Asbestos litigation & disclosure against the manufacturer

 WorkCover Queensland v Amaca Pty Limited and Anor [2011] QSC 282

I refer to my several earlier postings in respect of this statutory recovery matter. Its journey started via a Case Stated application and then proceeded to the High Court in respect of Q 4. It continues now in respect of the substantive case and came before his Honour Boddice J for determination by each party in respect of an application re: further and better particulars and by the Plaintiff for further and better disclosure.

Whilst each matter turns on its facts the order by Boddice J in respect of allowing a narrow line of further and better disclosure as against Seltsam which relates to “proceedings commenced in Australia against the second defendant claiming damages for personal injuries caused by inhaling asbestos” is likely to be adopted by future plaintiffs as a useful tool in proving their claim.

[32] It is apparent from a perusal of those categories that the disclosure sought by WorkCover would be extensive and time consuming, requiring Seltsam to search its records to firstly ascertain the proceedings commenced in Australia against it claiming damages for personal injuries caused by inhaling asbestos, and then to identify multiple documents in relation thereto.

[33] Having considered the authorities, I am satisfied the documents sought are not, based on the current pleadings, directly relevant to an allegation in issue in the pleadings. To order disclosure would amount to fishing. WorkCover has not established that Seltsam has in its possession documents directly relevant to an allegation in issue which have not been disclosed to date. The application for further and better disclosure, based on s 223(4)(b), is refused.

[34] WorkCover also makes application for further and better disclosure pursuant to s 223(4)(a) UCPR. That power, it is submitted, is an independent power that operates even where the duty of disclosure has not been breached by WorkCover, provided there are special circumstances and the interests of justice require it.

[35] Subject to one aspect, I am not satisfied there are special circumstances, in the interests of justice, warranting an order for disclosure in the terms sought by WorkCover. The documents sought will not materially advance resolution of the issues in this case. That another proceeding may have had pleadings, or reports, or statements, does not determine any issue in dispute in these proceedings.

[36] The one aspect of the application for further and better disclosure that is properly to be the subject of an order under UCPR 223(4)(a) relates to “proceedings commenced in Australia against the second defendant claiming damages for personal injuries caused by inhaling asbestos”. The identification of such proceedings will aid in limiting lines of enquiry. This is likely to ultimately facilitate the just and expeditious resolution of these proceedings.[8] This is information peculiarly within the knowledge or control of Seltsam.

[37] I am satisfied there are special circumstances. I am also satisfied it is in the interest of justice to order disclosure of such proceedings.

[38] Disclosure may properly be made by providing a list of the names of the parties to the proceeding, the Court in which the proceeding was commenced, and the Court file number. That list will apprise WorkCover of any relevant proceedings commenced against Seltsam. It is not necessary, or appropriate, for Seltsam to have to provide copies of those proceedings.

Brisbane Barrister – David Cormack

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