Gilliver-Taylor v Hastings Deering (Australia) Limited
[2015] QDC 226
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- Unreported Judgment
- Gilliver-Taylor v Hastings Deering (Australia) Limited[2015] QDC 226
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Gilliver-Taylor v Hastings Deering (Australia) Limited[2015] QDC 226
Gilliver-Taylor v Hastings Deering (Australia) Limited[2015] QDC 226
DISTRICT COURT OF QUEENSLAND
CITATION: | Gilliver-Taylor v Hastings Deering (Australia) Limited [2015] QDC 226 |
PARTIES: | Michelle Louise GILLIVER-TAYLOR (Applicant/Plaintiff) and HASTINGS DEERING (AUSTRALIA) LIMITED ACN 054 094 647 (Respondent/Defendant) |
FILE NO: | Mackay D111 of 2014 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Mackay |
DELIVERED ON: | 18 September 2015 |
DELIVERED AT: | Mackay |
HEARING DATE: | 14 September 2015 |
JUDGE: | Durward SC DCJ |
ORDERS: |
|
CATCHWORDS: | PRACTICE & PROCEDURE – DISCLOSURE – CLASSES OF DOCUMENTS – WORKPLACE INJURY CLAIM - RELEVANCE – whether certain classes of document contain or potentially contain information relevant to the claim – where defendant has unilaterally opined that the documents do not contain relevant information – whether plaintiff should have the opportunity to determine that issue – where further disclosure is warranted – where in respect to one Class there is an issue as to the existence of documents – where defendant ordered to depose an affidavit as to non-existence - where defendant ordered to make disclosure in all but one of the disputed Class of documents. |
LEGISLATION: | Uniform Civil Procedure Rules 1999 rules 5, 211 and 223. |
CASES: | Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] QCA 276; Integrated Medical Technologies Pty Ltd & Anor v Gilbert & Ors (No 2) [2015] QSC 124. |
COUNSEL: | Mr P Clark, solicitor, for the Applicant/Plaintiff P Cullinane of Counsel for the Respondent/Defendant |
SOLICITORS: | Eureka Legal Pty Ltd for the Applicant/Plaintiff DibbsBarker Lawyers for the Respondent/Defendant |
- [1]The Applicant/Plaintiff (“plaintiff”) seeks an order to require the Respondent/ Defendant (“defendant”) to disclose a series of specific Classes of documents to her by means of a Supplementary List of Documents and to provide copies thereof; and to file and serve an affidavit in respect of any class of documents that do not exist, have never existed or have passed from the possession or control of the defendant.
- [2]There were two other orders sought but they were not advocated on the hearing of the application. The Classes of documents sought was reduced by disclosures by the defendant prior to the hearing.
Background
- [3]The plaintiff was employed by the defendant from November 2010 to January 2011. She said she developed pain and soft tissue injury in both shoulders whilst carrying out the work tasks assigned to her and alleges that she could not continue to work in that employment.
The litigation
- [4]The plaintiff has claimed damages for personal injury arising from repetitive workplace tasks involving the compilation, photocopying and binding of thousands of pieces of paper that constitute a multiplicity of training manuals for use in the defendant’s mining training and induction business, directed to employees (potential or actual) of third parties, in a range of occupations.
Submissions
- [5]It was submitted by Mr Clark that the disclosure – by no means a modest task for the defendant – is required in order to determine the extent and volume of the tasks required to be completed, mostly to a specific timetable. In other words and in simple terms, it is the number of pieces of paper that is said by the plaintiff to be necessary to be disclosed in order to assess the enormity of the tasks performed by the plaintiff.
- [6]The defendant says it has disclosed what it has by way of relevant documents and that they provide the information sought by the plaintiff.
- [7]The plaintiff submitted that there were a variety of types of documents (IT records, tax invoices/receipts, photocopier copy count records, offsite data records, training course assessments and training programme reports, amongst other classes of documents), all of which Mr Clark submits are potentially relevant to the issues in the litigation.
- [8]The defendant has not claimed that the task of the disclosure sought is per se unreasonable (in financial or logistical terms) or impossible. It simply maintains that it has made disclosures that meet the demands made by the plaintiff and comply with rule 211 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
- [9]However, the defendant does say that some of the documents (for example tax invoices/receipts) are not representative of what, if any, materials were required to be collated by the plaintiff for the training courses; that training provided by external sources to the defendant involved documents already bound; that the photocopier used by the defendant was not exclusive to her use but was used as a printer for other purposes and that a paper-count would not necessarily be informative; that some training documents were not bound in fact and therefore are irrelevant; and finally, that the number or quantity of materials dealt with by the plaintiff can be elicited from the “Weekly Room Allocations” for training purposes, which inter alia identify the number of trainees, the nature of the courses, the location of the training area (classrooms) and the dates the services were provided. The latter documents have been disclosed by the defendant to the plaintiff.
Issues
- [10]The plaintiff’s application seeks absolute compliance with the disclosure rule. The consequences of non-disclosure of any relevant document I infer is certainly known by the defendant: its lawyers must inform the defendant of its disclosure obligation.
- [11]The issue is really whether the defendant has met its obligation to date (in the context of the obligation being ongoing). The plaintiff relies on observations made by Jackson J in Integrated Medical Technologies Pty Ltd & Anor v Gilbert & Ors (No 2) [2015] QSC 124 (“IMT”), at [11], with respect to the filing of an affidavit about the existence or otherwise of documents or their passing from the possession or control of the party.
- [12]Rule 223 of the UCPR provides that:
- “(1)The court may order a party to a proceeding to disclose to another party a document or class of documents by –
- (a)Delivering to the other party in accordance with this part a copy of the document, or of each document in the class; or
- (b)Producing for the inspection of the other party in accordance with this part the document, or each document in the class.
- (2)The court may order a party to the proceeding (the first party) to file and serve on another party an affidavit stating –
- (a)that a specified document or class of documents does not exist or has never existed; or
- (b)the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.
- (3)The court may order that delivery, production or inspection of a document or class of documents for disclosure –
- (a)be provided; or
- (b)not be provided; or
- (c)be deferred.”
- [13]The rule in its terms permits of some flexibility in its application. Jackson J in IMT (supra) at [4] referred to a passage in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] QCA 276, (“MMC”) per Pincus JA at 283:
“The former inflexible approach to applications for further discovery … is no longer appropriate, under the current disclosure system, and because of the notions expressed in Rule 5 of the Uniform Civil Procedure Rules. If it appeared, for example, that an order for further disclosure would be likely to’ facilitate the just and expeditious resolution of the real issues’ that would enable and perhaps require the making of such an order. But there must, at least in the ordinary case, be something more than mere suspicion, to justify granting relief to a party complaining of incomplete disclosure”
The affidavit material
- [14]The matters that remained for resolution at the hearing of the application were the documents in Classes 2, 7, 8, 9, 10 and an additional Class 11 (dates/names/courses undertaken by trainees).
- [15]There does not appear to be any Class of documents that do not exist or have passed out of the possession or control of the defendant. The deponents of affidavits by employees of the defendant – Ms Trott and Ms Dalton – refer to documents but simply express a subjective opinion about their relevance to the matters raised by the plaintiff. The defendants lawyer Ms Boulton deposes to the same effect.
- [16]Hence the documents or Classes of documents do exist and may – inferentially - have been examined by those persons so as to inform their opinions. The plaintiff is entitled to form her own opinion about the relevance of those documents to her pleadings. She may be proved correct in her assertions. She may be proved incorrect. But she is entitled to make a judgment about that herself and not have to rely of the opinions expressed by others.
- [17]The plaintiff claims that, for example, she uploaded relevant information to IT sites, but that information has not been disclosed by the defendant.
- [18]Ms Trott deposes that the Mining Industry Skills Centre Inc (“MISC”) course materials received from that source were already bound and packed into boxes. All that was added to those were the defendant’s enrolment form and assessment papers. They were not bound but were stapled by the photocopier machine and added to the bound books. She also deposed that the MISC tax invoices were not relevant to the volume of materials prepared by the plaintiff; and that there was no copy-count maintained or kept for the photocopier
- [19]Ms Dalton deposed that apart from the Weekly Room Allocation Sheets, she cannot think of or identify any other document that would provide the information sought by the plaintiff.
Discussion
- [20]Rule 223 (4) UCPR provides:
- “(4)An order mentioned in sub-rule (1) or (2) may be made only if –
- (a)there are special circumstances and the interests of justice require it; or
- (b)it appears there is an objective likelihood –
- (i)the duty to disclose has not been complied with; or
- (ii)a specified document od class of documents exists or existed and has passed out of the possession or control of a party.”
- [21]Rule 5 UCPR expresses the philosophy of the Rules. Pincus JA referred to the rule in MMC (supra). It is a live consideration in the circumstances of this case.
- [22]It is all very well for the defendant, through its officers, employees or agents to state that certain documents exist but do not assist the plaintiff. That may be its perception of what the plaintiff seeks to prove, but it is the plaintiff that should determine that as a matter of fact, save for the relief that may be provided to the defendant on account of any overtly unreasonable or plainly irrelevant demand for disclosure.
- [23]I have found it difficult to properly assess whether and, if so, the defendant has met any outstanding disclosure obligation – that is not unreasonable and is potentially relevant to the plaintiff’s claim - from the material filed and the submissions made.
Conclusion
- [24]I will grant the plaintiff’s application in terms of the following observations:
- [25]Class 2 documents: the defendant should disclose a sufficient number of tax invoices to the plaintiff, so that she may make a judgment as to whether the assertions of the defendant are correct or whether an inspection of the balance of the tax invoices is warranted
- [26]Class 7 documents: if there are no photocopier copy-counts in existence, then an affidavit should be filed by the defendant to that effect in accordance with r 223 (2) UCPR. If there are such documents in existence, they should be disclosed to the plaintiff. Any dispute about whether they record the plaintiff’s work alone or a mixture of her work and printing by other employees or officers of the defendant is an evidentiary issue that will have to be resolved on evidence at the trial. This is not a matter for unilateral determination by the defendant.
- [27]Class 8, 9 and 10 documents: to the extent that these documents yield information about the numbers of participants in the training courses delivered by the defendant, the number of pages or pieces of paper that were ‘hole-punched’ and/or bound by the plaintiff for each participant, the number of bound volumes that were required to be produced, from the software program records in the VETRAK system.
- [28]Class 11 documents: I am not persuaded that these documents will provide relevant information to the plaintiff and I will not include this Class of document in the Orders.
- [29]The plaintiff is to provide a draft order to the defendant and thereafter to the court that reflects the observations I have made about further disclosure. I will give liberty to apply if the parties are unable to agree on its terms.
Costs
- [30]The Application is granted. However, several of the issues were resolved between the parties prior to the hearing and I have declined to make an order with respect to the additional Class 11 documents. In that circumstance I will reserve the costs of the Application.
Orders
- 1Application granted.
- 2The defendant is to provide further disclosure to the plaintiff with respect to the documents in Class 2, 7, 8, 9 and 10, but not Class 11, as described in the judgment at paragraphs [25] to [28].
- 3Costs of the Application are reserved.
- 4The parties will have liberty to apply on three (3) days notice.