City of Bayswater v Viva Energy Australia Pty Ltd [No 2]

City of Bayswater was the plaintiff and Viva Energy Australia Pty Ltd was the defendant in a case before the Supreme Court of Western Australia. The plaintiff sought damages for nuisance and a declaration for an injunction in relation to the defendant's operation of a petrol station. The plaintiff alleged that the defendant's operation of the petrol station constituted a nuisance and was in breach of a covenant. The plaintiff also sought orders for further and better discovery of documents. The defendant opposed the plaintiff's application for further discovery. The legal issues in the case were whether the court should make an order for further discovery of documents and the principles that should be applied in determining whether to make such an order. The court considered the principles in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd and Perpetual Trustees Co Ltd v Burniston, which established that in order to succeed on an application for further discovery, the applicant must show that there are reasonable grounds to believe that the documents are in the possession, custody or power of the party against whom discovery is sought, the documents sought must be relevant, and the documents ought to have been disclosed. The court also noted that 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. The court found that the plaintiff had not made out a case for further and better discovery and dismissed the application. The court held that there were no reasonable grounds to believe that the documents sought were in existence, were relevant, or ought to have been disclosed. The court also noted that the plaintiff's application was not supported by any evidence or affidavit and was merely speculative. The plaintiff's application for further and better discovery was dismissed with costs.