Nguyen v Hinsley [No 2]

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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

  1. 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.

  2. 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.

  3. 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).

  4. 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.

  5. 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.

  6. 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…

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Details
Case
[2021] WASC 271
Decision Date

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

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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