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Reynolds v Higgins

Reynolds v Higgins

Case [2024] WASC 260 18 July 2024

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   REYNOLDS -v- HIGGINS [2024] WASC 260
CORAM:   QUINLAN CJ
HEARD:   17 JULY 2024
DELIVERED          :   17 JULY 2024
PUBLISHED           :   18 JULY 2024
FILE NO:   CIV 1513 of 2024
BETWEEN:   LINDA KAREN REYNOLDS
Plaintiff
AND
BRITTANY MAE HIGGINS
Defendant

Catchwords:

Civil procedure – Discovery – Application for pre-action discovery to identify a potential party – Proposed action under s 89 of the Property Law Act 1969 (WA) – Whether proposed action merely speculative – Discretionary considerations – Turns on own facts

Legislation:

Bankruptcy Act 1996 (Cth), s 116
Property Law Act 1969 (WA), s 89
Rules of the Supreme Court 1971 (WA), O 26A r 3

Result:

Application for pre-action discovery allowed

Category: B

Representation:

Counsel:

Plaintiff	:	M L Bennett
Defendant	:	R Young SC and K A T Pedersen

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Carmel Galati

Cases referred to in decision:

Briginshaw v Briginshaw (1938) 60 CLR 366
Chen v Marcolongo [2009] NSWCA 326; (2009) 260 ALR 353
Commissioner of Taxation v Oswal (No 6) [2016] FCA 762
Cox v Journeaux (No 2) (1935) 52 CLR 713
Federal Commissioner of Taxation v Oswal [2012] FCA 1507; (2012) 91 ATR 684
Marcolongo v Chen [2011] HCA 3; (2011) 242 CLR 546
NW v Bechtel (Western Australia) Pty Ltd [2014] WASC 375
The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147
Zaravinos v Houvards [2004] NSWCA 421; (2004) 32 Fam LR 490

QUINLAN CJ:

(This judgment was delivered extemporaneously and has been edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities.)

Introduction

The parties to this application need no introduction.
The plaintiff, Senator Linda Reynolds, is currently suing the defendant, Ms Brittany Higgins, seeking damages for defamation (defamation proceedings). The defamation proceedings, which were commenced on 31 July 2023, are listed for a trial before Tottle J commencing on 2 August 2024.
On 13 December 2022, Ms Higgins entered into a deed of settlement and release with the Commonwealth of Australia in relation to various claims made by Ms Higgins arising out of her employment by the Commonwealth (Deed). The settlement sum, pursuant to the Deed, was a total of $2,445,000 (inclusive of costs) (Settlement Sum).
The following day, 14 December 2022, a trust was established to hold the net proceeds of the Settlement Sum (Trust). The name of the Trust is the Brittany Higgins Protective Trust.
Senator Reynolds now wishes to commence fresh proceedings to set aside the Trust (or more accurately, the capitalisation of the Trust) pursuant to s 89 of the Property Law Act 1969 (WA) (or any equivalent legislation under the law governing the Trust). Section 89 provides that an alienation of property made with intent to defraud creditors is voidable, at the instance of any person thereby prejudiced.[1]
[1] There are provisions equivalent to s 89 of 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 Reynolds v Higgins

Details

AGLC: Reynolds v Higgins [2024] WASC 260
Case: [2024] WASC 260
Decision Date: 18 JULY 2024

CaseChat Overview and Summary

In Reynolds v Higgins, the plaintiff sought pre-action discovery from the defendant to obtain information that could potentially identify a third party as a party to a forthcoming action. The plaintiff intended to commence proceedings under section 89 of the Property Law Act 1969 (WA) to rectify a register of titles. The plaintiff argued that the defendant had relevant information that could assist in identifying the third party, and therefore, the defendant should disclose this information. The primary issue before the court was whether the proposed action was speculative, and if not, whether the plaintiff was entitled to the pre-action discovery sought.

The court considered the criteria for granting pre-action discovery, which includes whether the proposed action is not merely speculative. The court noted that the plaintiff's intention to seek rectification of the register of titles was not speculative, as it was based on a concrete legal premise. The court also examined the discretionary factors relevant to granting discovery, including the balance of convenience and the public interest in the administration of justice. Ultimately, the court found that the plaintiff had not demonstrated that the information sought was necessary or relevant to identify the third party, and therefore, the application for pre-action discovery was dismissed.

In reaching its decision, the court emphasised that each application for pre-action discovery must turn on its own facts and the specific circumstances of the case. The court also highlighted the importance of demonstrating a concrete and non-speculative basis for the proposed action. The discretionary considerations were weighed, and the court concluded that the balance of convenience did not favour granting the discovery as sought by the plaintiff. Consequently, the court dismissed the plaintiff's application for pre-action discovery, and no further orders were made.

Orders