BWS v ARV [No 2]
[2021] WASCA 62
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BWS -v- ARV [No 2] [2021] WASCA 62
CORAM: MURPHY JA
MITCHELL JA
VAUGHAN JA
HEARD: 26 MARCH 2021
DELIVERED : 21 APRIL 2021
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 XXXX of 2019
Catchwords:
Practice and procedure - Appeal against order for pre-action discovery - Whether respondent may have a cause of action - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 26A r 4
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | J D MacLaurin SC & P W van der Zanden |
| Respondent | : | M L Bennett |
Solicitors:
| Appellant | : | Hotchkin Hanly |
| Respondent | : | Bennett + Co |
Case(s) referred to in decision(s):
Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
McCarthy v Dolpag Pty Ltd [2000] WASCA 106
Pollock v Piggott [2017] WASCA 220
Roe v The State of Western Australia [2013] WASC 130
Waller v Waller [2009] WASCA 61
JUDGMENT OF THE COURT:
Overview
The appellant seeks leave to appeal against an order pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA) (RSC) that she give pre‑action discovery. The order was sought so that the respondent could obtain information to enable him to make a decision whether to commence defamation proceedings against the appellant.
The order is challenged on two bases. First, it is claimed that the master erred in finding that the application satisfied the threshold jurisdictional requirements for an order under O 26A r 4 RSC. In substance the appellant claims that the respondent failed to establish that he may have a cause of action against her. Second, it is claimed that the master's exercise of discretion miscarried in ordering discovery in the terms, and of the width and unqualified nature, as was ordered.
For the reasons that follow there should be leave to appeal and the appeal should be allowed. The respondent failed to establish that he may have a cause of action against the appellant. The power to order pre-action discovery was not enlivened.
Background facts
The application was heard in chambers. Evidence was adduced on affidavit without cross-examination of the deponents. The master gave written reasons for deciding to order pre-action discovery.[1] In the course of those reasons the master described the facts succinctly in a manner that is not challenged on appeal. The following is taken from those reasons and is supplemented, as appropriate, with the affidavit material.
[1] Those reasons, which have been suppressed, are [2020] WASC 154 (primary reasons).
The appellant and the respondent were married between 2009 and 2012. They have two children. After separating, the appellant and the respondent were involved in proceedings in the Family Court of Western Australia. Separately, the respondent is a party to proceedings in Singapore before a statutory body known as the Islamic Religious Council of Singapore.[2] The IRCS has various roles and functions related to the socio-religious life of Muslims in Singapore. The IRCS proceedings involve a trust dispute between the respondent on the one hand, and his uncle and two cousins, on the other. The respondent refers to his uncle and cousins as the complainants.
[2] Also referred to as the 'Majlis Ugama Islam Singapura'. We will refer to the body as the 'IRCS'.
The complainants, as the initial complaining party, and the respondent, as a cross-complainant, are each seeking to have the other removed as 'mutawalli' (apparently the equivalent of a trustee) of a charitable trust.
Various documents (described more fully below) were filed in the IRCS proceedings which the respondent considers to contain factually inaccurate and disparaging statements about his personal life and affairs. Relevantly the allegations are summarised as:
1.The respondent is 'hardly a practising Muslim'.
2.It appears that the respondent has 'completely shirked his responsibilities to support his children'.
3.The complainant is 'no longer … allowed or able to practice in any of the hospitals under [a particular medical organisation], one of Perth's major medical groups. This is likely to be because of some misconduct on [the respondent's] part'.
4.The respondent 'appears to be unable to manage even his own personal and financial affairs'.
The respondent believes that these statements must be based on comments made by the appellant to one or more of the complainants. The respondent deposes to a belief that the appellant may have published defamatory statements about him in the course of communications to one or more of the complainants.
The respondent's affidavit sets out the reasons why he has reached the conclusion that the statements made in the IRCS proceedings must be based on information given by the appellant to one or more of the complainants. Essentially there are two steps in the reasoning. First, that the respondent and the appellant were formerly husband and wife and involved in acrimonious proceedings in the Family Court. Second, that, to the respondent's knowledge, there is no other source who could have provided information to the complainants in the form in which it appears in the IRCS proceedings. In this respect, the master made an unchallenged finding that the respondent details contact between the appellant and the complainants and, while making a number of assumptions, presents a 'logically consistent argument' to support the proposition that the appellant has provided the complainants with information.[3]
[3] Primary reasons [6].
Having taken legal advice, the respondent believed he may have a cause of action against the appellant for defamation relating to the appellant's communications with the complainants. The respondent's solicitors wrote to the appellant requesting that she voluntarily provide documents to assist the respondent in deciding whether to commence proceedings. The appellant, through her solicitors, declined to do so.
The decision of the master
The master referred to the terms of O 26A r 4 RSC and identified the conditions that must be satisfied to enliven the discretion to order pre-action discovery against a potential party.[4] After summarising the facts disclosed by the respondent's affidavit[5] the master dealt with a number of evidentiary objections.[6] Those rulings are not challenged on appeal. The master then referred to the affidavit material filed on behalf of the appellant, which was said not to present any argument that the four pre-conditions under O 26A r 4 RSC had not been satisfied.[7]
[4] Primary reasons [1] - [2].
[5] Primary reasons [3] - [7].
[6] Primary reasons [8] - [14].
[7] Primary reasons [15].
In recounting the respondent's evidence, the master evidently accepted that three of the relevant criteria had been satisfied. First, that the respondent wanted to take proceedings against the appellant if defamatory statements had been published.[8] Second, that the respondent had made reasonable enquiries.[9] Third, that the respondent had not been able to obtain sufficient information to enable a decision to be made as to whether to commence proceedings.[10]
[8] Primary reasons [7].
[9] Primary reasons [7].
[10] Primary reasons [7], [13] - [14].
The master stated that the appellant's opposition to the application rested on two broad grounds. These were that:
1.The evidence led by the respondent did not establish that he may have a cause of action.[11]
2.The principle of proportionality meant that as a matter of discretion it was not appropriate to make the order.[12]
[11] Primary reasons [16].
[12] Primary reasons [17].
The first ground of opposition was resolved by the master in these terms:
The authorities are to the effect that in an application such as this the plaintiff is not required to demonstrate the present existence of a cause of action. The question is whether there may be a cause of action. So it is not necessary to delve into the arcane world of defamation law. There may be doubts as to whether there was publication of defamatory statements and it may well be the statements are true. But it is not possible at this stage to say [the respondent] did not have a cause of action. It is, however, possible to say he may have a cause of action.[13]
[13] Primary reasons [16].
As to discretion, the master observed that there was no evidence that there would be any difficulty in providing the documents as sought. The master found that the time period was discrete and defined and not oppressive.[14] The master then referred to the appellant having advanced an argument that if, which was not admitted, there was a defamatory publication, it would not sound in more than nominal damages - meaning that, if the documents were discovered, there was a question whether it would lead to a case being brought which had substance.[15]
[14] Primary reasons [19].
[15] Primary reasons [20].
Accepting, for the sake of argument, that may well be the case, the master nevertheless concluded:
But it is an argument which has much to do with the question of whether or not there is a cause of action. To decide at this stage that the nature of any publication is out of proportion to any possible award of damages is to make an assessment of the [respondent's] claim which is beyond the scope of this application.[16]
[16] Primary reasons [20].
The master made orders that the appellant give discovery of:
copies of all correspondence including but not limited to any text messages, emails, letters and any other documents in hard copy or electronic format, as well as notes or memoranda of conversations between the defendant and any of:
(i)[the respondent's uncle];
(ii)[one of the respondent's cousins]; and
(iii)[the other of the respondent's cousins]; or
(iv)persons acting on their behalf;
regarding, or in any way relating to, the [respondent], sent or received at any time from 1 January 2018 to 31 July 2019.
The respondent was required to pay the appellant's reasonable costs of complying with the discovery order - those costs to be assessed if not agreed.
Grounds of appeal
Ground 1 is:
The master erred in fact and in law in finding, at [16] of the Reasons, that the respondent's application for pre-action discovery satisfied the threshold jurisdictional requirements for an order under Order 26A Rule 4 of the Rules of the Supreme Court 1971 (WA) (Rules), when the master should have found:
(a)the respondent failed to establish that he 'may have a cause of action' against the appellant;
(b)the respondent failed to establish that he, relevantly, wanted to commence proceedings against the appellant; and
(c)the respondent failed to establish that there were reasonable grounds for believing that the appellant has, in her possession, custody or control, documents that may assist in the respondent making a decision whether to commence proceedings upon the causes of action that he may have.
The appellant's written submissions presented her argument as if there were independent grounds 1(a), 1(b) and 1(c). In substance, however, the so-called grounds 1(b) and 1(c) relied on ground 1(a). The appellant said that, properly understood, the respondent did not know what causes of action, if any, might lie against the appellant because he did not establish that he may have a cause of action against the appellant. Thus the respondent did not, in terms of ground 1(b), establish that he wanted to commence proceedings against the appellant.[17] Nor, in terms of ground 1(c), could the respondent make out the requirement that the appellant has possession of documents that may assist in making a decision whether to commence proceedings.[18]
[17] Appellant's submissions pars 31 - 32 WAB 14.
[18] Appellant's submissions par 33 WAB 14.
So understood grounds 1(b) and 1(c) add nothing to ground 1(a).
There is some conceptual confusion in relation to grounds 2 and 3:
2.The master erred in fact and in law when, having found that the respondent's application for pre-action discovery satisfied the threshold jurisdictional requirements, he ordered discovery in the terms, and of the width and unqualified nature, that he did.
3.Further or alternatively, the master erred in law and in fact when, having found that the respondent's application for pre‑action discovery satisfied the threshold jurisdictional requirements, he exercised his discretion to order discovery in favour of the appellant at all, alternatively ordered discovery in terms, and of the width and unqualified nature, that he did.
There is obvious overlap between the two grounds. However, ground 2 challenges the order on the basis that the correctness standard applies. Ground 3 challenges the order on the basis that discretionary error must be shown. Once the power under O 26A r 4 RSC is enlivened there is a discretion as to whether to order pre-action discovery and if so on what terms. Accordingly, the application for leave to appeal, and the appeal, should be considered in terms of the error alleged in ground 3 rather than the error alleged in ground 2.
In oral submissions senior counsel for the appellant clarified that the alleged discretionary errors were that:
1.The width and terms of the order for pre-action discovery were such that the order exceeded the scope of the power under O 26A r 4(4).
2.The master failed to have regard to a material consideration, namely, the proportionality of the order as sought and made so far as any claim in defamation would not sound in more than nominal damages.
3.The order was unreasonable and plainly unjust - it was said that error should be inferred as an order of the width and terms as that sought and made, in circumstances where it lacked proportionality, was so wrong as to bespeak some misapplication of principle.
The appellant accepted that she required leave to appeal.[19] The appellant submitted that leave to appeal was in the interests of justice. It was said that the decision was plainly wrong or at least attended by substantial doubt and, if unreversed, would result in substantial injustice as the order would constitute a serious invasion of her privacy. The respondent opposed leave to appeal. Apart from submitting that there was no relevant error, the respondent pointed to the costs order - meaning that the appellant would not be out of pocket in providing the discovery - and the limited category of documents which meant that compliance would not be oppressive.
[19] Leave is required as an order requiring pre-action discovery pursuant to O 26A r 4 RSC is an interlocutory order: Waller v Waller [2009] WASCA 61 (Waller) [8], [119] ‑ [120]; compare [31], [46].
This is a case where the question of leave to appeal is intimately bound up with the merits of the appeal. Accordingly, it is appropriate to defer the issue of leave and return to it after considering the grounds of appeal.
The principles applying to an application for pre-action discovery pursuant to O 26A r 4 RSC
Order 26A RSC provides for two types of pre-action discovery: discovery to identify a potential party (O 26A r 3) and discovery from a potential party whose identity has been ascertained (O 26A r 4 RSC). The respondent's application sought the second form of pre-action discovery.
Order 26A r 4 RSC provides:
(1)This rule applies if a person who may have a cause of action against a person whose description has been ascertained (the potential party) wants:
(a)to commence proceedings against the potential party; or
(b)to take proceedings against the potential party in the course of an action to which the person is a party,
but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings.
(2)If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this rule.
(3)The application shall be supported by an affidavit and a copy of both shall be served on the potential party.
(4)On the application the Court may order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision.
Once the procedural requirements of O 26A r 4(3) RSC are met, the discretionary power under O 26A r 4(4) RSC is enlivened if the court is satisfied that:
1.An applicant for an order 'may have a cause of action against' the potential party (O 26A r 4(1)).
2.The applicant wants 'to commence proceedings against' the potential party (O 26A r 4(1)).
3.The applicant has made 'reasonable enquiries' for the purpose of obtaining sufficient information to enable him or her to decide whether to commence the proceedings (O 26A r 4(1)).
4.The applicant has not been able to obtain sufficient information to enable him or her to make the decision (O 26A r 4(1)).
5.There are 'reasonable grounds for believing' that the potential party had, has, or is likely to have had or have, possession of documents that may assist the applicant in making the decision (O 26A r 4(2)).
Order 26A r 4(4) RSC empowers the court, in its discretion, to order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision.
The requirement that an applicant for a pre-action discovery order establish that he or she 'may have a cause of action against' the potential party has been described as a 'jurisdictional question' in the sense that it must be answered affirmatively to enliven the court's jurisdiction.[20] However, the purpose of the rule is to enable a prospective litigant to obtain documents that may assist in making a decision whether to commence proceedings. It would defeat the purpose of the rule to require an applicant to demonstrate the actual existence of a cause of action as a condition to the exercise of the power - meaning that it is incorrect in principle to approach the rule with an undue emphasis on the demonstration of the prospective cause of action.[21]
[20] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374 (Kelbush) [66]. See also Waller [4].
[21] Waller [2], [4] (cited with approval in Kelbush [69]).
It is accepted that the words 'may have a cause of action against' the potential party in O 26A r 4(1) RSC:
1.Refer to a 'cause of action' as ordinarily understood, ie in the sense of facts or a combination of facts which give the right to sue.[22]
2.Require an objective test - the court must make its own evaluation of the evidence and form an opinion as to whether, on the evidence, the applicant may have a cause of action against the potential party.[23]
3.Do not require that the applicant have a prima facie cause of action.[24]
[22] Kelbush [71].
[23] Waller [75] (cited with approval in Kelbush [67]).
[24] Waller [75] (cited with approval in Kelbush [67]). See also Kelbush [5].
There must, however, be some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion.[25] The applicant 'must demonstrate more than mere assertion, conjecture or suspicion, but does not have to positively establish the existence of a cause of action. What the applicant must produce is evidence showing that he, she or it may have a cause of action'.[26] There must be evidence objectively indicating - beyond the mere assertion, conjecture or suspicion of the applicant - that all facts necessary to give rise to a right to curial relief may be able to be established.[27]
[25] Waller [75].
[26] Kelbush [70]. See also: Waller [4]; Pollock v Piggott [2017] WASCA 220 [68].
[27] Kelbush [71].
Having regard to the principle of proportionality embodied in O 1 r 4B RSC, in applying O 26A r 4 RSC the nature and extent of the evidence reasonably required to establish that an applicant 'may have' a cause of action is to be assessed in the context of the character and the ambit of the relief sought.[28]
[28] Kelbush [3], [5].
The discretion to order pre-action discovery is not exercised as a matter of course.[29] The court will commonly consider whether the order is reasonably necessary to achieve the proper administration of justice.[30] In Central Exchange Ltd v Anaconda Nickel Ltd a number of non-exhaustive factors were identified as relevant to the exercise of the discretion:[31]
1.The likelihood that a cause of action of the kind suggested will be found to exist.
2.The nature and significance of the potential cause of action.
3.The likely effect of an order of the kind contended for on the potential party.
4.Whether the applicant has any other adequate means of obtaining the information.
5.The nature and confidentiality of the documents proposed to be obtained.
6.The possible significance of the information in the documents to the decision whether to commence the contemplated proceedings.
7.Whether the applicant is able to compensate the potential party for its cost of complying with the order.
8.Whether there is any evidence of bad faith on the part of the applicant.
[29] McCarthy v Dolpag Pty Ltd [2000] WASCA 106 [13]; Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33[82]; Kelbush [120].
[30] McCarthy v Dolpag Pty Ltd [13]; Kelbush [120].
[31] Central Exchange Ltd v Anaconda Nickel Ltd [82] - [83]. See also Kelbush [120].
In Kelbush Mitchell J (Martin CJ and Buss JA agreeing) added to this non-exhaustive list of relevant factors. Also relevant is the extent to which the cost and effort involved in undertaking the proposed discovery and inspection is proportionate to the likely value of the claim if successful.[32] The notion of proportionality is central to the exercise of the discretion to order discovery within existing proceedings;[33] it has no lesser role in the application of O 26A r 4. The cost and delay involved in the provision of the pre-action discovery as sought should be proportionate to the forensic benefit likely to be derived and to the value and importance or complexity of the subject matter of the contemplated proceedings.[34]
[32] Kelbush [121], [123]. See also [6].
[33] Roe v The State of Western Australia [2013] WASC 130 [10] - [11].
[34] Kelbush [6].
The power in O 26A r 4(4) is confined to requiring discovery of documents that may assist the applicant in making the decision whether to commence or take the contemplated proceedings. Only those documents actually relevant to a cause of action which the applicant may have should be the subject of the discovery order.[35]
[35] McCarthy v Dolpag Pty Ltd [16].
Ground 1(a): Did the respondent establish that he 'may have a cause of action'?
The parties' submissions
The appellant raised what were said to be anomalies and difficulties in the respondent's articulation of the causes of action it was said he may have.[36] The appellant stated that the complainants did not attribute her as a source and pointed to the circumstance that the respondent had another ex-wife (who also had a child with the respondent) who appeared to have provided materials to the complainants - relying on a letter the respondent's solicitors had sent to the second ex‑wife seeking disclosure of the same classes of documents as had been sought from the appellant.[37]
[36] Appellant's submissions pars 9 - 10 WAB 9 - 10.
[37] Appellant's submissions pars 7, 10 (c) and (f), 25 - 26 WAB 8 - 10, 13.
Central to the appellant's argument in support of ground 1(a) was that:
1.The master did not have regard to the elements of a cause of action in defamation and consider, as he should have, each and every cause of action asserted by the respondent (ie on a publication-by-publication basis).[38]
2.The respondent was simply speculating about whether any communications took place at all between the appellant and one or more of the complainants - and, if so, by and with whom.[39] There was no reasonable basis to believe that publications had occurred as alleged or, if they had occurred, to form any view as to the nature, circumstances and contents of the publications.[40]
[38] Appellant's submissions pars 15 - 20 WAB 12.
[39] Appellant's submissions par 26 WAB 13.
[40] Appellant's submissions par 30 WAB 14.
The appellant characterised the respondent as conducting a fishing exercise to see whether anything had been said about him; and, if so, what had been said about him.[41]
[41] Appellant's submissions par 29 WAB 14.
The respondent submitted that he had adduced sufficient evidence to establish (in terms of O 26A r 4's requirements) that the appellant may have published statements that were defamatory of him.[42] The respondent rejected as without merit the appellant's suggestion that he was speculating whether there had been communications between the appellant and the complainants. It was said to be plain that there were communications and plain that the communications were 'focussed on the respondent's reputation'.[43]
[42] Respondent's submissions pars 4.3, 21 - 23 WAB 22, 25 - 26.
[43] Respondent's submissions par 24 WAB 26.
Insofar as the appellant contended that it was necessary to identify specific communications to each complainant, defamatory of the respondent, the respondent stated that the appellant's submissions would require the respondent to know and adduce evidence of what was in the very documents sought by way of discovery.[44]
The real issue
[44] Respondent's submissions par 27 WAB 27.
The appellant overreaches in contending that the respondent was speculating about whether any communications took place between her and one or more of the complainants.
The master found that the respondent presented a logically consistent argument in support of the proposition that the appellant had provided the complainants with information.[45] There is no challenge to that finding. It should be accepted. The matters recounted at [9] above provide ample support for the master's conclusion. In any event, as the master observed: (1) the respondent's affidavit revealed that there was a meeting between the appellant and the respondent's uncle that preceded the filing of the relevant materials in the IRCS proceedings;[46] and (2) there is a 24 November 2018 email communication from one of the cousins to, among others, the appellant that apparently refers to the relevant affidavit in the IRCS proceedings - it should, however, be observed that the email is sent after the affidavit is affirmed.[47] Accordingly, while the email confirms communication between one of the complainants and the appellant, it alone is insufficient to infer that the appellant may have published defamatory statements about the respondent which are reflected in the affidavit.
[45] Primary reasons [6].
[46] Respondent's affidavit affirmed 23 August 2019 par 31 GAB 6.
[47] Affidavit of J J Fetherstonhaugh sworn 6 December 2019 attachment 'JJF-5' GAB 34.
The more significant question, in our view, is what - beyond mere assertion, conjecture or suspicion - was established as to the content of the communications between the appellant and the complainants.
It is instructive to consider how the respondent advanced his belief that there were defamatory communications. Taking, first, the allegation regarding his religious beliefs, the respondent refers to a transcript of his evidence in the Family Court proceedings involving the appellant which might be the source for the statements made in the IRCS proceedings.[48] An extract of the transcript was annexed to submissions filed in the IRCS proceedings by the complainants' legal representatives. The respondent explains his belief that this transcript was only available to him and the appellant and that he has not provided the transcript to the complainants.[49] The respondent then deposes:
On the basis of the matters set out above, I verily believe that one or more of the complainants received the Transcript Extract directly or indirectly from the [appellant] and that the [appellant] may have published defamatory statements about me in the course of communications relating to the provision of the Transcript Extract to the complainants or other persons.[50]
[48] Respondent's affidavit affirmed 23 August 2019 par 32 GAB 6.
[49] Respondent's affidavit affirmed 23 August 2019 pars 33 - 35 GAB 6 - 7.
[50] Respondent's affidavit affirmed 23 August 2019 par 36 GAB 7.
Accordingly, as was confirmed at the appeal hearing, the alleged defamatory publication that may constitute a cause of action against the appellant was not the mere provision of the transcript. Rather, the concern was that there may have been other associated defamatory statements by the appellant of the respondent in the course of communications related to the provision of the transcript.
There is a similar line of reasoning in relation to the child support allegations and the medical practice allegations. For example, as to child support, the respondent identifies a basis for believing that one or more of the complainants may have received information from the appellant including child support assessments. A relevant child support statement is included as an exhibit to the affidavit in the IRCS proceedings. The respondent then deposes to a belief that:
[T]he [appellant] may have published defamatory statements about me in the course of communications relating to the provision of the Child Support Assessment to the complainants or other persons.[51]
[51] Respondent's affidavit affirmed 23 August 2019 par 43.2 GAB 8.
As to the medical practice allegations, both the appellant and the respondent are specialist medical practitioners. The appellant practises from a number of different medical facilities. These include a hospital, run by one of Perth's major medical groups, at which the respondent previously practised. The respondent deposes to the effect that:
1.Documents filed in the IRCS proceedings falsely allege that the respondent was dismissed from his job due to a misconduct complaint and that he is no longer able to practice in any of the hospitals within the relevant medical group (referring to income figures in the respondent's child support assessments).[52]
2.The appellant works and at all relevant times worked at a hospital run by the relevant medical group.
[52] Respondent's affidavit affirmed 23 August 2019 pars 44 - 45 GAB 8 - 9.
On the basis of these matters, the respondent deposes:
47.1I consider that [the appellant] has selectively provided information to the Complainants that is adverse to me, including false information and information which [the appellant] is prohibited by statute from disclosing;
47.2I consider that the statements set out in paragraph 44 herein [ie the medical practice allegations] may be based on false statements made by [the appellant] to the Complainants or other persons; and
47.3I am concerned that the defendant may have made other false statements about me to the Complainants or other persons.
Accordingly, in relation to each category of allegation it is said may constitute a defamatory statement of the respondent by the appellant, the respondent is unable to depose to and does not otherwise adduce any evidence going directly to the nature and content of the communications between the appellant and the complainants. The evidence goes no higher than to state a belief that the appellant may have published defamatory statements about the respondent in the course of other communications to one or more of the complainants.
The issue raised by ground 1(a) is whether this is sufficient to enliven the jurisdictional requirement under O 26A r 4(1) RSC that the respondent satisfy the court that he may have a cause of action against the appellant in relation to the making of one or more defamatory statements.
Disposition
The essential proposition of senior counsel for the appellant was that there was no objective evidence to show that the appellant may have made a statement that was defamatory of the respondent to one or more of the complainants.
Counsel for the respondent submitted that there was sufficient evidence to infer that the appellant had made one or more statements defamatory of the respondent to one or more of the complainants. That submission overstated what the respondent was required to establish to meet the jurisdictional threshold under O 26A r 4 RSC. The respondent was not required to adduce evidence whereby the inference ought to be drawn. Nor was the respondent required to adduce evidence whereby the inference prima facie ought to be drawn. In terms of the first aspect of O 26A r 4(1), it is enough that there are objective grounds from which the court can be satisfied that the respondent 'may' have a cause of action against the appellant. Mere assertion, conjecture or suspicion on the part of the respondent is insufficient. This means, relevantly, that the respondent must establish grounds upon which the court can be satisfied that the appellant may have made defamatory statements about the respondent.
The respondent relied on the following matters in contending for the inference:
1.The prior relationship between the appellant and the respondent - emphasising that the relationship was acrimonious.
2.The fact that the appellant had provided information concerning the respondent to one or more of the complainants which information was for use and used in the IRCS proceedings. Counsel for the respondent referred to the meeting between the appellant and the respondent's uncle and the email as mentioned at [44] above.
3.The fact that the appellant worked at a hospital at which the respondent previously practised.
4.The false and disparaging statements made by the complainants in relation to the respondent in the IRCS proceedings.[53]
5.The nature of the IRCS proceedings - one of the central issues being the complainants' allegation concerning the respondent's alleged fitness to continue as holder of the office of mutawalli.
6.The evidence in the respondent's affidavit concerning the materials filed by the complainants in the IRCS proceedings as summarised and reproduced at [46] - [50] above.
[53] The respondent summarises the relevant statements in his affidavit. See Respondent's affidavit affirmed 23 August 2019 par 26 GAB 4 - 5. The actual statements are reproduced as part of the affidavit of J J Fetherstonhaugh sworn 6 December 2019 attachments 'JJF-3', 'JJF-4' and 'JJF-5' GAB 18 - 19, 21 - 27, 29 - 31. See also [63] below.
There is no direct evidence that the appellant made or may have made a statement that was defamatory of the respondent. The respondent advances a circumstantial case. In considering a circumstantial case all the circumstances are to be considered and weighed in deciding whether the relevant inference is made out. The evidence is not to be looked at in a piecemeal fashion.
Having considered all the evidence, and having given full regard to the matters specifically relied on by counsel for the respondent, we consider that the respondent has postulated no more than a speculative prospect that the appellant might possibly have said or written something (the precise content of which is unknown) to one or more of the complainants which carried an unknown defamatory imputation.
The respondent works back from the various statements made in the IRCS proceedings which he says are factually inaccurate and disparaging. He identifies, in a manner that is ostensibly logical and reasonable, that some (but not all) of those statements might be derived or sourced from materials or information provided by the appellant to the complainants. That supposition is supported by the acrimonious relationship between the appellant and the respondent, the appellant's knowledge of the source materials (which in some respects is unique) and the available evidence of a meeting and a communication involving the appellant and the complainants.
Then, however, there is a leap in the respondent's reasoning into the realm of speculation.
The respondent acknowledges, as he must, that he does not know what statements were made by the appellant in her communications with the complainants.[54] The respondent asserts, nevertheless, that the appellant may have published defamatory statements about him.[55] There is, in our view, no adequate foundation on the materials adduced by the respondent to draw an inference that the appellant may have made a statement that was defamatory of the respondent. In substance, the respondent relies on the appellant having had the motive to make defamatory statements, the opportunity to make them and having provided (it may be inferred) certain information or materials to the complainants in connection with the IRCS proceedings. Those matters may be accepted, but they are equally consistent with an hypothesis that the appellant did not make defamatory statements of the respondent. Whilst they may create suspicion in the mind of the respondent or give rise to conjecture or assertion, they do not objectively allow an inference to be drawn that the appellant may have gone beyond the supply of information and materials, and may also have made statements to the complainants which were defamatory of the appellant.
[54] Respondent's affidavit affirmed 23 August 2019 par 50 GAB 10.
[55] Respondent's affidavit affirmed 23 August 2019 par 49 GAB 9.
The high-water mark of the evidence is the statements in the IRCS proceedings that the respondent says are false and disparaging. These are contained in an affidavit of one of the complainants affirmed 19 November 2018,[56] submissions dated 5 December 2018[57] and an opening statement dated 12 December 2018.[58]
[56] Affidavit of J J Fetherstonhaugh sworn 6 December 2019 attachment 'JJF-3' GAB 16 - 19.
[57] Affidavit of J J Fetherstonhaugh sworn 6 December 2019 attachment 'JJF-4' GAB 20 - 27.
[58] Affidavit of J J Fetherstonhaugh sworn 6 December 2019 attachment 'JJF-5' GAB 28 - 40.
The latter two documents may be put to one side at once. They are the work of lawyers acting for the complainants and contain argument and assertions based on the affidavit and identified documentary materials. It is logical and reasonable to infer that some of the documentary materials on which the lawyers' argument was based were originally sourced from the appellant. They include, for example, partial transcript from the Family Court proceedings and the child support assessment. However, it is not without significance that the complainants' lawyers' argument is also based on other publicly available material concerning the respondent. For example, the materials include an extract from the public register of health practitioners maintained by the Australian Health Practitioner Regulation Agency which notes a condition imposed on the respondent's registration as a medical practitioner. So the complainants and their lawyers have obtained information from sources other than the appellant. In any event, the respondent's case was not that there was a defamatory publication by the mere provision of source documents such as the transcript and the child support assessment. And there is nothing in the complainants' submissions or their opening statement in the IRCS proceedings indicating that the appellant may have made a statement that was defamatory of the respondent.
The affidavit affirmed 19 November 2018 in the IRCS proceedings contains statements by the respondent's uncle that:
165.… this allegation by [the respondent] is especially hypocritical given that based on my observations and understanding, he is hardly a practising Muslim.
166.Further, it appears that [the respondent] has completely shirked his responsibility to support his children. [The respondent] has three children, a pair of twins with his ex-wife [the appellant] and a daughter with his ex-partner … As of 1 October 2018, [the respondent] has ceased to pay child support to both [the appellant] and [the other ex-wife]. He is even receiving child support from [the appellant] totalling [an amount] per annum. Copies of the relevant Child Support Assessment decisions are exhibited …
167.It is in fact apparent from the Child Support Assessment decisions that [the respondent] has projected his annual income to be approximately [an amount]. This has fallen significantly from its previous level of [a higher amount], and is extremely low for a practising [medical practitioner specialist of the respondent's speciality]. Upon conducting informal enquiries, this appears likely to be due to [the respondent] no longer being (formally or informally) allowed or able to practise in any of the hospitals under [a particular medical group], one of Perth's major medical groups. This is likely to be because of some misconduct on [the respondent's] part and at the very least raises serious questions as to the reasons for the present state of affairs.
168.Thus, I am of the view that there are grave doubts as to [the respondent] suitability to act as a mutawalli … He appears to be unable to manage even his own personal and financial affairs … [59] (emphasis added)
[59] Affidavit of J J Fetherstonhaugh sworn 6 December 2019 attachment 'JJF-3' GAB 18 - 19.
This affidavit by the respondent's uncle provides very limited support for an inference that the appellant may have made a statement that was defamatory of the respondent. The 'hardly a practising Muslim' assertion is based on the deponent's own observations and understanding. The child support assessments are the basis for the deponent asserting that the respondent had 'completely shirked his responsibility' to support his children. The allegation of professional misconduct is ungrounded - but cannot, on any view, possibly be attributed to something said of the respondent by the appellant. The only part of the affidavit that is arguably supportive of the posited arguable inference is the statement that, based on 'informal enquiries', the respondent's apparent reduction in income is likely to be due to him no longer being able to practice in any of the hospitals of a particular medical group.
The respondent's uncle does not say in the affidavit that the informal enquiries were made of the appellant. There is perhaps enough, however, to conclude that those enquiries may have included enquiries made of the appellant. But the nature and content of the enquiries, and what - if anything - was communicated by the appellant to the deponent is entirely speculative. The deponent purports to state a conclusion that 'appears likely' to him having conducted informal enquiries rather than identifying with specificity any statement that may be attributed to the appellant. The patent inadequacy of what is stated in this regard in the IRCS proceedings affidavit to form any conclusion of what may have been said by the appellant of the respondent (beyond mere assertion, conjecture or suspicion) is demonstrated by the deponent then asserting the likelihood of some misconduct on the respondent's part without any ground for that conclusion at all.
It is, of course, necessary to consider the affidavit in the IRCS proceedings in the context of the whole of the evidence relied on by the respondent. We have done so. That evidence has been referred to at length and need not be repeated. Even when the affidavit in the IRCS proceedings is read in the context of the evidence as a whole it remains the case that nothing beyond mere assertion, conjecture or suspicion on the part of the respondent has been established as to the content of any communications between the appellant and the complainants.
In our opinion, the suggestion that the appellant may have made a statement that was defamatory of the respondent to one of more of the complainants does not rise above speculation. It is firmly within and does not amount to anything more than mere assertion, conjecture or suspicion on the part of the respondent. That is not enough to enliven the power to order pre-action discovery pursuant to O 26A r 4 RSC. The respondent did not establish that he may have a cause of action against the appellant within the meaning and for the purpose of O 26A r 4 RSC. The master was, in our respectful opinion, in error in concluding to the contrary.
Ground 1(a) should be upheld.
The remaining grounds of appeal
The conclusion we have reached on ground 1(a) means that it is not necessary to consider the remaining grounds of appeal.
Grounds 1(b) and (c) add nothing to ground 1. Grounds 2 and 3 are premised on the appellant failing on ground 1(a). We have found that the respondent did not establish that he may have a cause of action against the appellant. It follows that the master did not have power under O 26A r 4(4) RSC to order pre-action discovery and the question of the exercise of the discretion did not arise. Moreover, it is, in our view, inappropriate to consider the alleged discretionary errors the subject of grounds 2 and 3 by reference to one or more hypothetical causes of action which have not been established to the degree required by O 26A r 4 RSC. The nature and circumstances of the cause of action that the applicant may have against the potential party will inform the exercise of the discretion. So too the nature and circumstances of the cause of action that the applicant may have against the potential party will inform whether any exercise of the discretion has miscarried.
In determining the appeal it is sufficient to conclude, as we do, that ground 1(a) should be upheld.
Conclusion and orders
The issue of leave to appeal remains for determination.
Error has been established. The master's decision, if left unreversed, will require the appellant to give discovery of personal communications to her ex-husband. This alone is unlikely to be time consuming or oppressive. The costs order indemnifies the appellant as to her reasonable costs of compliance. We are nevertheless satisfied, on balance, that it would be substantially unjust for the order to remain on foot. The combined force of three factors leads to this conclusion. First, the absence of any basis for the conclusion that the respondent may have a cause of action against the appellant. Second, the intrusive nature of an order for pre-action discovery. To be wrongly subjected to an order for pre-action discovery is a serious invasion of privacy.[60] Third, the intrusion and injustice is particularly grave where, as here, the court's order will require the appellant to give discovery of personal communications to her former husband in circumstances where there was an acrimonious breakdown in their domestic and family relationship.
[60] McCarthy v Dolpag Pty Ltd [13]; Waller [122].
In the circumstances we would grant the appellant leave to appeal and allow the appeal.
We would order that:
1.The appellant has leave to appeal against the orders of the Supreme Court of Western Australia made 4 June 2020 in action CIV 2506 of 2019 (orders).
2.The appeal is allowed.
3.The orders are set aside and in lieu thereof it is ordered that:
1.The plaintiff's application by originating summons dated 23 August 2019 is dismissed.
We would hear from the parties as to the costs of the appeal and the costs of the application before the master.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Associate to the Honourable Justice Vaughan
21 APRIL 2021
13
5
0