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BWS v ARV [No 2]

BWS v ARV [No 2]

Case [2021] WASCA 62 21 April 2021

Jurisdiction

Discovery & Disclosure

Appeal

Limitation Periods

Proportionality

Civil Litigation & Procedure

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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.…

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 [No 2]

Details

AGLC: BWS v ARV [No 2] [2021] WASCA 62
Case: [2021] WASCA 62
Decision Date

CaseChat Overview and Summary

The Court of Appeal was asked to consider an order for pre-action discovery that was made by a master in the Supreme Court. The appellant, BWS, sought leave to appeal against the order. The respondent, ARV, opposed the appeal. The appeal court had to decide whether the appellant was entitled to leave to appeal and, if so, whether the appeal should be allowed. The appeal court was required to determine whether the master's decision was correct that the respondent may have a cause of action against the appellant and, if so, whether the master's exercise of discretion in ordering pre-action discovery was correct. The appeal court found that the respondent had not established that he may have a cause of action against the appellant. The master had erred in concluding that the respondent may have a cause of action against the appellant. It followed that the master had no power to order pre-action discovery. The Court of Appeal allowed the appeal and set aside the orders of the Supreme Court.

Orders