Chvojka v Lockwood - [2019] WASC 440

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CHVOJKA -v- LOCKWOOD [2019] WASC 440
CORAM:   LE MIERE J
HEARD:   8 OCTOBER 2019
DELIVERED          :   5 DECEMBER 2019
FILE NO/S:   CIV 2105 of 2017
BETWEEN:   GABRIELLA HANA CHVOJKA
Plaintiff

AND

JULIA LOCKWOOD
First Defendant

LISA MURRAY
Second Defendant

Catchwords:

Practice and procedure - Application for further and better discovery - Continuing obligation - Disproportionate burden - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 2, O 26 r 6

Result:

Plaintiff's application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr M M Mony de Kerloy
Second Defendant	:	Ms W Franklin

Solicitors:

Plaintiff	:	In person
First Defendant	:	Mony de Kerloy
Second Defendant	:	McNally & Co

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

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218.

LE MIERE J:

Summary

The plaintiff alleges that the first defendant has published 16 matters on Facebook pages maintained by the first defendant, the second defendant or members of Equestrian Western Australia which are defamatory of the plaintiff. The plaintiff also alleges she has been defamed by matters published by the second defendant on Facebook pages.
By a minute of proposed orders dated and filed on 4 October 2019, the plaintiff has applied for an order that the first defendant provide further and better discovery of all relevant documents on facts in dispute that are, or were, in her possession, custody or power.
The plaintiff's application is supported by an affidavit sworn by her on 16 September 2019. In her affidavit the plaintiff asserts, amongst other things, that the first defendant has discovered only a small number of relevant documents, that the first defendant communicates extensively with other people by Facebook and Facebook Messenger, and that the first defendant has destroyed relevant documents by deleting text messages and Facebook posts. The plaintiff has put forward a list of names of persons who she believes would have engaged in written communication with the first defendant on matters relevant to the dispute between the plaintiff and the first defendant.
For the reasons which follow, the plaintiff's application will be dismissed.

Further and better discovery principles

Order 26 of the Rules of the Supreme Court 1971 (WA) (RSC) does not expressly deal with insufficient discovery, providing only for two situations: the first being the giving of a notice followed by an application pursuant to O 26 r 2 for an order for discovery, and the second being an application pursuant to O 26 r 6 for discovery of particular documents. The court has inherent power to order further discovery and O 26 r 6 enlarges that power.
In determining whether to make an order for further discovery, the court must be fairly certain that there are other relevant documents which ought to have been discovered. Murphy JA…

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 Chvojka v Lockwood

Details

AGLC: Chvojka v Lockwood [2019] WASC 440
Case: [2019] WASC 440
Decision Date: 5 DECEMBER 2019

CaseChat Overview and Summary

In the case of Chvojka v Lockwood, the parties were involved in a dispute that was heard in the Supreme Court of Western Australia. The plaintiff, Chvojka, sought an order for further and better discovery of documents from the defendant, Lockwood. The primary legal issue before the court was whether the plaintiff had demonstrated sufficient grounds to warrant an order for additional discovery under the court's inherent jurisdiction. Specifically, the court needed to assess if there were reasonable grounds for being fairly certain that relevant documents had been withheld by the defendant.

The court examined the principles governing the application for further discovery, referencing the decision in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd. It was established that the court's inherent jurisdiction to order further discovery was based on the former practice of the Court of Chancery, which considered an affidavit of documents conclusive unless there was evidence of an insufficiency. The court noted that the test under the inherent jurisdiction and Order 26 rule 6 was whether the court had reasonable grounds for being fairly certain that there were other relevant documents which ought to have been disclosed. The misconception of the discovering party, while relevant, did not independently warrant an order for further discovery unless it assisted in drawing inferences about the existence of undisclosed documents.

After considering the evidence presented, the court concluded that the plaintiff had not provided sufficient grounds for the court to be fairly certain that relevant documents had been withheld. The court found that the plaintiff's application for further discovery did not meet the necessary threshold, and thus declined to make an order for further and better discovery. The reasoning was based on the lack of clear evidence indicating that relevant documents had been excluded under a misconception of the case or that the discovery was otherwise insufficient. The court's decision was grounded in the principles outlined, ensuring that the exercise of its inherent jurisdiction was not lightly invoked without compelling evidence of undisclosed documents.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In determining whether to make an order for further discovery, the court must be fairly certain that there are other relevant documents which ought to have been discovered. Murphy JA summarised the relevant principles in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd:[1]First, the court has, in its inherent jurisdiction, the power to order further and better discovery.Secondly, the court's inherent jurisdiction is exercised according to the former practice of the Court of Chancery. That practice was that an affidavit of documents by a party was conclusive as to the relevant documents in the possession, custody or power of that party unless the insufficiency of the discovery appeared from an admission in the pleadings by the party from whom discovery was sought, or from the affidavit of documents itself, or from the documents referred to in the affidavit, or from any source that constituted an admission by that party of a discoverable document, or where the party had excluded documents under a misconception of the case. Insufficiency could not, however, be demonstrated by a contentious affidavit from the party seeking to challenge the discovery. Thirdly, O 26 r 6 and its predecessors were introduced to relax the Chancery rule, and to allow a challenge to discovery based on a contentious affidavit seeking discovery of particular documents, or a particular class of documents.Fourthly, the introduction of O 26 r 6 enlarged, but did not modify, the court's inherent jurisdiction. Thus, if a party applies pursuant to both O 26 r 6 and the court's inherent jurisdiction, but the O 26 r 6 application is for some reason irregular, providing that the criteria for the exercise of the inherent jurisdiction are satisfied, an order may be made under the inherent jurisdiction for discovery, including for a particular class of documents.Fifthly, under the inherent jurisdiction, where the insufficiency of a party's discovery appears from the party's pleadings, or its affidavit of documents, or the documents referred to therein, or any source constituting an admission by that party of a discoverable document, the test is whether the court has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed. That is also the test that is to be applied under O 26 r 6.Sixthly, under the inherent jurisdiction, it is not necessary to infer the existence of a particular document to ground an order for further and better discovery, where it appears that a party has excluded documents under a misconception of the case.Seventhly, although the misconception of the discovering party is relevant to the exercise of the court's inherent jurisdiction, it is also, in my view, a factor which may assist in the drawing of inferences for the purposes of determining an application under O 26 r 6. (citations omitted)[1] Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [3] ‑ [8].