Case: McIlwain v Ramsey Food Packaging Pty Limited (2005) 221 ALR 785
Outcome: considered
All correspondence, file notes, memoranda and any other documents recording communications between the Respondent (or any person on its behalf) any other person in relation to the testing of crushed glass and/or the assessment of the Termiglass system as a physical termite barrier. 4 Order 15 r 8 of the Federal Court Rules is in these terms: 8 Order for particular discovery Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party: (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party. 5 By a letter dated 30 April 2008, Granitgard, by its solicitors, identified 29 types of document in respect of which it was alleged that Termicide's discovery was deficient. A response to that letter was made on behalf of Termicide by its solicitors on 16 May 2008. That response conveniently tabulates the impugned types of document, together with the response made on behalf of Termicide in respect of those documents which is outlined below: Applicant's Request of 30 April 2008 Status 1 The termiglass specification referred to in CSIRO appraisal No further documentation to be discovered 2 The summary of particle density dated 10 July 2003 referred to in letter from Vision Glass Recycling dated 11 July 2003 (document 1) This has already been discovered as part of document 17 3 All correspondence and documents provided to Dr French as referred to in Dr French's facsimile dated 5 November 2003 (document 5) There were no documents or correspondence referred to in Dr French's facsimile. Dr French referred to "the materials you kindly delivered". The materials delivered were samples of sintered glass and are no longer in the possession, custody or power of the Respondent and do not comprise a document. 4 All correspondence and documents provided to BLS Consulting and Barry Schafer in relation to termiglass for the purpose of obtaining the appraisal or draft appraisal as referred to in the facsimile from BLS dated 18 November 2003 (document 7) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 5 The termiglass installation manual and the Granitgarrd specifications as referred to in the letter from BLS to CSIRO dated 26 November 2003 (document 8) and also referred to in the affidavit of Dr Ewart dated 23 April 2008 The termiglass installation manual has already been put into evidence by the Applicant (annexed to the affidavits of Dr Don Ewart sworn 17 December 2007 and 23 April 2008). The Respondent has reasonable belief that the Granitgard specifications are already in the possession of the Applicant and is not required to discover that document under Order 15 Rule 2(4) 6 The documents attached to the email dated 1 December 2002 from Barry Schafer to Paul Jeynes relating to the sieve analysis (document 9) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 7 The grading specifications from the University of Hawaii as referred to in the email dated 1 December 2003 from Barry Schafer to Paul Jeynes (document 9) The Respondent has reasonable belief that the University of Hawaii specifications are already in the possession of the Applicant and is not required to discover that document under Order 15 Rule 2(4) Dr Ewart mentions in his affidavit of 17 December 2007 that he has read these specifications. 8 The appraisal certificate enclosed with the letter from CSIRO to Barry Schafer dated 11 December 2003 (document 10) This has already been discovered as part of document 11 9 The information provided by Termicide as referred to in the CSIRO Technical Assessment (document 11) together with the Techcon Management Pty Ltd report dated March 2003 referred to in the same document The information provided by Termicide is set out in 'Relevant Documents' and 'Basis of Appraisal' of the Technical Assessment (document 12) and comprised: &#8226; Termicide Installation Manual Nov 2003 (already in the possession of the Applicant as it is annexed to the affidavits of Dr Ewart) &#8226; Report from Techcon Management March 2003 (already discovered as part of document 17) 10 Any correspondence with NRA as referred to in the letter from Dr French to David Jeynes dated 5 November 2003 (part of document 11) No documentation to be discovered 11 Any correspondence from Dr French or documents regarding communications with Dr French in respect of Mr Jeynes' letter dated 19 December 2003 (document 12) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. We note that you have now issued a subpoena to Dr French. 12 The specification requirements referred to in Mr Jeynes' letter dated 19 December 2003 (document 12) No documentation to be discovered 13 All documents provided to LTD (Consultant) Services for the purpose of provided its opinion as expressed in its letter dated 26 May 2005 (document 18) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. We note that you have now issued a subpoena to Mr Langley. 14 All documents or notes of conversations relied up on by Termicide for the purposes of advising CSIRO that the testing quality assurance systems used in the manufacturing system of termiglass were of the highest standards and confronted to the original product specifications as per the letter dated 25 January 2006 (document 19) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 15 The original product specifications referred to in document 19 This has already been discovered as part of document 11 and document 15 16 The document containing the description of the manufacturing process and steps undertaken to ensure consistency as referred to in document 19 The description and steps are set out in document 19 17 All samples of Termicide and testing results taken from them as referred to in document 19 Samples of the termiglass product are not discoverable. Samples do not comprise a document. 18 Photos referred to in document 19 No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 19 The documents incorporating the quality management system and rules referred to in Termicide's declaration of design life dated 2 May 2006 (document 20) This has already been discovered as part of document 11 and document 15. 20 All correspondence and documents recording communications with Ehab Melek and SAI Global in respect of termiglass, including all samples of termiglass provided, as referred to in the email dated 13 December 2006 from Mr Melek to Dr French (document 21) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. Samples of the termiglass product are not discoverable. Samples do not comprise documents. We note that you have now issued a subpoena to Mr Melek and SAI Global 21 The installation manual and the termiglass specifications as referred to in the LTD (Consultant) Services report (document 25) The termiglass installation manual has already been put into evidence by the applicant (annexed to the affidavit of Dr Ewart) 22 Letter dated 26 Jun 2007 from CSIRO referred to in the Termicide letter to CSIRO dated 23 November 2007 (document 25) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 23 The Extrusion Technologies International Pty Ltd report referred to in the Termicide application for revalidation of CSIRO technical assessment 313 (document 25) This is not within the scope of Schedule B of the 15 February 2008 Orders. It refers to a component which is not the subject of this litigation. 24 Reports recording validation of Termicide sealant as referred to in the Termicide application for revalidation of CSIRO technical assessment 313 (document 25) This is not within the scope of Schedule B of the 15 February 2008 Orders. It refers to a component which is not the subject of this litigation. 25 Correspondence between CSIRO and Mr Chris Langley of LTD (Consultant) Services sent for the purpose of obtaining the opinions expressed by Mr Langley in the email dated 30 January 2008 to Mr Simon Hanson of CSIRO (document 26) The Respondent was not party to this correspondence and the correspondence is not in the possession, custody or power of the Respondent. We note that you have now issued a subpoena to both Mr Langley (LTD) and to the CSIRO. 26 Correspondence from Dr French concerning the opinions of Mr Langley expressed in the email to Mr Hanson dated 20 January 2008 (document 26) No further documentation to be discovered. 27 All correspondence and documents provided to Dr French in respect of his report dated 6 February 2008 (document 27) No further documentation to be discovered. 28 Report of Ecospan referred to in the CSIRO facsimile dated 19 February 2008 to Dell Shaw (document 29) This has already been discovered as document 27 29 All documents or notes of conversations relied upon by Termicide for the purpose of advising CSIRO that the product specifications of termiglass are the same as those tested in the laboratory and field as per the letter dated 18 February 2008 (document 30)) Report from Ecospan dated 6 February 2008 has already been discovered as document 27. No further documentation to be discovered. 6 In McIlwain v Ramsey Food Packaging Pty Limited (2005) 221 ALR 785 at 799, paragraph 25 Greenwood J observed as follows: Order 15 r 8 seems to embody the following process. A party dissatisfied with the completeness of discovery by another party might seek to identify either a document or class of document as the focus for an application. That document or class of document must relate to a matter in question in the proceeding. The grounds for a belief that some document or class of documents relating to a matter in question exists can be demonstrated to the court either from the evidence adduced by the applicant for an order or from the nature or circumstances of the case (reflected in the pleadings) or from any document filed in the proceedings. The applicant must then demonstrate that such a document or class of document either may be, or may have been, in the possession, custody or power of a party. Once those matters are demonstrated, the court may order such a party to file an affidavit stating whether that document or any document of that class is or has been in the possession, custody or power of the party. 7 On behalf of Granitgard, it is submitted that a good litmus test of Termicide's failure to address its duties as to discovery appears from a letter from its solicitors dated 27 August 2008. In that letter Termicide's solicitors identified and attached an email which, it was conceded, had been the subject of a claim for privilege, and which, it was conceded, ought not to have been subject to such a claim. The email concerned had two enclosures. When they were sought by Granitgard, the response made by the solicitors for Termicide was that: Both of the documents referred to in that email are available in the material provided by the subpoenaed parties. 8 Whilst that particular response might, with all due respect, be regarded as churlish, it does not at all follow that the further disclosure of the email, which, upon reflection, was regarded as not attracting a claim on behalf of Termicide for legal professional privilege, is in any way indicative a failure to observe discovery obligations. To the contrary, it shows an attention to the ongoing responsibilities that attend such an obligation. 9 To use the litmus test analogy favoured by Granitgard, it seems to me, on the material, that Granitgard's application is motivated by an unfortunate acidity in relations not just between the parties but between those who represent them, whereas, on a more objective analysis, the fact of voluntary further disclosure is alkaline in its character. By that I mean there is a quite benign view that one can take of that, which is that of a party, by its solicitors, taking care to observe a discovery obligation notwithstanding a position earlier taken and as soon as it is realised that that earlier position was taken in error. The discovery that was ordered by me on 15 February 2008 was by categories, not general. It is quite apparent from the letter sent in response to Granitgard's letter of 30 April 2008 that there has been reflective consideration by Termicide and those advising it of the adequacy of discovery in respect of the categories of discovery ordered. Having regard to the responses which were made and usefully summarised in the table, it seems to me that there ought not to be any order for further discovery. That is so even if, perchance, strictly, some of the documents identified in the 29 types or categories of document might have at one stage or another existed. 10 Further, I do not see any particular utility in requiring Termicide to verify on oath that which its solicitors have made on its behalf by way of response in that table. The response seems to me to be a complete answer to the request that was made. The application for further discovery, in any event, would enliven a discretion and, as I have indicated, even if, strictly, some documents may or may not at one stage have existed within those 29 classes of document, I am not disposed at this stage of the proceedings to order further discovery by Termicide of those on the basis of the material with which I have been provided for the purposes of hearing the application. And that is an alternative position; the primary one being it seemed to me that the responses made were a complete answer. The application for further and better discovery will therefore be dismissed.