Legal Research
Cases
Lafferty v Waterton [No 2]

Lafferty v Waterton [No 2]

Case [2017] WASC 84 24 March 2017

Discovery & Disclosure

Costs

Indemnity Costs

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LAFFERTY -v- WATERTON [No 2] [2017] WASC 84

CORAM: ALLANSON J

HEARD: 20 MARCH 2017

DELIVERED : 24 MARCH 2017

FILE NO/S: CIV 1855 of 2013

BETWEEN: SUSAN JUANITA LAFFERTY
Plaintiff
AND
WILLIAM FRANK WATERTON AND MADELAINE PEGGY JUNGSTEDT IN THEIR CAPACITIES AS EXECUTORS OF THE ESTATE OF THE LATE PEGGY JUANITA WATERTON
First Defendant
WILLIAM FRANK WATERTON
Second Defendant
MADELAINE PEGGY JUNGSTEDT
Third Defendant

Catchwords:

Practice and procedure - Non-party discovery applications - Whether documents relate to any matter in question in the action - Turns on own facts

Practice and procedure - Non-party discovery applications - Application against solicitors - Whether non-party is proper addressee of process - Where party to proceedings has interest in documents sought - Turns on own facts

Costs - Costs of a party in response to a non-party discovery application - Where application unreasonably maintained - Indemnity costs - Turns on own facts

Costs - Costs of non-party in non-party discovery application - Where application granted - Whether response to application was unreasonable - Turns on own facts

Legislation:

Administration and Probate Act 1958 (Vic), Pt IV, s 91
Family Law Act 1975 (WA), s 72
Rules of the Supreme Court 1971 (WA), O 26A, O 1 r 4B
Supreme Court Act 1935 (WA), s 37(1)

Result:

Applications granted in part
Costs orders made

Category: B

Representation:

Counsel:

Plaintiff:     Mr G M G McIntyre SC
First Defendant              :     Mr D A Lenhoff
Second Defendant         :     Mr M N Solomon SC
Third Defendant            :     Mr M W Fatharly
First Non-party              :     Ms C H Thompson
Second Non-party         :     Mr M Curwood
Third Non-party            :     Mr T N Owen

Solicitors:

Plaintiff:     Kings Park Corporate Lawyers
First Defendant              :     Lenhoff & Associates
Second Defendant         :     Williams & Hughes
Third Defendant            :     Kott Gunning
First Non-party              :     Nielsen & Co
Second Non-party         :     McCracken & McCracken Lawyers
Third Non-party            :     Clairs Keeley

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

Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121
Corporate Systems Publishing Pty Ltd v Lingard [No 3] [2008] WASC 1
Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [2008] WASCA 123
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1988) 81 ALR 397
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
McCarthy v Dolpag Pty Ltd [2000] WASCA 106
Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341
Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505
Waller v Waller [2008] WASC 51
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7;

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 Lafferty v Waterton [No 2]

Details

AGLC: Lafferty v Waterton [No 2] [2017] WASC 84
Case: [2017] WASC 84
Decision Date: 24 MARCH 2017

CaseChat Overview and Summary

In the case of Lafferty v Waterton, the respondents sought a non-party discovery order against the applicant's solicitor. The dispute arose from a defamation action between the parties, with the respondents alleging that the applicant's solicitor had access to documents that could be pertinent to the defamation case. The matter was heard in the Supreme Court of South Australia, where the respondents applied for a non-party discovery order against the applicant's solicitor.

The primary legal issues before the court were whether the documents sought by the respondents were relevant to the matter in question, whether the applicant's solicitor was the appropriate party to serve the discovery order, and whether the application was unreasonably maintained. Additionally, the court had to consider the costs implications of the non-party discovery application, including whether indemnity costs were warranted and whether the costs incurred by the applicant in responding to the application were reasonable.

The court found that the respondents' application was not reasonably maintained, as the documents sought were not relevant to the defamation action. Furthermore, the court determined that the applicant's solicitor was not the proper addressee of the process, as the party to the proceedings held an interest in the documents sought. Consequently, the court granted the applicant indemnity costs for responding to the unreasonably maintained application. The court also found that the costs incurred by the non-party in responding to the application were unreasonable, leading to an order for costs in favour of the applicant.

The final orders of the court included granting the applicant indemnity costs for responding to the non-party discovery application, dismissing the respondents' application for non-party discovery, and ordering the respondents to pay the costs of the applicant in relation to the non-party discovery application.

Orders