Leighton v Greg Rowe Pty Ltd t/as Greg Rowe and Associates - [2011] WASC 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEIGHTON -v- GREG ROWE PTY LTD t/as GREG ROWE & ASSOCIATES [2011] WASC 246

CORAM: MASTER SANDERSON

HEARD: 29 AUGUST 2011

DELIVERED : 13 SEPTEMBER 2011

FILE NO/S: CIV 2166 of 2011

BETWEEN: ROSS WILLIAM LEIGHTON
Plaintiff
AND
GREG ROWE PTY LTD t/as GREG ROWE & ASSOCIATES
First Defendant
ROBERT VLETTER
Second Defendant
DIANNA JOHNSON
Third Defendant

Catchwords:

Practice and procedure - Pre-action discovery - Turns on own facts

Legislation:

Rules of the Supreme Court1971 (WA), O26A r 3

Result:

Discovery in limited form ordered

Category: B

Representation:

Counsel:

Plaintiff:     Mr M P Bruce
First Defendant             :     Mr J D MacLaurin
Second Defendant         :     Mr J D MacLaurin
Third Defendant           :     Mr J D MacLaurin

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     Hardy Bowen
Second Defendant         :     Hardy Bowen
Third Defendant           :     Hardy Bowen

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

Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449
The Hancock Family Memorial Foundation Ltd v Fieldhouse (No 2) [2008] WASC 147

MASTER SANDERSON: By this application the plaintiff seeks orders pursuant to O 26A r 3 of the Rules of the Supreme Court1971 (WA), the discovery of documents in the possession custody or power of the defendants, in order to ascertain the identity of a potential party or parties against whom it may commence proceedings.
Order 26 A r 3 empowers the court to order a non‑party to give discovery to identify a potential party where the following conditions are satisfied:
1.the applicant seeks to take proceedings against the potential party in the course of the action to which the applicant is a party;
2.the applicant has made reasonable enquiries;
3.the applicant had not been able to ascertain a description of the potential party sufficient for the purposes of taking proceedings against that potential party; and
4.there are reasonable grounds for believing the non‑party had, has or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party.
See TheHancock Family Memorial Foundation Ltd v Fieldhouse (No 2) [2008] WASC 147 [19].
An order for discovery to identify a potential party is not made unless it would be reasonable for the applicant to bring a proceeding against the prospective party. A prima facie case need not be shown, but there must be some indication the applicant has a cause of action: see the Hancock Family Memorial Foundation Ltd [20].
Proof of the requirement that reasonable enquiries have been made will frequently be established by the sending of a written request to a party or parties for access to documents or information sought. In exercising this discretion to make an order under this rule the court must consider whether the applicant will be left without an effective remedy if an order is not made.
The application is supported by an affidavit of the plaintiff sworn 13 June 2011. The plaintiff says he is the applicant in a development proposal of certain land in Wattle Grove. He has owned the property for sometime. The land had been zoned special rural but after an application by the plaintiff it is now zoned Special Use (Aged Residential Care) .
The plaintiff says he intends to erect an integrated aged care facility on the land. This facility will include independent living, hostel accommodation respite care and a nursing home.
In par 7 to 16 of his affidavit the plaintiff sets out both his experience and his achievements. It is clear over a period of time he has established a reputation as a developer and manager of nursing homes. It is clearly a reputation he wishes to protect.
On 24 May 2011 an advertisement appeared in the 'Kalamunda Reporter' a local newspaper circulating in the Wattle Grove area. The advertisement was entitled 'Addressing the Myths Around Aged Care in Wattle Grove'. This advertisement purports to analyse the plaintiff's commercial activity in relation to his company's proposal to rezone the Wattle Grove land. It makes at least three assertions of which the plaintiff complains. It is not necessary to detail these assertions. It is sufficient if I say the plaintiff maintains each is wrong and each is misleading. The advertisement was said to be placed by the 'Wattle Grove Action Group' (the action group). It is the identity of the persons behind this organisation which is the basis of this application.
It is clear the first defendant acts as an advisor to the action group. On 7 December 2009 it wrote to the Shire of Kalamunda opposing the application. Parts of that letter have found there way almost verbatim into the advertisement. It is the plaintiff's position the first defendant must have information as to the persons involved in the action group which will allow the plaintiff to identify those individuals.
The action group maintains a website at On 1 May 2011 an article entitled 'High End Aged Care in Wattle Grove? The Devil is in the Detail' appeared on the site. The plaintiff says this publication conveyed to the natural and ordinary reader defamatory imputations. Says these imputations are false and constitute a serious defamation of the plaintiff. Further, this publication republishes a copy of the advertisement and both documents remain accessible to the public.
The second defendant is secretary of the action group. The plaintiff submits there are reasonable grounds for believing the second defendant would have in his possession custody or power documents relating to the author of both publications.
The third defendant is also a member of the action group. The last sentence of the advertisement refers to her by name and gives her telephone number. It indicates she is representing the action group. Again, as the plaintiff's position, the third defendant would have in her possession custody or power documents relating to the author of both publications.
I am satisfied the plaintiff has made reasonable enquiries in an attempt to identify the person or persons against whom a cause of action may lie. He has been unsuccessful. This requirement of the rule has been satisfied. Counsel for the defendants did not suggest otherwise.
It was the defendants' position that the material provided by the plaintiff did not establish the plaintiff had a cause of action against any of the defendants. The plaintiff alleges they have a cause of action both for misleading and deceptive conduct and in defamation. The defendants maintained no cause of action in defamation could lie. They submitted the publications were not 'in trade or commerce' and referred to the decision in Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449. Without in any way purporting to determine that issue, it must be acknowledged there is strength in the defendants' submission.
That does not alter the fact that the plaintiff may have an action for defamation. Clearly, it is the action group, an incorporated association, which caused the publications. But of course, an action group can only act through certain individuals. They are ultimately responsible for what appeared in the newspaper and on the website. It is those individuals the plaintiff is seeking to identify. In my view, the plaintiff is entitled to discovery from the defendants for that purpose.
Much of the defendants submissions were taken up with the issue of the scope of the discovery. In his originating the plaintiff sought the following order:
1.The first defendant produce within 14 days all documents in its power, possession or control from 1 July 2008 which relate to the description of the person or persons who constitute the Wattle Grove action group, including persons:
1.1who receive its invoices;
1.2from whom it obtains its instructions;
1.3responsible for paying its accounts;
1.4with whom it deals; and
1.5to whom it reports.
In my view, the scope of the orders sought is too wide. What the plaintiff is seeking to do is identify the person or persons who were responsible for publication of the advertisement. That being so, in my view, discovery of all documents which go to the question of who provides the first defendant with instructions should be sufficient for the plaintiff's purposes. I would therefore be prepared to make an order which is so limited. Of course, liberty to apply should be available so if something emerges which suggests wider discovery is necessary to satisfy the plaintiff's legitimate claims further orders can be made.
As against the second defendant the plaintiff seeks:
2.The second defendant produce within 14 days any documents in his power possession or control that identify which natural person or persons:
2.1constitutes the Wattle Grove action group;
2.2was responsible for the preparation, drafting the content or publication of the Advertisement; and
2.3in relation the website maintained under the URL (the Website), is the natural person responsible for maintaining that website and/or dealing with its content as at 24 May 2011 until the date hereof.
I am not satisfied the category of documents referred to in cl 2.1 should be discovered. In my view, discovery of the list of members of the action group is not necessary to achieve the plaintiff's legitimate forensic purposes.
As against the third defendant, discovery in basically the same terms is sought as against the second defendant. Again, I am not satisfied the membership list ought be provided. Otherwise discovery in the terms sought should be given.
I will hear the parties as to the precise form of orders and as to costs.