JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MUBARAK -v- KELLY [2020] WADC 136
CORAM: SHEPHERD DCJ
HEARD: 7 AUGUST 2020
DELIVERED : 23 OCTOBER 2020
FILE NO/S: CIV 3183 of 2018
BETWEEN: KIDIMA MUBARAK
Plaintiff
AND
GEORGIA ROSE KELLY
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Application for specific discovery - Centrelink records - Documents in the 'power' of a person - The requirement for the discovering party to take all reasonable steps to obtain documents relevant to the matters in issue within the party's power to obtain - The obligation to particularise special damages
Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18
Re Attorney-General (Cth); Ex parte Skyring [1996] HCA 4
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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AGLC
Mubarak v Kelly [2020] WADC 136
Case
[2020] WADC 136
Decision Date
CaseChat Overview and Summary
The case of Mubarak v Kelly involved an application for specific discovery of Centrelink records by the plaintiff against the defendant. The plaintiff sought to obtain documents that were in the power of the defendant, including records of payments made to the plaintiff under the Newstart Allowance scheme. The dispute centred on the plaintiff's efforts to establish the precise amount of special damages they were owed, which necessitated a thorough examination of the Centrelink records. The matter was heard in the Federal Circuit Court of Australia.
The primary legal issues that the court had to address were whether the plaintiff had taken all reasonable steps to obtain the documents within their power, and whether the plaintiff had sufficiently particularised the special damages they claimed. The court needed to balance the plaintiff's right to access relevant documents against the potential burden and invasion of privacy that such discovery might impose on the defendant. Additionally, the court had to consider the requirements for specificity in the claim for special damages.
The court held that the plaintiff had not taken all reasonable steps to obtain the documents within their power, as they had failed to make a formal request to Centrelink for the records. The court emphasised the importance of the plaintiff making every effort to secure documents that are within their control before seeking discovery of documents in the power of another party. Furthermore, the court found that the plaintiff's claim for special damages was not sufficiently particularised, as the plaintiff had not provided specific details about the alleged losses or the basis for the claimed amounts. The application for specific discovery was therefore dismissed.
In conclusion, the Federal Circuit Court ruled that the plaintiff had not satisfied the necessary criteria for obtaining the specific discovery of Centrelink records. The court's decision underscored the requirement for plaintiffs to exhaust all available means to obtain documents within their own control and to provide detailed and specific information regarding the claimed special damages.