Behan v Stonehouse [No 2]
[2018] WASC 205
•4 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BEHAN -v- STONEHOUSE [No 2] [2018] WASC 205
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 4 JULY 2018
FILE NO/S: CIV 2549 of 2015
BETWEEN: MITCHELL BEHAN
Plaintiff
AND
SYLVIA LOUISE STONEHOUSE
Defendant
Catchwords:
Practice and procedure - Mutual further and better discovery applications - Discovery already provided - Likely existence of further documents - Relevance to issues
Legislation:
Nil
Result:
Defendant's application refused
Plaintiff's application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Mills Oakley |
| Defendant | : | Noble Law |
Case(s) referred to in decision(s):
Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18
KENNETH MARTIN J:
Prior to a CMC List directions hearing on 29 March 2018 in this pending defamation action, both parties through their lawyers exchanged 'Minutes of Proposed Consent Orders' on 28 March 2018 ‑ each seeking further and better discovery from the other side. It must be noted there was no accord or consent between the parties as regards their respective minutes. The defendant sought many extra documents in par 1 of her minute. The plaintiff sought six extra documents in par 1 of his minute, including original emails referred to by the defendant in discovered emails. See generally the correspondence on that issue at page 102 of the affidavit of Robyn Bourne sworn 28 March 2018.
It is apparent both sides have already given discovery of documents by an exchange of lists.
In order to obtain further and better discovery orders, it is clear that a proponent needs to show that two fundamental criteria are met for each extra document or category of document that is pursued, namely:
(a)it is more likely than not that the requested further documents either exist or are likely to exist in the possession of the party on the balance of probabilities - thereby providing an evidentiary basis to negate what would otherwise be the conclusiveness of the parties' exchanged list of discovered documents on the issue; and
(b)that the further documents can each be shown to be potentially relevant to an issue arising or potentially arising between the parties at their looming trial.
See Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18 [12] ‑ [16] per Le Miere J for a summary of the legal principles in relation to Rules of the Supreme Court 1971 (WA) O 26 r 6.
The plaintiff resists each request as issued by the defendant seeking the extra documents on the basis that either one or both of the key criteria for further and better discovery as identified above are not satisfied. The resistant position is set out under the plaintiff's written submissions of 11 April 2018. I directed the plaintiff to file any written submissions to facilitate a disposition of this interlocutory disputation on the papers: see par 2 of my orders of 29 March 2018.
Under par 3 of my orders of 29 March 2018, the defendant was ordered to file any responsive written submissions by 23 April 2018. The defendant filed such submissions, albeit a week late on 1 May 2018, pressing claims in respect of the many extra documents it requested. However, at some points the defendant did purport to accept the position expressed under the plaintiff's submissions (as a so-called 'admission') to the effect that the plaintiff had either given discovery of all documents it held on a particular issue or that there were no documents for it to discover.
I do not propose to rule individually upon the several requests as made by the defendant for what would amount to a large quantity of extra documents from the plaintiff. In short, I accept the plaintiff's resistance arguments as articulated in his written submissions of 11 April 2018. The requested documents are either not relevant to a live issue in the litigation, or the defendant has not discharged her evidentiary onus to show that on the balance of probabilities such documents do exist and are in the plaintiff's possession.
In other words, the material put before me by the defendant on her application has not sufficiently impugned, collaterally or otherwise, the state of the plaintiff's primary discovery.
I reached that position in circumstances where the plaintiff's lawyers made it absolutely explicit to the defendant on a number of occasions that he is not seeking to obtain any component of special economic damages at a forthcoming defamation trial. For example, at par 1 of the plaintiff's written submissions of 11 April 2018, it is said 'the Plaintiff has not pled economic loss'. Rather, he is seeking general and aggravated damages for being allegedly defamed by the defendant in the respects as pleaded.
I therefore agree with the plaintiff's position that the requests for all the extra financial documents as identified against the plaintiff and his related corporations, are here, irrelevant. I decline to make any of the further and better discovery orders sought by the defendant under her minute of 28 March 2018.
I also regretfully express my inferred view from the materials that the scope and range of the defendant's late request for all these extra documents was oppressive within this litigation, which commenced in 2015 and is listed for a provisional two‑week trial in September this year. The sheer scale of the request is more akin to an exercise in attempted annoyance or late harassment - rather than a request genuinely put to elicit documents that would truly assist this defendant at trial.
In comparison, the plaintiff's more limited request for six extra documents, which are identified under pars 1(a) ‑ (f) of its minute of 28 March 2018, in my view, pursues documents potentially relevant to issues in the case and is properly confined within its limited scope. Moreover, the earlier or original emails as requested on the face of it, do seem to be likely to exist in the defendant's possession or control. Accordingly, I will order that the defendant either provide those requested further documents to the plaintiff, or if that is not done, to swear out an affidavit explaining why that is and what her stated knowledge is concerning the existence of the extra as requested emails.
Consequently, the following orders will issue upon publication of these reasons to the parties:
(a)The defendant's application for further and better discovery against the plaintiff is refused. The defendant should pay the plaintiff's taxed costs of that application.
(b)The plaintiff's application for further and better discovery against the defendant as identified under par 1 of his minute of 28 March 2018, is allowed. The defendant should discover and provide copies of those original emails to the plaintiff, or provide her affidavit addressing any suggested inability by her to discover those documents, as I have identified in [11] above. The defendant should also pay the plaintiff's taxed costs of this application of the plaintiff.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TG
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES KENNETH MARTIN AND CORBOY4 JULY 2018
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