RAFFERTY -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18 (1 February 2017)

Supreme Court of WA|2017-02-01|Before: Miere J

1 The plaintiff suffers mesothelioma as a result of his exposure to asbestos, which he says he inhaled from asbestos materials manufactured or supplied by the defendant. He claims damages, including exemplary or punitive damages, from the defendant on the ground that his exposure to asbestos from asbestos materials was caused by the negligence of the defendant. Alternatively, the plaintiff says he suffers mesothelioma as a result of misleading or deceptive conduct by the defendant in relation to its asbestos cement products. The defendant denies it is liable for the plaintiff's loss and damage.

2 The defendant has given discovery verified by affidavit. The plaintiff says the discovery is inadequate and applies for orders for further and better discovery of eight specified classes of document. The plaintiff further seeks an order that the defendant take steps to obtain access to, and discover, documents in the possession, power or control of ABN 60 Pty Ltd (ABN 60) relevant to the matters in issue. The plaintiff also seeks leave to deliver interrogatories for the examination of the defendant. The defendant opposes all of the orders sought by the plaintiff.

4 The plaintiff is aged 46 years. He has contracted malignant pleural mesothelioma as a result of exposure to asbestos.

5 The defendant, Amaca Pty Ltd (Amaca), was formerly known as James Hardie & Coy Pty Ltd. Amaca manufactured and distributed building and other products containing asbestos until 1987. The defendant has been responding to claims from people suffering mesothelioma and other asbestos related diseases arising from exposure to asbestos materials since 1965 and to common law claims for damages for negligence since 1978.

6 ABN 60 Pty Ltd was formerly known as James Hardie Industries Ltd and was the holding company of the former James Hardie Group. ABN 60 ceased manufacturing and distributing products containing asbestos long ago.

7 Amaca and ABN 60 are insolvent and are subject to the James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW) which places them in a form of statutory based winding up and administration. Asbestos Injuries Compensation Fund Ltd (AICF) holds all of the shares of Amaca and ABN 60. AICF manages claims by claimants who sustain asbestos related disease as a result of exposure to products manufactured by Amaca and ABN 60. The business or activity of AICF is to manage claims and funding for claimants who sustain asbestosrelated disease as a result of exposure to products manufactured by Amaca, ABN 60 or other James Hardie companies.

8 The defendant gave discovery verified by an affidavit sworn on 22 November 2016 by Ian Estherby, the insurance/claims manager of the defendant. The defendant is and has been the defendant in numerous actions brought by plaintiffs who have contracted mesothelioma and other asbestos related diseases. The defendant has developed a standard list of documents in its possession custody or power relating to matters in issue in such proceedings. Schedule 1 pt 1 of the list of documents, documents which Amaca has in its possession, custody or power relating to the questions in this proceeding, verified by Mr Estherby consists of the 'standard list' together with documents relating specifically to this action. Schedule 2 consists of paragraphs numbered 10 to 28. Paragraphs 16 to 18 explain Amaca's production of a standard list of documents relevant to asbestosrelated litigation:

Various documents of unknown dates which Amaca is unable specifically to identify and which it has no information, knowledge or belief as to when it parted with them or in whose possession, custody or power they may now be, but which are documents relating to:

(a) the manufacture, supply and marketing of asbestoscontaining products by Amaca; and

(b) medical, scientific and industrial hygiene matters in relation to the manufacture of asbestoscontaining products by Amaca or the use of asbestoscontaining products manufactured by Amaca.

Further in respect of the matters raised in paragraph 16, Amaca has made endeavours to collect and compile all documents potentially relevant to any asbestosrelated litigation. The documents contained in Schedule 1, Part 1 is a standard list of documents which has been produced on behalf of Amaca, and is used in litigation around Australia. In order to compile the standard list of documents measures were undertaken by Amaca which included:

(a) A process to collect all documents potentially relevant to asbestosrelated litigation around Australia, commencing in the early 1990's;

(b) Implementing a protocol under which potentially relevant documents were to be collected, examined and assessed as to whether they were discoverable;

(c) The collection of the documents, following which Amaca required relevant staff members, managers and executives to provide statutory declarations that they had complied with the protocol. In all, 978 statutory declarations were obtained confirming that all relevant documents had been collected;

(d) Retaining independent solicitors to examine the documents and to advise on whether or not they were discoverable. A barrister familiar with the issues, Brian Ferrari, was retained to advise on the discoverability of any documents. Amaca accepted and obeyed the advice that it received.

As a consequence Amaca has discovered several thousand documents in its standard list of documents. In the event that Amaca becomes aware of any further documents which are discoverable, those documents will be discovered by Amaca.

9 Paragraphs 21 and 22 refer to letters from Dr McCullagh, Mr Hudson and Mr Brereton and what has become of them:

In August and September 2008 Amaca has been shown, and supplied with copies of documents, which it is probable were previously in the custody, possession and control of Amaca, but which are not included in the standard list of documents. These documents are:

(a) A letter from Dr McCullagh to Department of Health, Western Australia, dated 10 February 1975;

(b) A letter from A J Hudson, Executive General Manager, James Hardie & Coy Pty Limited to Mr Brereton, the NSW Minister for Health, dated 29 November 1982;

(c) A letter from Mr Brereton, NSW Minister for Health to A J Hudson, Executive General Manager, James Hardie & Coy Pty Limited, dated 16 December 1982.

In respect of the three documents listed in paragraph 20 above:

(a) It is probable that the originals or copies of the originals came into the possession of Amaca on or about the date of the letter;

(b) It is not now known, and it is proved impossible to ascertain when, and in what circumstances, the letters or copies of them left the possession, custody or control of Amaca. In this respect, both Dr McCullagh and Mr Hudson have passed away;

(c) Amaca has acquired copies of each of the three letters, and will supply copies upon request.

10 Paragraphs 24 and 25 refer to letters and notes concerning the management of asbestos litigation where James Hardie and CSR are involved:

In about September 2007 Amaca was supplied with copies of letters which, it appears, may have previously been in the possession, custody or control of Amaca. These letters are as follows:

(a) A letter from I M Mutton, Corporate Lawyer, CSR Limited to L C Denmead, Administrative Services Manager, James Hardie & Coy Pty Ltd, dated 4 August 1983;

(b) A letter from R W Bagnall, Corporate Lawyer, CSR Limited to M J Knight, Legal Officer, James Hardie & Coy Pty Limited, dated 9 April 1986;

(c) Notes prepared by F D Loneragan on a meeting with Bill Bennett, CSR Limited, dated 21 November 1986;

(d) A letter from W A Bennett, Executive Director, CSR Limited to F D Loneragan, Deputy Managing Director, James Hardie Industries Limited, dated 25 June 1986;

(e) A letter from W A Bennett, Executive Director, CSR Limited to F D Loneragan, Deputy Managing Director, James Hardie Industries Limited, dated 11 February 1987.

(a) The documents relate to a partnership between Amaca and CSR Limited, known as HardieBI and which was conducted between 1964 and 1974;

(b) The documents relate to the resolution of legal proceedings involving the former partnership, and passed between the parties or lawyers retained by them, for the purpose of obtaining legal advice or in relation to the proceedings nominated on the face of the documents. As a result these documents would have been subject to a claim for legal professional privilege, which may have been waived by CSR Limited when the five documents were tendered in evidence in legal proceedings;

(c) May have been provided directly to James Hardie Industries Limited, in which event it cannot now be ascertained if the originals or copies of such documents ever came into the possession, custody or control of Amaca;

(d) If the documents came into the possession of Amaca, the originals or copies of the documents would have come into the possession of Amaca on or about the date the document bears;

(e) Searches are being undertaken by Amaca to determine whether or not such documents have ever been, or have remained in, the possession, custody or control of Amaca;

(f) Upon taking legal advice, Amaca does not presently regard the documents as discoverable, but will, in the interests of disclosure, make copies available upon request.

11 The list also contains statements and explanations relating to other documents which Amaca does not have, no longer has, or is unable to say whether it has or has had, in its possession, custody or power.

12 The court has inherent power to order a party to give further discovery. In addition, the court may order a party to give discovery of any specified document or class of specified documents that is or has at any time been in his possession, custody or power pursuant to O 26 r 6(1) of the Rules of the Supreme Court 1971 (WA) (RSC). Whether in the exercise of its inherent jurisdiction or pursuant to the rule, the court may make an order for further discovery or discovery of particular documents if it has reasonable grounds for being fairly certain that the documents are or have been in the possession of the defendant and the documents relate to a matter in question in the action.

13 Thus, an applicant for further discovery must establish two things:

(1) there are reasonable grounds for being fairly certain that the pursued further documents, or a class of further documents, actually do or did exist in the possession, custody or power of the party against whom the application is made; and

(2) the pursued additional documents relate to a matter in issue in the action.

14 As to the first requirement, there must be reasonable grounds for being fairly certain that other relevant documents exist which ought to have been disclosed: British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709, 714 (Viscount Haldane LC). A speculative possibility that a party has not disclosed a relevant document will not suffice: Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2010] NSWSC 1309 [47] (Brereton J). Where it appears that a party has excluded documents under a misconception of the case the court may make an order for further and better discovery under its inherent jurisdiction without the existence of any particular documents being established. Under O 26 r 6 RSC the misconception of the discovering party is a factor which may assist in the drawing of inferences that other relevant documents exist which ought to have been discovered.

15 As to the second requirement, the matters in issue are to be determined by reference to the pleadings. Every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may either directly or indirectly enable the other party to advance its own case or to damage the case of the other party. Relevance may appear either from the character of the document or its contents. If the applicant asserts particular classes of documents exist and are relevant because they might have certain contents, it is not enough to establish the likelihood that the documents exist unless the mere fact that they belong to the class is sufficient to establish relevance. If the mere fact that they belong to the class is not sufficient to establish relevance and the relevance depends upon the contents of the particular documents there must be a prima facie case as to their contents before discovery of the documents will be ordered: AstraNational Productions Ltd v NeoArt Productions Ltd [1928] WN 218, 219 (Tomlin J); Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] (Youlden) (Newnes M).

16 A party does not have a right to an order for discovery, or to an order for further discovery: Youlden [6] (Newnes M). The court will only exercise its discretion to order further and better discovery, or discovery of specific documents, if it is necessary for the fair and just determination of the issues in contention and for the preparation of, or for the conduct of, the case at trial. The court will take into account case management considerations before an order is made: Roe v Western Australia [2013] WASC 130 [10] (Martin CJ). The court will take into account not only what is necessary in the interests of a fair trial but also such factors as the utility of the investigative process and the documents likely to be discovered, balanced against the burden imposed in that process.

17 The plaintiff's case is as follows. His grandparents and subsequently his mother owned a house in Kensington. He was exposed to, and inhaled, asbestos fibres from asbestos materials at the Kensington house as a result of work he undertook there in or about 1983 and in or about 1992. In about 1983 he used a hammer to smash and break up asbestos materials in a chicken house. In about 1992, in the course of assisting with bathroom renovations, the plaintiff used a hammer and bolster to smash out bathroom tiles which were affixed to flat asbestos sheeting. On each occasion, not knowing of there being any dangers consequent upon exposure to asbestos dust the plaintiff took no precautions to minimise dust nor to avoid carrying out work that entailed handling, demolition and disturbance of the asbestos materials. The asbestos materials were asbestos materials manufactured by the defendant or on its behalf and/or supplied by or on behalf of the defendant or purchased from others supplied by the defendant or on its behalf for the purpose of further supply.

inhalation of asbestos fibres and dust which the defendant has used in the asbestos materials was extremely injurious to human health and caused mesothelioma and other diseases;
the asbestos materials would in the course of their use be likely to be dealt with in a manner which would release asbestos fibres and dust;
the persons exposed to asbestos from asbestos materials as result of home renovations and modifications and as a result of dealing with asbestos materials would as a result of that exposure suffer injury and death unless measures were taken to prevent or minimise the release and inhalation of asbestos; and
if the defendant did not provide any warning either at the time of supply or on the asbestos materials or at the time that it became aware of, or should have become aware of, the risks of injury and death referred to, it was unlikely that any or any sufficient measures would be taken to prevent inhalation of asbestos fibre and dust from asbestos materials.

19 The defendant was under a duty to persons including the plaintiff and his family who owned the asbestos materials who foreseeably would upon disturbance, demolition or renovation involving the asbestos materials be exposed to inhalation of asbestos released from its asbestos materials and who might suffer consequent injury and death from exposure to inhalation of asbestos, to warn of the risks and dangers and of the need to minimise or prevent such exposure and inhalation of asbestos released from its asbestos materials. The plaintiff's exposure to asbestos was caused by the negligence of the defendant. The plaintiff gives extensive particulars. Many of the particulars allege that the defendant failed to warn the plaintiff, home owners and renovators of the risks of dealing with asbestos materials and the need to avoid or minimise handling and disturbance of asbestos materials. The particulars include that the defendant failed to advertise and/or carry out a mass media campaign of the risks and dangers in demolishing, handling or disturbing the defendant's asbestos materials. The plaintiff also says that Amaca failed to issue a product recall for, and to provide the costs of removal of, in situ Hardie asbestos materials containing amphibole asbestos, especially crocidolite.

20 As a result of the plaintiff's exposure to asbestos caused by the defendant's negligence the plaintiff has suffered mesothelioma.

21 Alternatively, the defendant engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practice Act 1974 (Cth). The defendant's conduct includes manufacturing, selling and distributing asbestos materials without specified warnings and without taking specified steps to provide information about the risks and dangers of asbestos materials and the need to take precautions in dealing with them. The plaintiff was misled or deceived by the defendant's conduct in that he was unaware of the relevant risks and dangers from demolition of the asbestos materials. As a result of the defendant's misleading or deceptive conduct the plaintiff has suffered mesothelioma.

22 The plaintiff claims exemplary or punitive damages on the grounds that the negligence of the defendant which caused or contributed to the plaintiff contracting mesothelioma was a reckless indifference to and/or exhibited a continuing, conscious and contumelious disregard by the defendant for the plaintiff's right to be free from the risk of injury and disease of which the defendant knew.

23 The defendant does not admit the allegations of the plaintiff in relation to the Kensington house, the work carried out by the plaintiff to the house, his exposure to and inhalation of asbestos, that he did not know of the dangers consequent upon exposure to asbestos and that he took no steps to minimise dust or avoid carrying out work that entailed dealing with asbestos materials. The defendant does not admit the plaintiff's allegations of the things the defendant knew or ought to have known. The defendant does not admit that it owed to the plaintiff the duty of care pleaded by the plaintiff. The defendant denies the allegation that it was negligent.

24 The defendant does not admit the allegation of misleading or deceptive conduct and pleads that in any event the claim is statute barred. The defendant denies liability for punitive or exemplary damages.

25 The plaintiff seeks further discovery of eight classes of documents. I will consider each in turn. I will leave consideration of class 1, which is a general or catch all class of documents until I have considered the other classes of documents. I will first set out the plaintiff's definition of 'Asbestos issues' and 'James Hardie' because those words are used in describing some of the classes of documents. 'Asbestos issues' is defined to mean:

The risk of asbestos disease from exposure to asbestos from James Hardie asbestos cement products and includes end user asbestos exposure and disease risk, occupational asbestos exposure and disease risk, handyman asbestos exposure and disease risk, exposure to dust from James Hardie products, the cutting or rasping of James Hardie asbestos cement products, the demolition of James Hardie asbestos cement products, warnings of risks from inhalation of asbestos from James Hardie products, asbestos cement product recall, removing asbestos from James Hardie asbestos cement products and ceasing the use of asbestos in James Hardie asbestos cement products, dumping of asbestos waste and exposure to asbestos from asbestos waste, mesothelioma from exposure to asbestos from James Hardie products, liability for damages or compensation from exposure to asbestos from James Hardie asbestos products and litigation arising from exposure to asbestos from James Hardie asbestos products.

the companies represented and administered by the Asbestos Injuries Compensation Fund Ltd);

All documents from the period 1978 to 1992 referring to or concerned with asbestos issue litigation (being litigation for asbestos disease (allegedly) caused or contributed to by exposure to asbestos from James Hardie products and litigation between James Hardie and its insurer) or the risk of such litigation or the means for avoidance of such litigation or the funding or sharing of damages claims for such litigation or establishment of insurance in Singapore for payment of claims and costs for such litigation (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents and whether it is likely that such documents have been destroyed.

28 In oral submissions counsel for the plaintiff, Mr Gordon, explained that this class of documents relates to the management of asbestos related litigation, the apportionment of funding or contributions by James Hardie and CSR and the establishment of insurance. Mr Gordon referred to correspondence between James Hardie and CSR which is annexed to the affidavit of the plaintiff's solicitor, Ms Dropulich, sworn 1 December 2016 as attachment LD13. The correspondence consists of four letters from CSR to James Hardie (the CSR letters). Two of the letters are addressed to James Hardie & Coy Pty Ltd (the former name of Amaca) and two are addressed to James Hardie Industries Ltd (the former name of ABN 60). The letters refer to the apportionment of damages payable by James Hardie and CSR in respect of judgments obtained against James Hardie in relation to asbestos products that were or might have been manufactured by the James Hardie BI partnership, that is a partnership or joint venture between James Hardie and CSR. Those letters are dated between 4 August 1983 and 11 February 1987. Mr Gordon also referred to extracts from the book 'From Ichang to Whale Beach', a biography of David Macfarlane, a former employee of James Hardie who became managing director of James Hardie Industries and continued in that role until 1990. In the book Mr Macfarlane refers to consideration in about 1983 of James Hardie insuring against law suits based on asbestosrelated injuries and also to 'insure that insurance'. Mr Macfarlane says that they devised a solution - James Hardie would set up its own insurance company in Singapore.

29 Mr Gordon says that the CSR letters have not been discovered by Amaca in that Amaca refers to the documents in [24] of sch 2 to its list and sets out in [26] what it knows of the documents but they have not been, and should have been, included in pt 1 of sch 1. In view of the explanation in relation to those documents in the second schedule of Amaca's list I would not exercise my discretion to order that it give further discovery of those documents. Such an order would have no utility. Copies of the documents have been discovered. Amaca has conducted searches for the documents and disclosed what it has been able to find out about whether the originals or copies of the documents ever came into the possession, custody or power of Amaca.

30 Mr Gordon submits that the letters disclose a four year process in which the liabilities of James Hardie would have been discussed with CSR and would have had significant financial ramifications for James Hardie. Mr Gordon asked: 'where are the other documents which detailed the internal considerations, the discussions which produced the public statements with or correspondence with CSR relating to the ... cases that had been referred to?'

31 The relevant legal test is whether there are reasonable grounds for being fairly certain that Amaca has in its possession, custody or power such documents. I am not so satisfied. In its affidavit of discovery Amaca has referred to the CSR letters in sch 2 of its list and Mr Estherby has sworn that to the best of his knowledge, information and belief neither Amaca nor its solicitors nor any other person on its behalf has now, or ever had, in its, his, her or their possession, custody or power, any document relating to any question in the proceeding, other than the documents enumerated in sch 1 and 2. It has not been established that the basis upon which the list was made involves a misconception of the issues by the defendant. There are not reasonable grounds for being fairly certain that Amaca now has in its possession, custody or power documents within the description referred to by Mr Gordon. There is a possibility, even a likelihood, that at some time in the past Amaca had such documents in its possession, custody or power. Some may be privileged. If in the past Amaca had such documents in its possession, custody or power that are not privileged, after making searches and inquiries, Amaca has no knowledge or information about such documents. Such an order for further discovery would be futile.

32 There are further reasons why I will not make the order sought by the plaintiff. Class 2 of the documents sought is much wider than documents which detail the internal considerations relating to the matters discussed in the CSR letters. The description of the class is not such that documents within the class will necessarily be relevant to a matter in issue. There is no evidence as to the content of any such documents.

33 The plaintiff alternatively seeks that in the absence of such documents an explanation be given as to when the documents were disposed of or last seen and what is believed to have happened to them or a statement of belief as to why there are so few documents and whether it is likely that such documents have been destroyed. The plaintiff seeks a similar order or explanation in relation to other classes of document of which further discovery is sought.

34 A party obliged to make discovery must search diligently to identify all discoverable documents in the party's possession, custody or power. What are reasonable inquiries will depend on the circumstances of each case. Amaca has set out in [16] to [18] of the second schedule to its list the steps it has taken to search for relevant documents. The steps taken by Amaca are a reasonable search and investigation. I will not order that the defendant give the explanation or statement sought by the plaintiff. Similarly, I will not make such an order or require such a statement or explanation in relation to other classes of document where such an order, statement or explanation is sought.

35 I will not order further discovery in relation to the class 2 documents.

All financial records 1978 to 1992 but in particular income and expenditure balance sheets, profit and loss statements, annual reports and advertising, promotion and public relations budgets (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents and whether it is likely that such documents have been destroyed.

37 Class 3 are financial records which the plaintiff says are relevant to Amaca's financial capacity to have undertaken a relevant advertising campaign or product recall. The plaintiff says it must prove that Amaca was able to advertise the dangers of demolition of its products or to initiate a product recall in the period 1980 to 1992 in a manner commensurate with the fatal risks and in a way likely to come to the attention of people like the plaintiff and/or his family. To discharge that burden, the plaintiff says, it must know the resources available to Amaca from its own funds and, if necessary likely to be available, from its parent company which acquired Amaca's profits to its own accounts. The plaintiff says this requires discovery of the profit and loss, balance sheets and budgets of Amaca and the annual reports of James Hardie Industries. The plaintiff seeks discovery of the accounts and budgets for Amaca for 1978 to 1992 and the annual reports which refer to James Hardie and Coy of James Hardie Industries for the same period except for 1978 and 1991 which the plaintiff has otherwise obtained.

38 Amaca says that discovery of the documents sought is not necessary. Amaca has made the following admissions:

(a) at all relevant times Amaca was a generally profitable company, and sufficiently profitable to be able to afford a wide reaching advertising programme to sell its products; and

(b) although its profits varied from year to year, Amaca was able to afford a sophisticated advertising campaign.

39 The plaintiff says those admissions are not sufficient for its purposes. Whilst Amaca admits that it was able to afford 'a sophisticated advertising campaign' that may not extend to an advertising campaign of the nature or scale which the plaintiff submits should have been undertaken.

40 It is not reasonably necessary for fairly disposing of this action that discovery of the class 3 documents be given at this time. The plaintiff has not yet identified the nature or scale of the advertising campaign or product recall it says should have been undertaken. It will be necessary for Amaca to do so. Once it has done so it may then seek relevant admissions from Amaca. If admissions to the satisfaction of the plaintiff are not forthcoming then the plaintiff may renew its application for discovery of the class 3 documents.

All correspondence with state government health departments or commissions, health ministers and the NSW Dust Disease Board regarding asbestos issues and internal correspondence, notes, reports or memoranda as to any asbestos issue raised by state government health departments or commissions, health ministers and the NSW Dust Diseases Board, 1980 to 1992 (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents and whether it is likely that such documents have been destroyed.

42 In oral submissions Mr Gordon explained that this class of documents arises from the letters referred to in paragraph 21 of schedule 2 of the defendant's list. Mr Gordon says that the letters referred to should have been discovered in sch 1 of its list not sch 2. Further, Mr Gordon says that the matters referred to in the letters were obviously important to James Hardie and it is likely that at about the time of the letters and afterwards James Hardie would have had notes, memoranda, correspondence or other documents relating to the matters addressed in the letters.

43 In so far as Amaca has not included in sch 1 of its list the letters referred to in [21] of sch 2 to its list, I will not exercise my discretion to require Amaca to give further discovery of those documents for the same reason I gave in relation to the 'CSR letters'. In so far as the plaintiff seeks further and better discovery of documents discussing or concerning the matters referred to in the letters referred to in [21] of sch 2 of Amaca's list, I am not satisfied that there are reasonable grounds for being certain that Amaca has in its possession, custody or power such documents. Whether or not Amaca in the past had in its possession, custody or power such documents, it has made searches and inquiries for documents that Amaca has ever had in its possession, custody or power relating to any question in the proceeding and those searches and inquiries have not disclose documents of the sort referred to by Mr Gordon. There is no utility in ordering further discovery of such documents.

Documents evidencing steps taken between 1980 and 1992 'aimed at resolving asbestosrelated problems with the construction and pipeline industries, governments and semigovernment departments, unions and the general public, (as per the attached letter TJ Hore to WR Swalwell dated 13/11/79) and internal correspondence, notes, reports or memoranda as to how to approach or respond to asbestos issues with those parties (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents and whether it is likely that such documents have been destroyed.

45 Mr Gordon says that this class of documents relates to what he calls the 'Swalwell issue'. In her affidavit of 14 December 2016 Ms Dropulich attaches a copy of a letter of 13 November 1979 from James Hardie Industries Ltd to Mr W R Swalwell. The letter is a letter appointing Mr Swalwell as Industrial Services Manager based in Victoria. The letter states that Mr Swalwell will be responsible to the Victorian State Manager for:

The performance of duties within the Victorian Branch aimed at resolving asbestosrelated problems with the following groups:

The Construction and Pipeline Industries.

Government and SemiGovernment Departments.

Unions.

The General Public.

These duties are to be carried out within the general guidelines and requirements established by the appropriate Departments within James Hardie Industries Ltd Head Office. To this end, close liaison will be maintained with the following Group Departments: Community Relations, Personnel, Welfare & Environment, Legal Administration etc.

46 First, Mr Gordon says that the letter has not been discovered. It is not apparent whether or not Amaca now has a copy of this letter other than the copy sent to it by the plaintiff's solicitors on 9 December 2016. There is no utility in ordering the defendant to give discovery of that letter, or copy letter, and I will not do so.

47 Mr Gordon says that the letter to Mr Swalwell 'suggests that there must have been further documents as that person carried out that work over the period in relation to the particular brief that he had been given'. There are no grounds on which I can be fairly certain that Amaca now has in its possession, custody or power any of the documents falling with class 5. It is possible, indeed it is likely, that in the past Amaca had in its possession, custody or power documents falling within class 5. In [15] of sch 2 of the list verified by Mr Estherby, the defendant says that various documents of unknown dates were accidentally destroyed in floods at Amaca's premises at Camellia in August 1986 and April 1988 and at an external storage facility at Annandale in about 1985. Further, the defendant says in [16] and [17] of sch 2 to its list, which are set out earlier in these reasons, that there are various documents of unknown dates which Amaca is unable to identify and which it has no information, knowledge or belief as to when it parted with them or in whose possession, custody or power they may now be which are documents relating to the manufacture, supply and marketing of asbestos containing products by Amaca and medical, scientific and industrial hygiene matters in relation to the manufacture of asbestos containing products by Amaca or the use of asbestos containing products manufactured by Amaca. Amaca states that it has made endeavours to collect and compile all documents potentially relevant and has set out the steps it took. Amaca is unable to identify any further documents which it has had in its possession, custody or power falling within class 5. There is no basis for making an order that it give further discovery of that class of documents.

All documents that refer to asbestos or asbestos issues in 1990 and 1991 and 1992 (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents and whether it is likely that such documents have been destroyed.

49 Mr Gordon submitted that there is nearly a complete absence of any document that refers to asbestos or 'asbestos issues' in 1990, 1991 and 1992. Mr Gordon says that James Hardie was in the process of assembling the documents for its 'standard list' of discovery at that time and would have had available to it every document that related to asbestos disease issues, litigation, insurance and other relevant matters but not a single document of relevance is produced for the year 1992.

50 There is no evidence to overcome the defendant's statement in its affidavit of discovery that to the best of the deponent's knowledge, information and belief the defendant has now, or ever had, in its possession, custody or power any documents relating to any question in the proceeding other than the documents enumerated in sch 1 and 2 to its list. The plaintiff's assertion that there must be other documents is not much more than speculation that there are likely to be other documents that meet the description of the class 6 documents. Such a speculative possibility that the defendant has not discovered a relevant document is not sufficient to found an order for further discovery.

All documents correspondence and copies of reports, minutes and memoranda concerning asbestos issues, funding or membership, sent to or from the Australian Asbestos Association and/or the South Pacific Pacific Asbestos Association and/or Max Austin; and James Hardie (or any of Ron Bolton, Dr S F McCullagh, Ray Palfreyman, Lionel Denmead, E G Charles, James Kelso or H A Hudson); in the period 1978 to December 1984 (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents and whether it is likely that such documents have been destroyed.

52 In his oral submissions Mr Gordon said that the class 7 documents deal with the specific issue relating to the South Pacific Asbestos Association and arises primarily out of the correspondence between Mr Hudson and Mr Brereton where James Hardie had had information to and from that Association which was set up in its premises.

53 There is no evidence that Amaca now has in its possession custody or power any documents falling within the class 7 description. The proposition that Amaca had such documents in its possession, custody or power in the past is little more than speculation. There is no basis for making an order for further discovery of the class 7 documents.

Documents regarding the asbestos issues raised by, and/or how to respond to asbestos issues raised by the broadcast in August 1983 of 'Alice a fight for Life' and the broadcast in 1989 of the Chris Masters Page One/Four Corners 'Dirty Secrets' (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents (one for each program) and whether it is likely that such documents have been destroyed.

55 Mr Gordon submitted that each of the broadcasts in 1983 and 1989 would have generated significant concern within James Hardie but there is only one document discovered, a press release from James Hardie, responding to those broadcasts. In his book Mr Macfarlane says that that programme had a significant effect on James Hardie's share price and that Mr Kelso had to go out making statements to the effect that James Hardie's liabilities are all insured. Mr Gordon says that there must be a significantly greater volume of material generated than the one press release which has been produced.

56 The plaintiff's submission is not sufficient to displace the effect of the defendant's affidavit of discovery. There are not reasonable grounds for being fairly certain that Amaca has, or has had, in its possession, custody or power documents falling within the description of the class 8 documents that should be discovered.

All documents in the period 1978 to 1992 concerning or referring to asbestos issues (or in the absence of such documents an explanation as to when the documents were disposed of or last seen and what is believed to have happened to them);

OR a statement of belief as to why there are so few such documents and whether it is likely that such documents have been destroyed.

'Asbestos issues' is very widely defined. Class 1 covers a wide range of documents.

58 Mr Gordon said that the first class of documents covers a broad range of documents for the period 1978 to 1992 relating to a wide range of topics. As I have said, this is in effect a general or catch all class of documents which overlaps with the more specific classes of documents described as classes 2 to 8.

59 There are not reasonable grounds for being fairly certain that documents falling within this description are in the possession, custody or power of Amaca and ought to have been discovered. The evidence and arguments advanced by the plaintiff do not displace the defendant's affidavit verifying its list of documents in which Mr Estherby swears that to the best of his knowledge, information and belief the defendant does not have in its possession, custody or power any document relating to any question in the proceeding other than the documents enumerated in sch 1 and 2.

60 There are reasonable grounds for believing that Amaca has had in its possession, custody or power documents relating to the questions in the proceeding other than the documents enumerated in sch 1 and 2 to its list. However, in its affidavit of discovery Amaca has set out the steps it has taken to search for and make inquiries in relation to any such documents. It has taken reasonable steps. No purpose is served in requiring a further affidavit of discovery. I will not order further discovery in relation to the class 1 documents.

61 The plaintiff seeks against the defendant a 'Sabre order' in relation to documents relating to questions in issue in this proceeding held by ABN 60. A Sabre order refers to an order of the sort made in Sabre Corporation Pty Ltd v Russ Kalvin's Haircare Company [1993] FCA 557; (1993) 46 FCR 428 (Sabre). It is essentially an order made for the discovering party to make reasonable efforts to procure the documents from an associated body that holds them and an ancillary order to discover documents received if the outcome of the first order is a success.

62 Sabre orders have been made by the Federal Court in the exercise of its powers under s 23 of the Federal Court of Australia Act 1976 (Cth) which provides that the court has power to make orders of such kinds, including interlocutory orders, as the court thinks appropriate: Sabre; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [No 2] [2006] FCA 931; (2006) 155 FCR 150. Similar orders have been made by the Supreme Court of New South Wales in the exercise of its powers under s 61(1) of the Civil Procedure Act 2005 (NSW) that the court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings: Ali v Khan [2015] NSWSC 1961. This court has power to make such orders pursuant to RSC O 4A r 5(1)(d), r 2(1) and O 1 r 4B(1)(a) and (2); see also Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 [32] (Le Miere J).

63 The circumstances in which the court should make such an order are not closed but before making such an order the court should consider:

(a) whether there is a real likelihood that the party against whom the order is sought would be given access to the documents upon request;

(b) it must be likely that the documents sought are in fact in existence in the possession of the third party; and

(c) the order must be restricted to require the person against whom it is made to take all reasonable steps to obtain the documents: SPI Spirits [31] [33] (Edmonds J).

64 There is a real likelihood that Amaca would be given access to the documents sought by the plaintiff upon request to ABN 60 and AICF. Amaca and ABN 60 are fully owned by AICF. A, if not the, principal activity of AICF is to receive and assess claims against Amaca, ABN 60 and Amaba Pty Ltd. Both companies have the same place of business. The companies have a common secretary. Two of the three directors of ABN 60 are directors of Amaca. The affidavit evidence adduced by the plaintiff shows that historically James Hardie Industries, or employees of James Hardie Industries, attended to matters that involved James Hardie & Coy.

65 It is likely that the documents sought are in existence in the possession of ABN 60. In the 1970s and 1980s claims were made against James Hardie Industries in relation to asbestosrelated diseases. The 'CSR letters' relating to apportioning liability between James Hardie and CSR was correspondence between CSR and James Hardie Industries. From 1979 James Hardie Industries employed Mr Swalwell to be responsible for 'resolving asbestosrelated problems with the specified groups. His letter of appointment stated that his duties were to be carried out within the general guidelines and requirements established by the appropriate departments within James Hardie Industries head office. Mr Swalwell is referred to in a number of discovered documents for example:

1067 11/08/1981 Photocopy of interhouse letter from H W Howe, Brooklyn Industrial Hygiene & Safety Superintendent to Mr P M Collins, manager factory operations copied to Mr W Swalwell, Industrial Services Manager, Victoria dated 11 August 1981 re Industrial Hygiene.

1068 12/08/1981 Photocopy interhouse letter from H W Howe, Brooklyn Industrial Hygiene & Safety Superintendent to Manager Factory Operations copied to Mr W Swalwell, Industrial Services Manager Victoria dated 12 August 1981 re Environmental Control committee meeting - August 1981.

66 In [19] of the second schedule to the defendant's list of documents the defendant says that during his lifetime Mr Reid, a director of James Hardie Industries Ltd, maintained a large number of different documents relevant to the activities of companies within the James Hardie Group and some of the documents were obtained by Mr Reid in his capacity as a director of James Hardie Industries which in probability would have included documents relating to Amaca.

67 Counsel for Amaca, Mr Watson SC, initially stated that on his instructions when discovery was prepared 'it was prepared for everybody in the James Hardie Group' and that is what the standard list produced and 'it has got material which would be discovered by the parent company'. Mr Watson said that he thought that 'the discovery processes were one in, all in for all the James Hardie companies'. However, on taking instructions about the matter Mr Watson informed the court that his assumption had been wrong and 'there are separate documents held by the company formerly known as James Hardie Industries Ltd which are not part of the discovery given by the company now known as Amaca Pty Ltd'.

68 For those reasons, there will be an order that Amaca take all reasonable steps to obtain the documents. The order should provide that the defendant make reasonable efforts to obtain from ABN 60 all documents which are in its possession, custody or power relating to any matter in question in this action.

69 In its minute of orders sought the plaintiff sought an order that the defendant answer the interrogatories rendered 2 November 2016. Subsequently the plaintiff delivered an amended minute of plaintiff's interrogatories for examination of the defendant dated 19 December 2016. The proposed interrogatories consist of five recitals and 60 interrogatories, many of which have multiple parts, which together occupy 20 A4 pages.

70 Interrogatories may only be administered with leave of the court: RSC O 27 r 1(1).

71 The defendant submitted that many of the proposed interrogatories are defective or oppressive and even if some of the interrogatories are permissible, the court should refuse leave to administer the proposed interrogatories. Senior counsel for the defendant, Mr Watson SC, submitted that it should not be a matter for the court, or the opposing party, to salvage the interrogatories by redrawing them. That approach is supported by the oft cited statement of Myers J in American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193, 196 (American Flange):

It was established under the earlier English rules that interrogatories which were prolix and oppressive or unnecessary could be disallowed as a whole, even though some of them were proper, and that the Court was not required to go through interrogatories of that kind and ascertain which were admissible and which were not. It was also established that the Court was entitled to come to the conclusion that interrogatories were of the kind specified on a general view of the interrogatories and indeed that the mere obligation of the opposite party and the Court to go through the interrogatories and pick out from a large number that were improper the comparative few that were allowable, was itself unreasonable and itself could constitute oppressiveness. It has been contended that that principle does not any longer apply because the English rules have been altered. But the Annual Practice for 1965 and Halsbury's Laws of England at the page to which I have earlier referred treat the practice as still being observed in England notwithstanding the alteration of the rules. It is, too, within my own personal knowledge that the practice established by the earlier cases has always been followed in this Court. Indeed, it was followed as recently as 1962 by Jacobs J, in Lamerand v Lamerand (No 3) (1962) NSWR 1223.

72 I will consider the individual interrogatories as well as the interrogatories taken as a whole. Notwithstanding Mr Watson's submission that as a whole the proposed interrogatories are defective and oppressive, the defendant addressed the individual interrogatories. That was done in the course of an interlocutory application which took some time to come on for hearing and occupied the best part of a day in argument. The application was heard just before Christmas which has delayed the delivery of my decision on the application. Mesothelioma cases need to be dealt with expeditiously. In the circumstances, having regard to case management principles, it is appropriate to consider each of the individual interrogatories to which objection was taken. That does not mean that I will not consider whether the proposed interrogatories taken as a whole are vexatious or oppressive as was submitted by the defendant.

73 The purpose of the requirement that leave be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose and to ensure that the burden of answering them is proportionate to the forensic purpose to be served. I will therefore start by considering whether the proposed interrogatories serve a legitimate forensic purpose and the burden of answering them is not disproportionate to that forensic purpose.

74 The interrogatories must be relevant in the sense that they relate to a matter in question framed by the pleadings. The interrogatories will serve a legitimate forensic purpose if they seek to obtain admissions or information to support or establish proof of the administering parties' case. The proposed interrogatories seek admissions and information about matters including the following:

asbestos cement building materials manufactured, sold or supplied by the defendant in Western Australia;
warnings by the defendant of the risks and dangers of asbestos exposure in handling asbestos building materials;
the defendant's knowledge of the handling of James Hardie asbestos materials by renovators or handymen;
the defendant's knowledge of asbestos dust resulting from the handling of James Hardie asbestos materials;
the defendant's knowledge and information about dangers from inhaling asbestos dust or fibres;
knowledge of warnings about the risk of exposure to asbestos given by Australian governments;
knowledge of medical or scientific literature about the risk of injury from asbestos exposure;
promotion and advertising by the defendant of its products;
a possible product recall of the defendant's asbestos materials;
the relationship between the defendant and James Hardie Industries; and
the financial performance of the defendant.

75 The proposed interrogatories serve a legitimate forensic purpose. The burden of proof is on the plaintiff to prove, amongst other things:

the asbestos materials handled by the plaintiff were manufactured by the defendant or on its behalf and/or supplied by or on behalf of the defendant who purchased from others supplied by the defendant or on its behalf for the purpose of further supply;
the defendant's knowledge that in relation of asbestos fibres caused mesothelioma and other diseases;
asbestos materials were likely to be dealt within the manner which would release asbestos fibres and dust;
persons exposed to asbestos as a result of home renovations and dealing with asbestos materials would suffer injury unless measures were taken to prevent or minimise the release and in relation of asbestos;
the defendant failed to warn the plaintiff and renovators of the risks of dealing with asbestos materials and their need to avoid or minimise handling and disturbance of asbestos materials;
the defendant failed to advertise the risks and dangers of handling asbestos materials;
the defendant failed to issue a product recall of asbestos building materials.

The interrogatories are directed to obtain admissions or information in relation to those matters.

Defendant opposes leave to administer interrogatories

76 The defendant says that leave should not be granted to administer the proposed interrogatories on a number of grounds. First, the obligations sought to be imposed upon the defendant in [E] which requires the person answering the interrogatories to state which persons he or she has consulted in order to obtain the information is inappropriate. Secondly, the proposed interrogatories are oppressive by reason of their large number. Thirdly, several individual interrogatories are oppressive. Fourthly, the interrogatories are oppressive by reason of being repetitive. Fifthly, many of the interrogatories require Amaca to give answers for on behalf of another company ABN 60.

When interrogatories are vexatious or oppressive

77 As to whether interrogatories are vexatious or oppressive I adopt the observations of Woodward J in Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 16 FCR 284, 287 288:

... I believe that 'vexatious' is used in the sense illustrated by the Shorter Oxford Dictionary when it says 'Of legal actions: Instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant'.

Thus an interrogatory administered for a purpose foreign to the proceeding would be vexatious, as would the traditional 'fishing' interrogatory, which seeks information on which to base claims not yet made ...

The word 'oppressive' ... means, I think, unfair, or unreasonable, in the sense that a good deal too much is expected of the party questioned. It may be that the details sought would take many hours to extract from records and would only be relevant to some side issue in the case. Or the question may be so ambiguous that it would be unfair to expect the party questioned to make assumptions about its meaning. Or the question may cover a wider geographic area or a longer period of time than is reasonably necessary in readying the case for trial. There are many questions which might be admissible in cross-examination, but are by their very nature inappropriate, and thus oppressive, in interrogatories. Questions going to credit or to motive are obvious examples.

Thus it can be seen that the types of question which may properly be objected to as 'oppressive' are many and varied. Each contested instance will have to be resolved on the basis of the court's general impression as to what is reasonable.

...

In American Flange, Myers J considered the following matters in ascertaining whether a set of interrogatories was oppressive:

The number of individual interrogatories;
The extent to which the providing an answer imposes an unreasonably onerous burden on the interrogated party;
Whether the interrogatory required the interrogated party to form opinions, exercise judgment or draw conclusions;
The repetitiveness of the questions;
Whether the questions were in truth asked for the purpose of discovering trade secrets.

78 I will now consider each of the objections raised by the defendant to the proposed interrogatories.

Where the deponent does not have personal knowledge of the information sought and information in Amaca's discovered documents as insufficient to form a belief and inquiries are required to be made of previous officers and servants of James Hardie in order to form a belief sufficient to answer the interrogatory, please indicate which officers, servants and agents of the company have been consulted in order to obtain information (whether or not the information obtained permits the interrogatory be answered) including (but not limited to) John B Reid, John Winters, Geoffrey Pickford, James Lawless, J C Kelso, Peter Russell, Charles Russell, Lionel Denmead, Eric Frew and David Seares.

80 The secretary or a director of a corporation who answers interrogatories has a duty to make all reasonable inquiries which are likely to, or may, reveal what is known to the corporation relevant to the interrogatories. The question is not what is known to the individual but to the corporation. In order to show that the duty has been complied with, the person answering them should include in his or her answers a statement that he or she has attempted to discharge his or her duty by making diligent inquiries of all officers, servants and agents of the company who might reasonably be expected to have some knowledge relevant to the interrogatories.

81 In Stanfield Properties Ltd v National Westminster Bank Plc [1983] 2 All ER 249 Megarry VC said at 251 253:

I do not think that there is any duty to set out the details of the inquiries made, giving the names and addresses of all persons questioned, and specifying what questions were asked, and so on. If the answers do not at least state in general terms that the person swearing to them has made diligent inquiries of all officers, servants and agents of the company who might reasonably be expected to have some knowledge relevant to the questions, the party administering the interrogatories may justifiably question whether the company has discharged its obligations in answering the questions. In particular, if any person is an obvious source of knowledge, he must be questioned. If he is not, the company should say why. As Lindley LJ said in the Bolckow case 10 QBD 161 at 171:

'Of course, the servant or agent may die, or may be at some place or other where he cannot be got at; but if that be the case let the defendants say so.'

Viewed in this light, I do not think that the answers given in this case are satisfactory. ... there is no general assertion to the effect that diligent inquiries have been made of all persons likely to have information, ... In particular, there is nothing to reveal that any inquiries have been made of Messrs Wade, Pepperell, Perry, McMenemy and Caplan, ... and nothing to explain why no such inquiries have been made.

...

I would add this. I am not laying down that answers to interrogatories by a company must always include information and explanations as to the inquiries made, though in many cases it will be convenient to include them, at least in outline. What I am saying is that a company which is interrogated and gives answers which give no indication whether there has been any attempt to tap obvious sources of information must be prepared, on inquiry made, to give explanations of reasonable amplitude and, if required, verify them by affidavit.

82 The statements of Megarry VC were considered by Pullin JA in Hazeldean v Austal Ships Pty Ltd [2005] WASCA 171:

In my opinion the Vice Chancellor was saying no more than that the circumstances will determine how much information has to be provided to satisfy the party administering the interrogatories, and the court, that the person answering interrogatories has discharged all his or her obligation to make proper inquiry before answering interrogatories [18].

83 It is not appropriate to specify persons of whom the defendant should make inquiry before answering the interrogatories. The person answering the interrogatories has a duty to make inquiry of all present and past officers, employees and agents of the company who might reasonably be expected to have some knowledge relevant to the interrogatories. The person answering the interrogatories should state that those inquiries have been made and, if inquiry has not been made of a person who might reasonably be expected to have some knowledge relevant to the interrogatory then the person answering the interrogatories should state so and why.

84 The defendant says that the proposed interrogatories are oppressive by reason of the large number of interrogatories. There are 60 interrogatories. The defendant says that those 60 separate interrogatories, taking into account subquestions, actually ask 402 separate questions. Further, the defendant says that because of the way the interrogatories are structured, some interrogatories give rise to a multiplicative effect such that there are potentially 1,050 separate interrogatories.

85 Interrogatories which are prolix and oppressive or unnecessary may be disallowed as a whole, even though some of them are proper: American Flange (196) (Myers J). In considering whether interrogatories are oppressive as a whole the court may take into account the number of questions. However, it is not the mere number of questions which renders interrogatories oppressive, it is the burden placed upon the party called upon to answer the interrogatories which renders them oppressive. The defendant says that interrogatories 42 and 43 contain 99 and 55 separate questions respectively and that the multiplicative effect of the subquestions in those interrogatories and interrogatories 44 and 45 have the effect that interrogatory 44 gives rise to 220 questions and interrogatory 45 gives rise to 660 questions. In making those calculations the defendant has taken an extreme view of what is required to answer the interrogatories. Nevertheless, I consider the interrogatories as they are presently drafted to be prolix and to place a burden on the defendant in answering them that renders them oppressive. I therefore will not give leave to administer interrogatories 42, 43, 44 and 45.

86 The defendant says that interrogatory 57 gives rise to 44 separate questions. That may be so, but in my view the burden of answering the questions does not render them oppressive. The questions require the defendant to provide financial information which should be easily identified from the financial statements of the defendant for the years 1982 to 1992. If, for some reason those statements no longer exist then the defendant may say so in answering the interrogatory.

87 Leaving aside interrogatories 42, 43, 44 and 45 the interrogatories consist of 55 interrogatories and arguably 236 separate questions. Having regard to the nature of the remaining questions, the burden on the defendant in answering them, and the forensic importance to the plaintiff of obtaining the admissions and information sought, the interrogatories are not oppressive by reason merely of the number of questions asked.

88 Interrogatory 25 originally asked whether the defendant was aware 'during the period of any literature, article or report that contained information about any known or suspected risk of injury or disease of, or from exposure to asbestos, inhalation of asbestos, using, working with or cutting asbestos meant building materials like the Hardie asbestos materials or demolishing or breaking asbestos cement building materials like the Hardie asbestos materials. The defendant objected that during that period there were literally thousands of publications of this kind, including newspaper reports. The amended interrogatory asks 'was James Hardie aware during the period 1983 to 1992 of any medical or scientific literature article or report that contained information about any known or suspected risk of injury of disease of or from ...' Interrogatory 25 is not oppressive. In [6] of its defence the defendant does not admit [7] of the statement of claim which pleads matters the defendant knew or ought to have known about the inhalation of asbestos fibres, the handling of asbestos materials and the risk of injury from exposure to asbestos as a result of home renovations and modifications and handling asbestos materials as I have referred to earlier in these reasons. Interrogatory 25 relates to those matters. The interrogatory does not require the defendant to identify the relevant medical or scientific literature, articles or reports but to say whether it was aware during 1983 to 1992 of such literature, articles or reports. The defendant has already undertaken the inquiries and investigations necessary to give discovery which would have included such material in the defendant's possession, custody or power. The subject of the interrogatory is material to an issue in the case. It is to be expected that the defendant will have made inquiries in relation to the knowledge of the defendant raised by the pleading. In the circumstances it is not unduly burdensome to require the defendant to make reasonable inquiries to enable it to answer the interrogatory.

89 The defendant says that interrogatory 26 is oppressive in that it requires the defendant to identify the material referred to in interrogatory 25 that it was aware of. The defendant says that during that period there were literally thousands of publications of this kind, a task that would take months and cost hundreds of thousands of dollars. The defendant's knowledge of the literature referred to is relevant to [7] of the statement of claim and [6] of the defendant's defence. It may be that the material referred to in interrogatory 25 may go wider than the matters pleaded in [7] of the amended statement of claim. Nevertheless, the plaintiff states in the note to interrogatory 26:

If ... there are ... hundreds of such medical or scientific literature articles or reports first received or seen in the period 1983 1992, the plaintiff will not require a listing and the answer 'there were hundreds of such articles of which James Hardie was aware will suffice'.

90 The defendant has not led any evidence that there were thousands of the relevant literature, articles or reports that the defendant was aware of during the period 1983 to 1992. I will permit interrogatory 26 to be asked with some modification. The interrogatory should be replaced by two interrogatories. The first interrogatory should ask whether there were hundreds of such articles of which James Hardie was aware. The second interrogatory should ask the defendant to identify each item of literature, article or report that James Hardie was so aware of if the answer to the first interrogatory is not in the affirmative.

91 The defendant objects to interrogatory 42. I have already found that the plaintiff should not be permitted to administer an interrogatory in the form of interrogatory 42 in its present form.

92 The defendant objects to interrogatory 50 on the ground that it deals with a period of time extending many years before 1981. The defendant is wrong in saying that the interrogatory deals with a period of time extending many years before 1981. It is confined to 'the period', that is from 1983 to 1992. However, interrogatory 50 is oppressive. The subquestions (a) and (b) are unnecessary. Those matters are properly proved by ASIC records. There is no evidence that such records are not available. Subinterrogatories (e) and (h) are oppressive because of the difficulty of the investigation required to give a full answer. It is not appropriate that I attempt to reform the interrogatory. Leave should not be given to administer interrogatory 50.

93 The defendant says that given the oppressive number and nature of the interrogatories an inference of vexation can be drawn. The defendant did not elaborate upon its claim that the interrogatories are vexatious. Whatever defects the interrogatories may have, the plaintiff is acting in good faith and not for the purpose of harassing, annoying or embarrassing the defendant or for some other collateral purpose. Some of the interrogatories may be unduly burdensome and repetitive. I have and will consider those matters separately. However, apart from those matters and the defects in individual interrogation, I am not satisfied that the proposed interrogatories are vexatious.

94 In considering whether interrogatories are oppressive the court may consider, amongst other things the repetitiveness of questions.

95 The defendant says that interrogatories 16, 18 and 25 are repetitive. Interrogatory 16 and 25 are not repetitive. They refer to different periods of time. Interrogatory 18 is different from interrogatory 16 and 25 in that 18 is concerned with information or warnings given by any Commonwealth or State government department, employee or inspector whereas the other interrogatories are concerned with knowledge of literature, articles or reports.

96 The defendant says that interrogatories 9 and 22 are repetitive. I agree. Interrogatory 22 is unnecessary.

97 The defendant says that interrogatories 4 and 27 are repetitive. I do not agree. Interrogatory 4 is confined to warnings printed, inscribed or attached to James Hardie products. Interrogatory 27 is wider.

98 The defendant says that interrogatories 5 and 31 are repetitive. The interrogatories are closely related but not repetitive. Interrogatory 31 is concerned with whether James Hardie knew that handymen were demolishing Hardie asbestos materials. Interrogatory 5 is concerned with whether the defendant believed that handymen might demolish Hardie asbestos materials.

99 The defendant says that interrogatories 31 and 32 are repetitive. I agree. Interrogatory 32 is unnecessary.

100 The defendant says that interrogatory 7 and 38 are repetitive. I agree. Interrogatory 38 is unnecessary.

101 The defendant says that many of the interrogatories require the defendant, Amaca, to give answers for on and behalf of another company, ABN 60. The defendant refers to interrogatories 41, 42, 43, 44, 46, 48, 49, 50, 53 and 54. Interrogatories 42, 43, 44 and 50 are objectionable on other grounds and it is unnecessary for me to give further consideration to them.

102 Interrogatory 41 does not require Amaca to give answers for on and behalf of ABN 60. However, the interrogatory requires the defendant to form opinions, exercise judgment and draw conclusions about whether advertising or promoting the defendant's building materials was done by James Hardie Industries for, or as representative of, or as agent of, the defendant. It is oppressive for that reason.

103 Interrogative 46 requires the defendant to investigate whether James Hardie Industries considered whether or not to publish an advertisement of the sort referred to and if so whether if it did so 'on behalf of' the defendant. It is oppressive.

104 Interrogatories 48, 49, 53 and 54 are oppressive for the same reasons.

105 I will give leave to administer the proposed interrogatories except for recital E and interrogatories 22, 32, 38, 41 46, 48 50, 53 and 54. Interrogatory 26 should be modified in accordance with these reasons.

Trade Practice Act 1974(Cth)

Court of Australia Act 1976

Hardie Former Subsidiaries (Winding Up and Administration) Act 2005

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