Gladstone Ports Corp class action evidence ‘missing’
NEW evidence in the first class action case to be tried in a Queensland court is 'missing' with Gladstone Ports Corporation employees needing to search "behind sofas" at many sites for the material.
The evidence - a book containing the minutes of daily site meetings - was revealed by two former environmental officers who worked for GPC during the bund wall construction stage.
Lawyers for the government organisation say they don't know where the book is.
The evidence could be vital for a class action case involving more than 150 commercial fishers and associated business people who are suing GPC for $100 million-$150 million.
Those plaintiffs claim works carried out by the corporation in the Gladstone Harbour negatively impacted the water quality, fish health and fish numbers and a domino impact on the industry members' businesses.
The works were carried out in about 2010, included dredging and building of a bund wall.
The case is in the disclosures part of the process where the plaintiffs request disclosure of documents, emails, audio files and any other records GPC has in its possession that are relevant to the plaintiffs' case.
On Tuesday the matter was in the Supreme Court in Rockhampton where the plaintiffs applied for disclosure of further material not requested in the first round.
This application included the request for disclosure of a book dubbed the Day Book which contained minutes from daily meetings between GPC managers and others involved in the construction of the bund wall.
Lachlan Armstrong QC for the plaintiffs said this document was discovered during the process of preparing the plaintiff's 'lay' witness statements.
"It is a document we hadn't previously appreciated existed," he said.
"We've identified in the aide-memoire (a memorandum summarising items of an agreement) what the document is. It's described as the minutes of daily site meetings.
"We understand that the people (and senior managers) … who were involved in the construction stage of the bund and the bund filling process referred to it as a Day Book.
"It recorded the minutes of daily meetings that were had by those senior managers to discuss what work was going on over the course of the day, what issues were arising in relation to the work as it was ongoing.
"It seems to us to be clearly highly relevant."
Mr Armstrong said GPC's response to the disclosure request was the company had not located any Day Books at all.
He said there was a "fairly long explanation from GPC saying they might have to send out people to go and look under desks and behind sofas through a number of different buildings at the GPC premises".
Mr Armstrong said the plaintiffs were surprised there was no mention of whether GPC asked any of their employees who were involved in those meetings and knew about the book back when it was used, if they knew where it might be today.
The plaintiffs also seek disclosure of emails between GPC staff about the daily site meetings and minutes of those meetings.
"It appears, with the greatest respect, to be making a mountain out of a molehill," he said.
Damien Clothier QC for GPC said in a letter sent by Clyde and Co (plaintiffs' lawyers) from May 22, 2020, it was implied the information about the book and thousands of emails about daily site meetings minutes was provided by two witnesses.
He said in another letter on May 25, Clyde and Co outlined the items were relevant due to many of the search criteria that had been set out and agreed upon earlier in proceedings.
"This is undeniably a very, new, substantial and late request," Mr Clothier said.
He said under the Documents Plan, these requests re quire an explanation of importance to the resolving of this case, along with evidence of relevance.
Mr Clothier said the request had potential to disrupt the case going forward.
He said there was no explanation of when the two witnesses were first spoken to or when they revealed the existence of these documents the plaintiffs now sought, or why the discussions only occurred recently.
Mr Clothier said due to the scope of the search request, and at such a late stage, it would be unreasonable for GPC to look for them.
He said they most likely existed in GPC's hard copy archives, which GPC had not been required to search through to date and the work involved to search through them would be "enormous".
Mr Clothier requested Justice Graeme Crow refuse the request.
Mr Armstrong responded by saying the book was a single hard copy book, as the plaintiffs understood it.
He said in terms of the searches required, from the response from GPC, there was an absence of information about whether GPC had asked any of the managers involved with the book where it might be now.
He said in terms of this being late stage, it was not late.
Mr Armstrong said the parties were now at the stage of identifying particular disclosures that were anticipated to be a probable consequence of the general disclosure the plaintiffs received last year.
He said 84 per cent of GPC's disclosure was only handed over in December 2019, just before Christmas.
Mr Armstrong said if Justice Crow did not feel the plaintiffs had adequately addressed the requirements needed for the disclosure of the Day Book, the plaintiffs sought an adjournment in order to be able to justify the request.
He said with regards to the emails, GPC was already carrying out an exercise with back-up tapes of emails, which meant it would not be unreasonable to carry out this search for the daily site meetings emails from the various managers at the same time.
"It's an additional aspect it (GPC) has already agreed to undertake," Mr Armstrong said.
Justice Crow adjourned the proceedings, informing parties he would deliver his judgment next week.