Pisano v Thrum - [2007] WASC 109

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PISANO -v- THRUM [2007] WASC 109

CORAM: MASTER NEWNES

HEARD: 16 MARCH 2007

DELIVERED : 18 MAY 2007

FILE NO/S: CIV 2436 of 2002

BETWEEN: GIGLIETTO PISANO
Plaintiff
AND
CAMERON THRUM
Defendant

Catchwords:

Practice and procedure - Nonparty discovery - Relevant principles - Whether documents relevant to matters in issue - Irrelevant allegation in pleadings - Whether discovery will be ordered in respect of irrelevant allegation - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 5(1)

Result:

Nonparty discovery refused

Category: B

Representation:

Counsel:

Plaintiff: Mr P G Clifford
Defendant: Mr K J Martin QC

Solicitors:

Plaintiff: Chris Stokes & Associates
Defendant: Jackson McDonald

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

Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998
Expectation Pty Ltd v PRD Realty Pty Ltd [1999] FCA 1207
Jovista Pty Ltd v FAI General Insurance Co Ltd [1999] WASC 44
Martin & Miles Martin Pen Co Ltd v Scrib Ltd (1950) 67 RPC 127
McCarthy v Dolpag Pty Ltd [2000] WASCA 106

MASTER NEWNES: I have before me two applications by the plaintiff for non‑party discovery. The applications are opposed by the defendant and by the non‑parties to which they are directed.
It is necessary, in order to put the applications in context, to refer briefly to the issues in the action.

The statement of claim

In the statement of claim, the plaintiff pleads that both he and the defendant are and were at all material times qualified to practice, and practised, as specialist orthopaedic surgeons. The defendant is a member of the Royal Australasian College of Surgeons (the "College"), but the plaintiff is not.
It was a function of the College to approve from time to time certain training hospitals in Australia as being eligible institutes for the training of orthopaedic surgeons who were candidates for admission to membership of the College.
The Australian Orthopaedic Association (WA) Inc ("AOA") was an incorporated association located in Western Australia whose members were orthopaedic surgeons practising in Western Australia who were members of the College. The defendant was a committee member of the AOA.
Fremantle Hospital (the "Hospital") is, and was at the relevant time, owned and operated by the State of Western Australia and was an eligible hospital approved by the College for the training of orthopaedic surgeons who were candidates for admission to membership of the College.
The Hospital employed orthopaedic surgeons, provided facilities for the training of trainee orthopaedic surgeons and employed trainee orthopaedic surgeons ("registrars"), including trainees who were candidates for admission to the College.
In or about June 2002, the plaintiff commenced employment at the Hospital as a specialist orthopaedic surgeon. The plaintiff alleges (but the defendant denies) that it was a usual incident of the employment of a specialist orthopaedic surgeon at the Hospital that that surgeon would participate in the training of registrars at the Hospital. (The defendant, on the…

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.

Continue reading Pisano v Thrum

Details

AGLC: Pisano v Thrum [2007] WASC 109
Case: [2007] WASC 109
Decision Date: 18 MAY 2007

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Pisano v Thrum was adjudicated. The dispute centred on the issue of whether certain documents were discoverable in the context of a legal proceeding. The plaintiff sought to obtain documents from the defendant, arguing they were relevant to the matters in issue. The defendant contested the discovery, asserting that the documents were not relevant and that they pertained to an irrelevant allegation in the pleadings. The case raised critical questions about the scope of non-party discovery and the relevance of documents to the issues at hand.

The central legal issues before the court were whether the documents in question were relevant to the matters in issue and whether the court should order discovery of documents that pertain to an irrelevant allegation made in the pleadings. The court was required to determine the principles governing non-party discovery and apply them to the specific facts of the case. It needed to balance the principles of relevance and fairness in the discovery process, ensuring that the plaintiff’s right to access relevant information was not unduly restricted, while also protecting the defendant from the burden of providing irrelevant documents.

The court, in its judgment, examined the principles of relevance in the context of discovery. It held that the relevance of documents to the matters in issue was a critical factor in determining whether discovery should be granted. The court found that the documents in question were not relevant to the issues at hand and that the allegation they pertained to had been deemed irrelevant in the pleadings. Consequently, the court ruled that discovery would not be ordered in respect of these documents. The decision underscored that the relevance of documents to the matters in issue is a fact-specific inquiry, and the outcome of this case hinged on the particular circumstances presented.

In conclusion, the court determined that the documents sought by the plaintiff were not relevant to the matters in issue and were associated with an irrelevant allegation. Therefore, the plaintiff’s application for non-party discovery was dismissed. The court’s decision emphasised the importance of relevance in the discovery process and highlighted that the granting of discovery is dependent on the specific facts of each case.

Orders