BUSHTOWN HOLDINGS PTY LTD -v- CONLAN & ANOR [1999] WASC 123

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 123
Case No:	CIV:1603/1998	Heard:	3 AUGUST 1999
Coram:	MASTER SANDERSON	Delivered:	10/08/99
No of pages:	11	Judgment Part:	1 of 1
Result:	Further discovery ordered
PDF Version

Parties:	BUSHTOWN HOLDINGS PTY LTD JOHN JAMES JOSEPH CONLAN JULIE MAREE CARTER
Catchwords:	Discovery of particular documents Order 26 r 6 Discretion to refuse order Consideration of principles
Legislation:	Supreme Court Rules O 26 r 6
Case References:	Australian Broadcasting Commission v Parish (1981) 48 FLR 292 Beecham Group Ltd v Bristol-Myers Co [1979] VR 273 British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] 1 KB 369 Hadid v Lenfest Communications Inc (1996) 70 FCR 403 Harman v Secretary of State for the Home Department [1983] 1 AC 280 John Allan Ltd v Keegan [1968] WAR 125 Mack v Federal Commissioner of Taxation (1983) ATC 4043 MacKay Sugar Co-operative Association Ltd v CSR Ltd (1996) 63 FCR 408 Mulley v Manifold (1959) 103 CLR 341 Pacific Basin Exploration Pty Ltd v XLX NL [1985] WAR 11 Taylor v Batten [1878] 4 QBD 85 Taylor v Commissioner of Railways [1974] Qd R 131 The Compagnie Financiere Et Commerciale du Pacifique v The Peruvian Guano Co [1882] 11 QBD 55 Trade Practices Commission v Bata Shoe Co of Australia Pty Ltd (1980) 44 FLR 149 Weir v Greening [1957] VR 296 Grant v Downs (1976) 135 CLR 674 Minter v Priest [1930] AC 558 National Employers Mutual General Insurance Association Ltd v Waird (1979) 141 CLR 648 State Energy Commission of Western Australia v Griffin Coal Mining Co Ltd (1985), unreported; SCt of WA; Library No 5882; 9 May 1985

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BUSHTOWN HOLDINGS PTY LTD -v- CONLAN & ANOR [1999] WASC 123 CORAM : MASTER SANDERSON HEARD : 3 AUGUST 1999 DELIVERED : 10 AUGUST 1999 FILE NO/S : CIV 1603 of 1998 BETWEEN : BUSHTOWN HOLDINGS PTY LTD

Plaintiff

AND

JOHN JAMES JOSEPH CONLAN

Defendant

JULIE MAREE CARTER

Defendant To Counterclaim

Catchwords:

Discovery of particular documents - Order 26 r 6 - Discretion to refuse order - Consideration of principles

Legislation:

Supreme Court Rules O 26 r 6

Result:

Further discovery ordered

(Page 2)
Representation:

Counsel:

Plaintiff : Mr P A Kyle

Defendant : Mr J A Muller

Defendant To Counterclaim : Mr P A Kyle

Solicitors:

Plaintiff : Kyle & Co

Defendant : John Muller & Associates

Defendant To Counterclaim : Kyle & Co

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

Australian Broadcasting Commission v Parish (1981) 48 FLR 292
Beecham Group Ltd v Bristol-Myers Co [1979] VR 273
British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] 1 KB 369
Hadid v Lenfest Communications Inc (1996) 70 FCR 403
Harman v Secretary of State for the Home Department [1983] 1 AC 280
John Allan Ltd v Keegan [1968] WAR 125
Mack v Federal Commissioner of Taxation…

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.

Keep reading for free

Create a free CaseChat account to read Bushtown Holdings Pty Ltd v Conlan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] WASC 123
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Bushtown Holdings Pty Ltd initiated proceedings against John James Joseph Conlan and Julie Maree Carter, seeking the recovery of funds allegedly converted by Conlan. The primary dispute centres on the ownership of shares in Bushtown Holdings, with Conlan asserting that he is the rightful owner, while Carter claims the shares were transferred to her and another party. The court was tasked with determining whether Carter's diaries, which she claimed contained private thoughts and were not relevant to the dispute, should be disclosed.

The court held that the diaries were discoverable as they contained information that could potentially advance Conlan's case or damage Carter's case. The court emphasised that the test for discoverability is whether the documents relate to any matter in question between the parties, a broad test that encompasses documents that may lead to a train of enquiry. Despite the potential invasion of privacy, the court found that the need for open justice and procedural fairness outweighed Carter's privacy concerns. The court concluded that the diaries were pivotal to the dispute and ordered their disclosure, subject to any privilege claims being adequately substantiated.

Orders