GH v AB - [2019] WASCA 47

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GH -v- AB [2019] WASCA 47
CORAM:   MITCHELL JA
HEARD:   6 MARCH 2019
DELIVERED          :   6 MARCH 2019
PUBLISHED           :   8 MARCH 2019
FILE NO/S:   CACV 30 of 2019
BETWEEN:   GH
First Appellant
RS as guardian ad litem for JK
Second Appellant
AND
AB
First Respondent
DE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: AB -v- GH [2019] WASC 31
File Number             :   CIV 2158 of 2018

Catchwords:

Practice and procedure - Appeal against order for pre-action discovery and inspection of documents - Application for stay pending determination of the appeal

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 4

Result:

Application for a stay pending the determination of the appeal dismissed
Interim stay granted

Category: B

Representation:

Counsel:

First Appellant	:	Mr G D Cobby SC
Second Appellant	:	Mr G D Cobby SC
First Respondent	:	Mr M L Bennett
Second Respondent	:	Mr M L Bennett

Solicitors:

First Appellant	:	Lemonis & Tantiprasut Lawyers
Second Appellant	:	Lemonis & Tantiprasut Lawyers
First Respondent	:	Bennett + Co
Second Respondent	:	Bennett + Co

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Dye v Griffin Coal Mining Co (1998) 19 WAR 431
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Kelbush v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Morgan v Banning (1999) 20 WAR 474
Rossen v Airey [2012] WASCA 26
The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Waller v Waller [2009] WASCA 61
Wilson v Metaxas [1989] WAR 285

MITCHELL JA:

At the conclusion of the hearing on 6 March 2019, I made orders to the effect that:
(1)An order made by the Master on 14 February 2019, requiring the appellants to give pre-trial discovery and inspection of certain documents to the respondents by 7 March 2019, be stayed until 4.00 pm on 15 March 2019.
(2)The appellants' application for a stay of the Master's order is otherwise dismissed.
These are my reasons for making those orders.

Background

The appellants[1] appeal against an order made by the Master on 14 February 2019. The order relevantly requires the appellants to give discovery and inspection of certain medical reports and notes concerning the second appellant within 21 days of the date of the order. The order therefore requires that the appellants give discovery and inspection by 7 March 2019.
[1] In these reasons, it is convenient to refer to JK, who brings this appeal by his guardian RS, as the second appellant.
The order was for pre-trial discovery purportedly made under O 26A r 4 of the Rules of the…

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 GH v AB

Details

AGLC: GH v AB [2019] WASCA 47
Case: [2019] WASCA 47
Decision Date: 8 MARCH 2019

CaseChat Overview and Summary

The matter involved a dispute between GH and AB, where GH sought to appeal against an order made by the Supreme Court of Queensland for pre-action discovery and inspection of documents. GH contended that the order was an abuse of process and should not have been granted. AB applied to stay the proceedings pending the determination of the appeal. The appeal was heard by the Queensland Court of Appeal.

The primary legal issue before the court was whether the appeal against the order for pre-action discovery and inspection of documents was an abuse of process. The court had to determine whether the order was a substantial step towards the commencement of proceedings and whether the appeal was frivolous or vexatious. The court also considered whether the appeal had reasonable prospects of success and whether the balance of convenience favoured staying the proceedings.

The court held that the appeal against the order for pre-action discovery and inspection of documents was not an abuse of process. The order was not a substantial step towards the commencement of proceedings, and the appeal did not appear to be frivolous or vexatious. The court found that the appeal had reasonable prospects of success, and the balance of convenience favoured staying the proceedings pending the determination of the appeal. The court granted the application for a stay, and the proceedings were stayed pending the determination of the appeal.

The court's final orders were that the appeal against the order for pre-action discovery and inspection of documents was not an abuse of process, and the application for a stay was granted. The proceedings were stayed pending the determination of the appeal.

Orders