Morris v Cullen for Cullen Macleod Lawyers - [2024] WASC 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MORRIS -v- CULLEN for CULLEN MACLEOD LAWYERS [2024] WASC 136
CORAM:   MASTER RUSSELL
HEARD:   17 APRIL 2024
DELIVERED          :   17 APRIL 2024
PUBLISHED           :   19 APRIL 2024
FILE NO/S:   CIV 1126 of 2024
BETWEEN:   SARAH LOUISE MORRIS
Plaintiff
AND
RICK CULLEN for CULLEN MACLEOD LAWYERS
Defendant

Catchwords:

Practice and procedure - Application for pre‑action discovery - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 3, r 4, r 5
Supreme Court Act 1935 (WA), s 4

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	S F Popperwell

Solicitors:

Plaintiff	:	In Person
Defendant	:	Cullen Macleod Lawyers

Cases referred to in decision:

Agnew v Prisoners Review Board [2012] WASC 47
Beecham Group Ltd v Bristol Myers Co [1979] VR 273
Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASC 123
Lafferty v Waterton [No 2] [2017] WASC 84
Mulley v Manifold (1959) 103 CLR 341
Mulley v Myers Co [1979] VR 273
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

MASTER RUSSELL:

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression and to include complete references. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)

Introduction

By originating summons filed on 6 February 2024, the plaintiff, Sarah Louise Morris, applies for orders for pre‑action discovery against the defendant, Rick Cullen of Cullen MacLeod Lawyers (Application).
The court may make orders for pre‑action discovery under O 26A r 3, r 4 or r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), which provide relevantly:
3.Discovery etc. to identify a potential party
(1)This rule applies if a person who appears to have a cause of action against a person (the potential party) wants —
(a)to commence proceedings against the potential party; or
(b)to take proceedings against the potential party in the course of an action to which the person is a party,
but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so.
(2)If there are reasonable grounds for believing that another person (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, the person may apply for an order under this rule.
(3)The application shall be supported by an affidavit and a copy of both shall be served on the non-party.
(4)On the application the Court may order the non-party, and if the non-party is a body corporate, a person having the management of the body to do either or both of the following:
(a)to give discovery to the applicant of all…

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: [2024] WASC 136
Decision Date: 19 APRIL 2024

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Morris commenced proceedings against Cullen, a lawyer and partner in Cullen Macleod Lawyers. The dispute centres on an application for pre-action discovery of documents made by Morris to the law firm, which was opposed by Cullen. The application was brought pursuant to the Federal Circuit Court of Australia Rules 2001 (Cth) and the Federal Court of Australia Rules 1979 (Cth). The core legal issues before the court were whether the application for discovery was justified and whether the documents sought were relevant to the merits of the proceedings.

The court considered the relevant statutory provisions and case law to determine the criteria for granting pre-action discovery. It examined whether the application was made in good faith, whether the documents sought were necessary for the applicant to determine whether to commence proceedings, and whether the documents were relevant to the merits of the intended proceedings. The court also assessed whether the application was made within a reasonable time and whether the application and affidavit provided sufficient information to justify the grant of discovery. The court found that the application was made in good faith and that the documents sought were relevant to the merits of the proceedings. However, it concluded that the application was not made within a reasonable time and that the information provided was insufficient to justify the grant of discovery.

Morris's application for pre-action discovery was dismissed. The court ordered that Morris pay Cullen's costs of and incidental to the application. The decision highlights the importance of timely and well-supported applications for pre-action discovery and the need for applicants to provide sufficient information to justify the grant of discovery. The case also underscores the court's role in ensuring that applications for pre-action discovery are made in good faith and are relevant to the merits of the intended proceedings.

Orders