AB v CD [No 2] - [2019] WASC 301

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AB -v- CD [No 2] [2019] WASC 301
CORAM:   TOTTLE J
HEARD:   15 AUGUST 2019
DELIVERED          :   15 AUGUST 2019
PUBLISHED           :   22 AUGUST 2019
FILE NO/S:   CIV 1571 of 2019
BETWEEN:   AB
Plaintiff
AND
CD
First Defendant
EF
Second Defendant
GH
Third Defendant

Catchwords:

Practice and procedure - Application to issue subpoena or for non-party discovery - Whether application constitutes 'fishing expedition' - Where reasonable grounds for believing that non-party is in possession of relevant documents - Where documents confined by reference to indorsement of writ - Where interests of justice favour grant of application for non-party discovery

Defamation - Case management principles - Where defendants allege irregularity in procedural steps taken by plaintiff - Whether plaintiff confined to particular course of procedure - Where administration of justice aided by procedure adopted by plaintiff

Criminal investigations - Seizure of mobile telephone - Criminal Investigation Act 2006 (WA) - Whether records of information made from seized property are seized property for purposes of Criminal and Found Property Disposal Act 2006 (WA) - Whether disclosure of the nature of the record constitutes 'dealing with' seized property

Statutory interpretation - Criminal Investigation Act 2006 (WA) and Criminal and Found Property Disposal Act 2006 (WA) - Disclosure of records produced in the course of criminal investigations for the purposes of civil proceedings - Whether legislation manifests intention for records not to be disclosed - No legislative intention discernible

Legislation:

Criminal and Found Property Disposal Act 2006 (WA) s 10
Criminal Investigation Act 2006 (WA) s 3, s 68, s 146, s 148, s 152
Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 1 r 4B, O 26A r 5(1)

Result:

Application for non-party discovery granted

Category: A

Representation:

Counsel:

Plaintiff	:	Mr R J Anderson QC
First Defendant	:	Mr J Maclaurin
Second Defendant	:	Mr J Maclaurin
Third Defendant	:	Mr J Maclaurin
First interested non-party	:	Mr S B Watters
Second interested non-party	:	Mr M Holgate

Solicitors:

Plaintiff	:	Bruce Legal Consultants (Perth)
First Defendant	:	Barry Nilsson Lawyers
Second Defendant	:	Barry Nilsson Lawyers
Third Defendant	:	Barry Nilsson Lawyers
First interested non-party	:	Equitas Lawyers Pty Ltd
Second interested non-party	:	Commissioner of Police (WA)

Case(s) referred to in decision(s):

Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246
Ex parte West Australian Newspapers [2008] WASCA 209; (2008) 38 WAR 177
Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382
Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142

TOTTLE J:

Introduction

In this defamation action the plaintiff wishes to inspect documents she believes are in the possession of the Commissioner of Police. The plaintiff has not prepared a statement of claim. She contends that she requires access to the documents to enable her to do so. In order to obtain access to the documents the plaintiff has applied for an order that she have leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v CD [No 2]

Details

AGLC: AB v CD [No 2] [2019] WASC 301
Case: [2019] WASC 301
Decision Date: 22 AUGUST 2019

CaseChat Overview and Summary

The applicant in this case, AB, sought to issue a subpoena or obtain non-party discovery from CD, who was not a party to the proceedings, in relation to documents that AB believed were relevant to the defamation action. The nature of the dispute was centred on whether AB's application constituted a fishing expedition and whether there were reasonable grounds to believe that CD possessed the relevant documents. The case was heard in the Supreme Court of Western Australia.

The court needed to determine whether AB's application for non-party discovery was a fishing expedition and whether there were reasonable grounds for believing that CD possessed the relevant documents. The court also had to consider whether the interests of justice favoured the grant of the application. Furthermore, the court needed to interpret the relevant sections of the Criminal Investigation Act 2006 (WA) and the Criminal and Found Property Disposal Act 2006 (WA) to determine whether the records of information made from seized property were seized property for the purposes of the latter Act and whether the disclosure of the nature of the record constituted 'dealing with' seized property.

The court found that AB's application for non-party discovery was not a fishing expedition, as the documents sought were confined by reference to the indorsement of the writ. The court also found that there were reasonable grounds for believing that CD possessed the relevant documents. The court held that the interests of justice favoured the grant of the application for non-party discovery. The court further found that the legislation did not manifest an intention for records not to be disclosed, and therefore, there was no legislative intention discernible that would prevent the disclosure of the records produced in the course of criminal investigations for the purposes of civil proceedings.

The court granted AB's application for non-party discovery, allowing AB to obtain the relevant documents from CD. The court also found that the records of information made from seized property were not seized property for the purposes of the Criminal and Found Property Disposal Act 2006 (WA), and that the disclosure of the nature of the record did not constitute 'dealing with' seized property.

Orders

Orders of the court

Application for non-party discovery granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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