MANTEL -v- WATERPROOFING WA PTY LTD [No 2] [2012] WASC 117

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 117
Case No:	CIV:1815/2008	Heard:	29 SEPTEMBER 2011
Coram:	ALLANSON J	Delivered:	5/04/12
No of pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	BARRY JAMES MANTEL MICHELLE LEANNE MANTEL WATERPROOFING WA PTY LTD DOMINIC WILLIAM WHALEN LERIC PTY LTD MICHAEL RICHARD GOSS MARY-LENA GOSS
Catchwords:	Practice and procedure Discovery of documents Factors to consider in exercise of discretion
Legislation:	Nil
Case References:	Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273 Erlistoun Gold Pty Ltd (formerly Erlistoun Gold NL) v Worth Investments Pty Ltd [1999] WASCA 3 Gollin Holdings Pty Ltd v Adcock [1981] 1 NSWLR 691 Mantel v Waterproofing WA Pty Ltd [2011] WASC 77 Re McGorm; Ex parte The Co-operative Building Society of South Australia (1989) 20 FCR 387 Science Research Council v Nasse [1980] AC 1028 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MANTEL -v- WATERPROOFING WA PTY LTD [No 2] [2012] WASC 117 CORAM : ALLANSON J HEARD : 29 SEPTEMBER 2011 DELIVERED : 5 APRIL 2012 FILE NO/S : CIV 1815 of 2008 BETWEEN : BARRY JAMES MANTEL

MICHELLE LEANNE MANTEL

Plaintiffs

AND

WATERPROOFING WA PTY LTD

First Defendant

DOMINIC WILLIAM WHALEN

Second Defendant

LERIC PTY LTD

Third Defendant

MICHAEL RICHARD GOSS

MARY-LENA GOSS

Fourth Defendants

Catchwords:

Practice and procedure - Discovery of documents - Factors to consider in exercise of discretion

(Page 2)

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs : Mr A Metaxas

First Defendant : No appearance

Second Defendant : Ms N M E Breach

Third Defendant : Mr B W Ashdown

Fourth Defendants : Mr B W Ashdown

Solicitors:

Plaintiffs : Metaxas & Hager

First Defendant : No appearance

Second Defendant : Earnshaw & Associates

Third Defendant : D'Angelo Legal

Fourth Defendants : D'Angelo Legal

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

Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273
Erlistoun Gold Pty Ltd (formerly Erlistoun Gold NL) v Worth Investments Pty Ltd [1999] WASCA 3
Gollin Holdings Pty Ltd v Adcock [1981] 1 NSWLR 691
Mantel v Waterproofing WA Pty Ltd [2011] WASC 77
Re McGorm; Ex parte The Co-operative Building Society of South Australia (1989) 20 FCR 387
Science Research Council v Nasse [1980] AC 1028
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

(Page 3)

1 ALLANSON J: The plaintiffs seek orders for discovery by each of the second, third and fourth defendants. In order to understand the application it is necessary to give some detail of the history of this matter.

The parties and the claim

2 The first defendant (Waterproofing WA) is trustee of the Waterproofing Trust and, at material times, carried on business in the supply of goods and services for building developments. The Waterproofing Trust was constituted…

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: [2012] WASC 117
Decision Date: 5 APRIL 2012

CaseChat Overview and Summary

The case of Mantel v Waterproofing WA Pty Ltd [No 2] involves the plaintiff, Mantel, and the defendant, Waterproofing WA Pty Ltd, in a legal dispute where the primary issue was the discovery of documents. The case was heard in the Supreme Court of Western Australia. The plaintiff sought an order for the defendant to provide specific documents, which the defendant had resisted on the grounds that the discovery was not necessary for the just determination of the proceedings.

The court was required to determine whether the plaintiff's application for the discovery of certain documents was justified. The legal issues centred on the exercise of the court's discretion in relation to discovery of documents and the factors that should be considered in making such a decision. The defendant argued that the documents were not relevant to the issues in dispute and that their production would cause significant hardship and expense.

The court considered the relevant principles and authorities on the discovery of documents, emphasising that the discretion to order discovery should be exercised sparingly and only when necessary for the just determination of the proceedings. The court found that the plaintiff had not demonstrated that the documents were essential for their case, and that the potential hardship and expense to the defendant outweighed any benefit to the plaintiff. Consequently, the court dismissed the plaintiff's application for discovery of the documents.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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