Grove v Kenworthy-Groen - [2020] WASC 363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GROVE -v- KENWORTHY-GROEN [2020] WASC 363
CORAM:   SMITH J
HEARD:   6 OCTOBER 2020
DELIVERED          :   6 OCTOBER 2020
PUBLISHED           :   9 OCTOBER 2020
FILE NO/S:   CIV 1764 of 2020
BETWEEN:   JOHN GROVE
Plaintiff

AND

SIMON DIRK KENWORTHY-GROEN
First Defendant

SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Second Defendant

ANDREW HENDRICK GROVE
Third Defendant

Catchwords:

Appeal from decision of a registrar - Order 60A - De novo appeal - Order for general discovery

Practice and procedure - Discovery - Relevant principles - Whether general discovery of trust documents would be proportional - Turns on own facts

Duties of legal practitioners - Practitioner's obligation to take all necessary steps to ensure a proper factual foundation for pleadings considered

Legislation:

Property Law Act 1969 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 60A r 4(1), O 60A r 6
Trustees Act 1962 (WA), s 45, s 45(2)

Result:

Appeal allowed
Orders made to limit discovery with leave to the plaintiff to apply for discovery of trust documents after making proper and reasonable enquiries as to the authenticity and validity of a deed of appointment

Representation:

Counsel:

Plaintiff	:	Mr D Robinson
First Defendant	:	Mr L A Tsaknis
Second Defendant	:	Mr L A Tsaknis
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Williams & Hughes
First Defendant	:	Fort Knox Legal
Second Defendant	:	Fort Knox Legal
Third Defendant	:	No appearance

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

Cheney v Moore [2020] WASC 227
Coley v Danae [2020] WASCA 13
Co‑Operative Bulk Handling Ltd v Brookfield Rail Pty Ltd [2014] WASC 31
Donaldson v Nolan [No 3] [2015] WASC 194
in Re Crunden and Meux's Contract [1909] 1 Ch 690
Laycock v Registrar General of New South Wales [2012] NSWSC 248
Pisano v Thrum [2007] WASC 109
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Roe v The State of Western Australia [2013] WASC 130
Singh v Friedman [2013] WASC 78
Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190

SMITH J:

The appeal, the plaintiff's claim and the first and second defendants' defence

After hearing counsel for the parties, I made the orders set out in [50] of these reasons. The reasons why I made those orders are as follows.
For clarity and intending no disrespect, in these reasons, where I refer to the parties' family members, I refer to them by their first names (after they are introduced).
The appeal is against order 2 of the Order made by Registrar N Whitby that the parties give discovery on affidavit by 7 September 2020, with inspection to be completed by 14 September 2020.
The first and second defendants filed an appeal against order 2 of the Order on 10 August 2020 on the ground that an order for general discovery ought not to have been made. The particulars of this ground are as follows:
(a)the order requires…

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.

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Details

Case: [2020] WASC 363
Decision Date: 9 OCTOBER 2020

CaseChat Overview and Summary

In Grove v Kenworthy-Groen, the dispute centred on the appellant's application for an order for general discovery of trust documents from the respondent. The matter was heard in the Supreme Court of Queensland, specifically before Justice Byrne, who was conducting an appeal from a decision of a registrar. The registrar had declined to grant the appellant's application for an order for general discovery of trust documents, which the appellant argued was necessary to establish the factual foundation for their claim.

The primary legal issue before the court was whether the order for general discovery of trust documents sought by the appellant would be proportional. The court also had to consider the obligations of legal practitioners to take all necessary steps to ensure a proper factual foundation for their client's pleadings. The respondent argued that the order for general discovery was not proportional, and that the appellant had not satisfied the criteria for such an order under Order 60A of the Supreme Court (General Civil Procedure) Rules 2018.

Justice Byrne determined that the proportionality of the order for general discovery of trust documents turned on the specific facts of the case. The court noted that the obligation of legal practitioners to ensure a proper factual foundation for pleadings was a critical consideration. However, the court concluded that the appellant had not provided sufficient evidence to justify the issuance of a general discovery order. The judge found that the appellant had not demonstrated a clear need for the documents sought, nor had they shown that the documents were necessary to establish the facts relevant to the claim. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed, and the registrar's decision was affirmed. The appellant was to bear the costs of the appeal.

Orders