Plaintiff v First Defendant

1 The plaintiff, David James, alleges to have been negligently exposed to asbestos dust and fibre by reason of the defendants' conduct, which resulted in the plaintiff suffering from asbestosis.[1] The proceeding has settled as between the plaintiff and the second defendant, Amaca Pty Ltd ('Amaca'), and remains on foot between the plaintiff and the first defendant, Seltsam Pty Ltd ('Seltsam').

2 By summons dated 10 August 2017, Seltsam seeks the following orders:

1. The plaintiff provide the lung tissue from his excised lung to Seltsam's solicitors for the purposes of an asbestos fibre count to be performed by Microanalysis Australia.

2. The trial listed to commence 23 August 2017 be vacated and the proceeding be fixed for trial on a date not before 22 November 2017.

3 In the statement of claim dated 10 April 2016, in relation to Seltsam, the plaintiff alleges that he inhaled asbestos fibre at the Wunderlich factory in Sunshine between approximately 1966 and 1967, and 1970 and 1972.[2] The plaintiff claims that as a result of his employment with Seltsam he suffers from asbestosis, asbestos-related pleural plaques, asbestos-related pleural effusion, diffuse asbestos-related pleural disease, psychiatric injury and an increased risk of mesothelioma and lung cancer caused by the inhalation of asbestos fibre.

4 Seltsam pleads in its amended defence dated 10 March 2017[3]:

"12(a) Subject to proof of the plaintiff's exposure to, and inhalation of asbestos dust and fibres while working with and in the vicinity of asbestos containing products in the course of his employment with Wunderlich, it admits it owed a duty to the plaintiff. "

5 In relation to the plaintiff's injuries, Seltsam pleads that:

"30. It does not know and cannot admit the allegations of injury, loss and damage and otherwise denies the allegations."[4]

The evidence - affidavit of Vanessa Elizabeth Kemp

6 The only evidence in this application is Vanessa Elizabeth Kemp's affidavit sworn 10 August 2017 ('Kemp affidavit'). Ms Kemp is a principal in the firm of solicitors for Seltsam.

7 Ms Kemp deposes that the case is highly contested on causation and diagnosis.[5]

8 Seltsam relies upon a report of Dr Andrew Gal, pathologist, dated 10 May 2017.[6] Dr Gal states that the proposed diagnosis of asbestosis can be excluded with certainty on the basis that the morphology of the lung is against that diagnosis and the asbestos bodies required for the occurrence of asbestosis are not present in the lungs.[7] Dr Gal's differential diagnosis is 'usual interstitial pneumonia'. Dr Gal is of the opinion that the cause of this condition is not known and it is very likely multifactorial. He states that both a histological appearance and the absence of asbestos bodies exclude the clinical differential diagnosis of asbestosis.[8]

9 On 6 July 2017 Ms Kemp received by way of service from the plaintiff's solicitors a copy of Dr Andrew Musk's reports dated 15 April 2017 and 21 June 2017.[9]

10 Dr Musk is a respiratory physician. In his report, dated 21 June 2017, Dr Musk states:

a) that he does not accept that the presence of asbestos bodies on lung pathologies is required for a clinical diagnosis of asbestosis as not all asbestos fibres are converted to asbestos bodies. He considered the evidence that the plaintiff was exposed to asbestos is not in doubt as the history is clear and he has radiological evidence of pleural plaques which are indicative of the asbestos exposure;

b) not all persons exposed to asbestos have asbestos bodies seen on examination of lung tissue (as exemplified by the plaintiff);

c) all asbestos fibres do not form asbestos bodies in all persons exposed;

d) the clearance of asbestos fibres from the lungs occurs at different rates in asbestos exposed persons;

e) failure to find asbestos bodies in three sections of lung indicates that it is unlikely that asbestos bodies would be found in other sections although further sections could be examined and asbestos bodies could still be found if a lung digest was performed. A lung digest for (uncoated) asbestos fibres would almost certainly find some;

f) the pattern of fibrosis found in the lung with interstitial fibrosis (UIP) is similar to that of asbestosis, subtle differences in pattern being recognised by pathologists. He was unable to critically comment on this and suggests that an independent expert pathologist such as Professor Keith Shilkin may be able to advise; and

g) "in my opinion the factors favouring a diagnosis of asbestosis in this case are the history of exposure and the presence of interstitial pulmonary fibrosis and I suggest that it is illogical to maintain that the fibrosis is of unknown cause (i.e. idiopathic)."[10]

11 In his 15 April 2017 report at page 2, Dr Musk states: "I also note there were no asbestos bodies (recoated asbestos fibres) described in the biopsy. This does not negate the history of exposure and the evidence of asbestos related pleural disease and I suggest that the tissue be submitted for (uncoated) fibre counting" (emphasis added).

12 On 14 and 24 July 2017, Amaca's solicitors and Seltsam's solicitors respectively wrote to the plaintiff's solicitors enquiring as to whether the lung tissue had been submitted for testing.[11]

13 On 25 July 2017, Ms Kemp received a letter from the plaintiff's solicitors informing her that the plaintiff had not retained anybody to conduct the uncoated fibre counting.

14 Attached to the letter dated 25 July 2017, the plaintiff's solicitors served a report of Professor D. W. Henderson, pathologist, dated 24 July 2017.

15 In the final summary and opinion, Professor Henderson states amongst other things:

• The explanted left lung from Mr James shows features characteristic of UIP, in the form of variable but advanced interstitial fibrosis with fibroblastic foci in honeycomb change. Given the benign asbestos-related changes in Mr James, the differential diagnosis narrows down to UIP - idiopathic or associated with known causal factors for a UIP pattern - versus asbestosis.
• However, neither Dr Gal nor I could find any asbestos bodies in the sections of Mr James' explanted lung - so that a simple histological diagnosis of asbestosis by light microscopy is not sustainable.
• The question that remains is whether asbestos plays some causal-contributory role in the pathogenesis of Mr James' UIP, in combination with unknown and genetic factors. I consider this to be likely.
• Even if Mr James' asbestos exposed played no role in the development of his lung parenchyma disease, it is in my opinion likely that his bilateral diffuse pleural fibrosis would have contributed to impairment of his lung function, even if that contribution were minor in comparison to the impairment from his UIP-type parenchymal disease, for the reasons explored in the preceding sections of this report.

16 On 25 July 2017 the plaintiff's solicitors wrote to Seltsam's solicitors stating that their enquiries established that:

a) Professor Shilkin (referred to in Dr Musk's report dated 21 June 2017) was retired and unavailable;

b) the uncoated asbestos fibre testing was not conducted by any laboratory in Australia; and

c) any such procedure overseas was prohibitively expensive 'given the substantial exposure sustained by Mr James, and the view of the plaintiff's experts that he suffers from several asbestos related diseases including asbestosis'.[12]

17 On 28 July 2017 Ms Kemp made enquiries with Rick Hughes, the managing director of Microanalysis Australia, an organisation based in Western Australia. Mr Hughes informed Ms Kemp that Microanalysis Australia would be able to count the asbestos fibres within the lung tissue to ascertain how many million per wet or dry lung fibres existed. Ms Kemp was informed that the analysis could be completed within 10 working days of receipt of the sample.[13]

18 On 28 July 2017 Seltsam's solicitors requested by telephone that the plaintiff's lung tissue be made available to Seltsam to enable Microanalysis Australia to perform the fibre count.

19 On 1 August 2017 the plaintiff's solicitors wrote to Seltsam's solicitors in relation to the request for the plaintiff's pathology material to be provided for a fibre count. The plaintiff's solicitors noted that the request was late having regard to the fact that a judicial mediation had taken place on 26 July 2017 and that the matter was listed for trial on 23 August 2017.

20 The plaintiff's solicitors sought information identifying the pathologist who would conduct the count, the person's history and experience in using the technique, including their CV, and other information. It was submitted to Seltsam's solicitors that the information was required to ensure that the plaintiff was not taken by surprise. The plaintiff's solicitors sought an assurance that Microanalysis Australia was independent and free of any affiliations or conflicts that might render the analysis anything other than that of an independent expert, in the context of the analysis resulting in the destruction of the plaintiff's lung tissue.

21 In response, Seltsam's solicitors confirmed that Dr Musk, in his report dated 21 June 2017, suggested a lung digest for uncoated asbestos fibres to be counted, that the plaintiff's solicitors were not going to conduct any such testing and that the matters remained unresolved in that they had instructions to arrange the asbestos fibre count. In relation to Microanalysis Australia, Seltsam's solicitors informed the plaintiff's solicitors that the fibre count would meet the NOHC: 3003 counting criteria; the analysis procedure would be in line with and compatible to quantitative analysis of asbestos burden in a series of individuals or lung cancer and a history of exposure to asbestos (Dobson R. F., Brooks D. R., O'Sullivan M., Hammar, S. P.).[14]

22 On 9 August 2017 Seltsam's solicitors wrote to the plaintiff's solicitors again requesting their consent to release the plaintiff's excised lung tissue for the purpose of conducting the asbestos fibre count, failing which an application would be made seeking orders providing for the release of the excised lung tissue to Seltsam's solicitors for the purpose of the asbestos fibre count as recommended by Dr Musk and that such count was to be performed by Microanalysis Australia. Seltsam's solicitors sought consent to adjourning the trial date of 23 August 2017 to a date not before 22 November 2017.

23 On the same day, the plaintiff's solicitors wrote to Seltsam's solicitors requesting the name of the pathologist who would conduct the proposed fibre count. It was noted that as this was a medical examination and request for material made inexplicably late in the case, the plaintiff should not be taken by surprise.[15]

24 Seltsam submits that the Court should make orders requiring the plaintiff to provide the removed lung for analysis by Microanalysis Australia on the basis that:

a) the expert evidence is divided as to whether the pulmonary fibrosis is caused by asbestosis;

b) Professor Douglas Henderson's findings that he was unable to find any asbestos bodies in the plaintiff's removed lung and that a simple histological diagnosis of asbestosis by light microscopy is not sustainable; and

c) alternative testing is available by way of the asbestos fibre counting.

25 Seltsam's counsel submitted that the asbestos fibre count performed by Microanalysis Australia would be performed by a group of scientists that do not have a medical degree and therefore their report would not fall within the provisions of Order 33 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules'). Seltsam applies for discovery of the plaintiff's lung on the basis that there is overwhelming expert opinion as to the appropriateness of the test (the asbestos fibre count), the test itself was recommended by the plaintiff's expert, Dr Musk, and in circumstances where Seltsam is prepared to pay for the cost of testing it submits that the Court should make the orders sought.

26 Counsel submitted that the plaintiff's request for further information about the identification of the pathologist and the testing technique was unreasonable. It was submitted that the plaintiff's own expert, a well-respected respiratory physician, recommended the testing, the plaintiff's and Seltsam's solicitors' enquiries confirmed that no pathologist in Australia undertakes the testing and that this is a scientific test undertaken by Microanalysis Australia.

27 Counsel submitted that discovery should be provided pursuant to s 55 of the Civil Procedure Act 2010 (Vic) ('CPA'). It was submitted that s 55(1) provides a broad power, which is not confined to documents. Counsel noted that s 55(2) states that:

Without limiting subsection (1), a court may make any order or give any directions expanding a party's obligation to provide discovery.

28 Counsel referred to the decision of John Dixon J in Hanks v Johnston (No 3),[16] in which his Honour stated that s 55 of the CPA gives the Court the power to make any order in relation to discovery that it considers necessary or appropriate, including by expanding a party's obligation to provide discovery. His Honour went on to say at [31]:

The Civil Procedure Act informs the exercise of the discretion to order discovery under s 55. The court must interpret and exercise its powers to give effect to the overarching purpose. In furthering that purpose, the court shall have regard to the objects set out in s 9(1) and, to that end, may have regard to the matters set out in s 9(2).[17]

29 In brief compass, s 9 of the CPA provides that the Court in making any order or giving any direction in a civil proceeding shall further the overarching purpose by having regard to, among other objects, the just determination of the civil proceeding.

30 Subsection 9(2) of the CPA states that:

(2) For the purposes of subsection (1), the court may have regard to the following matters -

...

(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

...

(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

...

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues.

31 Counsel for Seltsam submitted that in circumstances where the plaintiff no longer has any use for the removed lung, the fact that no invasive test is being performed, the testing is available in Australia, if Seltsam is denied production of the removed lung for the purpose of testing it will be a denial of justice for Seltsam. Counsel submits that in relation to s 9(2)(b), the request for the removed lung is a reasonable endeavour to resolve the dispute for the just resolution of the proceeding.

32 Counsel also submits that in relation to s 9(2)(g) of the CPA, the testing in this case and in future cases is important and necessary for the just determination of the issue of diagnosis. It was submitted that if the Court was not minded to make an order pursuant to s 55 of the CPA that the Court could make the order pursuant to r 34.01(1) of the Rules. Rule 34.01(1) provides:

At any stage of a proceeding, the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination...

33 In the alternative, Counsel submitted that the Court could make such an order on the basis of the subpoena powers under r 40.12(1), particularly in light of the fact that r 40.12(1) refers to the production by a person of any 'document or thing specified or described in the order'.[18]

34 In summary, Counsel submitted that the Court has the power pursuant to s 55(1) of the CPA to order that the plaintiff provide his removed lung to Seltsam for testing for asbestos fibres and that the Court should make the order in that:

(a) it is in the interest of justice and it is required for the just determination of the proceeding pursuant to s 9 of the CPA;

(b) Dr Musk, the plaintiff's expert respiratory physician, recommended the testing be done;

(c) no asbestos bodies have been identified on histological examination by Dr Gal and Professor Henderson. The plaintiff's pathologist, Professor Henderson, stated that the lack of asbestos bodies meant that a simple histological diagnosis of asbestosis by light microscopy is not sustained;

(f) there is no prejudice to the plaintiff in this test if the testing is undertaken. There is no reasonable basis on which the plaintiff can object to providing the removed lung;

(g) if the Court does not order that the plaintiff's removed lung be examined for asbestos fibre count, Seltsam's defence will be adversely unfavourably prejudiced; and

(h) arguments as to reliability and interpretation of the test results are a matter for trial. Each party will have the time to obtain opinion on these issues.[19]

35 Plaintiff's counsel submitted, in agreement with Seltsam, that a critical issue at trial will be whether the plaintiff's pulmonary fibrosis is asbestos related or an asbestos induced condition or whether it is idiopathic.

36 Counsel submitted that in circumstances where the Court has not been told what the test is or 'where does it go', the consequences if the fibre count is low or high and who undertakes the test, the Court is unable to determine the benefit of the test in resolving the issue in dispute and the Court is unable to determine the evidentiary relevance of the testing.

37 Counsel submitted that the power to require the production of the removed lung to Seltsam's solicitor for testing was not a discovery power. Counsel conceded for the purpose of the application 'that somewhere there is a power for the Court to make the orders sought - but importantly, it is not a discovery power'.[20]

38 Counsel submits that there is no propriety in the proposed 'discovery' and testing of the lung, as unless the court is informed of the medical expert that is capable of providing an opinion on the test results, the test results themselves are of no forensic or evidentiary relevance to the Court. In the event that this was possible, Counsel says Order 33 of the Rules would be the most appropriate means, however as this is not the case, there is no basis for the making of the order sought.

39 Counsel submitted that Dr Gal's report did not suggest that a fibre count would add anything to his opinion. Dr Gal considered that the proposed diagnosis of asbestosis can be excluded with certainty on the basis that the morphology of the lung is against the diagnosis and the asbestos bodies required for the occurrence of the asbestosis are not present in the lung. It was submitted that even if the testing demonstrated a fibre count which is higher than expected, Dr Gal's opinion will not change. It was submitted that Dr Musk, while an important witness, was a respiratory physician, not a pathologist, and therefore would be unable to take the issue any further. While Dr Musk said that the test can be done and that it should be done, he did not say why it should be done or what he would do with the results.

40 Counsel noted that Professor Henderson, pathologist, says nothing about the desirability of the testing or that it would take matters any further.

41 Counsel submitted that the plaintiff's case would not change on the expert evidence, regardless of what the asbestos fibre count testing revealed. Counsel noted that Professor Henderson had proceeded in his opinion on the basis that there is no evidence of asbestos in the plaintiff's lungs in any event, and so has Dr Musk.

42 It was submitted by the plaintiff's counsel that both experts are of the opinion that on the basis of the plaintiff's exposure history, signs of exposure on the lungs (although not asbestos bodies and no other implicating factors for pulmonary fibrosis) that there is a possible cause and that there is no need to look any further for the unknown.

43 In summary, the plaintiff's counsel submitted that there was no obvious forensic purpose that has been articulated for undertaking the test and that it was not going to advance the interest of justice of the case any further or make it easier for the Court to determine the issue of diagnosis.

44 It was submitted that in circumstances where the Court is being asked to make an order on a 'fairly nebulous mechanical testing process about which nothing is known by an organisation about which nothing is really known, and in the absence of any evidence about [whether the] medical practitioner is actually going to say something about the results... it would be... completely unjust to put off a trial which has been put off twice before'.[21]

45 Counsel for the plaintiff submitted that there was no evidence that the plaintiff's medical condition placed him at risk of dying in the near future, however delay of the trial is of itself prejudicial particularly in the circumstances of an ill plaintiff who has had a lung transplant.

46 Mr Quinn referred to the decision of Stace v Commonwealth[22] and in particular the judgment of Bollen J. In Stace, the defendant arranged for the plaintiff to be examined by the defendant's specialist rheumatologist. The plaintiff refused to undergo a test requested by the specialist, namely a thiopentone pain test. The defendant applied for an application (which was opposed by the plaintiff) for a stay of proceedings pending the plaintiff's submission to undergo the test. Bollen J stated that the information before the trial judge was inadequate to determine the application, and it did not contain certain information as to the procedure. Bollen J found that the fullest information concerning the proposed test should be put before the Court.[23]

47 Plaintiff's counsel submitted in light of Bollen J's comments and in the context of the forensic burden that is carried by the first defendant in this case, that there was no evident purpose or utility for the testing in light of the pathologist's opinions and the absence of the identification of a medical practitioner who would provide an opinion about the testing results. It was submitted that the testing ought not be permitted and the orders not made and the trial proceed on 23 August 2017.

48 Concerning this last point, the test which was the subject of application before Bollen J involves a procedure which differs to the testing in this case. The plaintiff in Stace was asked to submit to an invasive pain test, whereby he was required to submit to a number of uncomfortable experiences including the injection of the relevant drug and allowing himself to be examined physically in a near unconscious state. The proposed test in the application before me involves a non-invasive procedure, and does not require the plaintiff's physical involvement.

Discovery under Section 55

49 The question here is two-fold. First, whether there can be discovery of something which is not a document. Second, whether there should be discovery where the thing discovered will be destroyed as a result.

50 The words of s 55(1) of the CPA are broad, allowing the Court to give any order or direction in relation to discovery which it considers 'necessary or appropriate'. The specific powers granted under that section are all either specifically or implicitly tied to documents. These are expressed, however, not to limit the broad power conferred by sub-s (1). If 'discovery' encompasses chattels, then s 55(1) will grant sufficient power to make the order for production (subject to the subsequent question of whether it is appropriate to exercise that power where discovery will result in destruction).

51 So, does the concept of 'discovery' extend to chattels? Applying the principle of ejusdem generis, it could be said that the power in s 55 must take its character from the specific examples given and must be taken to be concerned with documents. This would not impermissibly 'limit' the s 55(1) power¾'any order' may still be made, but such an order must be one concerned with discovery, and 'discovery' appears from the remainder of the section to be concerned with documents.

52 Counsel were unable to point to recent examples of non-documentary discovery, and I am not otherwise aware of any. This is unsurprising, given the presence of r 37.01.[24]

53 Nevertheless, it appears that the Courts of Chancery in the nineteenth century did consider 'discovery' to include inspection and production of chattels. Wigmore on Evidence (3rd ed, 1940 at s1862) reports that the English common law traditionally knew no procedure by which to require disclosure of non-documentary chattels. (There does appear to have been, however, a right to inspect real property at common law.[25])

54 On the other hand, Wigmore reports (at p 480, s1862) that the opposite practice prevailed in the Court of Chancery's equitable jurisdiction (emphasis and citations omitted):

But in chancery, under the same wholesome principle and practice by which bills of discovery were allowed for ascertaining the opponent's testimony and the documents in his possession ... the inspection of chattels and premises in his possession or control was obtainable wherever fairness seemed to demand it. Whether the precise limitations of the bill of discovery prevailed, namely, the limitation to facts supporting the applicant's own case ... is not clear. But the general power to require the adversary to permit inspection was settled....

55 It appears then, that production or inspection of documents was considered in equity to be a species of discovery. Wigmore cites examples of English cases - generally dated to the first half of the nineteenth century, but extending back to 1686 - covering inspection of mines, machines, clothes and boxes of jewels.[26]

56 This species appears to have been first legislated through the Common Law Procedure Act 1954 (UK), s 58, which allowed a party to apply for inspection of any real or personal property, the '[i]nspection of which may be material to the proper Determination of the Question in dispute'. Millar reports that this rule cured the defect in the old common law,[27] effectively replicating the situation already prevailing at equity.

57 It appears, then, that discovery at equity was considered to encompass inspection and production of chattels. That usage of the term has, however, fallen away with the introduction of the specific statutory power which is now r 37.01 of the Rules. To the extent that there is a power for 'discovery' of chattels, it appears that there has simply been no call for the use of that power since the middle of the nineteenth century.

58 In my view, it is more likely that the power in s 55 of the CPA was intended to refer to the power to discover documents. This is consistent with the more specific powers provided in that section. I find it unlikely that s 55 was intended to incorporate rules of equity which have, apparently, lain dormant for a century and a half. The current legislative scheme is more coherent if discovery is limited to documents (which is consistent with the principles of interpretation already discussed) and inspection and production of chattels limited to r 37.01.

59 Before moving on, it is necessary to briefly consider r 40.12 of the Rules. That rule provides as follows:

(1) The Court may in any proceeding make an order for -

(a) the attendance of any person for the purpose of being examined;

(b) the attendance of any person and production by the person of any document or thing specified or described in the order; or

(c) the production by any corporation of any document or thing specified or described in the order.

(2) An order under paragraph (1) may be made for attendance before or production to the Court or any officer of the Court, examiner, special referee, arbitrator or other person authorised to take evidence.

(3) An order under paragraph (1) shall not operate to require the person against whom the order is made to produce any document which the person could properly object to produce on the ground of privilege.

60 Paragraph (1)(c) of this rule appears to be wider than the documentary discovery permitted by s 55. However, it does not afford the Court any wider power than it would otherwise enjoy. In De Simone v Legal Services Board,[28] Derham AsJ said that 'the power [in r 40.12] is ancillary to the exercise of another power, in that it is to be used to facilitate the exercise by the Court of its functions derived from other sources'. Thus, another source of power must be found. The rule does not extend the power available under s 55.

(1) In any proceeding the Court may make an order for the inspection, detention, custody or preservation of any property, whether or not in the possession, custody or power of a party.

(2) An order under paragraph (1) may authorise any person to -

(a) enter any land or do any other thing for the purpose of obtaining access to the property;

(c) make observations (including the photographing) of the property;

(d) conduct any experiment on or with the property;

62 It is clear that this rule would provide the Court with the power to make the order sought. The central question in taking that step, however, is whether the explanted lung is 'property' for the purposes of this rule. In my view, it is.

63 In Roche v Douglas,[29] an application was made under the WA equivalent of r 37.01 for DNA testing of tissue specimens removed from the body of a deceased person, which were held at a laboratory. It is not known what type of tissue was involved. The testing was required for paternity results, which had a bearing on whether the plaintiff was able to claim under the deceased's will.

64 Sanderson M recounted the rule that there is no property in a corpse, but noted that this was modified by the High Court decision in Doodeward v Spence.[30] In that case, it was held that the preserved body of a child with two heads was capable of being considered 'property' for the purposes of detinue, at least in part because of the work and skill involved in the preserving of the specimen. (It is clear from Griffith CJ's reasons that work and skill were not intended to be necessary or exhaustive criteria for the existence of a property right, and such a notion has been subjected to criticism elsewhere.[31])

65 Sanderson M noted the statement of Griffith CJ in Doodeward that it was necessary (in the Master's words) 'to decide the case in accordance with general principles of law which are, hopefully, in accord with reason and common sense'.[32]

66 Having recounted further authorities on the point, including academic work and law reform reports, not all of which were in favour of the recognition of property in a body part, Sanderson M said:[33]

[23] Having given careful consideration to all of the cases I have mentioned and to the many learned articles on the subject, I am satisfied that it is proper to hold that the human tissue is property. In reaching that conclusion I am mindful of what was said by Griffiths CJ about the need to apply the principles of law in line with reason and good sense. In this case it might well be possible by the use of DNA testing to establish definitively whether the deceased is the father of the plaintiff. If that is possible it will obviate the need for extensive evidence, much of that evidence anecdotal, to prove the plaintiff's claim. There will be a considerable saving in time and cost, so on the particular facts of this case there is a compelling reason for holding the tissue samples to be property.

[24] In the wider sense, it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality. To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result.

67 The same decision had earlier been reached in Pecar v National Australia Trustees Ltd,[34] on substantially the same facts. Bryson J held (at 5) that the NSW equivalent of r 37.01 permitted DNA testing of tissue, and that such tissue could be considered 'property' whether or not there were rights of ownership vesting in a particular person.

68 The decision in Roche has been followed in a number of cases involving the taking of sperm from a deceased person for the purposes of IVF treatment. In S v Minister for Health,[35] Simmonds J made such an order under the equivalent of r 37.01. His Honour considered the decision in Roche to be correct and said that it ought to be followed.[36] Simmonds J also said that one 'should not distinguish between the taking of samples of tissue taken from a body before death and the taking of a sample of tissue from a body after death'.[37]

69 In another case involving access to sperm, Edelman J made the following statement:[38]

The principle that a human body cannot be the object of a property right does not apply in relation to tissue or body parts once they are removed from a human body. It is now clear that things which are removed and separated from the living human body, such as human tissue, can sometimes be the object of property rights. As a recent monograph has acknowledged, the most extensive judicial discussion on this point in Australian common law is the decision of Master Sanderson in this jurisdiction in Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec). I am indebted to his Honour's summary of key principles in this area. That decision reflects the modern recognition that things removed and separated from the living human body can be the objects of property rights. The conclusion reached by Master Sanderson has also been reached in relation to removal of spermatozoa from a living person in the context of different legislation, as well as the common law, in England and the United States. In the Supreme Court of Queensland, White J has recently supported Master Sanderson's conclusion as sound 'both in law and in common sense'. Of course, a different and sometimes difficult question may be who holds property rights over the removed matter.

70 In other cases,[39] it has been held that sperm was 'property' for the purposes of wills and probate legislation, even though those Acts did not provide specifically for such a finding.

71 I conclude that the explanted lung is 'property' for the purposes of r 37.01. I note that in Doodeward, Griffith CJ noted that the fact that a particular thing was not capable of being the subject of a charge of larceny did not mean that it was incapable of being the subject of an action in detinue.[40] This principle is important, because it indicates that whether or not something is 'property' may vary between different legal settings. This ruling is concerned only with r 37.01 and that is the confined context for my conclusion that the lung in this case is property.

72 There is a logical question as to who holds the rights in that property. Again, for the purposes of r 37.01 and this application, it is unnecessary for me to decide this question. In Roche, Sanderson M held (at 339, [25]) that there was no need to determine who held the property rights in making the order, but directed the order at the laboratory as the current holder of the tissue. A similar position can be taken here.

73 As noted, Bryson J held in Pecar that tissue may be property whether or not it was possible to definitively identify who held the relevant rights.

74 In my view, it is sufficient in this matter to direct an order to the laboratory as the current holder of the lung, whether or not it is they who hold the rights. This is the course which was adopted in Roche and I consider it to be adequate to dispose of this case.

75 It is possible that the lung in this case will be destroyed by the testing to be undertaken. There may be matters in the future where the destruction of the property sought under r 37.01 would be a consequence weighing against the exercise of the Court's power.

76 In this case, however, there is no evidence before the Court that there would be any prejudice to the plaintiff in the lung being destroyed. There is, for example, no evidence that there are further tests which could be undertaken on the lung which will be rendered impossible by its destruction. There are, in short, no apparent adverse consequences of the order being made in this case. Conversely, the results of the test are potentially of great evidential value in determining central issues in this case. This weighs heavily in favour of the order being granted and is not counteracted by any known prejudice to the plaintiff.

(1) At any stage of a proceeding, the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

(1) Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made -

(a) in the interests of the administration of justice; or

(b) in the public interest.

(2) A direction given or an order made under subsection (1) may include, but is not limited to, imposing any reasonable limits, restrictions or conditions in respect of -

(a) the management and conduct of any aspect of a civil proceeding; or

(b) the conduct of any party.

(3) Without limiting subsection (1) or (2), a court may actively case manage civil proceedings by -

(a) giving directions to ensure that the civil proceeding is conducted promptly and efficiently;

(b) identifying at an early stage the issues involved in the civil proceeding, including any issues that have not been resolved in accordance with any mandatory or voluntary pre-litigation processes;

(c) deciding the order in which the issues in dispute in the civil proceeding are to be resolved including -

(i) deciding promptly which issues need full investigation and a hearing; and

(ii) disposing summarily of other issues

(d) encouraging the parties -

(i) to co-operate with each other in the conduct of the civil proceeding;

(ii) to settle the whole or part of the civil proceedings;

(iii) to use appropriate dispute resolution;

(e) controlling the progress of the civil proceeding, including, but not limited to -

(i) fixing timetables;

(ii) dealing with as many aspects of a civil proceeding as it can on the same occasion;

(iii) dealing with the civil proceeding without the parties needing to attend court;

(iv) making use of technology.

(f) limiting the time for the hearing or any other part of a civil proceeding, including, but not limited to -

(i) limiting the number of witnesses at the hearing;

(ii) limiting the time for the examination or cross-examination of any witness;

(iii) limiting the issues or matters that may be the subject of examination or cross-examination;

(g) considering whether the likely benefits of taking a particular step in a civil proceeding justify the cost of taking it.

79 These powers are very broad and, in my opinion, grant the Court sufficient power to make orders as to the production and testing of the lung in this case.

80 The overarching purpose spoken of in s 47 is set out in s 7 of the Act, as the 'just, efficient, timely and cost-effective resolution of the real issues in dispute'.

81 It has been said that the case management powers granted by the CPA grant a discretion which must be exercised 'on a proper basis', with the factors bearing on the exercise of the discretion needing to be 'appropriately identified in context'.[41] The same can logically be said of the power granted by r 34.01.

82 I have already expressed my opinion that the testing to be undertaken on the lung has the potential - subject to interpretation of the results by medical experts - to determine a central question in this case which could, indeed, dispose of the case in its entirety. As such, there seems little doubt that an order requiring the production and testing of the lung will facilitate the just outcome of the case.

83 It is true that this will cause some delay in the trial, with the currently scheduled dates to be vacated. However, this delay appears to be relatively minor when considered against the benefits of the testing of the lung. I also accept that there was no real delay in the defendant's application to have the lung produced.

84 Similarly, there is no demonstration of potential prejudice to the plaintiff in this case which could sway the exercise of this discretion in the plaintiff's favour.

85 In ASIC v Informercial Management Group Pty Ltd,[42] Harper J held that r 34.01 was capable of requiring the production of information beyond that which may have been required by traditional rules of discovery or particulars, at least where that was conducive to (or necessary for) the 'effective, complete, prompt and economical determination' of an issue. The same principle may be applied here. The production and testing of the lung is, for the reasons already given, similarly conducive to the effective and complete determination of the issue.

86 I consider that the case management powers under r 34.01 of the rules and s 47 of the CPA are capable of supporting an order requiring the production and testing of the lung.

87 This is an unusual application in that Seltsam seeks the production of the plaintiff's entire 'explanted' or removed lung and that it be submitted to testing, of which in the process of testing will result in the explanted lung being destroyed. Seltsam will bear the cost of the testing. There is no evidence before the Court that the destruction of the lung would cause any prejudice to the plaintiff. The parties agree that a critical issue in this case is whether the plaintiff's pulmonary fibrosis is an asbestos related or induced condition, or whether it is idiopathic.

88 The medical evidence before the Court on this question has been provided by Dr Gal and Professor Henderson, pathologists, and Dr Musk, respiratory physician.

89 Dr Musk recommended that the test be undertaken. Professor Henderson and Dr Gal are silent on whether the test should be performed but there was no evidence that either expert was asked whether the test would be of any assistance to them in terms of their opinion.

90 The fact that Dr Gal or Professor Henderson have not put forward the idea of testing is not a basis on which the Court ought to refuse this application. As I said, neither expert has said in their report, nor have their opinions been sought, as to whether the testing would be of no assistance.

91 The plaintiff's submissions relied on the contention that the absence of asbestos bodies does not mean that the plaintiff does not have asbestosis. This is a contention which Seltsam says, quite rightly, is open to challenge and Seltsam will challenge.

92 The onus of proving what injuries were caused by Seltsam's negligence as well as the extent and duration of the injuries rests with the plaintiff at all times. At trial a jury will have to determine on the evidence what is the plaintiff's medical condition arising from Seltsam's negligence (if established) and the extent and nature of the medical condition.

93 Seltsam submits that the plaintiff's diagnosis is idiopathic pulmonary fibrosis and that as such it does not arise from any negligence on its part. Seltsam cannot make vague allegations about this. Seltsam has an evidentiary obligation to point to evidence in the case which has some reasonable measure of precision.

94 The fact that a pathologist has not been identified who will comment on the testing at this stage is misconceived. Seltsam agreed that ultimately the interpretation of the test and its relationship to the plaintiff's diagnosis is critical and the value of the test may ultimately turn on an appropriate qualified pathologist to comment on the results. The plaintiff has not put any medical evidence unequivocally refuting the benefit or relevance of the asbestos fibre counting. To the contrary, there is an expert that has recommended the testing be performed. It will be open once the test results are available for both parties to obtain an opinion on the relevance or otherwise of the test results in relation to the plaintiff's diagnosis and whether it is an asbestos related condition.

95 The fact that the test is being undertaken by a scientist is not of itself a reason to not make the order. There is evidence before the Court of the laboratory that will perform the test and it is not said that any prejudice is suffered by the plaintiff in the performance of the test. The only evidence before the Court is that the plaintiff was unable to identify a pathologist that would perform such testing and that the only laboratory they were aware of that would perform the testing overseas was prohibitively expensive. It was not suggested that the overseas testing was inappropriate.

96 It was not suggested that the test results would not be proper scientific material on which proper opinion could be given. At its highest, it was submitted, that the test results may be of no benefit and may not advance the matter. Ultimately, this is a matter for trial and is not a basis to refuse the interlocutory application.

97 I consider, in the circumstances, that even though this is a test that has not been routinely used in the diagnosis of asbestosis or in litigation of asbestos related disease, the testing and the analysis goes to a critical and relevant issue in the case. I do not consider it to be a fishing expedition. The testing has been recommended by a respiratory physician and on balance may be of forensically probative value in determining the critical issue of diagnosis.

98 The plaintiff submitted that the testing will cause delay and, given the plaintiff's medical condition and two earlier vacations of the trial date, that the delay of itself is prejudicial.

99 I accept that any delay is not desirable. However, the Court is required to balance the interests of justice and ensure that each party has an adequate opportunity to gather, consider and analyse and present all relevant evidence at trial. In this case, Dr Musk's reports were not provided to the Seltsam's solicitors until 6 July 2017 even though the reports were dated 15 April and 21 June 2017. There is no evidence that Seltsam is responsible for any undue delay in endeavouring to resolve the issue about the testing.

100 The adjournment of the trial date sought is in the order of three months, therefore is not an inordinate delay in the circumstances.

101 There would be no reason why this matter could not be listed for trial in the first part of 2018. This would ensure that each party has ample opportunity to consider the testing results.

102 For the reasons set out I do not consider the discovery powers under the CPA or the Rules are the appropriate bases to make an order for the production of the explanted lung to Seltsam's solicitors or Microanalysis Australia. For the reasons set out above I will make an order under r 37.01. I note however that the order could also be made pursuant to the case management powers under r 34.01 and s 47 of the CPA.

103 I will ask that the parties consider the logistics and mechanics of the provision of the explanted lung to the Microanalysis Australia. I note that there has been no evidence before the court that the lung has been destroyed or is not available.

104 I will adjourn the matter for further directions on Friday 1 September 2017 at 10.30am in Court 1, William Cooper Justice Centre at which time I will hear the parties in relation to costs and ask the parties to prepare a proper form or order.

[1] The plaintiff issued a writ on 30 September 2015 and subsequently a statement of claim on 12 May 2016.

[2] Statement of claim dated 10 April 2016, [5]-[6], [9]-[10].

[4] Amended defence dated 10 March 2017, [30].

[6] Exhibit VEK-1 to the Kemp affidavit.

[7] Exhibit VEK-1 to the Kemp affidavit, 3.

[8] Exhibit VEK-1 to the Kemp affidavit.

[9] Exhibit VEK-2 to the Kemp affidavit.

[10] Exhibit VEK-2 to the Kemp affidavit.

[11] Exhibits VEK-3 and VEK-4 to the Kemp affidavit.

[12] Exhibit VEK-5 to the Kemp affidavit.

[13] Exhibit VEK-6 to the Kemp affidavit.

[14] Exhibit VEK-8 to the Kemp affidavit.

[15] Exhibit VEK-11 to the Kemp affidavit.

[16] [2016] VSC 629.

[17] Ibid, [31] (footnotes omitted).

[18] Rule 40.12 of the Rules, sub paragraphs (b) and (c).

[19] Seltsam's written submissions dated 11 August 2017, [28].

[22] [1989] SASC 1508; (1989) 51 SASR 391 ('Stace').

[24] Which will be expanded upon at [61].

[25] Robert Wyness Millar, Civil Procedure of the Trial Court in Historical Perspective (Lawbook Exchange, 2005) 226.

[26] Similar examples are given by Edward Bray, Principles and Practice of Discovery (Reeves and Turner, 1885) 579−80.

[28] Unreported, Supreme Court of Victoria (30 January 2015), [67].

[29] [2000] WASC 146; (2000) 22 WAR 331 ('Roche').

[30] [1908] HCA 45; (1908) 6 CLR 406 ('Doodeward').

[31] See the English decision of Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1; considered in Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207, [28]−[31].

[32] [2000] WASC 146; (2000) 22 WAR 331, [14].

[33] [2000] WASC 146; (2000) 22 WAR 331.

[34] Unreported, Supreme Court of NSW (27 November 1996).

[35] [2008] WASC 262.

[38] Re section 22; ex parte C [2013] WASC 3, [7] (citations omitted).

[39] Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207; Roblin v Public Trustee for the ACT (2015) 10 ACTLR 300.

[40] [1908] HCA 45; (1908) 6 CLR 406, 411.

[41] Dura (Aust) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 2) [2011] VSC 518, [35] (Dixon J).

[42] [2001] VSC 181.