JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: POLLARD -v- ENDALE PTY LTD [2009] WADC 97
CORAM: SLEIGHT DCJ
HEARD: 22 MAY 2009
DELIVERED : 10 JULY 2009
FILE NO/S: CIV 823 of 2005
BETWEEN: ROBERT JAMES POLLARD
Plaintiff
AND
ENDALE PTY LTD
Defendant
Catchwords:
Appeal against refusal of Deputy Registrar to grant specific discovery - Relevance of accreditation procedure - Inherent jurisdiction to order discovery - Order 26 r 6 of Rules of the Supreme Court
Legislation:
District Court Rules
Rules of the Supreme Court
Result:
Appeal allowed in part
Representation:
Counsel:
Plaintiff: Mr R E Lindsay
Defendant: Ms C A Elphick
Solicitors:
Plaintiff: S C Nigam & Co
Defendant: DLA Phillips Fox
Case(s) referred to in judgment(s):
Australian Railroad Group Pty Ltd & Ors v Rowan & Anor [2004] WASC 165
Blythe v State of Western Australia [2008] WASCA 10
Chandler & Ors v Water Corporation [2004] WASC 95
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1882] 11 QBD 55
Field v Commissioner for Railways NSW (1957) 99 CLR 285
Hazart Pty Ltd v Rademaker (1993) WAR 26
John Allan Ltd v Keegan [1968] WAR 125
Leighton Contractors Pty Ltd v Public Transport of Western Australia [2007] WASC 65
Lewkowski v Burgalin Pty Ltd, unreported; WASCA; Library No 7675; 26 May 1989
Mulley & Marney v Maniford (1959) 103 CLR 341
Oberdan v Commonwealth Bank (1999) 75 SASR 152
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
SLEIGHT DCJ: This is an appeal against a decision of Deputy Registrar Harman dismissing an application by the plaintiff seeking further and better discovery of documents.
Under O 15 r 6 of the District Court Rules the appeal is by way of a new hearing of the matter (see Hazart Pty Ltd v Rademaker (1993) WAR 26, Malcolm CJ at p 28).
Action
The plaintiff alleges in this action as follows:
(a)He was a patient in the defendant's hospital when he was operated on by a Dr David Kennedy on 25 May 1999 and 23 November 1999 in relation to ankle injuries.
(b)The defendant selected Dr Kennedy as a member of a panel of medical practitioners to operate at the hospital and permitted him to operate and treat patients at the hospital.
(c)The defendant had a duty of care to:
(i)take reasonable care and skill in selecting sufficiently qualified and experienced medical practitioners on its panel to operate on and treat the plaintiff;
(ii)monitor the performance of the medical practitioners on its panel in order to record, control and eliminate repeated clinical errors;
(iii)ensure that its apparatus, equipment and facilities would be used competently and appropriately by the medical practitioners on its panel when he or she treated and operated on the plaintiff at the hospital.
(d)That by reason of the operations the plaintiff suffered various injuries and is left with various residual disabilities.
(e)Dr Kennedy in carrying out the two operations failed to carry out various…
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- AGLC
- Pollard v Endale Pty Ltd [2009] WADC 97
- Case
- [2009] WADC 97
- Decision Date
CaseChat Overview and Summary
The legal issues that arose in this case revolved around the inherent jurisdiction of the court to order specific discovery, the principles guiding such orders, and the conditions under which additional documents might be compelled. Specifically, the court needed to determine whether Pollard's application for further discovery was justified based on the existing documents and pleadings, and whether Pollard had demonstrated a sufficient basis to believe that undisclosed documents existed and were relevant.
The court held that the District Court does possess an inherent power to order further discovery, similar to the supervisory jurisdiction held by the Supreme Court. However, this power is subject to certain constraints, such as the necessity to rely on information provided by the opposing party and the requirement that the applicant demonstrate a substantial likelihood that undisclosed documents exist. The court emphasized that while the discovery process is not a strict entitlement, it must be exercised with consideration for the principles of fair trial and case management. The court further noted that the burden of discovery, while extensive, is not oppressive merely because the case involves a large corporation or complex issues over an extended period.
In conclusion, the court determined that Pollard's application for specific discovery was not sufficiently supported by the materials provided. Consequently, the application was dismissed, and Pollard was not granted the discovery they sought. This decision underscores the importance of demonstrating a clear and substantial basis for seeking additional discovery, aligning with the overarching principles of fairness and efficiency in litigation.
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
I conclude that from these provisions and the authorities that the following general principles apply:(1)The District Court has an inherent power arising from Rule 46 of the District Court Rules to order further discovery (this inherent jurisdiction is akin to that which exists in the Supreme Court to supervise the conduct of its litigation – see Chandler & Ors v Water Corporation [2004] WASC 95 per Hasluck J at [16]).(2)A list of documents verified by affidavit served pursuant to the discovery process is generally treated as conclusive as to its contents unless it appears that a party may possess a document or class of documents which relate to matters in question which have not been discovered (Chandler supra [10 – 11]).(3)In an application to the Court's inherent jurisdiction the applicant, when seeking to displace the conclusive nature of the affidavit of discovery, is confined to information emanating from the opponent's affidavit and list, the documents the opponent discloses and the opponent's admissions, and may not rely upon a contentious affidavit. Limited to those materials, the Court may make an order if it has reasonable grounds for being fairly certain that there are other documents which ought to have been disclosed, or if it is practically certain that the party making the affidavit has misconceived his or her case and that if he or she had acted upon a proper view of the law he or she would have disclosed further documents.(4)The power under O 26 r 6 of the Rules of the Supreme Court is thought to enlarge that inherent power: Chandler supra at [16] (although I have some doubt whether the distinction with an application under the inherent jurisdiction has any real practical consequences as most applications will be based under both jurisdictional grounds and it is a matter of looking at the totality of the material to decide whether an order should be made). The application for particular discovery under O 26 r 6 must be supported by an affidavit. The affidavit is to set out a belief that relevant documents were omitted from the affidavit of discovery. The facts in support of this belief must be stated in the affidavit (Chandler supra at [12]).(5)Order 37 r 6(2)(a) of the Rules of the Supreme Court provides that an affidavit used for the purposes of interlocutory proceedings may contain statements of information or belief. Preferably statements of information or belief in affidavits should follow the form "I have been informed by X and verily believe" (see Lewkowski v Burgalin Pty Ltd (unreported; WASCA; Library No 7675; 26 May 1989). This form is preferable not because the Court requires ritualised behaviour, but because it clearly indicates the source of the information, states the information and states the deponent believes that what X has said is true (see Blythe v State of Western Australia [2008] WASCA 10).(6)An affidavit filed in support of an application for specific discovery must offer substantial assistance to establish whether the particular documents to which the application refers exist and relate to a matter in question (see Chandler supra [13]; John Allan Ltd v Keegan [1968] WAR 125 at 128).(7)A party is entitled only to discovery of documents that relate to issues in the proceedings. The pleadings are the principal source of defining the matters in issue in the proceedings (Australian Railroad Group Pty Ltd & Ors v Rowan & Anor [2004] WASC 165 at [22]).(8)The pleadings, the list of discoverable documents and the discovered documents themselves are not the only basis for establishing the insufficiency of the list of discoverable documents. The affidavit in support of an application under O 26 r 6 can present material to demonstrate the existence of documents in the possession of the other party relating to matters in issue which have not been discovered Mulley & Marney v Maniford (1959) 103 CLR 341 per Menzies J at 343.(9)The Court must be able to infer from the nature of the documents sought to be discovered that they are relevant; it will not speculate as to their relevance: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 per Master Newnes at [3].(10)In determining whether a document relates to a matter in question, and therefore, ought to have been discovered the test is set out in the decision of Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1882] 11 QBD 55 as follows:"It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words 'either directly or indirectly' because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences."(11)It is important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery. Moreover, in recent times principles of case management emphasise a need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery (Youlden supra at [6]). The Court should only make such order of specific discovery as is necessary in the interests of a fair trial: Leighton Contractors Pty Ltd v Public Transport of Western Australia[2007] WASC 65, at [20]; Australian Railroad Group Pty Ltd v Rowan and Anor[2004] WASC 165 per Le Miere J at [36].(12)Factors to be considered in making or framing an order for discovery depend upon the circumstances of each case but will often include the likely time, cost and inconvenience of making discovery of any documents or classes of documents by way of comparison with the amount of documents involved in the action, the relative importance or likely relevance of them in relation to any issue or issues in the action and the probable effect on the outcome of the action of a party obtaining access to the documents or class of documents. Generally, the court will try to avoid making discovery orders that would place an oppressive burden on a party such that it must devote disproportionate resources to the search for relevant documents: Leighton Contractors supra per Le Miere J at [18].(13)The extent of the obligation to make discovery is much greater in contemporary times. That is because of the proliferation of records and because a document now includes not only writing on paper but other documents including tapes, discs and computer hard drives storing electronic data: Oberdan v Commonwealth Bank (1999) 75 SASR 152. When the factual situation is said to have arisen over a number of years the obligation is even greater. However, the burden to make discovery in those circumstances is not oppressive by reason that a party is a large corporation and the issues are complex and because the factual situation is said to have arisen over a number of years: Leighton Contractors supra [19].