JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LAMERS -v- ARVIND PTY LTD [2020] WASC 52
CORAM: ACTING JUSTICE STRK
HEARD: 13 JUNE 2019 AND ON FURTHER WRITTEN SUBMISSIONS FILED ON 14 JUNE 2019 AND ON 19 JUNE 2019
DELIVERED : 25 FEBRUARY 2020
FILE NO/S: CIV 2404 of 2017
BETWEEN: BERNARD HENRICUS LAMERS as trustee for THE BEN AND DEBRA LAMERS FAMILY TRUST
Plaintiff
AND
ARVIND PTY LTD
First Defendant
SARO VINZI CARBONE
Second Defendant
BRIGHT IMAGE DENTAL PTY LTD
Third Defendant
Catchwords:
Practice and procedure - Discovery - Application for further and better discovery - Sufficiency of supporting affidavit - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr WCJ Zappia |
| First Defendant | : | Mr A Metaxas |
| Second Defendant | : | Mr A Metaxas |
| Third Defendant | : | Mr A Metaxas |
Solicitors:
| Plaintiff | : | Kott Gunning |
| First Defendant | : | Metaxas Legal |
| Second Defendant | : | Metaxas Legal |
| Third Defendant | : | Metaxas Legal |
Case(s) referred to in decision(s):
Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102
Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited & Anor [2018] HCA 43
Astra‑National Productions Ltd v Neo‑Art Productions Ltd [1928] WN 218
British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709
Burrows v Walls (1885) 5 De G M & G 233; 43 ER 859
Byrnes v Kendle (2011) 243 CLR 253
Chvojka v Lockwood [2019] WASC 440
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2010] NSWSC 1309
Gava v Grljusich [1999] WASC 13
Glazier v Australian Men's Health (No.2) [2001] NSWSC 6
Hancock v Rinehart [2015] NSWSC 646
In re Ellis; Ellis v Ellis [2015] WASC 77
Mann v Carnell (1999) 201 CLR 1
Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWSC 22
Mulley v Manifold (1959) 103 CLR 341
Partington v Reynolds 62 ER 98
Perptetual Trustees Company Ltd v Burniston [2012] WASC 26
Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18
Roe v The State of Western Australia [2013] WASC 130
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
ACTING JUSTICE STRK:
The plaintiff brings an application for further and better discovery from the defendants pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 26 r 6(1) and, in the alternative, the inherent jurisdiction of the court.
The plaintiff seeks orders compelling the defendants to give further and better discovery of documents which fall within the scope of four categories identified in the plaintiff's proposed minute of orders, as amended. A re‑amended minute of proposed orders for further and better discovery was filed on behalf of the plaintiff on 31 May 2019. A copy of the…
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- AGLC
- Lamers v Arvind Pty Ltd [2020] WASC 52
- Case
- [2020] WASC 52
- Decision Date
CaseChat Overview and Summary
The court examined the principles governing the sufficiency of affidavits for further discovery, particularly focusing on the inherent jurisdiction of the court and the provisions of O 26 r 6. The court highlighted that the inherent jurisdiction to order further and better discovery is exercised according to the practice of the Court of Chancery, which was conclusive unless the insufficiency of discovery was evident from certain sources. The court noted that under the inherent jurisdiction, the test for ordering further discovery is whether the court has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed. This test also applies under O 26 r 6. The misconception of the discovering party was deemed relevant but not determinative, and the court emphasised that it was not necessary to infer the existence of particular documents where a party had excluded documents under a misconception of the case. The court applied these principles to determine whether the supporting affidavit was sufficient to warrant further discovery.
Following this analysis, the court concluded that the supporting affidavit did not provide sufficient grounds to warrant an order for further and better discovery. The court found that the affidavit did not demonstrate that there were other relevant documents which ought to have been discovered. The misconception of the discovering party, while relevant, did not establish the necessary certainty required for the court to order further discovery. Consequently, the application for further and better discovery was dismissed. The court did not make any further orders regarding the costs of the application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In determining whether to make an order for further discovery, the court must be fairly certain that there are other relevant documents which ought to have been discovered. Murphy JA summarised the relevant principles in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd:[21]3First, the court has, in its inherent jurisdiction, the power to order further and better discovery.4Secondly, the court's inherent jurisdiction is exercised according to the former practice of the Court of Chancery. That practice was that an affidavit of documents by a party was conclusive as to the relevant documents in the possession, custody or power of that party unless the insufficiency of the discovery appeared from an admission in the pleadings by the party from whom discovery was sought, or from the affidavit of documents itself, or from the documents referred to in the affidavit, or from any source that constituted an admission by that party of a discoverable document, or where the party had excluded documents under a misconception of the case. Insufficiency could not, however, be demonstrated by a contentious affidavit from the party seeking to challenge the discovery. Thirdly, O 26 r 6 and its predecessors were introduced to relax the Chancery rule, and to allow a challenge to discovery based on a contentious affidavit seeking discovery of particular documents, or a particular class of documents.5Fourthly, the introduction of O 26 r 6 enlarged, but did not modify, the court's inherent jurisdiction. Thus, if a party applies pursuant to both O 26 r 6 and the court's inherent jurisdiction, but the O 26 r 6 application is for some reason irregular, providing that the criteria for the exercise of the inherent jurisdiction are satisfied, an order may be made under the inherent jurisdiction for discovery, including for a particular class of documents.6Fifthly, under the inherent jurisdiction, where the insufficiency of a party's discovery appears from the party's pleadings, or its affidavit of documents, or the documents referred to therein, or any source constituting an admission by that party of a discoverable document, the test is whether the court has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed. That is also the test that is to be applied under O 26 r 6.7Sixthly, under the inherent jurisdiction, 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.8Seventhly, although the misconception of the discovering party is relevant to the exercise of the court's inherent jurisdiction, it is also, in my view, a factor which may assist in the drawing of inferences for the purposes of determining an application under O 26 r 6. (citations omitted)[21] Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [3] ‑ [8].