Grljusich v Western Australian Local Government Association - [2004] WASC 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GRLJUSICH -v- WESTERN AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION [2004] WASC 128

CORAM: MASTER NEWNES

HEARD: 24 MAY 2004

DELIVERED : 24 MAY 2004

PUBLISHED : 10 JUNE 2004

FILE NO/S: CIV 1311 of 2004

BETWEEN: JOHN GRLJUSICH
Plaintiff
AND
WESTERN AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION
Defendant

Catchwords:

Practice and procedure - Application for preaction discovery - Order 26A - Turns on own facts

Legislation:

Local Government Act 1995 (WA), Sch 8.1

Rules of the Supreme Court 1971 (WA), O26A

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr G Grasa
Defendant: Mr A C H Quahe

Solicitors:

Plaintiff: GG Legal
Defendant: Wojtowicz Kelly

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

McCarthy v Dolpag Pty Ltd [2000] WASCA 106

Case(s) also cited:

Calvin v Carr [1979] 2 All ER 440
Davis v Sagar Pty Ltd, unreported; SCt of WA (Sanderson M); Library No 980443; 10 August 1998
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 215
Hill v National Australia Bank Ltd, unreported; SCt of WA (Sanderson M); Library No 980676; 24 November 1998
Jovista Pty Ltd v FAI General Insurance Co Ltd [1999] WASC 44
Malouf v Malouf (1999) FCA 710
Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728
Yates v Advance Bank Australia Ltd, unreported; SCt of WA (Sanderson M); Library No 980693; 1 December 1998

MASTER NEWNES: On 10 March 2004 the plaintiff applied by originating summons for an order under O 26A of the Rules of the Supreme Court1971 (WA) for pre‑action discovery against the defendant. After hearing argument on 24 May 2004, I dismissed the application with costs, for reasons I stated shortly then. I said I would provide more detailed reasons if either party required them. The plaintiff has since sought such reasons and these are those reasons.
The plaintiff was the Mayor of the City of Cockburn between May 1997 and April 1999. It seems that in April 1999 the Council was suspended by the Minister for Local Government under the provisions of the Local Government Act 1995 (WA) ("the Act"), although it does not appear from the plaintiff's affidavits whether that was the reason for the termination of the plaintiff's term as Mayor.
On 18 May 1999, the Minister appointed a legal practitioner, Mr Neil Douglas, to conduct an inquiry into the Council of the City of Cockburn. The appointment was made under the Act. Pursuant to Sch 8.1 of the Act, where an inquiry is to be conducted by one person, that person is to be a legal practitioner whose appointment is agreed upon by the Minister and the Western Australian Municipal Association ("WAMA"). There are provisions dealing with a situation where agreement cannot be reached, but those are not relevant for present purposes.
It appears from the plaintiff's affidavits that, following his appointment, Mr Douglas conducted an inquiry into the Council and, on 4 May 2000, the Minister for Local Government tabled Mr Douglas' report in Parliament. On 30 June 2000, the Council was dismissed under Pt 8 of the Act. I should note in passing that that was more than 12 months after the Council had been suspended and the plaintiff had ceased to be mayor of the Council.
In 2001, WAMA changed its name to the Western Australian Local Government Association ("WALGA"), the defendant to this application.
According to the plaintiff, WALGA's Constitution did not provide for delegation by the association of its powers to its president or chief executive officer and, accordingly, a decision under Sch 8.1 had to be a decision of the association's executive body.
The plaintiff says in an affidavit in support of the application, sworn 10 March 2004, that he believes the State Council, or a properly constituted subcommittee, of WAMA did not meet to approve Mr Douglas' appointment. The plaintiff does not say why he holds that belief.
In a further affidavit, sworn on 8 April 2004, the plaintiff says that as WAMA was "one of the bodies responsible for the appointment of [Mr Douglas]", he believes it has or is likely to have documents "that may assist in ascertaining whether the decision was made according to law."
The plaintiff says that he has made inquiries of WALGA to obtain copies of documents relating to the appointment of Mr Douglas, but the association has declined to provide him with any material.
The plaintiff therefore seeks by this application discovery of all documents, minutes of meetings, correspondence, file notes, telephone messages and memoranda of the defendant and its predecessor, WAMA, concerning Mr Douglas' appointment to conduct the inquiry. The plaintiff also seeks a copy of the Constitution of WAMA as at January 1999.
The plaintiff says that if he is able to obtain the information sought in this application, he will be able to determine whether or not the correct procedure was adopted in relation to the appointment of Mr Douglas to conduct the inquiry. The plaintiff goes on to say that:
"It is of vital importance to determine as to whether or not the inquiry was correctly established as this may lead to the findings made by the inquiry being quashed, due to the fact that the inquiry was incorrectly established."
As I have said, the plaintiff does not say on what grounds he believes that the requirements under the Act for the appointment of Mr Douglas were not complied with. Nor is there any indication of the nature of the cause of action which the plaintiff contemplates he may have if the documents he seeks confirm his belief that the correct procedure was not followed. It is not easy to see what action the plaintiff would have against the defendant even if it turned out that his belief was well‑founded. Moreover, the plaintiff does not depose to any adverse findings or comments concerning him having been made by Mr Douglas and he does not identify how (if at all) his interests were affected by the inquiry, its report or the subsequent dismissal of the Council. In the course of the hearing counsel for the plaintiff was not able readily to identify a substantive cause of action the plaintiff may have against the defendant.
It is also relevant to note that the inquiry into the Council was instituted almost five years ago and the report tabled in Parliament, and the Council dismissed, almost four years ago.
It is well established that an order of the type which the plaintiff seeks in this application is not there simply for the asking. In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, the Full Court said:
"There is no doubt that caution must be exercised before making an order and that such orders should not be made as a matter of course. They should only be made when reasonably necessary to achieve the proper administration of justice: Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62; (1999) 21 WAR 250, per Parker J at 24; O'Sullivan v Herdmans Ltd [1987] 3 All ER 129 at 135 ‑ 6. It must be remembered that discovery "constitutes a very serious invasion of privacy and confidentiality [and] the process should not be allowed to place upon a litigant any harsher or more oppressive burden than is strictly required": Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 308 per Lord Keith of Kinkel; and this is a fortiori the position where the discovery is sought before action and is for the purpose of determining whether or not there is an issue to litigate."
In the present case, it is very far from clear that the plaintiff may have a cause of action against the defendant, or any other person for that matter, to which the documents he seeks may be relevant. On the papers before me, it seems that the current application is founded on little more than speculation, fuelled by suspicion, on the plaintiff's part, with, moreover, insufficient attention having been given to what (if any) possible causes of action might be open to him.
In my view, no proper basis had been established for the application and on that basis I ordered that it be dismissed with costs.