BWS v Arv
[2020] WASCA 108
•3 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BWS -v- ARV [2020] WASCA 108
CORAM: MURPHY JA
MITCHELL JA
HEARD: 3 JULY 2020
DELIVERED : 3 JULY 2020
PUBLISHED : 3 JULY 2020
FILE NO/S: CACV 67 of 2020
BETWEEN: BWS
Appellant
AND
ARV
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: [ARV] -v- [BWS] [2020] WASC 154
File Number : CIV 2506 of 2019
Catchwords:
Appeal - Practice and procedure - Application for stay of an order for pre-action discovery pending the determination of an appeal against that order - Turns on own facts
Legislation:
Limitation Act 2005 (WA), s 15, s 40
Result:
Application for a stay granted
Urgent appeal order refused
Application for leave to appeal referred to the hearing of the appeal
Category: B
Representation:
Counsel:
| Appellant | : | J D MacLaurin SC |
| Respondent | : | M L Bennett |
Solicitors:
| Appellant | : | Hotchkin Hanly |
| Respondent | : | Bennett + Co |
Case(s) referred to in decision(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Kelbush Pty Ltd v ANZ Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Waller v Waller [2009] WASCA 61
REASONS OF THE COURT:
On 3 July 2020 we considered the appellant's application in an appeal filed on 26 June 2020. The application primarily sought a stay of an order for pre-action discovery made by the master on 4 June 2020. The substantive appeal is against the making of the order for pre-action discovery.
At the conclusion of the hearing, we made the following orders:
(1)The orders made by the master on 4 June 2020 in CIV 2506 of 2019 are stayed until the determination of this appeal or further order.
(2)The application for an urgent appeal order is dismissed.
(3)The application for leave to appeal is referred to the hearing of the appeal.
We said that we would publish reasons later. What follows are our reasons for making those orders.
Background
The parties to this appeal are former spouses. Both are medical practitioners.
The respondent is also a party to proceedings brought by certain of his relatives in a body in Singapore called the Islamic Religious Council of Singapore (Singapore proceedings). According to the respondent's affidavit in the primary proceedings, the Singapore proceedings concern his relatives' application to have him removed as a mutawalli (which he says is similar to a trustee) of a charitable trust.
The relatives have made various statements in documents produced before the Islamic Religious Council to the effect that the respondent is 'hardly a practising Muslim', has 'completely shirked his responsibility to support his children' and is unable to practise at St John of God Healthcare because of some misconduct on the respondent's part. The relatives have produced to the Islamic Religious Council copies of transcript from Family Court proceedings between the appellant and respondent, and child support assessments relating to their children. The material before the Islamic Religious Council does not attribute any statements to the appellant.
The respondent deposed before the master that he apprehended that the appellant must have given the transcript and child support assessments to his relatives, and believes that she may have made defamatory statements about him when doing so. He deposed to contemplating bringing proceedings in defamation against the appellant in respect of any defamatory communications to his relatives. The respondent sought discovery of documents constituting or evidencing any communications between the appellant and his relatives, between 1 January 2018 and 31 July 2019, 'regarding, or in any way relating to' the respondent.
The master made orders requiring that the appellant give this discovery within 21 days of the master's order: ie by 25 June 2020. The order was purportedly made under O26A r 4 of the Rules of the Supreme Court 1971 (WA). The master affirmatively answered the 'jurisdictional question' as to whether the respondent 'may have a cause of action' and found that it was appropriate to exercise his discretion in favour of ordering pre-action discovery.
The appeal to this court
The appellant appeals against the pre-action discovery order on three grounds. Ground 1 in effect contends that the master erred in answering the 'jurisdictional question' affirmatively. Ground 2 challenges the width of the discovery order made by the master. Ground 3 seeks to impugn the exercise of the master's discretion to order pre-action discovery.
The stay application
The appellant seeks a stay of the pre-action discovery order pending the determination of the appeal or other order. The principles governing the exercise of this court's discretion to grant a stay are well established.[1] Important considerations are whether the appeal will be rendered nugatory if a stay is not granted, whether the appeal has reasonable prospects of success and where the balance of convenience lies.
Whether the appeal would be rendered nugatory if a stay is not granted
[1] See, for example, Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
In the present case, the appeal would clearly be rendered nugatory if the appellant were required to give discovery before the appeal against the discovery order is determined.
Prospects of success
Provisionally, at this preliminary stage, it seems to us that ground 1 has good prospects of succeeding. It is well established that the jurisdictional question of whether an applicant for pre-action discovery may have a cause of action against a potential defendant is objective. While it is not necessary for the applicant to establish a prima facie case, there must be material to establish that the applicant may have a cause of action against the potential defendant. There must be 'some tangible backing, or objective foundation, that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion'.[2] Provisionally, at this preliminary stage, we find it difficult to see how the speculative prospect that, at some unknown time, the appellant might have said something, which is unknown, to one of the respondent's relatives which carried an unknown defamatory imputation, rises above mere 'allegation, suspicion or assertion'.
[2] See Waller v Waller [2009] WASCA 61 [75]; Kelbush Pty Ltd v ANZ Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374 [67].
It also seems to us, provisionally at this preliminary stage, that ground 3 has at least reasonable prospects of succeeding. The nature of the discretion to order pre-action discovery, and the factors relevant to its exercise, were referred to in Kelbush.[3] In the present case, the prospect of pre-action discovery disclosing a cause of action seems speculative, and the contemplated cause of action involves a statement made by the respondent's former wife to one of his relatives, with whom he was involved in a long-standing acrimonious dispute. The material before the master gave no reason to apprehend more than very limited damage to the respondent's reputation which could result from any such publication, even if it carried a defamatory imputation. Even if the cost of pre-action discovery was not disproportionate to any damages award likely to result from the prospective proceedings, the cost of bringing the defamation action itself would appear to be disproportionate to the likely benefit to the respondent. The decision to order pre-action discovery in the present case was arguably unreasonable and plainly unjust, so as to give rise to an inference of error in the exercise of the master's discretion.
Balance of convenience
[3] Kelbush [120] - [124].
We also consider the balance of convenience to favour the grant of a stay pending disposition of the appeal. If a stay is not granted then the appellant will be required to disclose personal communications. She would be practically deprived of any capacity to challenge an order that arguably should not have been made before being required to comply with that order.
Possible prejudice to the respondent may arise from the prospect that delay in the provision of discovery may, if a stay were granted but the appeal was dismissed, bring the respondent outside the ordinary 12 month limitation period for an action in defamation, provided for by s 15 of the Limitation Act 2005 (WA). However, in assessing that potential prejudice to the respondent, it is necessary to also take account of s 40 of that Act. Section 40 requires a court to extend the time within which a defamation action may be commenced 'if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action' within one year. Such an extension may allow the plaintiff to bring an action within 3 years of the publication.
The respondent points to the prospect that, if a defamatory statement was made at the beginning of the period for which discovery is sought, then, if a stay is granted, it might not be possible to resolve the issue of discovery and seek an extension of the 1 year limitation period before the expiry of 3 years from the date of publication. That is, if a defamatory statement was made on 1 January 2018, and a stay is granted, it might not be possible to obtain discovery and an order extending the 1 year limitation period so as to enable defamation proceedings to be commenced before 1 January 2021.
However, in the absence of anything beyond speculation to suggest that a defamatory statement was actually made at that or any other time, the existence of the prejudice on which the respondent relies is itself a matter of speculation.
It is also necessary to bear in mind the nature of the proposed potential action which might be lost in that hypothetical situation. All that the respondent would be denied would be the capacity to sue his ex-wife for what she said to a relative with whom the respondent's relations were already hostile. That hostility is demonstrated by the fact that, from about 2013 - 2016, the respondent and his relatives were engaged in litigation in the High Court of the Republic of Singapore in which the relatives sought to have the respondent removed as 'trustee' of the charitable trust.[4] Even assuming the appellant's words carried a defamatory imputation of the kind apprehended by the respondent, there is nothing before the court to suggest that the extent of the resulting damage to the respondent's reputation from such a publication would give rise to damages exceeding the cost of bringing the defamation proceedings.
[4] See par 30 of the respondent's affidavit sworn in the primary proceedings on 23 August 2019.
The respondent's counsel submitted that the court could not reach any conclusion as to the extent of damages which might be awarded in the prospective proceedings against the appellant. He submits that to do so would involve the court speculating about what might have been said by the appellant, to whom it might have been said, when it was said and whether there was any 'grapevine effect'. However, these submissions serve to emphasise the speculative nature of both the cause of action which the respondent is contemplating and the asserted prejudice which he might suffer if a stay were granted.
Disposition of stay application
In all the circumstances, we considered it to be in the interests of justice to grant a stay of the master's orders until the determination of this appeal or further order.
Urgent appeal order
The appellant's application also proposed an urgent appeal order. In all of the circumstances, having regard to the nature of the dispute and the capacity for an extension of any limitation period under s 40 of the Limitation Act, we did not consider an urgent appeal order to be warranted.
Leave to appeal
The question of whether leave to appeal should be granted was also before us. While we were inclined to the provisional view that the application for leave to appeal may have merit, we did not determine that application. Rather, we though it appropriate to give the respondent an opportunity to put on written submissions, as part of its respondent's answer, as to why leave should be refused. We therefore referred the application for leave to appeal to the hearing of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell3 JULY 2020
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