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Bolt v Bolt

Bolt v Bolt

Case [2023] WASC 162 22 May 2023

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BOLT -v- BOLT [2023] WASC 162
CORAM:   VANDONGEN J
HEARD:   21 FEBRUARY 2023
FURTHER WRITTEN SUBMISSIONS ON 3, 10 & 21 MARCH 2023

DELIVERED          :   22 MAY 2023
FILE NO/S:   CIV 1337 of 2022
BETWEEN:   STEVEN LYLE BOLT
Plaintiff
AND
PHILIP ROSS BOLT
First Defendant
LYNETTE BARBARA BOLT
Second Defendant
PHILIP ROSS BOLT AND LYNETTE BARBARA BOLT AS TRUSTEES FOR THE PR & LB BOLT FAMILY TRUST
Third Defendant
CLAYPANS HOLDINGS PTY LTD AS TRUSTEE FOR THE CLAYPANS SUPERANNUATION FUND
Fourth Defendant
SL & SL BOLT PTY LTD AS TRUSTEE FOR THE BOLT NO. 1 PROPERTY TRUST
Fifth Defendant
SL & SL BOLT PTY LTD AS TRUSTEE FOR THE BOLT NO. 2 PROPERTY TRUST
Sixth Defendant
PHILIP ROSS BOLT AND LYNETTE BARBARA BOLT AS TRUSTEES FOR THE PR & LB BOLT FAMILY TRUST
Plaintiff by counterclaim
STEVEN LYLE BOLT
Defendant by counterclaim

Catchwords:

Practice and procedure - Application to strike out parts of the statement of claim pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) - Application for extension of time - Abuse of process - Whether certain communications are subject to without prejudice privilege - Whether litigation was or might reasonably have been contemplated - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 20 r 19

Result:

Application for extension of time granted
Application to strike out dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P G Donovan
First Defendant	:	Mr W C J Zappia & Ms L J Bracewell
Second Defendant	:	Mr W C J Zappia & Ms L J Bracewell
Third Defendant	:	Mr W C J Zappia & Ms L J Bracewell
Fourth Defendant	:	Mr W C J Zappia & Ms L J Bracewell
Fifth Defendant	:	Mr W C J Zappia & Ms L J Bracewell
Sixth Defendant	:	Mr W C J Zappia & Ms L J Bracewell
Plaintiff by counterclaim	:	Mr W C J Zappia & Ms L J Bracewell
Defendant by counterclaim	:	Mr P G Donovan

Solicitors:

Plaintiff	:	MDS Legal
First Defendant	:	Clayton Utz
Second Defendant	:	Clayton Utz
Third Defendant	:	Clayton Utz
Fourth Defendant	:	Clayton Utz
Fifth Defendant	:	Clayton Utz
Sixth Defendant	:	Clayton Utz
Plaintiff by counterclaim	:	Clayton Utz
Defendant by counterclaim	:	MDS Legal

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

Alan Ramsay Sales & Marketing Ltd v Typhoo Tea Ltd [2016] 4 WLR 59
Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232
Barnetson v Framlington Group Ltd [2007] 3 All ER 1054
Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276; (2011) 193 FCR 479
Brown v Barber [2020] WASC 84
Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208 (S)
CMA Assets Pty Ltd Formerly Known as CMA Contracting Pty Ltd v John Holland Pty Ltd [No 4]

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 Bolt v Bolt

Details

AGLC: Bolt v Bolt [2023] WASC 162
Case: [2023] WASC 162
Decision Date: 22 MAY 2023

CaseChat Overview and Summary

In the matter of Bolt v Bolt, the respondent, Karen Bolt, applied to strike out parts of the applicant's statement of claim as an abuse of process. The application was made pursuant to Order 20, rule 19(1) of the Rules of the Supreme Court 1971 (WA). The applicant, David Bolt, sought an extension of time to respond to the application. The dispute involved the interpretation of the without prejudice privilege in the context of communications between the parties. The Supreme Court of Western Australia was tasked with deciding whether certain communications were subject to the privilege and whether the litigation was or might reasonably have been contemplated at the time the communications were made.

The court considered whether the communications were made in the course of negotiations to settle a dispute, as required for the application of the without prejudice privilege. It also examined whether the litigation was or might reasonably have been contemplated at the time the communications were made. The court held that the privilege applied to the communications, as they were made in the context of negotiations to resolve a dispute. However, the court found that the litigation was not contemplated at the time the communications were made, as there was no indication that the parties intended to proceed to litigation. As a result, the court found that the privilege did not apply and allowed the application to strike out the relevant parts of the statement of claim.

The court's decision hinged on the specific facts of the case, particularly the nature of the communications and the circumstances in which they were made. The court found that the privilege did not apply to the communications because they were not made in the course of genuine attempts to negotiate a settlement. The court also found that the litigation was not contemplated at the time the communications were made, as there was no evidence to suggest that the parties intended to proceed to litigation. The court therefore allowed the application to strike out the relevant parts of the statement of claim. The final orders of the court included the striking out of certain parts of the statement of claim and the dismissal of the application for an extension of time.

Orders