Dust Diseases Tribunal New South Wales Medium Neutral Citation: Saroo v Workers Compensation Nominal Insurer & Ors [2024] NSWDDT 4 Hearing dates: 7, 15, 17 May 2024 Date of orders: 17 May 2024 Decision date: 17 May 2024 Before: Judge Russell SC Decision: (1) Order the third defendant Caesarstone Australia Pty Ltd to provide verified discovery by 30 June 2024 of the classes of documents set out in pars 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 of Annexure "A" to the Notice of Motion filed on 15 April 2024. (2) Order the third defendant Caesarstone Australia Pty Ltd to provide verified discovery by 30 June 2024 of all documents, wherever created and located, recording or evidencing the supply or sale of its engineered stone products to: (a) Universal Granite Pty Ltd between 1 March 2008 to 30 September 2019. (b) Macarthur Marble & Granite Pty Ltd between 1 March 2008 to September 2019. (c) Stone-Tech (Holdings) Pty Ltd between 1 March 2008 to September 2019. (d) Stone-Tech (Holdings) Australia Pty Ltd between 17 August 2000 to September 2019. (e) Royal Granite & Marbles Pty Ltd between 1 April 2015 and 30 June 2015. (f) Made in Stone between 1 May 2014 and 30 July 2017. (g) Wintim Stone Australia Pty Ltd between April 2018 and 31 May 2018. (h) Purity Stone Pty Ltd between 1 April 2008 to September 2019. (i) The plaintiff. (j) SWC BF (NSW) Pty Ltd between 30 October 2013 and September 2019. (3) Order the fourth defendant WK Marble and Granite Pty Ltd to provide verified discovery by 30 June 2024 of the classes of documents set out in pars 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 of Annexure "B" to the Notice of Motion filed on 15 April 2024. (4) Order the fourth defendant WK Marble and Granite Pty Ltd to provide verified discovery by 30 June 2024 of all documents, wherever created and located, recording or evidencing the supply or sale of its engineered stone products to: (a) Universal Granite Pty Ltd between 1 March 2008 to 30 September 2019. (b) Macarthur Marble & Granite Pty Ltd between 1 March 2008 to September 2019. (c) Stone-Tech (Holdings) Pty Ltd between 1 March 2008 to September 2019. (d) Stone-Tech (Holdings) Australia Pty Ltd between 17 August 2000 to September 2019. (e) Royal Granite & Marbles Pty Ltd between 1 April 2015 and 30 June 2015. (f) Made in Stone between 1 May 2014 and 30 July 2017. (g) Wintim Stone Australia Pty Ltd between April 2018 and 31 May 2018. (h) Purity Stone Pty Ltd between 1 April 2008 to September 2019. (i) The plaintiff. (j) SWC BF (NSW) Pty Ltd between 30 October 2013 and September 2019. (5) Order the seventh defendant Smartstone Australia Pty Ltd to provide verified discovery by 30 June 2024 of all classes of documents set out in MFI 1. (6) Order the eighth defendant Halifax Vogel Group Pty Ltd to provide verified discovery by 30 June 2024 of all classes of documents set out in MFI 1. (7) Order the tenth defendant Laminex Group Pty Ltd to provide verified discovery by 30 June 2024 of the classes of documents set out in pars 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 of Annexure "D" to the Notice of Motion filed on 15 April 2024. (8) Order the tenth defendant Laminex Group Pty Ltd to provide verified discovery by 30 June 2024 of all documents, wherever created and located, recording or evidencing the supply or sale of its engineered stone products to: (a) Universal Granite Pty Ltd between 1 March 2008 to 30 September 2019. (b) Macarthur Marble & Granite Pty Ltd between 1 March 2008 to September 2019. (c) Stone-Tech (Holdings) Pty Ltd between 1 March 2008 to September 2019. (d) Stone-Tech (Holdings) Australia Pty Ltd between 1 March 2008 to September 2019. (e) Royal Granite & Marbles Pty Ltd between 1 April 2015 and 30 June 2015. (f) Made in Stone between 1 May 2014 and 30 July 2017. (g) Wintim Stone Australia Pty Ltd between April 2018 and 31 May 2018. (h) Purity Stone Pty Ltd between 1 April 2008 to September 2019. (i) The plaintiff. (j) SWC BF (NSW) Pty Ltd between 30 October 2013 and September 2019. (9) Order each party to pay his or its own costs of the Notice of Motion filed on 15 April 2024. (10) Re-list the proceedings for directions in the Silicosis List on 5 August 2024. Catchwords: PROCEDURE – discovery – classes of documents – relevance to facts in issue – whether unduly broad and oppressive DISCOVERY – classes of documents – solicitor producing documents not required to determine whether a document in an ordered class is relevant to a narrower pleaded issue Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Dust Diseases Tribunal Act 1989 (NSW), ss 25, 25A. Dust Diseases Tribunal Rules 2019 (NSW), r 4 Uniform Civil Procedure Rules 2005 (NSW), Part 21, rr 21.1, 21.2, 21.3, 21.4, 21.8, 35.3 Cases Cited: Alexander v Fitzpatrick [1981] Qd R 359 Birmingham v London [1913] 3 KB 850 Caltex Refineries (Qld) v Stavar (2009) 75 NSWLR 649 Commonwealth Bank of Australia v Goater [2016] NWSC 710 Hunter v New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 Category: Procedural rulings Parties: John Michael Yousif Saroo (Plaintiff) Caesarstone Australia Pty Ltd (Third Defendant) WK Marble and Granite Pty Ltd (Fourth Defendant) Smartstone Australia Pty Ltd (Seventh Defendant) Halifax Vogel Group Pty Ltd (Eighth Defendant) Laminex Group Pty Ltd (Tenth Defendant) Representation: Counsel: S Tzouganatos with V Boutas (Plaintiff) D Priestley SC (Third Defendant) I Griscti (Fourth Defendant) I Griscti (Seventh Defendant) I Griscti (Eighth Defendant) L McFee (Tenth Defendant) Solicitors: Slater and Gordon (Plaintiff) Holman Webb (Third Defendant) Mills Oakley (Fourth defendant) HBM Lawyers (Seventh Defendant) HBM Lawyers (Eighth Defendant) Sparke Helmore Lawyers (Tenth Defendant) File Number(s): DDT 2022/334491 Judgment Introduction 1. This judgment concerns a Notice of Motion seeking verified discovery of classes of documents in a silicosis case. 2. By a Further Amended Statement of Claim filed on 18 April 2023 the plaintiff alleges that he was exposed to silica, granite and quartz dust while working in the building industry as follows: 1. From 1994 to 1999 as an employee of Stone-Tech (Holdings) Pty Ltd (Stone-Tech). 2. From 17 August 2000 to 1 April 2008 while employed by Stone-Tech (Holdings) Australia Pty Ltd, known as Joys (NSW) Pty Ltd (Joys). 3. From 1 April 2008 to 2019 as a self-employed stonemason. 1. Stone-Tech and Joys have been deregistered. The first defendant Workers Compensation Nominal Insurer is sued as the party liable to indemnify Stone-Tech and Joys for negligence. 2. During the course of his self-employment between 2008 and 2019, Mr Saroo alleges that he worked with stone products containing silica and quartz which were manufactured or supplied or imported or distributed by the second, third, fourth, seventh, eighth, ninth and tenth defendants. 3. The fifth and sixth defendants are no longer involved in the proceedings. 4. Mr Saroo alleges that as a result of inhaling silica dust during the periods of employment and self-employment, he has developed silicosis and has suffered injury, loss and damage. Mr Saroo alleges that his condition was caused by the negligence of Stone-Tech, Joys and the other defendants. 5. By a Notice of Motion filed on 15 April 2024 Mr Saroo seeks orders for verified discovery of classes of documents against the third defendant (Caesarstone Australia), the fourth defendant (WK Marble), the seventh defendant (Smartstone Australia), the eighth defendant (Halifax Vogel) and the tenth defendant (Laminex Group). 6. Smartstone Australia and Halifax Vogel consent to orders for the verified discovery of classes of documents listed in MFI 1, subject to requiring until 30 June 2024 to provide verified discovery, as opposed to the earlier date proposed in the Notice of Motion. As indicated to the parties during oral submissions, I will make an order for verified discovery against Smartstone Australia and Halifax Vogel, and allow them until 30 June 2024 to provide verified discovery. 7. Caesarstone Australia, WK Marble and Laminex Group agree to provide verified discovery of some of the classes of documents but oppose other classes. That dispute is the subject of this judgment. The Issues on the Pleadings Caesarstone Australia 1. Caesarstone Australia filed a Defence on 16 May 2023. The Defence raises the following issues: 1. Caesarstone Australia admits that it supplied Stone-Tech and Joys with engineered stone (par 7 of the Defence). 2. Caesarstone Australia does not admit that it supplied products that the plaintiff worked with during his period of self-employment (par 7 of the Defence). 3. Caesarstone Australia does not admit that during the period of self-employment the plaintiff was exposed to silica dust generated from Caesarstone Australia products (par 6 of the Defence). 4. Caesarstone Australia denies negligence, breach of contractual obligation and breach of statutory obligation (par 9 of the Defence). 5. Contributory negligence (par 12 of the Defence). WK Marble 1. WK Marble filed a Defence on 22 September 2023. The Defence raises the following issues: 1. WK Marble does not admit the allegations of exposure pleaded in pars 11 and 12 of the Further Amended Statement of Claim (par 8 of the Defence). 2. WK Marble denies the allegation of negligence (par 12 of the Defence). 3. Contributory negligence (par 14 of the Defence). Laminex Group 1. Laminex Group filed a Defence on 3 August 2023. The Defence raises the following issues: 1. Laminex Group does not admit the allegations of negligence, breach of contractual duty and breach of statutory duty (pars 6 and 7 of the Defence). 2. Laminex Group denies the allegation of negligence (par 9 of the Defence). 3. Contributory negligence (par 11 of the Defence). Discovery Provisions 1. Discovery of documents in the Dust Diseases Tribunal is governed by r 4 of the Dust Diseases Tribunal Rules 2019 (NSW) (DDT Rules). Rule 4 provides that Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) applies in the Tribunal, subject to adaptations specified in r 4 of the DDT Rules. 2. Where reference is made below to the terms of a rule in the UCPR, that rule will be reproduced incorporating the adaptations required by r 4 of the DDT Rules. 3. Rule 21.1 of the UCPR deals with definitions for the purposes of Div 1 of Part 21, which concerns discovery and inspection of documents. Rule 21.1(2) provides as follows: "(2) For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence." 1. Rule 21.2 of the UCPR provides as follows: "(1) The court may order that party B must give discovery to party A of— (a) documents within a class or classes specified in the order, or (b) one or more samples (selected in such manner as the court may specify) of documents within such a class. (2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. (3) Subject to subrule (2), a class of documents may be specified— (a) by relevance to one or more facts in issue, or (b) by description of the nature of the documents and the period within which they were brought into existence, or (c) in such other manner as the court considers appropriate in the circumstances. (4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue." 1. The basis for an order for discovery, is that discovery is necessary in the interests of a fair trial: Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289. 2. It can be seen that r 21.2(3)(a) requires the court to take into account the definition of "relevant to a fact in issue" contained in r 21.1(2). 3. Rule 21.3 of the UCPR, as amended by r 4 of the DDT Rules, is as follows: "(1) Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order. (2) The list of documents— (a) must be divided into two parts— (i) Part 1 relating to documents in the possession of party B, and (ii) Part 2 relating to documents that are not, but that at any time have been, in the possession of party B, and (b) must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and (c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise. (3) Party B must comply with the requirements of subrule (1)— (a) within 28 days after an order for discovery is made, or (b) within such other period (whether more or less than 28 days) as the order may specify." 1. Rule 21.4 of the UCPR, as amended by r 4 of the DDT Rules, is as follows: "(1) The list of documents must be accompanied by— (a) a supporting affidavit, and (b) if party B has a solicitor, by a solicitor's certificate of advice. Note— See rule 35.3 as to who may make such an affidavit. (2) The affidavit referred to in subrule (1)(a) must state that the deponent— (a) has made reasonable inquiries as to the documents referred to in the order, and (b) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that at any time have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and (c) believes that the documents in Part 1 of the list of documents are within the possession of party B, and (d) believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and (e) as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in, and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege. (3) The solicitor's certificate of advice referred to in subrule (1)(b) must state that the solicitor— (a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and (b) is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents)." 1. The persons who may make an affidavit are set out in UCPR r 35.3. In the case of a corporation, the affidavit must be made "by a member or officer of the corporation". 2. An affidavit verifying a list of documents is conclusive and must be accepted by the parties seeking discovery as being sufficient and true: Birmingham v London [1913] 3 KB 850 at 855. Generally, cross-examination on the affidavit verifying is not permitted. 3. In addition to the affidavit verifying the list, there must be a solicitor's certificate of advice which states the matters required by r 21.4(3). 4. Finally, because proceedings in the Tribunal are personal injury claims, the Tribunal must take into account r 21.8 of the UCPR. As modified by r 4 of the DDT Rules, r 21.8 is as follows: "In any proceedings on a common law claim— (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, an order for discovery may not be made in relation to any document unless the order is necessary to ensure that the outstanding issues in dispute are properly tried." Discovery Principles 1. The relevant legal principles were summarised by Bellew J in Hunter v New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 at [19] as follows: "(1) Discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22]; (2) The facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23; (3) For the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138; (4) The relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181; (5) Discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan's Fisheries Pty Ltd [2017] NSWSC 1262; (6) Discovery involves an "inroad", in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338; (7) The discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra); (8) Although proper compliance with a party's obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200; (9) There is no entitlement to "chain of enquiry" discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264." 1. Senior Counsel for Caesarstone Australia also referred to the following principles: 1. The scope of discovery may be limited, to avoid the potential for discovery to give rise to oppressive and disproportionate costs and to impede the "overriding purpose" in the Civil Procedure Act 2005 (NSW) (CPA) s 56: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264. 2. Courts should be alert to the cost, and associated delay and complexity, associated with extensive discovery: Commonwealth Bank of Australia v Goater [2016] NWSC 710 at [31]-[34]. 3. The court may relieve a party from giving discovery where the extent of discovery would be oppressive: Alexander v Fitzpatrick [1981] Qd R 359. 1. The applicability of the above principles was not in dispute between the parties. One dispute did arise during oral submissions. Counsel for the plaintiff made the following submission (Tcpt 12/25-32): "Again, I make the point that it is only relevant documents that have to be listed, not irrelevant documents. But the plaintiff has no way of knowing, your Honour. The only person that can make that call is the solicitor for Caesarstone, and that is the usual practice in discovery. The solicitor has to provide an affidavit, has to certify that the process has been done correctly, and that relevant documents only have been produced, have been disclosed and discovered. That is inherent in the nature of the discovery process. It relies, to a very large extent, on the solicitor for the defendant ensuring and verifying that it has been done correctly. The plaintiff has no way of delineating what is relevant and what is not." 1. Senior Counsel for Caesarstone Australia (whose submission was adopted by all other active defendants) submitted as follows (Tcpt 15/9-18): "… we take real issue with the task, as it has been described by my learned friend, a party under an order for discovery by a Court, subject to categories of discovery, does not have any discretion as to which documents within that category it produces, and it cannot embark upon an exercise of forensic judgment as to whether or not it considers a particular document that falls within the category is relevant to the proceedings or a fact in issue in the proceedings to decide whether or not to produce it. That exercise of determining relevance to a fact in issue in proceedings either has to be done by agreement between the parties, or pursuant to an order for general discovery, which is not the case here, or in a disputed context in relation to determining the outline of the particular category." (Emphasis added) 1. I accept the submission made by Senior Counsel for Caesarstone Australia. It is for the party seeking discovery to draft classes of documents so that each class is confined to documents which are relevant to the proceedings or a fact in issue in the proceedings. It is not a proper approach to discovery for classes to be drafted in a very wide fashion, and then expect the solicitor for the party providing discovery to exercise his or her judgment to determine whether or not documents within a very broad class are relevant to a narrower issue disclosed on the pleadings. As a matter of practice, most parties required to provide verified discovery would ask their lawyer for advice as to which documents fall within a specified class of documents. In that sense the solicitor for the party providing discovery does have to exercise judgment as to whether a document falls in a class or not. However, the solicitor for a party providing discovery should not be called upon to form an opinion as to whether documents specified in a class which is too widely drawn are somehow relevant to an issue on the pleadings. Disputed Classes of Documents 1. The plaintiff requested all defendants to discover documents in 12 nominated classes. Caesarstone Australia argued that it should not be obliged to provide verified discovery of Classes 4, 9, 10 and 12. WK Marble argued that it should not be obliged to provide verified discovery of Classes 6, 9 and 12. Laminex Group argued that it should not be obliged to provide verified discovery of Classes 4, 9 and 12. Class 4: Prior Claims or Proceedings 1. Class 4 of documents is in the following terms: "All documents, wherever created and located, discovered by the … defendant in any claims and/or similar proceedings initiated against it in relation to exposure RCSD [Respirable Crystalline Silica Dust] in this jurisdiction and/or any other local and/or international jurisdiction prior to 1 September 2019." (Emphasis added) 1. Counsel for the plaintiff submitted (MFI 2, par 9) that documents discovered by a defendant in other proceedings or claims in relation to exposure to RCSD are relevant to the issue of the defendant's knowledge in relation to the risk of injury to stonemasons using its products. 2. Caesarstone Australia submitted (MFI 5, par 5) that the description of documents does not establish why they would be relevant to any facts in issue in the proceedings, and in any event the description is unduly broad and oppressive. 3. Laminex Group submitted (MFI 4, par 9) that the plaintiff had sought, and Laminex Group did not oppose, discovery of all documents relating to the knowledge of Laminex Group to the risk of injury to stonemasons from exposure to RCSD prior to 1 September 2019 (Class 1). In addition, the plaintiff had also sought in Classes 2, 3, 7 and 8, documentation which related to the risk of injury to stonemasons exposed to RCSD. Laminex Group did not oppose discovery of documents in Classes 1, 2, 3, 7 and 8. 4. In ordinary litigation, documents discovered in previous proceedings would not normally be made available to a party conducting current proceedings. However, proceedings for damages in the Dust Diseases Tribunal are not ordinary litigation. There are two provisions in the Dust Diseases Tribunal Act 1989 (NSW) (DDT Act) which mean that evidence or documents from previous proceedings can be tendered in current proceedings. 5. Section 25(3) of the DDT Act provides as follows: "(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties." 1. Section 25A of the DDT Act deals with "material already obtained" and provides as follows: "(1) Material obtained for the purposes of proceedings before the Tribunal by discovery or interrogatories may: (a) with the leave of the Tribunal, and (b) with the consent of: (i) subject to subparagraph (ii), the party who originally obtained the material or the party's Australian legal practitioner, or (ii) another person prescribed by the rules, be used in other proceedings before the Tribunal, whether or not the proceedings are between the same parties. (2) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances." 1. The bulk of litigation in the Dust Diseases Tribunal since its inception in 1989 has concerned asbestos-related diseases. Most practitioners in the Tribunal keep a vast archive of documents and material tendered or made available in previous cases. This material is then deployed in current proceedings. Litigation arising out of silicosis contracted from working with engineered stone is in its infancy in the Tribunal. In my view it is appropriate for Mr Saroo to have access to documents discovered in any previous proceedings or claims involving Caesarstone Australia or Laminex Group, as such material might bear upon issues in Mr Saroo's case. It is appropriate for material from previous proceedings to be made available to the solicitors for Mr Saroo, in order to "ensure that the outstanding matters in the dispute are properly tried", see r 21.8 UCPR as modified by r 4 of the DDT Rules. 2. In Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306, Brereton J said at [17]: "In that context, it is necessary to remember the purposes of discovery. While it is a common use of discovery to obtain evidence of Party B's knowledge or conduct, that is far from its sole use or purpose. The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are 'playing with all the cards face up on the table'. Discovery has the consequence that Party B cannot adduce documentary evidence at trial which takes Party A by surprise. Thus, simply ascertaining what documents relevant to a fact in issue are in the possession of Party B and may be deployed at trial by that party, or may aid Party A's case or harm Party B's case, is a relevant and proper purpose of discovery. It is a means of a party ascertaining what the other party has in its hand, and thereby avoiding surprise." 1. This litigation is one of the first engineered stone cases which is approaching the stage of a trial in this Tribunal. In a case where the plaintiff was a worker who may have appreciated little or nothing about the dangers of the inhalation of silica dust, and the defendants knew or ought to have known of the dangers, there is good reason to require all cards to be face up on the table. 2. I propose to make an order for verified discovery of Class 4 documents against Caesarstone Australia and Laminex Group. As a matter of common sense and practicality, such discovery should be provided, initially, by the solicitors for each defendant providing to the solicitors for Mr Saroo a copy of any list of documents (verified or unverified) discovered in prior proceedings. The solicitors for Mr Saroo could then indicate which, if any, of those documents they wish to inspect. By this means there would not be undue expense cast upon the defendants, as they could initially provide the list of documents from previous claims or proceedings, and would only be required to produce the documents for inspection upon request by the solicitors for Mr Saroo. 3. In a letter dated 5 April 2024 (PX 1, p 107) the solicitors for Caesarstone Australia say that their client "has provided disclosure which is consistent with the disclosure it has provided in litigation that it has been involved in in Australia since the litigation first commenced". The orders which I will make will achieve the same aim, with the added formality of requiring the defendant to give verified discovery, not just disclosure. 4. Laminex Group also submitted that Class 4 is far too wide and does not relate to documents relevant to a fact in issue in the proceedings. Laminex Group submitted (MFI 4, par 11) that such a wide class of documents captures many documents from other claims or litigation, which are not relevant to the asserted issue of the knowledge of the defendant. It was submitted that, for example, Class 4 is wide enough to require discovery of medical records from any previous claimants. I reject that submission. What Class 4 seeks is not all documents from previous litigation, but documents discovered by the defendant in previous litigation. 5. I will order verified discovery of Class 4 documents against Caesarstone Australia and Laminex Group. Class 6: Annual Reports 1. The discovery of documents in Class 6 is opposed only by WK Marble. Counsel for the plaintiff submitted (MFI 2, par 20) that this class of documents is relevant to the capacity of WK Marble to provide warnings with respect to its products and relevant to the resources which WK Marble had at its disposal to provide such warnings. 2. Counsel for WK Marble submitted (MFI 3, pars 18-21) as follows: 1. The Annual Reports will contain information that is not remotely relevant to any fact in issue in the proceedings. 2. There is no pleading which puts in issue the capacity of WK Marble to provide warnings. 3. There is no reason to expect that the Annual Reports will materially assist the plaintiff on the purported issue of capacity or resources to provide warnings. 4. An order for the discovery of this class of documents is not consistent with the just, quick and cheap determination of the real issues in the proceedings. 1. Counsel for WK Marble also pointed out that in its Defence WK Marble had specifically pleaded the warnings that it did provide. 2. In Caltex Refineries (Qld) v Stavar (2009) 75 NSWLR 649 at [103] the Court of Appeal set out a non-exhaustive list of features to be considered in determining whether a duty of care existed and in identifying the scope and content of such a duty. One of those features was "the degree and nature of control able to be exercised by the defendant to avoid harm". 3. WK Marble pleads that it did provide warnings. The plaintiff may wish to argue that WK Marble should have done more by way of warnings. If WK Marble had the resources available financially to provide better warnings, then that is a fact relevant to the scope and content of its duty of care and whether there had been a breach of that duty. 4. I do not regard it as onerous or vexatious for WK Marble to be required to provide verified discovery of its Annual Reports. Presumably they will establish the size and nature of the operation conducted by WK Marble, at least in financial terms. I find that such documents would be relevant to a fact in issue in the case. I will order WK Marble to provide verified discovery of the documents in Class 6. Class 9: Marketing and Promotional Expenditure 1. Class 9 of the documents sought is as follows: "All documents, wherever created and located, relating to the marketing and promotional expenditure of the… defendant in relation to engineered stone products sold in the Australian market prior to 1 September 2019." 1. Counsel for the plaintiff made it plain in oral submissions that one should read this Class with a comma after the word "marketing", so that the documents sought related either to marketing, or to promotional expenditure. It was not intended to confine marketing to marketing expenditure. 2. Counsel for the plaintiff submitted (MFI 2, par 11) that this class of documents is relevant to the issue of knowledge of the dangers associated with the use of the defendant's products, the methods and means which the defendant used in promotion of the products, and the means which the defendant had at its disposal to communicate a different message to stonemasons concerning the dangers of RCSD. 3. Counsel for Caesarstone Australia submitted (MFI 5, par 8) that such an onerous search could not be justified. It was submitted that a more targeted approach to determining marketing budget, such as from company reports, should be adopted. 4. Counsel for WK Marble submitted (MFI 3, pars 23-28) as follows: 1. This class does not relate to any fact in issue in the proceedings. 2. The class is exceedingly broad, requiring 19 years worth of documents relating to marketing and expenditure. 3. The affidavit of Mr Norman shows that records prior to 2006 are not in electronic form and Mr Norman has no knowledge of the whereabouts of any documentation, if it exists. 4. The records from 2006 to 2019 contain little information on marketing and expenditure and do not differentiate between different product lines in respect of the allocation of expenditure. 5. It is difficult to ascertain how documents relating to marketing and promotional expenditure are relevant to the defendant's knowledge of the dangers of RCSD and the measures available to address such dangers. These issues have been specifically addressed by classes of documents which are not in dispute. 1. Counsel for Laminex Group submitted (MFI 4, pars 19 and 20) that the material sought has no relevance to any knowledge of Laminex Group as to the dangers of RCSD and the means by which those dangers could have been reduced. Further, uncontested classes of documents bear directly upon that issue. 2. On the face of it, it is difficult to see why Class 9 documents are relevant to a fact in issue in the case. The plaintiff's case is not that he was induced to purchase products by some representations, marketing or promotion. His case is that he was a stonemason who worked with these products as part of his trade. 3. Further, the submission by counsel for the plaintiff that such documents go "directly" to the issue of knowledge of the dangers associated with engineered stone is, with respect, hard to fathom, when many other classes of documents (the discovery of which is not opposed) do go directly to this issue. 4. I find that the documents described in Class 9 are not relevant to a fact in issue and it has not been demonstrated that such documents could contain material that could rationally affect the assessment of the probability of the existence of a relevant fact in issue. 5. I decline to order the defendants to provide verified discovery of Class 9 documents. Class 10: Composition of Engineered Stone Products 1. Caesarstone Australia opposes an order for verified discovery of the documents in Class 10 which is as follows: "All documents, wherever created and located, relating to the inception, creation, formulation, mixture, specifications, and production/manufacture of the fourth defendant's engineered stone products prior to 1 September 2019." 1. Counsel for the plaintiff submitted (MFI 2, par 13) that this class is relevant to the production by Caesarstone Australia of products containing silica, the plaintiff's exposure to silica from its products, knowledge of the foreseeable risk of injury to stonemasons, capacity to provide warnings, and whether Caesarstone Australia discharged its duty of care to stonemasons exposed to dust from engineered stone products. 2. Senior Counsel for Caesarstone Australia submitted (MFI 5) that Caesarstone Australia admitted that its products contained silica and otherwise contended that specifications and methods of manufacture were not an issue in these proceedings. It was also submitted that Class 10 was unnecessary as Caesarstone Australia had already produced material safety data sheets for the products. These were referred to in the Defence. 3. This being a silicosis case, relevant issues will include whether there was exposure to RCSD, the level of silica in each product used by the plaintiff, and the effects of a particular defendant's RCSD upon the plaintiff. Silicosis is a divisible disease, and if the plaintiff proves exposure, it will be necessary to divide his damages between defendants having regard to, inter alia, the length of time to which he was exposed to a particular defendant's dust, and the level of silica dust in each product. 4. Against that background, I find that the documents in Class 10 are relevant to facts in issue in the case. It is not to the point that Caesarstone Australia has already produced documents concerning the specifications and content of its products. The plaintiff is entitled to have all documents falling within Class 10, not those which Caesarstone Australia chooses to give to the plaintiff. 5. There will be an order for Caesarstone Australia to provide verified discovery of Class 10 documents. Class 12: Supply of Engineered Stone Products to Particular Parties 1. Class 12 is in the following terms: "All documents, wherever created and located, relating to the supply/sale of the… defendant's engineered stone products to the Plaintiff, Purity Stone Pty Ltd, Stone-Tech (Holdings) Pty Ltd, Stone-Tech (Holdings) Australia Pty Ltd, SWC BF (NSW) Pty Ltd, Universal Granite Pty Ltd, Macarthur Marble & Granite Pty Ltd, Royal Granite & Marbles Pty Ltd, Made in Stone, Wintim Stone Australia Pty Ltd, products prior to 1 September 2019." 1. Class 12 is opposed by Caesarstone Australia, WK Marble and Laminex Group. 2. Counsel for the plaintiff submitted (MFI 2, pars 15, 24 and 37) that these documents are relevant to: 1. The issue of the plaintiff's exposure to silica dust from his work with each defendant's stone products. 2. The issue of any warnings which each defendant provided in respect of its products. 1. Senior Counsel for Caesarstone Australia submitted (MFI 5, pars 11 and 12) that: 1. This category seeks all documents relating to supply of the products by Caesarstone Australia to the plaintiff's employers. 2. The category is too broad and requires a search for and an analysis of documents that arguably relate in any way to such supply and is virtually open-ended. 3. Caesarstone Australia would accept the category if confined to documents that "record or evidence the supply/sale", rather than simply relate to these things. 1. I accept the submission of Senior Counsel for Caesarstone Australia that any discovery should be limited in that fashion. 2. Counsel for WK Marble submitted (MFI 3, pars 30-36) as follows: 1. The class is excessively broad and discovery is sought for an entire 19 year period, irrespective of when the plaintiff worked for any particular entity. 2. WK Marble is amenable to a compromise which limits the class of documents to: "All invoicing relating to the issues in the proceedings, being those pertaining to the supply or sale of WKMG's products for those periods of time that were either antecedent to, or that coincided with, dates on which your client performed work for any of the listed entities, whether as an employee or as a subcontractor." 1. This approach is really an amalgam of the submission of Caesarstone Australia recorded above, and the variation to Class 12 proposed by Laminex Australia, which is discussed immediately below. 2. Counsel for Laminex Group submitted (MFI 4, pars 22-26) as follows: 1. Category 12 requires Laminex Group to identify, review, compile and produce documents of no relevance to the proceedings, or the issues in dispute between the plaintiff and Laminex Group. 2. The plaintiff has supplied particulars of the periods during which he contracted with subcontractors, which would identify periods within the range of 2008 to 2019 when he had exposure to a Laminex Group product. 3. Laminex Group is willing to submit to a revised category regarding supply or sale documents as follows: "All documents, wherever created and located, relating to the supply and/or sale of the tenth defendant's engineered stone products to: (1) Universal Granite Pty Ltd between 1 March 2008 to 30 September 2019. (2) Macarthur Marble & Granite Pty Ltd between 1 March 2008 to September 2019. (3) Stone-Tech (Holdings) Pty Ltd between 1 March 2008 to September 2019. (4) Stone-Tech (Holdings) Australia Pty Ltd between 1 March 2008 to September 2019. (5) Royal Granite & Marbles Pty Ltd between 1 April 2015 and 30 June 2015. (6) Made in Stone between 1 May 2014 and 30 July 2017. (7) Wintim Stone Australia Pty Ltd between April 2018 and 31 May 2018." 1. This list is based upon particulars supplied by the solicitor for Mr Saroo (see DX 3, par 10). It is logical to confine discovery to those entities and those periods. I accept the submission of counsel for Laminex Group that any discovery given by Laminex Group should be confined in that fashion. I also accept the submission for Mr Saroo that, in relation to Caesarstone Australia and WK Marble, the relevant period for Stone Tech (Holdings) Australia Pty Ltd should be 17 August 2000 to September 2019. 2. There is another company, named "SWC BF (NSW) Pty Ltd", listed in Class 12. It is not mentioned in the detailed particulars supplied by the plaintiff's solicitor in the letter dated 14 April 2023, which is annexure "EV-2" to DX 3. This omission was raised with the parties on 15 May 2024. Ms Wade provided an explanation regarding the need to include SWC BF (NSW) Pty Ltd in the discovery orders in her email dated 16 May 2024 (PX 2). I accept that this company should be included in the discovery orders. The relevant period for this company is 30 October 2013 to September 2019. 3. Of course, Mr Saroo himself, and Mr Saroo's own company Purity Stone Pty Ltd, must be added to the list. The relevant period for this entity is 1 April 2008 to September 2019. 4. I find that, with the limitations discussed above, there should be verified discovery in Class 12, as such documents are relevant to whether or not Mr Saroo was exposed to the products of Caesarstone Australia, WK Marble or Laminex Group. A sensible way to provide such discovery would be by adopting the format of the draft list of documents to be found in PX 1, p 126. Costs 1. Each party has had some degree of success in relation to the contested categories of documents. For that reason I propose to order each party contesting the Notice of Motion to pay his or its own costs. Re-listing the Proceedings 1. To allow time after 30 June 2024, when verified discovery is due, for documents to be inspected, I will re-list the proceedings for directions in the Silicosis List on 5 August 2024. Orders 1. To give effect to the discussion and reasons above, the orders are: 1. Order the third defendant Caesarstone Australia Pty Ltd to provide verified discovery by 30 June 2024 of the classes of documents set out in pars 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 of Annexure "A" to the Notice of Motion filed on 15 April 2024. 2. Order the third defendant Caesarstone Australia Pty Ltd to provide verified discovery by 30 June 2024 of all documents, wherever created and located, recording or evidencing the supply or sale of its engineered stone products to: 1. Universal Granite Pty Ltd between 1 March 2008 to 30 September 2019. 2. Macarthur Marble & Granite Pty Ltd between 1 March 2008 to September 2019. 3. Stone-Tech (Holdings) Pty Ltd between 1 March 2008 to September 2019. 4. Stone-Tech (Holdings) Australia Pty Ltd between 17 August 2000 to September 2019. 5. Royal Granite & Marbles Pty Ltd between 1 April 2015 and 30 June 2015. 6. Made in Stone between 1 May 2014 and 30 July 2017. 7. Wintim Stone Australia Pty Ltd between April 2018 and 31 May 2018. 8. Purity Stone Pty Ltd between 1 April 2008 to September 2019. 9. The plaintiff. 10. SWC BF (NSW) Pty Ltd between 30 October 2013 to September 2019. 1. Order the fourth defendant WK Marble and Granite Pty Ltd to provide verified discovery by 30 June 2024 of the classes of documents set out in pars 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 of Annexure "B" to the Notice of Motion filed on 15 April 2024. 2. Order the fourth defendant WK Marble and Granite Pty Ltd to provide verified discovery by 30 June 2024 of all documents, wherever created and located, recording or evidencing the supply or sale of its engineered stone products to: 1. Universal Granite Pty Ltd between 1 March 2008 to 30 September 2019. 2. Macarthur Marble & Granite Pty Ltd between 1 March 2008 to September 2019. 3. Stone-Tech (Holdings) Pty Ltd between 1 March 2008 to September 2019. 4. Stone-Tech (Holdings) Australia Pty Ltd between 17 August 2000 to September 2019. 5. Royal Granite & Marbles Pty Ltd between 1 April 2015 and 30 June 2015. 6. Made in Stone between 1 May 2014 and 30 July 2017. 7. Wintim Stone Australia Pty Ltd between April 2018 and 31 May 2018. 8. Purity Stone Pty Ltd between 1 April 2008 to September 2019. 9. The plaintiff. 10. SWC BF (NSW) Pty Ltd between 30 October 2013 to September 2019. 1. Order the seventh defendant Smartstone Australia Pty Ltd to provide verified discovery by 30 June 2024 of all classes of documents set out in MFI 1. 2. Order the eighth defendant Halifax Vogel Group Pty Ltd to provide verified discovery by 30 June 2024 of all classes of documents set out in MFI 1. 3. Order the tenth defendant Laminex Group Pty Ltd to provide verified discovery by 30 June 2024 of the classes of documents set out in pars 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 of Annexure "D" to the Notice of Motion filed on 15 April 2024. 4. Order the tenth defendant Laminex Group Pty Ltd to provide verified discovery by 30 June 2024 of all documents, wherever created and located, recording or evidencing the supply or sale of its engineered stone products to: 1. Universal Granite Pty Ltd between 1 March 2008 to 30 September 2019. 2. Macarthur Marble & Granite Pty Ltd between 1 March 2008 to September 2019. 3. Stone-Tech (Holdings) Pty Ltd between 1 March 2008 to September 2019. 4. Stone-Tech (Holdings) Australia Pty Ltd between 1 March 2008 to September 2019. 5. Royal Granite & Marbles Pty Ltd between 1 April 2015 and 30 June 2015. 6. Made in Stone between 1 May 2014 and 30 July 2017. 7. Wintim Stone Australia Pty Ltd between April 2018 and 31 May 2018. 8. Purity Stone Pty Ltd between 1 April 2008 to September 2019. 9. The plaintiff. 10. SWC BF (NSW) Pty Ltd between 30 October 2013 to September 2019. 1. Order each party to pay his or its own costs of the Notice of Motion filed on 15 April 2024. 2. Re-list the proceedings for directions in the Silicosis List on 5 August 2024. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2024