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

1. 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.

2. 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.

3. 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.

4. For the reasons which follow, the plaintiff's application will be dismissed.

Further and better discovery principles

1. 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.

2. 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].

First defendant's discovery

1. The first defendant gave discovery verified by affidavit on 20 March 2019.  In her affidavit the first defendant swore that:  she had made all reasonable enquiries to identify all documents of any description whatever relating to any matter in question in this action that are or were in her possession, custody or power; and to the best of her knowledge, information and belief neither she, nor any other person on her behalf, has now, or ever had, possession, custody or power over any document of any description whatever relating to any matter in question in the action, other than the documents listed in pt 1A and 2A of the attached list of documents.

2. In pt 1A the first defendant listed six documents relating to the matters in question in this action that are in her possession, custody or power as follows:

No	Description	Date
1.	Affidavit of Gabriella Hana Chvojka affirmed 11 May 2015 and filed 18 May 2015	18 May 2015
2.	Letter from Elsje Brandis of the Western Australian Endurance Rider's Association to Julia Lockwood	24 September 2018
3.	Print out of Text Message Conversation between Julia Lockwood and 0427 812 588 (Number belonging to Gabriella Chvojka)	1 January 2018
4.	Correspondence between the First Defendant and her solicitors	Various
5.	File notes by the First Defendant's solicitors	Various
6.	Court documents in relation to CIV 2015 of 2017 common to the parties	Various

1. In pt 2A the first defendant stated that the documents relating to the matters in question in this action that were, but no longer are, in her possession, custody or power are as follows:

No	Description of document
1.	The originals of correspondence sent by the First Defendant or its solicitors

1. That discovery was incomplete and deficient.  The first defendant made further discovery by a list verified by an affidavit sworn on 23 July 2019.  Part 1A of the list included screenshots of Facebook messages.  Part 2A (documents relating to the matters in question in the action that were, but no longer are, in the possession, custody or power of the first defendant) included Facebook posts and one text message.  In pt 2B the first defendant said that the Facebook posts and text message were deleted by her on an unknown date.

2. On 1 October 2019 the plaintiff wrote to the first defendant's solicitors.  The plaintiff stated that the first defendant's discovery was inadequate.  The plaintiff requested that the first defendant give discovery of text messages, Facebook messages, or other written communications between the first defendant and 35 named persons, and gave reasons why such communications were relevant to matters in issue in this proceeding.

3. The first defendant's solicitors replied by letter on 3 October 2019 to the following effect.  First, the first defendant has conducted a word search of her Facebook messages for the words Gabby, Gabriella, Lisa Murray and 'name and shame'.  The solicitor stated that a few documents so identified 'may have some small relevance to the matters in issue in the proceedings' and they were provided to the plaintiff by way of ongoing further discovery.  The solicitors stated that they believed that the majority of the documents so identified are not 'relevant to any compensable damages or to any claim in connection therewith (if for no other reason than that they are unconnected with the original posts that the plaintiff has complained of in her statement of claim').

4. On the hearing of this application, counsel for the first defendant informed the court that the first defendant knows that she has a duty to discover all relevant material, and she is trying to do that, but there may be 35 or 40 lever arch files of correspondence that has passed between the first defendant and the 35 people named by the plaintiff which refer to the plaintiff.  Counsel informed the court:

   Now, if you make an order and say to me, I want you to discover any email or Facebook page where her name is mentioned or referred to, well, of course, I will do it.

5. Later, counsel assured the court that the first defendant 'will just try and continue as sensibly as we can to provide anything that comes to light'.

Further documents

1. The plaintiff maintains that the first defendant has failed to discover documents which she has, or has had, in her possession, custody or power which are relevant to matters in issue in this action, particularly the issues of identification, malice and damage to the plaintiff's reputation.

2. By way of example, the plaintiff referred to emails sent to the first defendant by Deb Ryan, a former member of the committee of WAERA (Western Australian Endurance Rider's Association) which refer to conduct of the plaintiff in or in relation to WAERA events.  The emails were forwarded by the first defendant to the second defendant.  The second defendant has informally discovered the documents.  The plaintiff says that the emails and attachments contain confidential material relating to the plaintiff, and that there was no proper basis for Ms Ryan to send the emails and attachments to the first defendant.  I find that the emails are discoverable, at least on the Peruvian Guano test.[2]

   [2] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63.

3. Counsel for the first defendant informed the court that he had not seen and did not know of the emails.  Counsel undertook to the court that he will have a look at it to see if the first defendant has the emails but added that 'the plaintiff has presumably got the material anyway because it has been discovered by the second defendant'.

4. I find that there are reasonable grounds for being fairly certain that there are documents relevant, directly or indirectly, to matters in issue in the proceeding that were at one time in the possession, custody or power of the first defendant.

5. However, I decline to exercise my discretion to order the first defendant to make a further affidavit of discovery for two reasons.  First, counsel for the first defendant has undertaken to the court that the first defendant, mindful of her obligation of continuing discovery, will continue to carry out reasonable searches for documents relevant to matters in issue in the proceeding which are, or have been, in her possession, custody or power and will make any further documents discovered available to the plaintiff.  Secondly, to place the burden of preparing a further list of documents verified by affidavit on the first defendant is disproportionate to the likely benefit to the plaintiff in obtaining such further discovery.

6. Of course, the first defendant has a continuing discovery obligation and at trial the plaintiff may cross‑examine the first defendant about her searches for relevant documents and her deletion of Facebook posts, Messenger texts and other texts.

Costs

1. I find that the conduct of the plaintiff in continuing to press for the first defendant to search for and discover relevant documents was reasonable.  In all the circumstances the appropriate costs order is that costs be in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MS
Associate to the Honourable Justice Le Miere

5 DECEMBER 2019