Pace v McLernon

[1999] WASC 119

PACE -v- McLERNON [1999] WASC 119

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 119
Case No:	CIV:1153/1999	Heard:	4 AUGUST 1999
Coram:	MASTER BREDMEYER	Delivered:	6/08/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	COLIN BURNS PACE TERENCE JOHN McLERNON
Catchwords:	Pleading Application to strike out Discovery
Legislation:	Nil
Case References:	Nil Federal Commissioner of Taxation v Coombes [1999] FCA 842 Kimberley Down Pty Ltd v  State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Packard v Transport & Trading Agency Co Ltd (1912) 14 WALR 191 Perpetual Trustees v City of Joondalup [1999] WASCA 108

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PACE -v- McLERNON [1999] WASC 119 CORAM : MASTER BREDMEYER HEARD : 4 AUGUST 1999 DELIVERED : 6 AUGUST 1999 FILE NO/S : CIV 1153 of 1999 BETWEEN : COLIN BURNS PACE

Plaintiff

AND

TERENCE JOHN McLERNON
Defendant

Catchwords:

Pleading - Application to strike out - Discovery

Legislation:

Nil

Result:

Application allowed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr P W Nichols
Defendant : Mr G Coad

Solicitors:

Plaintiff : Black & Co
Defendant : Geoffrey Coad

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

Nil

Case(s) also cited:

Federal Commissioner of Taxation v Coombes [1999] FCA 842
Kimberley Down Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Packard v Transport & Trading Agency Co Ltd (1912) 14 WALR 191
Perpetual Trustees v City of Joondalup [1999] WASCA 108

(Page 3)

1 MASTER BREDMEYER: This is an application by the plaintiff to strike out par 2 of the defence because it is embarrassing and for discovery of a deed mentioned in par 2 of the defence.

2 The background taken from the statement of claim is that a Mr Plank sued a Mr Donnelly in the District Court in action 1744 of 1990. Mr Plank gained a judgment against Mr Donnelly. That judgment debt was assigned to Mr McLernon who pursued Mr Donnelly for recovery of the debt. Mr Donnelly obtained a stay of execution on 23 June 1998. The District Court at that hearing received affidavit evidence from the plaintiff in this action, Mr Pace, that the assignment of debt was being used to exert improper pressure upon Mr Donnelly and was not a bona fide transaction. The court then made directions giving Mr McLernon an opportunity to falsify those allegations. Mr McLernon took no further step and his application to proceed on the assignment with enforcement proceedings was subsequently dismissed with his written consent.

3 As I have said Mr Pace filed an affidavit in the District Court proceeding to assist Mr Donnelly and to thwart Mr McLernon's debt recovery action. On 20 October 1998 Mr McLernon laid a complaint in the Court of Petty Sessions charging Mr Pace with committing perjury in the affidavit. On a later date Mr McLernon was ordered to supply particulars and to produce certain documents. He failed to do so and his complaint was dismissed as an abuse of process on 21 January 1999. The plaintiff has sued the defendant in the present action for malicious prosecution in relation to the complaint laid in the Court of Petty Sessions.

4 Paragraph 2 of the defence reads:

"The defendant took no further step in the proceedings referred to in paragraph 2 of the Statement of Claim because those said proceedings were settled between himself and Mr Donnelly by a deed of agreement made in December 1998. Those terms of settlement are made confidential by the deed."

5 I consider par 2 should be struck out as embarrassing. The pleader needs to elaborate on why it was that the settlement of the action between the defendant and Mr Donnelly led to the defendant taking no further action in the perjury proceeding. One, two or three more sentences are required to explain this. Otherwise the plaintiff, and the Court, would be guessing as to why the settlement of the debt recovery action caused the defendant to drop his civil action for perjury.
(Page 4)

6 I consider the deed mentioned in par 2 should be discovered. It is pleaded by the defendant and I consider that any claim for privilege has thereby been waived. The defendant's solicitor has very properly produced the document to me and I have read it. The action in which it was created is over. I consider it a necessary and relevant document for the proper resolution of the present action. I consider that fairness requires that it be disclosed and I can see no countervailing prejudice to the defendant, or to Mr Donnelly, or other reason why it should not be disclosed.

7 I will order par 2 of the defence to be struck out with leave to replead within 14 days. I will order the defendant to give discovery and inspection of the deed within 14 days. I will order the defendant to pay the plaintiff's costs of the application in any event.