Buckton v Workforce Express Pty Ltd & Anor [2014] QDC 37

DISTRICT COURT OF QUEENSLAND CITATION: Buckton v Workforce Express Pty Ltd & Anor [2014] QDC 37 PARTIES: NADINE BUCKTON (applicant) V WORKFORCE EXPRESS PTY LTD (ACN 127 957 957) (first respondent) AND AUSTRAK PTY LTD (ACN 008 925 031) (second respondent) FILE NO/S: DC No 44 of 2012 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Rockhampton DELIVERED ON: 4 March 2014 DELIVERED AT: Brisbane HEARING DATE: 27 February 2014 JUDGE: Devereaux SC DCJ ORDER: 1. Application dismissed. 2. The document, the subject of the application, is to be sealed in an envelope, kept with the file and not opened except on the order of a judge. CATCHWORDS: PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – where second defendant has disclosed part of a document and resists disclosure of whole document on the grounds of irrelevance and confidentiality – whether balance of document is relevant – whether, if not, whole document containing relevant material must be disclosed Uniform Civil Procedure Rules 1999 (Qld), r 211 Australian Competition & Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 -- 1 of 4 -- 2 Gunns Limited & Ors v Marr & Ors [2008] VSC 464 Menkens v Wintour [2007] 2 Qd R 40 Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ In Eq, 10 February 1997) – BC9700141 COUNSEL: D Tait QC for the plaintiff M O‟Sullivan for the second defendant SOLICITORS: Shine Lawyers for the applicant Hopgood Ganim for the first defendant Sparke Helmore Lawyers for the second defendant [1] In this application the plaintiff seeks disclosure of the whole of a document which the second defendant has disclosed in part. The document is a report of a safety audit, conducted in 2007, of the second defendant‟s premises. The second defendant commissioned the report. Other reports of audits, conducted in 1999 and 2011, have been disclosed. [2] The plaintiff claims she was injured while working at the premises, having been „hired to‟ the second defendant by a labour hire company, the first defendant. The second defendant made concrete railway sleepers. Part of the process involved a trolley system which ran on rails. The trolleys were known to de-rail from time to time. It seems to me, from the pleadings and other materials before me on this application, that the (relevant) issue between the plaintiff and the second defendant will be whether the latter negligently failed to take reasonable steps to avoid the foreseeable risk of injury to the plaintiff in „re-railing‟ a trolley. [3] The second defendant has disclosed the table of contents of the report; Part 2.1.8 - „Manual handling of derailed trolleys. (Item 13 “Top Twenty One”)‟; another section of two pages - „Manual Handling‟ and Table 1 – „Summary of items identified and risks assessed‟. [4] I have received and read the whole document on the basis that, subject to my decision, it be kept confidential. [5] The second defendant concedes that the disclosed parts of the report are „relevant to an allegation in issue in the proceedings‟, for the purposes of r 211 of the Uniform Civil Procedure Rules but argues the balance is irrelevant, as demonstrated by the contents page which has been disclosed. [6] The plaintiff argues the audit reports „show a pattern of unsatisfactory work practices and equipment.‟ This, it is said, „is not consistent with the second defendant’s assertion that it has taken appropriate steps to protect its employees, and nor is it consistent with the first defendant’s assertion that it made appropriate enquiries about the second defendant’s practices.‟ [7] In my view, having read the entire 2007 report, it does not show a pattern of unsatisfactory work practices and equipment. More to the point, the undisclosed parts are not relevant to an issue in the pleadings. They do contain, as the table of contents suggests, the identification of certain risks within the workplace, -- 2 of 4 -- 3 usually with a priority rating and recommendation. But the assessment of whether an employer took adequate steps to prevent a particular foreseeable injury would not be informed by evidence that the employer has failed to do so with respect to some other unrelated foreseeable risk. That is, whether the second defendant failed in a duty owed to the plaintiff will be judged as a matter of history. A propensity – if that is what the safety audit report showed, and I am satisfied it does not – to fail to take „appropriate steps to protect its employees‟ would be irrelevant to a trial judge‟s assessment as to whether, on this occasion with respect to this alleged risk, the second defendant in fact failed. [8] For the same reasons the undisclosed parts of the report are of no relevance to the plaintiff‟s case against the first defendant. The report contains an assessment of risks, not a history of accidents. The existence of such a report, undisclosed to the first defendant, cannot affect the likelihood of any of the ten particulars of the negligence alleged in the statement of claim against the first defendant with respect to the incident which gave rise to the plaintiff‟s injury. [9] I am satisfied the second defendant has demonstrated the undisclosed parts of the report are not relevant to a fact in issue in the pleadings. [10] It has been regularly said that if a document contains discoverable material, the whole document should be disclosed – see Telstra Corporation v Australis Media Holdings Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997.1 As Mackenzie J pointed out in Menkens v Wintour [2007] 2 Qd R 40 at 42, Telstra concerned „disclosure of classes of documents where it was not necessary to consider relevance to a fact or facts in issue‟. [11] Mackenzie J. referred to the following passage from the reasons of McLelland CJ in Eq: „There is a serious risk that too assiduous a masking of documents on the grounds of irrelevance will create gaps affecting the ready comprehensibility of the remaining portions of the document and of the context in which those portions appear. If for this, or any other, reason, masking on the ground of alleged irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified.‟ [12] Just before that passage, McLelland CJ in Eq. said, „It has been accepted that for the purpose of discovery it is proper, if physically practicable, to withhold from inspection those parts of a discovered document in respect of which there is a valid claim of privilege, or, subject to what is said below, those parts which are irrelevant. This represents a rule of practice which provides, in that sense, a gloss on express requirements 1 See also Australian Competition & Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 and Gunns Limited & Ors v Marr & Ors [2008] VSC 464 at [28 -36] -- 3 of 4 -- 4 imposed by rules or by orders of the court. There is, however, a difference for the purposes of the application of this rule of practice between cases of privilege, on the one hand, and cases of irrelevance on the other. The existence of a recognised privilege confers a positive right to withhold production, whereas exclusion of part of a document on the ground of irrelevance is permitted as a matter of practice, in order to avoid infringement, for no legitimate purpose, of interests of privacy and confidentiality, and thus to avoid injustice.‟2 [13] The second defendant relies on the affidavit of its commercial manager who swears that the safety report ‘was obtained by the second defendant in confidence to improve safety at its Rockhampton Factory.’ It is said the report contains details of the manufacturing process which are the subject of intellectual property. The commercial manager also discloses that claims for injuries by other workers at the Rockhampton site and another similar factory „not involving the work claimed in this case‟ have been made against the second defendant. One such claim remains unresolved. So, the second defendant is concerned that the report, if the whole is released, may be used „inappropriately‟. [14] These matters are of some relevance but do not amount to a claim of privilege. The second defendant does not submit they do. No doubt there are good policy reasons for encouraging manufacturers to engage risk assessors and receive their reports. But it is enough to be satisfied, as I am, that the undisclosed material is not relevant to an allegation in issue in the pleadings, that its exclusion does not detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document and that its disclosure would involve, for no legitimate purpose, infringement of interests of privacy and confidentiality. [15] The further disclosure of the 2007 report is unnecessary to ensure the attainment of justice between the parties.3 [16] The application is to be dismissed. I will order that the subject report be sealed and not opened except on the order of a judge. [17] As to the costs of the application, my preliminary view is that they should follow the event. But I will receive written submissions as to the appropriate order for costs by 4.30pm Thursday 6 March 2014. 2 BC9700141 at 2 Case references deleted 3 Gunns Limited & Ors v Marr & Ors [2008] VSC 464 at [34] -- 4 of 4 --