BWS v Arv - [2020] WASCA 108

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…

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 BWS v Arv

Details

AGLC: BWS v Arv [2020] WASCA 108
Case: [2020] WASCA 108
Decision Date: 3 JULY 2020

CaseChat Overview and Summary

In the recent case of BWS v Arv, the Court of Appeal was asked to consider an application for a stay of an order for pre-action discovery. The applicant, BWS, sought to stay the discovery order pending the determination of an appeal against that order. The dispute arose from an order made by a lower court requiring the respondent, Arv, to provide certain documents to BWS. The Court of Appeal was tasked with determining whether the application for a stay should be granted.

The primary legal issue before the Court of Appeal was whether the application for a stay of the discovery order should be granted. The Court had to consider the circumstances in which such a stay would be appropriate and whether the applicant had made out a case for a stay. The Court also needed to assess the potential prejudice to the parties if the stay was granted or refused. In doing so, the Court had to balance the interests of both parties and consider the broader implications of the case.

The Court of Appeal held that the application for a stay should not be granted. The Court found that the applicant had not demonstrated sufficient grounds for a stay, and that the potential prejudice to the respondent outweighed any benefit to the applicant. The Court emphasised that an application for a stay of a discovery order is not to be granted lightly, and that the applicant must establish a strong case for such a stay. The Court also noted that the circumstances of each case turn on their own facts, and that the decision should not be based on a rigid set of rules. Ultimately, the Court found that the appeal should proceed without a stay of the discovery order.

The Court of Appeal's decision in BWS v Arv highlights the importance of carefully considering the circumstances of each case when deciding whether to grant an application for a stay of a discovery order. The Court's reasoning demonstrates the need for a balanced approach, taking into account the interests of both parties and the broader implications of the case. The final orders of the Court of Appeal were that the application for a stay of the discovery order be dismissed, and that the appeal against the discovery order proceed without a stay.

Orders