Lamers v Arvind Pty Ltd

Case [2020] WASC 52


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:

  1. 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.

  2. 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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Lamers v Arvind Pty Ltd [2020] WASC 52
Case
[2020] WASC 52
Decision Date

CaseChat Overview and Summary

In the case of Lamers v Arvind Pty Ltd, the dispute involved an application for further and better discovery, focusing on whether the supporting affidavit was sufficient. The case was heard in the Supreme Court of Western Australia. The applicant, Lamers, sought additional documents from the respondent, Arvind Pty Ltd, claiming that the documents provided were insufficient and that further discovery was necessary to properly address the issues in the litigation. The central legal issue was whether the supporting affidavit was sufficient to justify an order for further and better discovery under the court’s inherent jurisdiction or under O 26 r 6 of the Supreme Court (General Civil Procedure) Rules 2006 (WA).

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].