevant to the plaintiff's nuisance claim, only to his claim in respect of the GED.
56 The plaintiff asserts that these documents are also relevant to his common law nuisance claim and should be provided since 1 January 2017 because of the factors relevant to the determination of the question of whether the interference was unreasonable, as set out in Southern Properties, which includes the failure to take reasonable precautions, and to establishing an entitlement to aggravated and/or exemplary damages. In response, the defendant submitted that because there is no plea of the failure to take reasonable precautions in connection with the nuisance claim, the issue is not one raised on the pleading. I do not accept that submission. The amended statement of claim alleges at paragraph 11 (for noise) and 17 (for odour) that the plaintiff (and group members) do not bear the onus of establishing unreasonableness, but then alleges in the alternative in paragraph 12 (for noise) and in paragraph 18 (for odour) that the noise emissions and odour emissions were unreasonable. The particulars to the allegations in paragraph 12 and 18 are those provided in paragraph 9 and 10 (for noise) and paragraph 15 and 16 (for odour). The particulars provided to paragraphs 9 and 15 are expressed to be non-exhaustive, with the possibility of further particulars being provided before trial and subsequent to completion of all interlocutory steps (such as discovery). The relevant pleading is one of 'unreasonableness', which is an element of the action for private nuisance. The factors to which regard will be had in determining that question include those identified in Southern Properties. None of those factors is expressly pleaded by the plaintiff, although some are already particularised. Following discovery, it might be expected that the plaintiff can provide further and better particulars of the alleged unreasonableness which may include a failure by the defendant to take reasonable precautions.
57 Again, whilst I find the plaintiff's proposed category is too broad, I do not consider that the defendant's proposed alternative is sufficiently broad to capture documents that are relevant to the plaintiff's case and which would be discoverable if the plaintiff had formulated a more precise category, or if orders were made for general discovery.
58 The sixth category requested (as identified in paragraph 2(f) of the 27 November letter) was:
[a]ny document which records, refers to or relates to or otherwise sets out the basis on which the EPA has issued and/or withdrawn abatement notices to GrainCorp since 1 January 2017.
59 The dispute in relation to this category was primarily focussed in submissions and at the hearing on the breadth of its scope given the use of the wording 'any document which records, refers or relates to' and the absence of words confining the category to notices issued in respect of noise or odour emissions from the Factory. The dispute, in other words, was about the drafting of the category more than the relevance of the documents intended to be captured by the plaintiff. So much is reflected also in the alternative category proposed by the defendant.
60 Following argument, counsel for the defendant helpfully acknowledged for the purposes of the transcript that his client's proposed alternative formulation should be expanded to include abatement notices issued by the EPA in relation to noise and odour emissions at the Factory since 1 January 2017, communications between the EPA and the defendant in relation to such notices (including investigation reports which preceded the issue of the abatement notices),[31] documents recording the measures taken by the defendant to respond to any abatement notices so issued and documents recording the revocation of such notices. The relevance of such documents to the issues in dispute is readily apparent, and these documents would all be discoverable if orders were made for general discovery.
61 The seventh category requested (as identified in paragraph 2(g) of the 27 November letter) was '[a]ny document which records, refers to or relates to the Moira Shire Council's nuisance investigation into the plaintiff's complaints under the Public Health and Wellbeing Act 2008.'
62 In its submissions, the defendant made the same objection to the wording of this category on the basis that it was unduly broad and oppressive, especially in respect of its repeat use of the formulation 'any documents which records, refers or relates to.' The defendant says also that the documents sought are irrelevant because there is no pleading or particular that refers to the Council investigation, and in any event it made no submissions or representations to Council in respect of it.
63 The defendant offered, in the alternative (and if I was against it on the question of relevance), to discover documents between it and the Moira Shire Council regarding its nuisance investigation. The plaintiff asserts that the defendant should discover all documents in relation to the Council investigation, because it was actually conducted by a third party engaged by Council and so relevant documents may not have travelled between the defendant and the Council only.
64 The plaintiff asserts that the documents in this category are relevant to the question of his aggravated damages. The plaintiff draws a comparison with the circumstances in Uren, where the defendant's 'strikingly disproportionate'[32] response to a local council investigation of noise complaints about the defendant's wind farm was held to justify an award of aggravated damages. I accept that such communications which tend to reveal the defendant's response and approach to an investigation by a local authority such as the Council would be relevant and ought be discovered in this case (and would be discoverable if general discovery orders were to be made). For the reasons advanced by the plaintiff, the category suggested in the alternative is too narrow.
65 The eighth category requested (as identified in paragraph 2(h) of the 27 November letter) was '[a]ny document which records, refers to or relates to the plaintiff's and other affected persons' complaints about GrainCorp's odour and noise emissions since 1 January 2017.'
66 The same oppression-based objection is made to the wording of the category, including because it is not tied to complaints about noise and odour emissions from the Factory. The defendant also quite reasonably objects to the use of the phrase 'affected persons' which is not defined and so is a class of persons that cannot be discerned by the defendant.
67 The defendant offered in the alternative to make discovery of its Numurkah Complaints Register and Safety, Health and Environment Reports recording complaints made by the plaintiff in relation to odour and noise. The defendant submits that the fact that a complaint was made is sufficient to satisfy the way in which the plaintiff puts its case, and so only documents that record the existence of the complaint are relevant. However, the defendant submitted that in any event the Complaints Register and Safety, Health and Environment Reports generally contain specific details about the complaints and actions taken in response. Notably, the defendant's proposed alternative category does not incorporate any other documents in which a complaint might be analysed, discussed or actions taken in response described, and the defendant does not propose to provide the Complaints Register or Safety, Health and Environment Reports in respects of complaints other than those made by the plaintiff.
68 The plaintiff submits, and I accept, that complaints about odour and noise emissions from the Factory, and documents which reveal how such complaints were considered and responded to, are relevant to the plaintiff's allegations concerning the reasonableness of the alleged interference and to his claim for aggravated damages in respect of the nuisance, and to the defendant's compliance with its GED. In Uren, Richards J held that the 'high handed nature' of the manner in which the defendant had dealt with the plaintiff's complaints impacted their loss of amenity justifying aggravated damages for the nuisance.[33] Relevantly in Uren, the defendant had discovered the complaints register, as well as documents in which the complaints of the plaintiff were analysed and discussed by a third party hired to investigate the complaints.
69 Again, I am satisfied that documents in the nature of the documents sought by the plaintiff by this proposed category are relevant to the issues in dispute in the proceeding, however, the wording of the proposed category is too broad and I will not order discovery in accordance with it. I do not consider that the defendant's proposed alternative is sufficiently broad to capture documents that are relevant to the plaintiff's case and which would be discoverable if the plaintiff had formulated a more precise category, or if orders were made for general discovery.
70 The ninth category requested (as identified in paragraph 2(i) of the 27 November letter) was '[a]ny document which records, refers to or relates to the profits generated by GrainCorp and assets owned by GrainCorp since 1 January 2017.'
71 The defendant submits that the category is irrelevant as there is no allegation in the pleading that concerns, or would otherwise require consideration of, the profits generated by the defendant. The plaintiff submits that such documents are relevant to his claim for exemplary damages. Leaving to one side the breadth of the proposed category, and the arguments about relevance, the plaintiff quite properly and reasonably concedes that the discovery he seeks in relation to the means of the defendant could await findings of liability in the proceeding. For that reason, I do not propose to consider the category further.
The Category Sought from the Plaintiff, to which Objection is Made
72 Category 1 of the 15 categories of documents sought by the defendant from the plaintiff, which is the only category objected to by the plaintiff, starts with the words '[a]ny Document recording, referring or otherwise relating to.'[34] The plaintiff did not complain about that formulation, though he reasonably could have done so as that phrase is relevantly identical, ironically, to the formulation complained about by the defendant in respect of each and every category sought by the plaintiff on the basis that it renders the request unduly wide and oppressive. Whilst that may not always be the consequence, depending on the specificity of the subject matter that such documents must record, refer or relate to and the size of the document set that would need to be reviewed to identify potentially responsive documents, in my view the wording used here makes the category too broad, capturing documents that could have no relevance whatsoever to the issues in dispute in the proceeding.
73 In any event, the plaintiff objects to the category on the basis that it seeks documents that can have no relevance to any issue in dispute in the proceeding.
74 The defendant asserts that the documents it seeks from 1998, including the sale contract, any valuation and marketing material, are relevant to determining what might reasonably have been expected by way of amenity in a property so close to an oilseed factory which was already operational in terms of assessing the reasonableness of the interference in connection with the nuisance claim, and the determination of the question of the capital loss allegedly caused by the nuisance.[35]
75 The plaintiff submits that his representative claim relates to a nuisance created in the period after 1 January 2017. The evidence filed in the proceeding establishes that the plaintiff purchased the property near the Factory in 1998.[36] It is not in dispute that the plaintiff continues to reside at that property and that the property is situated on land that is zoned residential.[37] As set out in Southern Properties, and confirmed in Uren, the question of whether the alleged interference is unreasonable is an objective one, determined by the Court having regard to a variety of factors, including the location of the land, its proximity to the Factory and the applicable zoning, and any hypersensitivity of the user.
76 I do not accept that the defendant's proposed category seeks relevant documents. As has been submitted by the plaintiff, the question as to the unreasonableness of the interference is to be determined objectively. In addition to matters such as the location of the land, its proximity and its zoning, a factor to which the Court may have regard (which is discussed in the authorities relied upon by the defendant) is the standard of comfort that a person in the locality might reasonably expect, making due allowance for reasonable give and take. However, that is not the same as what the complainant actually expected. The plaintiff's subjective expectations almost 20 years prior to the creation of the nuisance can have no bearing on the determination of whether an interference on or after 1 January 2017 is unreasonable.
77 I am also not persuaded that the documents are relevant to the assessment of the diminution in value, which is assessed by reference to the value at the time of the interference and not by reference to the value at acquisition. Also, the valuation exercise involves a comparison in the value with the nuisance and with the value absent the nuisance, and I do not see any relevance at all to the plaintiff's expectations when he acquired the land more than 20 years earlier.
78 Having considered each category and, where proposed by the defendant, each alternative category, together with the competing submissions of the parties, I will not order that discovery be made by the defendant in accordance with the plaintiff's fallback categories. It would be inconsistent with the achievement of the overarching purpose, and with the principles of discovery more generally, to require production of irrelevant documents, or to require the discovering party to engage in an overly burdensome and wholly disproportionate discovery exercise. However, assisting the parties in the just, timely, cost-effective and efficient conduct of this proceeding in light of the subsisting delay, requires determining the best way to achieve the relatively simple objective of having the plaintiff and defendant each discover relevant documents in this proceeding without further delay, so that further interlocutory steps can be undertaken.
79 One option available to me is to reformulate the categories, drawing from the drafting proposed by each party and the submissions. However, counsel for the defendant submitted at the hearing, and the point was made in its written submissions, that 'it was not for the Court to engage in the process of drafting categories'.[38] Whilst the Court would undoubtedly have power under s 55 of the CPA to amend parts of a category or categories or to make its own orders for categories of discovery, given the plaintiff's application concerned the entirety of the discovery to be given by the defendant and therefore, the extensive re-drafting that would need to occur in this case, I do not consider that to be an efficient or appropriate alternative.
80 The defendant submitted, citing the decision of Black J (as his Honour then was) of the Supreme Court of New South Wales in Re Felan's Fisheries Pty Ltd ('Re Felan's Fisheries'),[39] that if I reached the view I have regarding the plaintiff's categories, the appropriate course for the Court was to dismiss the plaintiff's application so as to limit the discovery rather than to permit unreasonably broad discovery. The case of Re Felan's Fisheries was a proceeding in the equity division of the Supreme Court of New South Wales and was subject to the applicable practice note, being Practice Note Supreme Court Equity 11. That practice note provides that, other than in exceptional circumstances, no party is entitled to discovery in a proceeding until after the evidence is filed and then only by court order.
81 It is unsurprising, where discovery is itself exceptional in a proceeding and follows as it does in that division of the Court the filing of evidence in the proceeding, that discovery if ordered would be by category and be limited to properly formulated categories that are expected to be drawn with the benefit of knowledge of the evidence already filed. The plaintiff in this case is in a completely different position for the reasons elaborated on below. I do not accept that the approached adopted in Re Felan's Fisheries is the appropriate course in this case. If I acted in accordance with the defendant's submission, the effect would be to dismiss the entirety of the plaintiff's application for discovery by his existing categories, forcing the plaintiff to redraw them. If the redrawn categories could not then be agreed, the plaintiff would be forced to bring a further application seeking resolution of a new discovery dispute before the Court. Given the amount of time that has passed, such orders would not, in any way, achieve the overarching purpose.
82 The plaintiff makes the point, in favour of orders for general discovery (and it is apt for distinguishing the circumstances in Re Felan's Fisheries as outlined above), that there is a very significant information disparity between him and the defendant. The plaintiff is a truck driver, who, despite having the benefit of capable solicitors and counsel to assist him, is nevertheless completely unaware (as are those advisors) of the manufacturing operations and oilseed refinement processes employed by the defendant; he has no knowledge other than that drawn from publicly available information, about its licences or other operating permits, its record keeping practices or its document management and storage systems, its internal reporting structures, complaints register or other records of emissions, licence breaches or other matters peculiar to its business. He is, therefore, at a very significant disadvantage in being in a position to prepare categories for production by the defendant which can escape criticism for being too broad or oppressive. That does not change, if the defendant is faced with the prospect of drafting further categories of discovery.
83 The plaintiff submits that the discovery task for the defendant is simple - it must discover documents relevant to the pleaded case - that is, the question of relevance determines the natural boundaries of the discovery exercise. The plaintiff submits that the frustration for him is that, with no information about the defendant's business operations, he is expected to draw those boundaries on the discovery exercise artificially, with resultant disputes about semantics and 'word play'. To recall the words of his Honour at the 3 November 2023 case management hearing '...it really has to start with the plaintiff getting access to some documents and I don't understand how that can be terribly difficult. '
84 In all of the circumstances, I am satisfied that the appropriate disposition of this discovery dispute is to make orders that each party make general discovery in accordance with r 29.01.1(3) of the Rules.
85 I acknowledge the potential vice (as was addressed by counsel for the defendant in his general observations during the course of the hearing) in now ordering general discovery is that each party has made clear by their respective submissions and as set out in the Scott Schedule, that they do not consider various documents described in the disputed categories to be relevant based on the pleadings. Accordingly, the defendant raised the risk that, if general discovery were ordered, the parties will come back before me or another judicial officer seeking further and better discovery of the documents the other says today are irrelevant. However, I consider that risk to be remote because it has been necessary for me, in setting out my reasons for making the below orders, to resolve the competing submissions on the issues of relevance raised by the parties' respective objections to the categories that have already been proposed and which might otherwise have fallen for consideration on some future occasion.
86 Accordingly, and having regard to the mixed success of each party, the orders I propose to make are as follows:
(a) the parties shall make discovery of the documents required by r 29.01.1(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) by affidavit in accordance with r 29.04; and
(b) each party bear their own costs of and incidental to the discovery dispute hearing.
87 I will ask the parties to agree upon a date (or dates if discovery will be made in tranches) by which to make discovery in accordance with these proposed orders.
[1] Exhibit JHC-2 to the affidavit of James Clarke sworn 5 March 2024, 62-63.
[2] See transcript of proceeding (12 March 2024), 8.31-9.05.
[3] The Scott Schedule states in relation to category 2(e) that the defendant 'does not in principle object to the category' but objects to the wording 'any document that records, refers or relates to' on the basis that it is unduly wide and oppressive.
[4] Exhibit JHC-2 to the affidavit of James Clarke sworn 5 March 2024, 54.
[5] Liesfield v SPI Electricity Pty Ltd (Ruling No 1) [2013] VSC 634; (2013) 43 VR 493 at 500 [25] (J Forrest J).
[6] Cahill v Kiversun Pty Ltd [2017] VSC 628 at [33] (Gardiner AsJ).
[7] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433 at [40] (Elliott J).
[8] Agnello v Heritage Care Pty Ltd; Fotiadis v St Basil's Homes for the Aged in Victoria (No 2) [2023] VSC 653 at [31] (Keogh J).
[9] Transcript of proceeding (12 March 2024), 13.11.
[10] The defendant cites Practice Note SC CC 1 Commercial Court dated 26 February 2024, which states at [5.5] that the 'Commercial Court is reluctant to make general discovery orders.'
[11] Submissions on behalf of GrainCorp Opposing Discovery of Categories Sought by the Plaintiff, 5 March 2024, at [26].
[12] Practice Note SC CC 1 dated 26 February 2024, which was referred to in the defendant's submissions and handed up during the hearing.
[13] Submissions on behalf of GrainCorp Opposing Discovery of Categories Sought by the Plaintiff, 5 March 2024, at [26].
[14] Exhibit JHC-2 to the affidavit of James Clarke sworn 5 March 2024, 38 - 49.
[15] Transcript of proceeding (3 November 2023), 2.19, at exhibit JHC-2 to the affidavit of James Clarke sworn 5 March 2024, 40.
[20] Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 at [15] (Richards J) ('Uren').
[23] [2012] WASCA 79; (2012) 42 WAR 287 ('Southern Properties').
[24] Uren [17], quoting from Southern Properties, [118]-[119] (McClure P, Buss JA agreeing at [336]).
[26] Amended statement of claim dated 14 March 2024, [8(b)].
[27] Transcript of proceeding (12 March 2024), 26.
[28] In the case of Uren, her Honour held that the defendant had not taken steps to ensure compliance with its permitted noise conditions, and it had not taken any remedial steps to reduce noise experienced at the plaintiff's homes. He Honour also found that additional reasonable precautions could have been taken by implementing selective noise optimisation at nearby turbines and remedying a gearbox tonality issue. See Uren [13(9)-(11)].
[29] Scott Schedule, Plaintiff's requested Discovery Category dated 26 November 2023 no. 2(c), 3.
[30] Affidavit of Dominica Sophia Tannock sworn 17 March 2023 [23]. See also pages 55-60 of exhibit bundle DST-2 exhibited to that affidavit.
[31] Transcript of proceeding (12 March 2024), 74-75.
[34] Exhibit JHC-2 to the affidavit of James Clarke sworn 5 March 2024, 54.
[35] See paragraph 20 of the amended statement of claim and the definition of loss and damage given in paragraph 1 of the amended statement of claim.
[36] Affidavit of Dominica Sophia Tannock sworn 17 March 2023 [5].
[37] See amended statement of claim at paragraphs 3(b), 3(d) and the defence dated 7 September 2023 at paragraph 4(c).
[38] Transcript of proceeding (12 March 2024), 27.21-27.26.
[39] [2017] NSWSC 1262 ('Re Felan's Fisheries').
Green
Graincorp Oilseeds Pty Ltd [2024] VSC 273
(2013) 43 VR 493
(2012) 42 WAR 287