Mubarak v Kelly

Case [2020] WADC 136


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

Legislation:

Rules of the District Court 2005 (WA)
Rules of the Supreme Court 1974 (WA)
Social Security (Administration) Act 1999 (Cth)

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff : In person
First Defendant : No appearance
Second Defendant : Mr D R Clyne

Solicitors:

Plaintiff : Not applicable
First Defendant : Not applicable
Second Defendant : HBA Legal

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

Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259

Ali v Khan [2015] NSWSC 1961

Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218

Australian Railway Group Pty Ltd v Rowan [2004] WASC 165

B v B [1979] 1 All ER 801

Beecham Group Pty Ltd v Bristol-Myers Co [1979] VR 273

Biltoft Holdings Pty Ltd v Casselan Pty Ltd (Unreported, WASC, Library No 940252, 20 May 1994)

Briggs v Glentham Pty Ltd (1992) 8 WAR 339

Built Pty Ltd v C & L Ceilings Pty Ltd [2019] WADC 52

Chavarria v Rodman [2006] WADC 42

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Cristovao v Butcher Paull & Calder (2008) 58 SR (WA) 64

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Hunt v Knabe (No 2) (1992) 8 WAR 96

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

In the Marriage of Barro (1983) 47 ALR 338

Integrated Management Services Pty Ltd v Inches [2009] WADC 41; (2009) 61 SR (WA) 114

Kezic v St John of God Health Care Inc [2015] WASCA 220

Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128

Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1980] 1 WLR 627

Lopresti v Ford Motor Company of Australia Ltd [2007] WASC 206

Midalco Pty Ltd v Simpson (Unreported, WASC, Library No 6747, 5 June 1987)

Midalco Pty Ltd v Simpson (Unreported, WASC, Library No 940252, 20 May 1994)

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

Mulley v Manifold (1959) 103 CLR 341

Neil v Nott [1994] HCA 23

Nobarani v Mariconte [2018] HCA 36

Palmdale Insurance Ltd (in liq) v L Grollo & Co Ltd [1987] VR 113

Pollard v Endale Pty Ltd (2009) 66 SR (WA) 1

Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18

Re Attorney-General (Cth); Ex parte Skyring [1996] HCA 4

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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