Margaretic v Western Australian Trotting Association
[2023] WASC 100
•28 MARCH 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MARGARETIC -v- WESTERN AUSTRALIAN TROTTING ASSOCIATION [2023] WASC 100
CORAM: KENNETH MARTIN J
HEARD: 6 FEBRUARY 2023
DELIVERED : 6 FEBRUARY 2023
PUBLISHED : 28 MARCH 2023
FILE NO/S: CIV 2373 of 2022
BETWEEN: DURO MARGARETIC
Plaintiff
AND
WESTERN AUSTRALIAN TROTTING ASSOCIATION
Defendant
Catchwords:
Practice and procedure - Rules of the Supreme Court 1971 (WA) - Reference to document in affidavit - Obligation to provide documents so referred to by counterparty - Multiple documents the subject of notice to produce by O 26 r 8(2) of the Rules of the Supreme Court 1971 (WA) - Only inferences as to some documents - Production orders as documents directly referred to by affidavit
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Orders to produce for inspection documents directly referred to
Category: B
Representation:
Counsel:
| Plaintiff | : | B E S Lauri |
| Defendant | : | A P Hershowitz |
Solicitors:
| Plaintiff | : | Law One (WA) Pty Ltd |
| Defendant | : | JDK Legal Services |
Case(s) referred to in decision(s):
Bond v West Australian Newspapers Ltd [2008] WASC 121
Hearne v Street [2008] HCA 36; (2008) CLR 125
Sieffert v Prisoners Review Board [2010] WASC 239
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 6 February 2023 and has been edited from the transcript.)
These are my brief reasons for decision in relation to the plaintiff's application made pursuant to O 26 r 8(2) of the Rules of the Supreme Court 1971 (WA) (RSC).
I am providing ex tempore reasons urgently because a trial of this action looms in accordance with a fairly tight timetable of directions that I set down under orders of 17 January 2023, including for the trial to be heard between 26 and 28 April 2023. To that end, essentially, I made orders for fresh, non-hearsay direct evidence affidavits to be prepared and exchanged in order to facilitate the urgent trial.
The parties need to know the outcome of this present application immediately, so they can get on with their preparations for the urgent trial.
Under the plaintiff's minute of orders (folio 18), a number of identified documents are sought under par 1 - by reference to documents said to be referred to in pars 29, 38, 39, 40, 45 and 54 of an earlier interlocutory affidavit that was sworn by the Chief Executive Officer of the defendant. That was an affidavit of Mr Michael Terrence Radley sworn and filed 16 January 2023 (folio 9).
The relevant rule for relief upon seeking production and inspection is the subject of much case authority. A lot of it is helpfully collected in the written submissions of the plaintiffs which were filed on Friday, 3 February 2023 (folio 19), discussing a number of leading authorities around this particular rule. In particular, I would refer to Martin CJ's observations made in Sieffert v Prisoners Review Board [2010] WASC 239 [11] and [12] and also to the observations by Newnes J (as his Honour then was) in Bond v West Australian Newspapers Ltd [2008] WASC 121 [35].
The nature of the rule basically is directed towards making sure that a reference made to a document in a pleading or in an affidavit will 'trigger' an obligation for the party who refers to that document to provide it to the other side - if requested.
By its terms, RSC O 26 r 8(2) provides:
Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleading or affidavits ...
with this key phrase -
... reference is made to any document ...
I emphasise that phrase. The subrule continues:
... requiring him to produce that document for inspection by the party giving the notice.
There is no present controversy under exchanged correspondence between the respective lawyers for the rival parties - as collected in Ms Jonelle Di Lena's affidavit and relied upon by the plaintiff for the purposes of the present application (ie, her affidavit sworn on 3 February 2023, folio 20) - that notice has been given in accord with the rule by the lawyers for the plaintiff to the defendant. Notice has therefore been given to the lawyers for the defendant under RSC O 26 r 8(2) seeking the documentary materials listed in par 1 of the plaintiff's minute.
The defendant's negative response, essentially, has been to raise a number of matters against production and inspection of those materials - including that it is presently too early to give discovery, that discovery has been dispensed with by my earlier orders for trial, or that the various documents are only referred to by interlocutory affidavits and so, with the matter now proceeding to an urgent trial, the interlocutory affidavits are no longer relevant as they will not be relied upon at the trial.
By the state of the law upon RSC O 26 r 8(2) as seen in the case authorities collected in the plaintiff's written submissions, none of the defendant's written responses are sufficient to blunt the naked force of the obligation to produce a document that is referred to in accord with RSC O 26 r 8(2), where the document is referred to by a pleading or an affidavit.
Even if an interlocutory affidavit has been read earlier, and so has fully served its forensic purpose, authority says that the reference to the document remains sufficient to maintain the obligation to produce it for inspection - unless good cause is shown to the contrary. The onus in that negative respect, as is rightly pointed out by the plaintiff, falls on the resisting party to show cause to the contrary.
I would isolate at this particular point for separate consideration all questions of confidentiality and the allied issue as to this Court ordering some greater protective regime for such a document upon its required production - beyond the implied undertaking and obligations that are otherwise fully applicable to all documents that are compulsorily to be provided for inspection under civil discovery process such as that canvassed by the High Court in Hearne v Street [2008] HCA 36; (2008) CLR 125.
Plainly, the implied undertaking and, indeed, the obligation of confidentiality that the High Court refers to in Hearne v Street will apply to any documents compulsorily produced under the disclosure regime of RSC O 26 r 8(2). There may be unique circumstances, however, that require some greater degree of strengthening of the orthodox common law confidentiality regime. Each production and inspection scenario will, in that regard, require a bespoke consideration of its circumstances.
Determinations
The first question presently to determine is whether the rule as it is framed is presently engaged or not for various documents to be produced.
To that end, I discussed related issues in my dialogue with counsel for the plaintiff this morning.
By reference to Mr Radley's affidavit, I am persuaded in terms of its observed reference to an 'Agreement', under par 29. That reference must be evaluated in the context of the paragraph, which says the defendant elected to work with the heritage specialists that developed the State buildings. The paragraph refers to 'Agreements' being put in place to provide due diligence on the Gloucester Park venue under certain conditions.
Assessed in overall context, I am of the view that this is a sufficient reference to the Agreement as a document - that is, a written agreement. Consequently, I find there is a reference to a document sufficient to engage RSC O 26 r 8(2).
However, in respect of finding a document reference in par 38, I am of the opposite view. Paragraph 38 of Mr Radley's affidavit merely reads:
I know from discussions with David Hunter, the Chief Racing Officer of [Racing and Wagering Western Australia], that [Racing and Wagering Western Australia] commissioned KPMG to conduct an independent review as part of its approval process.
The paragraph is referring (in a hearsay way by reference to discussions with Mr Hunter) to the event of a commissioning of KPMG to do something. Beyond that, however, the suggestion that it refers to a written document is only an inference or implication, sought to be extrapolated from out of what is found in that paragraph.
Here I can find there is no direct reference to any document - by contrast merely to an act of commissioning something under par 38. Consequently, my finding is that RSC O 26 r 8(2) is not engaged in respect of par 38, vis-à-vis any document.
Next, in respect of par 39, the conclusion is easier. There is observed to be a direct reference under par 39 to a letter from Racing and Wagering Western Australia (RWWA), where Mr Radley says:
By letter dated 1 August 2022, RWWA confirmed to me in writing the commitment to provide the Defendant with $24.7 million in principle funding when the Hesperia sale goes through.
Mr Radley adds:
I do not attach a copy of this letter to my affidavit as it includes confidential information.
It is demonstrable from par 39 itself that this is a direct reference made to the letter referred to of 1 August 2022 from RWWA. Consequently, the production subrule is engaged.
The next document sought is under par 40 of Mr Radley's affidavit. This paragraph reads in brief terms:
The defendant has had an independent valuation of the site conducted by global real estate specialist Jones Lang LaSalle.
Again, the question is whether that is any direct reference to a document. My end view is that there is not.
By adding some ingredients of commercial knowledge, one might reasonably infer that Jones Lang LaSalle, having been commissioned, went about that commissioned work and so likely later did prepare a written valuation document. However, par 40 itself, which is all that I am concerned with in terms of a potential engagement with RSC O 26 r 8(2), does not identify or make a direct reference to the (valuation report) document. Consequently, the production rule is not engaged.
Next, par 45 refers to a Heads of Agreement, in terms:
There is a Heads of Agreement in place which took well over six months to complete.
As seen, a Heads of Agreement document is so referred with a capital H and a capital A.
On my view, that is a sufficient and direct reference by par 45 to what manifests there as a document, viewed in that context. So then by reference to par 45, there will be an order for production and inspection for that document in accord with RSC O 26 r 8(2).
Next, and perhaps the most difficult to resolve so far is a disputed document referenced in par 54 of Mr Radley's affidavit, which reads in the following terms:
Voting carried out by the members at the referendum resulted in 63% of members voting in favour of the proposal to sell off part of the Gloucester Park land to enable the redevelopment to take place.
A first observation towards par 54 would highlight its inadmissible conclusionary character. So read, it seeks to summarise an end result of a process. No primary underlying materials are referred to. What is referred to is only a result.
The argument is made by the plaintiff in terms of a suggested engagement with RSC O 26 r 8(2). It is submitted that par 54 necessarily refers, as part of that paragraph, to documents, being to documentary ballot papers that were completed by respective Western Australian Trotting Association members.
That again, however, is an inference as to an existence of documents reached by adding in some extra knowledge - gained elsewhere by reference to the nature of a voting process erected under the constitution and by-laws of the defendant, which allow an option of electronic voting or, as well, physical voting process by post.
By my view, par 54 does not display the required direct reference to a document in accord with RSC O 26 r 8(2).
Rather, what is referred to is only an end result of a voting process. So, beyond that, the suggested existence of documents is a matter of inference - not a product of direct reference.
Consequently, there is no direct engagement with RSC O 26 r 8(2).
Thus, I will not order that any documents be produced by reference to par 54.
The last of the documents sought by the plaintiff is pursued by reason of a reference to a letter found in another of the defendant's interlocutory affidavits - by Mr Kevin John Jeavons (folio 11). This is to a letter of 29 April 2020. The relevant paragraph in Mr Jeavons' affidavit (par 20) displays a direct reference to a Hesperia letter of that date. Consequently, in respect of that document, I am again left satisfied that RSC O 26 r 8(2) is engaged for that document.
Consequently, I am of the end view that only those documents I have identified above must be produced for inspection.
Greater confidentiality?
In terms of this Court possibly ordering a more rigorous regime of confidentiality that would exceed the implied Hearne v Street obligations that will attach to documents so produced, I am open to submissions upon an enhanced regime of greater confidentiality being ordered for any of the produced documents from the parties if they cannot reach agreement over that further issue. First, however, the parties' lawyers should confer over the need for such an enhanced level of confidentiality orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VC
Associate to the Honourable Justice K Martin
28 MARCH 2023
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