Blomeley v Armstrong Jones Management Pty Ltd and ING Real Estate Joondalup BV - [2010] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BLOMELEY -v- ARMSTRONG JONES MANAGEMENT PTY LTD and ING REAL ESTATE JOONDALUP BV [2010] WADC 56

CORAM: REGISTRAR KINGSLEY

HEARD: 19 MARCH 2010

DELIVERED : 27 APRIL 2010

FILE NO/S: CIVO 84 of 2009

BETWEEN: DAVID BLOMELEY
Plaintiff
AND
ARMSTRONG JONES MANAGEMENT PTY LTD and ING REAL ESTATE JOONDALUP BV
Defendant

Catchwords:

Practice - Application for pre-action discovery - Order 26A r 3 and O 26A r 4 Rules of the Supreme Court 1971

Legislation:

Rules of the Supreme Court 1971

Result:

Application allowed as to O 26A r 4
Application dismissed as to O 26 r 3

Representation:

Counsel:

Plaintiff: Mr A J Klein
Defendant: Ms S C Mathot

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: SRB Legal

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

CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279
Davis v Sagar, unreported; SCt of WA; Library No 980443, 10 August 1998
Kocis v S E Dickens Pty Ltd [1998] 3 VR 408
The Hancock Family Memorial Foundation v Fieldhouse [No 2] [2008] WASC 147
Waller v Waller [2009] WASCA 61

REGISTRAR KINGSLEY: The plaintiff has brought an originating summons seeking pre‑action discovery pursuant to O 26A r 3 and r 4 of the Rules of the Supreme Court 1971. The basis of the application is that the defendant provide pre‑action discovery to enable the plaintiff to identify a potential party and to obtain documents relating to the issue of liability in respect of an accident which occurred on 14 January 2009 where the plaintiff slipped and fell on the defendant's premises.
In an affidavit of Yasmin Maree Green sworn 3 September 2009 the plaintiff suffered injuries when he slipped on a spill of liquid at the defendant's premises. In an affidavit by Allon Jonothan Klein sworn 15 March 2010 Klein deposes the plaintiff suffered a shoulder injury being a left full thickness tear of the supraspinatus tendon of his right shoulder which required surgical repair.
In an affidavit sworn by Green on 15 February 2010 Green deposes that Greenland Legal identified Airlite Cleaning Pty Ltd (Airlite) as the shopping centre cleaners at the time of the plaintiff's accident. Greenland Legal also advised that SRB Legal, the solicitors for the defendant, hold CCTV surveillance film of the accident.

Order 26A r 3

Order 26A r 3 is directed to discovery to identify a potential party. Order 26A r 3 provides that if a person who appears to have a cause of action against a potential party but the person, after reasonable inquiries, has not been able to ascertain a description of the potential party sufficient to commence proceedings then the rule applies. The objective of the rule is to enable the plaintiff to seek information, documents or any object from the potential party that may assist in ascertaining the description of the potential party.
The affidavits filed by Green and Klein indicate that the plaintiff has identified two potential parties to the proceedings namely:
(i)the defendant to this application;
(ii)Airlite.
In my opinion the application pursuant to O 26A r 3 must fail as the plaintiff has identified the potential parties and has not shown there are other potential parties against whom the plaintiff wishes to proceed and who cannot be identified.

Order 26A r 4

Order 26A r 4 provides that if a person who may have a cause of action against a potential party wants to commence proceedings against a potential party but the person, after reasonable inquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take proceedings, the plaintiff may bring an application seeking discovery from the potential party of documents that party had, has, or it is likely to have had, or have, in their possession that may assist in making the decision.
In this regard the plaintiff seeks to determine whether the defendant has met the standard of care under the Occupiers' Liability Act 1985. The plaintiff's counsel submits that the frequency of inspection of floors is a crucial factor in determining that the standard of care has been met. Counsel for the plaintiff cites Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 where Phillips JA at 416 states that the operator of a supermarket is under some obligation, in taking reasonable measures for the safety of its customers, to look to the cleaning of the floors in the course of the day in order to protect against the risk otherwise arising from spillages. The question of what particular steps will serve to discharge that obligation will turn on its own facts. Phillips JA went on to say that where the circumstances are such as to require of the operator some system of periodic cleaning and inspection to guard against the risk of injury from spillages, then the question for the jury (or other fact‑finding tribunal) will be whether the defendant discharged that duty at the time of the plaintiff's fall.
The plaintiff's counsel submits that the documents sought and particularly the CCTV footage or surveillance capturing the accident, will enable the plaintiff to make a proper decision as to whether or not he should commence proceedings.
The defendant's counsel submits that the provision of the documents will not assist the plaintiff in determining whether it has a cause of action against the defendant. The defendant's counsel submits that the plaintiff has already identified there was an independent contractor namely, Airlite and therefore s 6 of the Occupiers' Liability Act provides an absolute defence to the defendant – provided of course the defendant can show that Airlite were competent cleaners, it was reasonable to appoint Airlite to clean the premises, and the defendant supervised Airlite. The defendant's counsel submits that the documents do not in any way affect the plaintiff's decision as to whether to issue proceedings against the defendant as the documents are more relevant to whether a defence pursuant to s 6 of the Act is available to the defendant.
The defendant's counsel goes on to submit that the provision of the CCTV footage will also not affect the plaintiff's decision to issue proceedings. The CCTV footage may contain evidence which will assist the plaintiff in this course of action against Airlite but not the defendant.
Order 26A was introduced to rectify the problem of a potential party being unable to obtain discovery from anyone other than a party in litigation. Master Sanderson in Davis v Sagar, unreported; SCt of WA; Library No 980443, 10 August 1998 at 5 suggested the rationale for O 26A is that parties may consider the evidence prior to commencing litigation rather than proceeding in the hope that sufficient material will be produced as part of discovery.
The Hancock Family Memorial Foundation v Fieldhouse [No 2] [2008] WASC 147 is authority for the proposition that before a court may make an order pursuant to O 26A r 4 the following conditions need to be satisfied:
1.the plaintiff wants to take proceedings against the potential party;
2.the plaintiff has made reasonable enquiries;
3.the plaintiff has not been able to obtain sufficient information to enable the decision to made whether to commence proceedings or not; and
4.There are reasonable grounds for believing that the potential party had, has or is likely to have had or to have in possession documents that may assist in making the decision whether to take the proceedings.
In Waller v Waller [2009] WASCA 61 the test as to whether the plaintiff may have a cause of action against the potential party requires something more than a mere assertion, conjecture or suspicion and requires there be some tangible backing or objective foundation such that the cause of action is more than a mere allegation, suspicion or assertion and is not speculative or remote.
In this regard having regard to the facts, in my opinion the plaintiff has shown that he may have a cause of action against the defendant. In my opinion it does not matter that the defendant may have a complete defence in considering whether an order should be made under O 26A r 4. If there is a complete defence then that may well be revealed by the documents discovered and goes to the question to be considered by the plaintiff as to whether or not to commence proceedings.
In this regard the plaintiff's counsel referred me to CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279 . Whilst the decision relates to a similar provision of the Federal Court Rules the court observed that the criteria for pre‑action discovery of documents should not be too generously interpreted. The court stated that the focus is on the question whether the applicant has the right to obtain relief and in the ordinary course such documents would go to the issue of liability. Even so, the court was of the opinion that the power to order pre‑action discovery does not go so far that the plaintiff may acquire all documents in a prospective defendant's possession which are relevant to its prospective cause of action.
In my opinion the CCTV footage, the cleaning staff roster for the morning of 14 January 2009 and the defendant's system for checking and inspecting the floor of the premises are documents that will assist the plaintiff in determining whether he ought to take proceedings against the defendant. In this case the pre‑action discovery goes towards the just and efficient disposition of the prospective action. By having in his possession the CCTV footage the plaintiff can make a considered decision whether to commence proceedings or not. If the plaintiff chooses to commence proceedings then the pleadings may be framed in a much more concise way with all material facts being provided so that the defendant fully understands the case that it has to meet without the need to seek particulars and, as is often the case, amendment of pleadings.
The plaintiff also seeks a copy of the slip resistant measurement reports that are required pursuant to cl 9.7(e) of the Request for Proposal for Cleaning Services. The clause provides that the contractor must carry out the requirement of AS4663 slip resistance measurement and AS4586 on a monthly basis at each property and must record the results of the standard in an approved manner. A copy of the results is supplied to the manager as well as a plan of the property indicating that test area each time.
There is no evidence that a copy of the results has been supplied to the manager but, more importantly, there is no evidence that the area the subject of the prospective action has been tested. I will not make an order in relation to the slip resistance measurement report.
Accordingly, I order the defendant to provide to the plaintiff copies of the documents referred to in 1(a)(b)(c) and (d) of the plaintiff's chamber summons. I will hear the parties in relation to the time for the provision of the documents and on costs.