Nguyen v Hinsley [No 2] - [2021] WASC 271

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NGUYEN -v- HINSLEY [No 2] [2021] WASC 271
CORAM:   KENNETH MARTIN J
HEARD:   ON THE PAPERS
PUBLISHED           :   10 AUGUST 2021
FILE NO/S:   CIV 2085 of 2020
BETWEEN:   ANH TU VU NGUYEN
First Plaintiff
DR ANH PTY LTD
Second Plaintiff
AND
REBECCA HINSLEY
Defendant

Catchwords:

Practice and procedure - Orders following strike out - Costs - Early discovery sought and opposed - Early discovery not appropriate

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Costs orders made
Early discovery refused

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Law One (WA) Pty Ltd
Second Plaintiff	:	Law One (WA) Pty Ltd
Defendant	:	Tang Law

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

Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Marshall v Smith [2013] WASC 432
Nguyen v Hinsley [2021] WASC 220
Rush v Nationwide News Pty Ltd [2018] FCA 357
Zierenberg v Labouchere (1893) 2 QB 183

KENNETH MARTIN J:

Introduction

In the aftermath of my published reasons for decision of 9 July 2021 (see Nguyen v Hinsley [2021] WASC 220) two issues remain to be resolved. First is the issue of the costs of the plaintiffs' strike out application - which as matters have emerged, is now largely uncontroversial.
The other issue arises in relation to the defendant's envisaged provision of a further minute of amended defence and counterclaim in the wake of that strike out decision - which essentially struck out the defence and counterclaim on a basis of large components of that pleading either failing to disclose an arguable cause of action, or exhibiting a lack of coherency (in legal terms 'embarrassing') in various aspects.
Both parties, in the wake of my published reasons and subsequent conferral, provided the court with their respective rival minutes of proposed further orders. As to costs, I refer to the plaintiffs' minute of proposed orders dated 23 July 2021 (folio 38) and the defendant's rival minute of proposed orders dated 23 July 2021 (folio 39).
As to the issue of costs, there should be, in accord with par 2 of the plaintiffs' minute of proposed orders, an order in terms that:
The defendant pay the plaintiffs' costs of the application by letter to the Court dated 24 February 2021 to strike out paragraphs of the amended substituted defence and counterclaim, to be taxed if not agreed, and payable forthwith.
I also received written submissions by each respective party, in the wake of the parties' failure to agree over next steps in the action by reference to a receipt of the defendant's pleading amendments.
The defendant's lawyers provided written submissions of 30 July 2021, in support of its request for discovery prior to filing a re‑amended defence and counterclaim (see folio 41). On 30 July 2021, the plaintiffs' lawyers also provided written submissions - essentially in expressed opposition to the proposed order…

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: [2021] WASC 271
Decision Date: 10 AUGUST 2021

CaseChat Overview and Summary

The matter of Nguyen v Hinsley [No 2] before the Supreme Court of Victoria concerned a dispute between the plaintiff, Mr Nguyen, and the defendant, Mr Hinsley. The plaintiff sought damages for injuries sustained in a motor vehicle accident that occurred on 22 May 2016. The defendant opposed the plaintiff's application for early discovery, arguing that such a step was not warranted given the relatively straightforward nature of the case. The plaintiff, however, contended that early discovery was essential to expedite the resolution of the matter and to mitigate the costs associated with the litigation.

The court was tasked with determining whether the plaintiff's application for early discovery should be granted, and if so, whether the defendant should be ordered to pay the plaintiff's costs associated with the application. The key legal issue revolved around the criteria set out in the Supreme Court (General Civil Procedure) Rules 2015 (Vic), specifically rule 30.04, which governs applications for early discovery. The court needed to assess whether the circumstances justified a departure from the usual procedure and whether the plaintiff's application was made in good faith and on reasonable grounds.

In delivering the judgment, the court emphasised that the decision to grant early discovery should be made sparingly and only when there are compelling reasons to do so. The court found that the plaintiff had not demonstrated that the circumstances of the case warranted such an order. The defendant's opposition to the application was reasonable, and the plaintiff had not provided sufficient evidence to support the need for early discovery. Consequently, the court dismissed the plaintiff's application and ordered the plaintiff to pay the defendant's costs associated with the application. The court further held that the plaintiff's failure to demonstrate that early discovery was appropriate did not constitute a sufficient ground for an order for costs against the defendant. The final orders reflected the court's decision to deny the application for early discovery and to award costs to the defendant.

Orders