Waller v Waller

[2009] WASCA 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WALLER -v- WALLER [2009] WASCA 61

CORAM:   MARTIN CJ

PULLIN JA
LE MIERE AJA

HEARD:   20 OCTOBER 2008

DELIVERED          :   19 MARCH 2009

FILE NO/S:   CACV 52 of 2008

BETWEEN:   BARRY GRANVILLE WALLER

First Appellant

CHRISTINE MARGARET WALLER
Second Appellant

GERALDTON FOOD DISTRIBUTORS PTY LTD
Third Appellant

AND

CLIVE GREGORY WALLER
First Respondent

MARLENE McDONALD
Second Respondent

MICHAEL JOHN WALLER
Third Respondent

GAY CRIDDLE
Fourth Respondent

KERRY CLUNE
Fifth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :SIMMONDS J

Citation  :WALLER -v- WALLER [2008] WASC 51

File No  :CIV 1682 of 2007

Catchwords:

Appeal - Procedure - Pre-action discovery against potential parties - Whether the respondents may have a cause of action - Whether pre-action discovery should be refused because the proposed action would be struck out as an abuse of process - Whether the respondents made reasonable enquiries - Whether the appellants had or are likely to have or have had possession of documents that may assist - Whether the discretion to order discovery should be exercised - Rules of the Supreme Court 1971 (WA) O 26A r 4 - Turns on own facts

Appeal - Procedure - Whether leave to appeal required - Whether orders appealed from are interlocutory - Whether leave to appeal should be granted - Supreme Court Act 1935 (WA) s 60(1)(f) - Turns on own facts

Legislation:

Federal Court Rules 1979 (Cth), O 15A r 6(a)
Limitation Act 1935 (WA), s 47
Limitation Act 1969 (NSW), s 52
Rules of the Supreme Court 1971 (WA), O 26A r 3, O 26A r 4, O 26A r 5, O 26A r 6
Supreme Court Act 1935 (WA), s 60(1)(f)

Result:

Leave to appeal granted
Appeal allowed
Cross-appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     Mr D H Solomon

Second Appellant          :     Mr D H Solomon

Third Appellant             :     Mr D H Solomon

First Respondent           :     Mr P J Hannan

Second Respondent      :     Mr P J Hannan

Third Respondent          :     Mr P J Hannan

Fourth Respondent        :     Mr P J Hannan

Fifth Respondent           :     Mr P J Hannan

Solicitors:

First Appellant               :     Solomon Brothers

Second Appellant          :     Solomon Brothers

Third Appellant             :     Solomon Brothers

First Respondent           :     Curwood & Co Pty Ltd

Second Respondent      :     Curwood & Co Pty Ltd

Third Respondent          :     Curwood & Co Pty Ltd

Fourth Respondent        :     Curwood & Co Pty Ltd

Fifth Respondent           :     Curwood & Co Pty Ltd

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

A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701

Airservices Australia v Transfield Pty Ltd [1999] FCA 886; (1999) 92 FCR 200

A‑Pak Plastics Pty Ltd v Merhone Pty Ltd (1995) 13 ACLC 896; (1995) 120 FLR 277

Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59

Aussie Victoriaplant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121; (2007) 212 FLR 56

Barnes v Addy (1874) LR 9 Ch App 244

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11

Bristol‑Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316; (2000) 97 FCR 524

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246

Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33

Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58

Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Grygiel v Baine [2004] NSWCA 377

Hall v The Nominal Defendant (1966) 117 CLR 423

Harris v Newcastle‑Upon‑Tyne Health Authority [1989] 1 WLR 96

Herald & Weekly Times Ltd v The Guide Dog Owners' & Friends' Association [1990] VR 451

Licul v Corney (1976) 180 CLR 213

Malouf v Malouf [1999] FCA 284; (1999) 86 FCR 134

McBride v Monzie Pty Ltd [2007] FCA 1947; (2007) 164 FCR 559

McCarthy v Dolpag Pty Ltd [2000] WASCA 106

Mercantile Mutual Insurance (Australia) Ltd v Household Financial Services Ltd (Unreported, VCA, 22 May 1997

Nolan v Nolan [2004] VSCA 109

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435

Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728

Re Barney [1892] 2 Ch 265

Telstra Corporation Ltd v Minister for Broadband, Communications and Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64

Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

Wilson v Metaxas [1989] WAR 285

Young v Bristol Aeroplane Co Ltd [1944] KB 718

1. MARTIN CJ:  I generally agree with the reasons and conclusion of Le Miere AJA, but desire to add a few observations of my own.

The jurisdictional threshold

1. Order 26A r 4 of the Rules of the Supreme Court 1971 (WA) applies if a person 'may have a cause of action against a person'. The nature of the jurisdictional threshold which an applicant is required to cross under that rule is illuminated by its evident purpose, which is to enable a prospective litigant to obtain discovery of documents that may assist in making a decision as to whether to commence proceedings. It would entirely defeat the purpose of the rule to require an applicant to demonstrate the present existence of a cause of action as a condition to the exercise of the court's jurisdiction.

2. Observations made by Burchett J in Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728 at 733 in relation to the similar (but not identical) rule of the Federal Court are pertinent:

   It would be unfortunate if a rule designed to amplify the court's power to penetrate obscurities and uncertainties in the interests of justice were to be weakened by restrictive and unnecessary glosses.  I think the rule is of a beneficial kind within the meaning of the well known principle of interpretation, and should be given the fullest scope its language will reasonably allow.  The proper brake on any excesses and in its use is the discretion of the court, which is required to be exercised in the particular circumstances of each case.

3. As Burchett J points out in that case, rules of this kind specifically authorise applications which might otherwise be pejoratively described as 'fishing expeditions'.  It would be contrary to the evident purpose of such a rule to require an applicant to demonstrate the elements of a good cause of action as a condition of the exercise of a power which is intended to enable the applicant to assess whether or not he or she does in fact have a good cause of action.  It would therefore be wrong in principle to approach the rule with an undue focus or emphasis upon the demonstration of the prospective cause of action.  Thus, the jurisdictional question is whether there might be a cause of action which could be demonstrated by the provision of the documents sought.  However, something more than mere assertion, conjecture or suspicion is required to enable the court to conclude that there might be such a cause of action.

4. In the present case, two possible causes of action were identified in support of the application.  The first depended upon an assertion that Mary Stevens breached a fiduciary duty owed to the beneficiaries of the estate which she administered by transferring shares to which the respondents were entitled, to the appellants.  However, on the evidence it is clear that she did so in response to a direction by each beneficiary to that effect.  Each beneficiary was of full age and capacity at the time of giving such a direction.  The suggestion that Mary Stevens acted in breach of fiduciary duty by acceding to those directions is entirely without foundation.

5. The second prospective cause of action identified depended upon the proposition that Barry Waller had assumed de facto administration of the estate.  However, as Pullin JA points out, the primary judge found that there was no evidence to the effect that he acted in this regard prior to the execution of the 1973 deed, and the mere giving of instructions for the preparation of that deed is incapable of supporting an inference to the effect that he had assumed de facto control of the administration of the estate.  Plainly, he had a personal interest in the deed which quite sufficiently explained his provision of instructions for its preparation.

6. Accordingly, this was a case in which there was no basis upon which the court could conclude that the applicants for discovery might have either of the causes of action identified.  So, even giving O 26A r 4 its fullest and most beneficial operation, the applicants failed to cross the jurisdictional threshold.

Is leave to appeal required?

1. I respectfully agree with Le Miere AJA that irrespective of whether or not an order for discovery is made under O 26A r 4, the determination of an application under that rule is interlocutory in character, with the result that any appeal from that determination requires the grant of leave (s 60(1)(f) Supreme Court Act 1935 (WA)). The cases analysed by each of Le Miere AJA and Pullin JA suggest to me that there is no definitive criterion for the identification of decisions which are interlocutory in character. Accordingly, and despite the uncertainty involved, characterisation of the particular issue determined is required in each case. In this case, because the essential character of the issue determined was ancillary to prospective substantive proceedings between the parties, I would characterise the decision (and all decisions under O 26A r 3, r 4 and r 5) as interlocutory in character.

The grant of leave

1. The requirement that interlocutory appeals be subject to the grant of leave of the Court of Appeal is no mere technicality or procedural nicety.  It is a substantive restriction upon the pursuit of interlocutory appeals which is designed to enhance the interests of justice.  Those interests will not be well served if the parties to litigation and the limited resources of the court are distracted from the determination of substantive rights and interests by an unnecessary and inappropriate focus upon interlocutory issues.  The grant of leave to appeal from an interlocutory determination is therefore restricted to those exceptional cases in which the decision in question is not only plainly wrong or attended with sufficient doubt to justify the grant of leave, but also in which a substantial injustice would be done if the decision remains in place.  It would defeat the purpose of the restriction upon interlocutory appeals if there were to be any departure from the strict satisfaction of these requirements.

2. In particular, the injustice that must be demonstrated must be properly characterised as 'substantial'.  If every infraction of a party's procedural rights were to be regarded as a 'substantial injustice', this aspect of the requirements for the grant of leave would become meaningless, as virtually every erroneous interlocutory decision will involve an infraction of a party's procedural rights.  Accordingly, the notion of 'substantial injustice' looks to the substantive rights of the party adversely affected by the order under review, and requires that party to demonstrate that the effect of the order will go beyond mere inconvenience and procedural disadvantage.

3. In this case, no evidence was put before the court to show what effect the order would have upon the parties the subject of the order.  The order itself provides for those parties providing discovery to be compensated for their costs in complying with the order.  In those circumstances, there seems to me to be a question as to whether the applicants for leave have demonstrated that substantial injustice will flow if the order is not reversed. 

4. However, on balance and despite some misgivings, in the end I have concluded that the complete absence of any basis for a prospective cause of action against the appellants leads to the conclusion that it would be substantially unjust if the erroneous decision to require them to provide discovery is not reversed.  I should emphasise that this conclusion depends upon the particular facts and circumstances of this case, and should not be taken to support the proposition that substantial injustice will be demonstrated in every case in which an order is erroneously made (or refused) under O 26A.

1. Accordingly, I would grant each appellant leave to appeal and would allow their appeals.

2. PULLIN JA:  Le Miere AJA has set out the facts which make it unnecessary for me to do so.

3. Grounds 1 to 3 contend that the primary court erred in concluding that the respondents established that they may have a cause of action or causes of action against the appellants.  Those grounds should be upheld for the following reasons.

4. The primary judge said in his reasons for judgment (Waller v Waller [2008] WASC 51) that:

   The conduct in leaving the matter as described, with the result for the plaintiffs under the sales referred to in the 1973 deed I have described, would seem to me to be capable of being described as a 'dishonest and fraudulent design' as well as a breach of the duty of the administrator to which I have referred, at least as the quoted phrase is understood in equity.  [105]

   And then said:

   Senior counsel for the applicants put to me, as I understand his argument, that Halfhide and the authorities it refers to shows also that an administrator must, at least in the circumstances of this case, subject to the employment of appropriate agents, and obtaining their advice, act personally, and not defer to the advice of a person in the position of the first defendant or indeed any other person in the administration of the estate.  In addition, senior counsel put to me that an administrator in such circumstances must obtain suitable professional advice in order to ascertain the value of all of such assets as the shares held by the deceased in GA, Waller & Son and the third defendant, and then sell the shares for cash for a price consistent with that advice, or at least at the best price that could reasonably obtained in the circumstances then prevailing, and not later than when the last of the next-of-kin reached 21 years of age.

   …

   It seems to me that there is 'evidence to show objectively there is reasonable cause to believe' that Mary might have so acted, in the evidence in the 1973 deed of the prices at which the holdings of the shares of the first to fourth named plaintiffs were sold to the first and second defendants, relative to the balance sheet evidence as to the net asset values of those shares as at 30 June 1974, when that evidence is viewed with the evidence of Mary's reliance on the first defendant in relation to matters to

do with the estate and the family business in her referring the first and fourth named plaintiffs to him in such matters in the period before the 1973 deed.

…

The evidence to which I have referred is, with the terms of the 1973 deed and the evidence of the response of the first defendant to the inquiries of him made by the fourth named plaintiff after Mary directed her to him, also, it seems to me, sufficient for the purpose indicated to establish a reasonable cause to believe, not only that there might have been the breach referred to, but also that the breach might have been part of dishonest and fraudulent design, and that the first and second defendants, and the third defendant through the first defendant as its guiding mind, might have knowingly assisted in the breach.  That is, Mary might have sought to advance the interests of the first and second defendants with a view also to advancing her own interests, in receiving a release and indemnity of the sort provided in the 1973 deed, by allocating to the first defendant the aspect of the administration of the estate of the deceased to which I have referred, and the first, second and third defendants might have been aware of this and assisted her in this enterprise. [106], [108], [117].

1. With respect, these paragraphs are difficult to understand but read in one way they suggest that his Honour thought that the deed recorded a sale of the shares in the three companies by Mary Stevens (formerly Waller) to Barry Waller and his wife.  If so, and with due respect, this would reveal a misunderstanding about the terms of the 1973 deed and the reasons would reveal error for that reason.  Mary Stevens did not sell the shares owned by the estate to the respondents.  The deed did not record such a sale.  The deed provided for the distribution of the estate in accordance with the requirements of the Administration Act 1903 (WA) but instead of transferring the shares to each of the respondents, Mary Stevens, as administratrix, received a direction from the respondents to transfer their shares not to those respondents, but instead to Mr and Mrs Barry Waller. This was (as the deed informed Mary Stevens) in accordance with agreements that Mr and Mrs Barry Waller had entered into with the respondents.

2. Perhaps though, his Honour did understand that the deed recorded the fact of the sale of the shares by the respondents to Barry Waller and recorded that Mary Stevens was merely transferring the shares (to which the respondents were entitled), to Mr and Mrs Barry Waller by direction from the respondents.  If so, then with respect, there is nothing in such conduct which justified his Honour's conclusion that Mary Stevens might have breached her duty as administratrix and might have been part of a dishonest and fraudulent design.  The reasons would reveal error in that respect.

3. Based on the 1973 deed alone (and there being no other evidence) in no respect could Mary Stevens be said to have engaged in conduct capable of being described as 'a dishonest and fraudulent design' and nor is there anything revealing any breach of duty by Mary Stevens.

4. Furthermore, there is no evidence that Barry Waller purported to act as administrator of the estate.  His Honour said:

   Nor, as I have previously indicated, do I have evidence of Mary directing the second, third and fifth named plaintiffs to the first defendant in matters to do with the estate of the deceased, at least in the period before the 1973 deed.  [109]

5. The only other fact relied on to show that Barry Waller was an executor de son tort, was that he gave instructions for the preparation of the 1973 deed.  That does not establish that he was an executor de son tort.

6. Rules of the Supreme Court 1971 (WA) O 26A r 4 was therefore not enlivened. The rule only confers a discretion on the court to order discovery against a potential party if a person 'who appears to have a cause of action against a person' wants to commence proceedings against the potential parties. The only causes of action which the respondents claimed to identify were a 'Barnes v Addy' claim (Barnes v Addy (1874) LR 9 Ch App 244) which required as a starting point something suggesting that Mary Stevens was in breach of a fiduciary duty or had been guilty of fraud (as to which there was no evidence) or a cause of action against Barry Waller as an executor (or administrator) de son tort (as to which there was no evidence).

7. There is nothing in the information suggesting that any of the respondents have a cause of action against any of the appellants.  As a result, the appeal must be allowed, the order set aside and judgment entered for the appellants dismissing the application for pre‑action discovery.

8. As to grounds 4, 5, 6 and 7, I agree with Le Miere AJA's reasons.

9. Grounds 8, 9 and 10 must fail because grounds 1 to 3 have succeeded and generally for the reasons given by Le Miere J.

Was the order interlocutory or final?

1. The word 'interlocutory' has different meanings.  An interlocutory order may be one 'given in the course of an action', Shorter Oxford English Dictionary, (vol 1, 5th ed) or it may mean, as it has been held to mean when used in a provision like s 60(1)(f) of the Supreme Court Act 1935 (WA), that it is an order which does not finally dispose of the rights of the parties. Whether an order finally disposes of the rights of the parties will be determined by examining the order itself and not by examining the nature of the application. If despite the order a further application seeking the same relief is possible, then it will be interlocutory. If not, it will be final. See Hall v The Nominal Defendant (1966) 117 CLR 423, 441 (Taylor J); Licul v Corney (1976) 180 CLR 213, 225 (Gibbs J) and Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246. These judgments of the High Court however raise a further question; namely, what is meant by the 'rights of the parties'. Does it mean the rights of the parties in the action or suit in which the order was made; or does it mean the rights of the parties in some broader sense.

1. If the reference to the rights of the parties is used in a broad sense, and one can step outside the proceedings, that is outside the action or the suit in which the order was made, to identify the 'rights of the parties', then it can be argued that the rights of the parties are those which may be determined in a later action and a pre‑action discovery order is merely an adjunct to those contemplated in other proceedings.  If that reasoning is correct then the pre‑action discovery order does not determine the foreshadowed rights of the parties in those other proposed proceedings. 

2. The difficulty with that broad approach is that there may never be any other proceedings and one cannot know for certain what rights the parties will seek to vindicate in those proposed proceedings. 

3. In A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701, the New South Wales Court of Appeal had to consider whether or not to grant leave to appeal to the Privy Council and had to consider whether the order in question was final or interlocutory. Mahoney JA was content to accept, for the purposes of the application, that the 'rights of the parties' were the rights which had been propounded for decision in the particular proceedings (715). Kirby P held that the affirmative declaration in that case finally determined the 'lis' between the parties (712). Priestley JA spoke of two possible views of what the proceedings between the parties were and of what rights the parties were contesting. The 'broad view' involved identifying the issues between the parties beyond the issues in the proceedings in which the order was made (719). Priestley JA then said:

   I think, however, that the broad view cannot be maintained, because although the actual issue between the parties is as I have described it, the fact is that the only proceedings presently in contest between the parties are those claiming the two declarations I have earlier set out.  I can see no escape from narrowing the area of examination of the conflict between the parties to those two declarations which is what I call the narrow view.  The dismissal of the claim to those two declarations certainly puts that claim to an end.  It finally determines something between the parties.  (719)

4. These observations were referred to with apparent approval in A‑Pak Plastics Pty Ltd v Merhone Pty Ltd (1995) 13 ACLC 896; (1995) 120 FLR 277 (Sheller JA, Kirby P and Priestley JA agreeing). A‑Pak was followed in Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59. In Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11, Refshauge J decided whether the order made in that case finally disposed of the rights of the parties 'in those proceedings' [21]. See also Grygiel v Baine [2004] NSWCA 377 [18] (Mason P). Windeyer J in Hall v Nominal Defendant said the question was whether the order finally determines the rights of the parties in 'a principal cause' pending between them (443). 

5. In my opinion, a person who is not the subject of any action or suit, but is merely threatened with an action or suit and is called upon to disclose documents which he or she is under no legal obligation to produce without court order and who resists a pre‑action discovery order calls on the court to determine the only rights of parties then in issue.  On one side is the claimed right of the plaintiff to gain access to the documents and on the other side is the claimed right of the defendant to refuse to produce the documents for inspection.  The 'principal cause' which has to be determined is the plaintiff's right to gain access to the documents.  In my opinion, an order ordering pre‑action discovery is a final order in that principal cause.  Having obtained the order, the applicant has secured finally what he or she seeks in the proceedings.  There is no prospect of a renewed application.

6. True it is that, viewed historically, a bill of discovery had to be material to a suit 'instituted or capable of being instituted' and to 'assist the administration of justice in the prosecution or defence of [that] suit' (see Airservices Australia v Transfield Pty Ltd [1999] FCA 886; (1999) 92 FCR 200 [10]), but the fact is whether viewed historically or viewed in present times, this application for 'information' discovery (see Airservices [11]) was an application brought in separate proceedings. Those proceedings were finally disposed of when the order for discovery was made. If the application for discovery had been dismissed, it would have been interlocutory because there would have been nothing to prevent a further application for discovery (as to which see Licul v Corney, 225). Similarly, in Aussie Victoriaplant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121; (2007) 212 FLR 56, the Victorian Court of Appeal held that an order refusing an application to set aside a statutory demand was interlocutory while on the basis of the A‑Pak Plastics decision, an order setting aside the statutory demand is final. 

7. The respondents in their written submissions submit that 'it has consistently been held that an order for pre‑action discovery is interlocutory rather than final'.  This submission is said by the respondents to be supported by Herald & Weekly Times Ltd v The Guide Dog Owners' & Friends' Association [1990] VR 451, 455 (O'Bryan J), 453 (Murphy J), 461 ‑ 462 (Marks J); Mercantile Mutual Insurance (Australia) Ltd v Household Financial Services Ltd (Unreported, VCA, 22 May 1997), 1 (Winneke P, Hayne JA & Ashley AJA agreeing); Malouf v Malouf [1999] FCA 284; (1999) 86 FCR 134 [26] ‑ [36] (Beaumont, Lee & Dowsett JJ); Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 [2] (Black CJ & Sackville J); Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123 [2] ‑ [3] (Newnes AJA, Buss JA agreeing); Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435 [1] (Heerey, Gyles & Middleton JJ). These are all cases dealing with orders made on applications for pre-action or third party discovery under the same rule, or alternatively under similar but different rules, but which rules still have the same objective, that is of providing information to the applicant as to the identity of a proposed defendant to litigation or information to assist in pleading a cause of action against the defendant or a proposed defendant.

8. It is important to note that only in Malouf was there was any detailed discussion about the question as to whether the order made was interlocutory or final, and in that case there had been an order of dismissal.  I agree that if the order had been one dismissing the application for pre‑action discovery, then it may have been an interlocutory order because an order of dismissal does not necessarily preclude a further application.  It would of course depend on why it was dismissed.

9. In the case of Herald & Weekly times (if I understand the reasons correctly), the order was made in litigation already on foot and by one party against the other.  Clearly that application was interlocutory because the order did not determine the lis between the parties in the litigation.  Mercantile Mutual was a case where an order was made against a party where, like here, there was no existing litigation on foot.  It must be very doubtful that there was any live issue about whether the decision was final or interlocutory because all Winneke P said was:

   It is to be noted that the powers conferred under the rule are discretionary in nature and are interlocutory (Herald & Weekly Times v Guard Dog Owners and Friends Association).  (1)

10. In Echo Tasmania, an order for pre‑action discovery was also made in circumstances where there was no other litigation on foot.  The order was said to be interlocutory.  Once again, however, it must be doubted that there was any issue about the point because Black CJ and Sackville J, in their joint judgment, merely said:

    Since the orders are interlocutory in character (Malouf … [36], per curiam), leave to appeal is required.  [2]

    Their Honours did not note that in Malouf, Beaumont, Lee and Dowsett JJ pointed out that the application having been dismissed, 'there is nothing in the rule currently under consideration which would preclude an applicant from making more than one application thereunder' [36].  That does not apply when the applicant has obtained an order which gives the applicant what it wants.

11. In the Fairfax Media case, the order was not for pre‑action discovery.  It was an order made in existing litigation against a non‑party and it was clearly an interlocutory order in that litigation, but the question might have been raised whether it was an interlocutory or final order as between the respondent which had sought the order and the non‑party.  There was apparently no issue raised about this and the court and the parties proceeded on the assumption that the order was interlocutory and that leave was required. 

12. Finally, in Optiver the order made was a refusal of the application for discovery and explains why it was an interlocutory order.

13. The question then arises as to whether I should feel myself bound to reach a conclusion that the order under review was interlocutory because of Mercantile, Echo and Fairfax.

14. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, the plurality said, at [135]:

    Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.

15. However, this statement must be read in the light of the doctrine of stare decisis or the rule of precedent which is that a lower court should follow decisions of higher courts and that intermediate courts should follow earlier decisions of its own, and those of courts of coordinate jurisdiction, unless they are plainly wrong.  The 'decision' which has to be followed is the ratio decidendi of the earlier decision: McBride v Monzie Pty Ltd [2007] FCA 1947; (2007) 164 FCR 559 [4] ‑ [6]; Bristol‑Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316; (2000) 97 FCR 524 [148]. The ratio is the reason why the court made the order that it did in the resolution of a dispute between parties: Bristol‑Myers [148] ‑ [149]. The traditional view is that obiter dictum does not have to be followed. See Young v Bristol Aeroplane Co Ltd [1944] KB 718. This may have to be qualified in relation to High Court decisions. See Farah Constructions [134].

16. Although pre‑action discovery provisions in other jurisdictions are not uniform in terms, it is legislation which has a common objective and if there was ratio in other intermediate courts that a decision of this kind was interlocutory then it is likely I would have followed them.  If there was ratio in a decision of this court that this type of decision was interlocutory then I would have followed it.  However, the statements in Mercantile Mutual, Echo and Fairfax that the orders were interlocutory, were not statements made as part of the ratio decidendi of those cases.  The statements in those cases that leave was required were not statements made during the resolution of an issue in lis between the parties.  It may be inferred from each of the decisions that there was no issue raised by the parties about whether the decision was final or interlocutory.  This may be inferred because in relation to matters in issue between parties, courts are bound to give reasons for their decision.  In none of these three cases were any reasons given for stating that the orders were interlocutory.  The statements made must therefore have reflected the fact that there was no issue between the parties on the point.  In my opinion, the statements in Mercantile Mutual and Echo that the pre‑action discovery orders were interlocutory and the statement in Fairfax that non‑party discovery was

an interlocutory order were not statements which had any binding or persuasive effect. 

1. The Full Court in McCarthy v Dolpag Pty Ltd [2000] WASCA 106 said:

   It must be remembered that discovery 'constitutes a very serious invasion of privacy and confidentiality [and] the process should not be allowed to place upon a litigant any harsher or more oppressive burden than is strictly required'.  [13]

2. Newnes AJA citing McCarthy in the Fairfax case also said (Buss JA agreeing) that:

   Those considerations apply with at least equal force to an application for discovery against a non‑party.  The privacy of a person is not to be invaded, and the person put to inconvenience and possible irrecoverable expense, for the purposes of litigation in which that person is not involved unless, and only to the extent, the applicant establishes that it is reasonably necessary to do so in order to achieve the proper administration of justice.  [29]

3. With some adaption, exactly the same comments can be made in relation to an application for discovery against, or concerning a potential party. 

4. I am of the view that the order which was made finally determined the rights of the parties in the 'particular proceeding' or the 'principal' and only cause which was on foot.  In my opinion the appeal lay as of right.  Leave was not required.

5. LE MIERE AJA: On 9 July 2007 the respondents commenced the proceedings below by an originating summons seeking pre‑action discovery from the appellants under O 26A r 4 of the Rules of the Supreme Court1971 (WA). On 10 April 2008 the primary judge published reasons for upholding the respondents' application for pre‑action discovery. On 15 May 2008, after hearing further argument, the primary judge made orders giving effect to his reasons. The orders included an order that the respondents pay the appellants' costs of the application. On 29 May 2008 the appellants filed a notice of appeal against the orders made by the primary judge granting pre‑action discovery. On 5 June 2008 the respondents filed a notice of intention to cross‑appeal against the order that the respondents pay the appellants' costs of the application. On 10 July 2008 the respondents filed a motion seeking leave to appeal the costs order. On 15 July 2008 the primary

judge granted the respondents leave to appeal the costs order.  On 18 June 2008 the appellants filed a notice applying for leave to appeal (if leave is required) and for the time for the appellants to commence the appeal be extended to 30 May 2008 (if leave to appeal is required).  On 7 July 2008 a single judge of appeal ordered that the appellants' applications for leave to appeal and an extension of time to appeal be heard together with the appeal.

Background

1. The following is taken from the reasons for decision of the primary judge.

2. The respondents and the first appellant are the six children of Athol Granville Waller (the deceased), who died on 9 July 1959 without leaving a will.  At the time of the death of the deceased, the first respondent (Clive) was aged 6, the second respondent (Marlene) was aged 18, the third respondent (Michael) was aged 9, the fourth respondent (Gay) was aged 16, the fifth respondent (Kerry) was aged 12 and the first appellant (Barry) was aged 15.  The second appellant (Christine) is the wife of Barry.

3. At the time of his death the deceased ran an abattoir and wholesale and retail butcher business in and around the Geraldton area through a corporate structure comprising three entities.  One entity was the third appellant (Geraldton Food Distributors).  It owned a number of retail butcher shops in the Geraldton area, as well as large tracts of land on the outskirts of Geraldton.  It is the only entity of the three still in existence.  Another entity was Waller & Son Pty Ltd (Waller & Son).  It was a wholesale distributor of meat to retail butcher shops in the Geraldton area.  Waller & Son was deregistered at a date unknown to the respondents.  The third entity was Geraldton Abattoirs Pty Ltd (GA).  It operated abattoirs from yards on the outskirts of Geraldton and, by the time of its deregistration on 1 November 1994, its name had been changed to Sunset Beach Management Services Pty Ltd.

4. Following the death of the deceased, the business of Geraldton Food Distributors, Waller & Son and GA continued under a manager now himself deceased, at least for a period.

5. On 14 October 1960 letters of administration of the estate of the deceased were granted to his widow, Mary Waller (Mary).  Mary remarried, in January 1969 to become Mary Stevens.  At the time of the hearing before the primary judge Mary was in her eighties and suffered from a mental disability that would prevent her from providing any assistance in any proceedings.  On the hearing of the appeal the court was informed that Mary is now deceased.

6. At the date of the grant of the letters of administration documents obtained from the probate office of the court for the estate of the deceased indicate it comprised land, shares, debentures and other assets.  The net value of the estate after the liabilities of the deceased shown was approximately £50,000.

7. The land included the former family home.  On 2 April 1969 Mary executed a transfer document in respect of this land in favour of Barry for the consideration of $24,000.

8. In addition, the probate documents contain entries indicating that other lands had been sold to Geraldton Food Distributors by the deceased prior to his death, but the transfers of those lands had not by then occurred.  Those lands represented the land the subject of the certificate of title volume 1134 folio 158 and the land the subject of certificate of title volume 906 folio 4.  The land the subject of certificate of title volume 1134 folio 158, located about 5 ‑ 6 kms north of Geraldton, was a substantial area of about 285 acres.  At least a portion of the area was used for abattoirs.  No evidence of the nature of the land the subject of certificate of title volume 906 folio 4 has been provided.

9. On 14 June 1963 Mary executed a transfer of land document in favour of Geraldton Food Distributors covering both lands.  The transfer of land document referred to the consideration for the transfer of the lands as £20,000 paid to the deceased during his lifetime.

10. There is evidence that subsequently, over the period beginning in about 1971 and ending in about 1980, the land the subject of certificate of title volume 1134 folio 158 was used for the purposes of a subdivision development known as the 'Sunset Beach Development'.  The subdivision involved about 240 blocks.  The Sunset Beach Development was at least initiated by Geraldton Food Distributors and was developed by a company in which Barry had a management role, United Development Corporation Pty Ltd (United), which itself was in a group of companies of which Geraldton Food Distributors also appears to have formed a part.  On 25 August 2005 a transfer under a transfer of land document dated 24 August 2005 of a portion of the land originally the subject of certificate of title 1134 folio 158 from Geraldton Food Distributors to what appears to be an unrelated entity and showing a consideration of $10,450,000 was registered.

11. There is evidence that at the date of the death of the deceased, Geraldton Food Distributors also owned a large piece of land located 5 kms from the centre of Geraldton the subject of several certificates of title and known as 'Utakarra'.  At least a portion of this land was used for abattoirs.  In 1968 that land was subdivided into a large number of residential blocks and 'the balance' sold prior to 1973.

12. There is also evidence that, at the date of death of the deceased, Geraldton food Distributors owned a number of properties located in Geraldton related to a retail butcher's business.  These were a depot and five retail shops.  There is evidence that by 1973 all but one of these properties had been transferred.

13. By 1973 the business formerly conducted by the deceased had substantially changed.  The primary judge observed that the focus of much of the respondents' case for the orders they sought was the shareholding of the estate of the deceased in the corporate entities through which the former business of the deceased had been conducted:  GA, Waller & Son and Geraldton Food Distributors.  The probate documents show 100 £1 ordinary shares in each of GA and Waller & Son, and 11,204 £1 ordinary shares in Geraldton Food Distributors.  Those documents also contain entries indicating gifts by the deceased to each of his six children by causing GA and Waller & Son respectively on 1 March 1959 to allot to each of them 170 shares in each of the two companies representing in total 1,020 shares in each company, the total taken from an entitlement of the deceased to 1,120 shares in each, and with the allotment monies paid out of dividends received on 30 April 1959 from the various companies.  Those documents appear to show the value of the 1,020 shares in GA as £26,520 (£26 per share) and of the 1,020 shares in Waller & Son as £25,500 (£25 per share).

1. On 26 November 1973 Clive, the youngest of the deceased's children, attained the age of 21 years.

2. On 30 November 1973 each of the respondents, Barry, Christine and Mary executed a document described as a deed.  I will refer to the document as the deed notwithstanding that it is common ground that the document takes effect as a simple contract and not as a deed.  The deed was prepared by solicitors on the instructions of Barry.

3. The deed includes recitals to the following effect:

   1.The assets and liabilities of the estate of the deceased as at the date of his death are set forth in the first schedule.  The assets listed in the first schedule include 11,204 shares in Geraldton Food Distributors and 100 shares in each of GA and Waller & Son.

   2.Prior to 26 November 1973 Barry and Christine had agreed with the respondents for the sale by the respondents of the shares in Geraldton Food Distributors, GA and Waller & Son then held by them and to which they would become entitled upon Clive attaining the age of 21 years.

   3.In accordance with those arrangements the respondents have requested the administratrix, Mary, to transfer all their interest in the shares to Barry and Christine.

   4.Certain monies remain owing on the purchase of the shares from the respondents and these amounts and the times for payment thereof are set forth in the fourth schedule.

   5.The parties desire to wind up the estate of the deceased and have agreed to enter into and execute these provisions.

4. Clause 1 of the deed provides that the administratrix shall transfer to Barry and Christine in equal shares those shares in Geraldton Food Distributors, GA and Waller & Son set forth against their respective names in the third schedule in complete satisfaction of the claims of Barry and the respondents for any interest in the estate of the deceased and the balance of the assets in existence as at 30 November 1973 shall be retained by the administratrix for her own separate use.  Clause 2 provides that in consideration of the administratrix at the request of Barry and the respondents transferring to them or as they have directed their respective shares referred to in the third schedule, Barry and the respondents release the administratrix from all claims which they have, or might have, against her on account of the administration by her of the estate of the deceased.

5. Clause 4 of the deed provides that Barry agrees that the sums set out in the fourth schedule are the amounts together with interest payable to each of the respondents on the sale of their shares and guarantees the due payment of the balance of the monies referred to which have not been paid at the date of the deed.  It appears from the fourth schedule that each of the respondents was to be paid $15,000 for their shares.  The fourth schedule states that Michael had been paid in full for his shares and that Clive, Marlene and Gay had been paid in part and would be paid the balance on specified dates or on demand.  The fourth schedule does not refer to Kerry.  The primary judge observed that the deed appears to indicate that Kerry had been paid for her shares but does not indicate in what amount or for what number of shares.  In an affidavit sworn by Kerry she stated that she had no recollection of signing the deed or of discussions with Barry concerning him and Christine 'purchasing the family business in exchange for giving my brothers and sisters and myself $15,000'.  She does depose that following a request of her mother for money made in 1975, and her mother telling her to ask Barry, she received a cheque from a company of Barry for $15,000.

6. Clive, Michael and Gay swore affidavits in which they said in effect that they had no recollection of signing or of the contents of the deed or any agreement with respect to any shares in Geraldton Food Distributors they held or to which they had an entitlement.  However, each of them accept that they signed the deed and have been paid amounts totalling $15,000 each, plus interest in the cases of Marlene and Gay.  Marlene did not swear an affidavit.  However, there is attached to the affidavit of Barry a letter dated 31 October 1974 from Marlene to Barry and Christine in which she enquires when she can expect the payment of the first instalment of four which they had 'agreed to pay me in return for my shares which I transferred to you Barry'.  Further, there is a statement, in a letter dated 20 December 2006 from the solicitors for the respondents to the solicitors for the appellants, that each of the respondents accept that they received cash or benefits approximating $15,000 each.

Documents sought to be discovered

1. On 20 October 2006 the solicitors for the respondents wrote to the solicitors for the appellants.  The solicitors for the respondents said, amongst other things:

   8.Your father's Estate was not sold and divided after his death.  The wholesale butcher business continued.  Geraldton Foods retained the land that it owned and some of it was recently sold.  Specifically, on 28 August 2005, certificate of title volume 1736 folio 613 was transferred from Geraldton Foods to Silverglow Asset Pty Ltd.  My clients understand the sale price of that land was over $10 million.

   9.My clients note that you are a Director of Geraldton Foods and have been a Director of that company since 7 December 1964.  The other Directors are your wife, Christine Waller, who was appointed on 7 September 1971 and Lynton Scott who was appointed on 23 January 1986.

   10.The shares in Geraldton Foods are owned by you (1 share) and a company associated with you, Wainter Pty Ltd, which owns 20,504 shares.  Given the shareholding of Geraldton Foods as at the time of your father's death, my clients have no idea how the shares of Geraldton Foods as at todays date have come to be owned by you and your company.

   11.What my clients do know is that on 23 July 1973 your wife, Christine Waller, agreed to purchase from Mary Stevens (formerly Waller) all of the shares in Geraldton Foods and Waller & Son for $80,000.00.  My clients do not have a copy of that Agreement.  They wish to inspect and take a copy of that document.

   12..My clients do have a copy of a document dated 30 July 1982, which records the existence of the contract made on 23 July 1973.  I enclose a copy.  The document dated 30 July 1982 records an agreement by Mary Stevens (formerly Waller) to release Christine Waller from her obligation to pay the sum of $80,000.00 in return for you assuming that liability.  Further, it records that the balance outstanding as at 30 July 1982 is $77,000.00.  That is to say, that in 9 years only $3,000.00 of the $80,000.00 had been paid.  The balance of $77,000.00 was to be paid over 24 months at $1,000.00 per month, with the balance $50,000.00 to be paid on 30 July 1985.  My clients note that there is no provision for interest.

   13.My clients also note that part of the assets of Geraldton Foods comprised the property referred to above, which was sold last year for $10 million.

   14.My clients consider that, at face value, the agreements made on 23 July 1973 and 30 July 1982 are not valid commercial transactions.

   15.My clients (in their capacities both as beneficiaries of your father's Estate and as shareholders of Waller & Son and Geraldton Abattoirs) may seek orders that those transactions be set aside and the shares in Geraldton Foods be transferred back to the Estate of the Deceased.  The same applies with respect to any benefits derived by you from the shares of Waller & Son and Geraldton Abattoirs, which companies have now been wound up.

   …

   20.My clients have attempted to locate company records of the three above companies from the Australian Securities and Investments Commission.  In making those enquiries my clients have only been able to access the balance sheets and some profit and loss statements of Geraldton Foods for the period 30 June 1975 to 1986.  No records have been located at all with respect to Waller & Son.  With respect to Geraldton Abattoirs' records my clients have been able to access records for the period 30 June 1975 to 30 June 1980.  However those records simply comprise of balance sheets and statements of profit and loss for those years and they also record that the company did not trade or have significant assets as at 1975.  Further that as at that date the company had been re‑named Sunset Beach Management Services Pty Ltd.

   …

   In these circumstances, in order to ascertain what became of the shares which were beneficially owned by my clients and the shares that should have passed to them on your father's intestacy, my clients wish to inspect and obtain copies of the following classes of documents:  [there follows a list of nine classes of documents].

2. On 23 October 2006 the appellants' solicitors wrote to the respondents' solicitors stating:

   The narrative in your letter addressed to Mr Barry Waller is seriously defective.  It ignores the following crucial matters:‑

   (1)Your clients entered into a deed of family arrangement dated 30 November 1973 ('the Deed') by which they agreed to direct the adminstratrix of the estate of A G Waller to transfer their shares in the three companies of which you have written to our clients;

   (2)Your clients separately agreed to transfer shares in Geraldton Food Distributors Pty Ltd to our clients, all of which transfers were resolved to be registered by the board of that company on 30 November 1973;

   (3)Share transfers were all executed and registered to give effect to the Deed and the separately agreed transfers; and

   (4)Your clients were paid in full by out clients the moneys payable to them under schedule 4 of the Deed and the separate sale agreements.

   For your reference, a copy of the Deed and of the minutes of 30 November 1973 are enclosed.

   In the circumstances, the causes of action asserted in your letter to Mr Barry Waller dated 20 October 2006 are fictional and delusional, as well as statute‑barred.  There are also other serious defects in your analysis not presently deserving of detailed response.  Should your clients proceed as threatened in that letter, indemnity costs will be sought.

3. The respondents' solicitors replied by letter of 22 November 2006.  The respondents' solicitors said, amongst other things, that the respondents consider that the Deed was signed by them as a product of undue influence or unconscionable conduct.  The respondents' solicitors further stated that the respondents consider that they also have a claim against Barry as an executor de son tort.  The respondents' solicitors repeated their request for discovery of the classes of documents referred to in their letter of 20 October 2006.  There then followed further correspondence between the respective solicitors.

The orders for pre‑trial discovery

1. On 9 July 2007 the respondents applied by originating summons for pre‑action discovery against the appellants as potential parties pursuant to O 26A r 4.  On 10 April 2008 the primary judge published his reasons for decision in which his Honour found that the respondents' application was successful and he would hear from the parties as to the orders to be made.  Following a further hearing on 10 April 2008 the primary judge made orders on 15 May 2008.  In substance each of the appellants was ordered to give discovery of the documents described in the schedule to the order.  The schedule listed the following documents:

   1.Asset registers pertaining to each of Geraldton Food Distributors Pty Ltd ('GFD'), Geraldton Abattoirs Pty Ltd ('GA') and Waller & Son Pty Ltd ('Waller & Son') which disclose the assets held by those companies for the period 1959 to 1974.

   2.Share registers pertaining to each of GFD, GA and Waller & Son for the period 1959 to 1974.

   3.The taxation returns and financial statements (including balance sheet, profit and loss statement, depreciation schedule, trial balance and general ledger) for:

   (a)GFD for the period 1959 to 1974 inclusive; and

   (b)GA and Waller & Son for the period 1959 to the date they were deregistered.

   4.All valuations in respect of assets owned by GFD, GA and Waller & Son that were undertaken in the period 1959 to 1974.

   5.All valuations obtained in respect of the value of the shares of those companies having regard to the net asset backing of those shares.

   6.All valuations with respect to the shares owned by Athol Granville Waller ('the Deceased') in GFD, GA and Waller & Son.

   7.All documentation or correspondence or notes prepared by Mr Barry Waller or exchanged between Mr Barry Waller and his mother, Mary Stevens, relating to the affairs of the GFD, GA and Waller & Son and the distribution of the Estate of the Deceased, including communications with the companies accountants for the period 1959 to 1974.

   8.Any documentation held by the First Defendant evidencing distributions from his mother in respect of the Estate of the Deceased for the period 1959 to 30 November 1973.

   9.Any documentation or correspondence prepared by the First Defendant or his mother relating to the distribution of the Estate of the Deceased or in the dealing of the assets of the companies GFD, GA and Waller & Son.

   10.An Offer and Acceptance document for the purchase of certain shares in the companies GFD, GA and Waller & Son between Christine Waller and Mary Stevens made 23 July 1973.

   11.The original of a Deed of Family Arrangement made between the Plaintiffs, Mary Stevens and the First and Second Defendants dated 30 November 1973.

   12.All documentation or correspondence passing between Mr Barry Waller and Parker & Parker concerning the entry into the Deed of Family Arrangement referred to in paragraph 11 and the Offer and Acceptance document referred to in paragraph 10.

Discovery by potential party ‑ Legal principles

1. Order 26A provides for two types of pre‑action discovery:  discovery to identify a potential party and discovery from a potential party.  Order 26A also contains provisions for non‑party discovery in the course of proceedings already on foot.

2. Order 26A r 4 confers a discretion on the court to order discovery from a potential party.  The first three paragraphs of r 4 define the three necessary conditions of the exercise of the power conferred by the rule.  Once enlivened the exercise of the power is discretionary.  The discretion to order discovery against one of the appellants is not enlivened merely because the respondent may have a cause of action against another of the appellants.

3. Under the first condition in O 26 r 4(1) the rule applies where a person may have a cause of action against the potential party.

4. The applicant must show that he may have a cause of action against the potential party. That condition is similar to, but not the same as, the condition in O 15A r 6(a) of the Federal Court Rules 1979 (Cth) (FCR).  The latter condition was discussed by the Full Court of the Federal Court in Telstra Corporation Ltd v Minister for Broadband, Communications and Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64 where the court said:

   Under the first condition in [O 15A r 6(a)] an applicant must show that there is 'reasonable cause to believe that the applicant has or may have the right to obtain relief in the court from a person whose description has been ascertained'. The criterion as framed does not require that any person actually hold the requisite belief. Its objective character requires the court to be satisfied that a reasonable person could form a belief on the basis of the material before the court that the applicant 'has or may have the right to obtain relief'. The word 'may' indicates that the putative belief does not have to amount to a firm view that there is a right to relief … However, mere assertion of a case against a prospective respondent is not enough … On the other hand a prima facie case for relief does not have to be demonstrated. As Emmett J said in Austrac Operations Pty Ltd v New South Wales (2003) ATPR 41‑960 [10]:

   'The words "where there is reasonable cause to believe that the applicant has or may have the right to obtain relief" are not satisfied by mere assertion.  The belief requires more than mere suspicion or conjecture.  On the other hand, it is not necessary for an applicant to establish even a prima facie case.  It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief.  It is not necessary to demonstrate whether or not the applicant has the belief.'

   In Glencore International AG v Selwyn Mines Ltd (2005) 223 ALR 238, Lindgren J said [16]:

   ' … while the notion of "reasonable cause to believe that the applicant … may have the right to obtain relief" … may be seen to set the threshold "at quite a low level" … there must be some tangible support that takes the existence of the alleged right beyond mere "belief" or "assertion" by the applicant … '[58].

5. Order 26A r 4(1) does not, as FCR O 15A r 6(a) does, require that there be 'reasonable cause to believe' that the applicant may have the right to obtain relief. Nevertheless, O 26A r 4(1) should, like FCR O 15A r 6(a), be interpreted to require an objective test. The court must form an opinion as to whether there is sufficient evidence before it that the applicant may have a cause of action against the potential party. The court must make its own evaluation of the circumstances which ground the applicant's belief that he may have a cause of action against the potential party. The test is objective in the sense that it is not sufficient that the applicant believes that he may have a cause of action against a potential party; the court might determine this belief to be unfounded. It is not necessary that the applicant have a prima facie case. However, there must be material to establish that the applicant may have a cause of action against the potential party. There must be some tangible backing, or objective foundation, that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion: see Kremer B & Davies R, 'Preliminary Discovery in the Federal Court: Order 15A of the Federal Court Rules' (2004) 24 ABR 235.

Grounds of appeal 1 - 3

1. Grounds of appeal 1 ‑ 3 are, in substance, that the primary judge erred by holding that the respondents had established that they may have a cause of action, or causes of action, against the appellants.

2. The respondents submitted to the primary judge that they may have two causes of action against the appellants.  One is founded on the liability of the appellant under both limbs of the rule in Barnes v Addy (1874) LR 9 Ch App 244. The other is founded on the liability of Barry as an administrator de son tort in respect of the estate of the deceased. The appellants submitted that there was insufficient evidence before the court to establish objectively that there is reasonable cause to believe the respondents have, or may have, a right to relief against them. Having reviewed relevant authorities the primary judge said that there would be reasonable cause to believe that the respondents may have a right to relief by virtue of the first or second limb of the rule in Barnes v Addy if they could 'put forward sufficient matter to show that Mary might have breached her duties of a fiduciary kind as an administrator, and that the [appellants] might be liable to the [respondents] under either the first or second limb of the rule' [103]. The primary judge found that there was evidence to show objectively that there was reasonable cause to believe that Mary might have breached her fiduciary duties as an administrator and might have done so dishonestly and with a fraudulent design. The 'dishonest and fraudulent design' of Mary, identified by the primary judge, was to provide an unfair benefit to the appellants from the estate whilst at the same time advancing her own interests by receiving a release and indemnity from her duties as administratrix. The unfair benefit to the appellants identified by the primary judge was the transfer to Barry and Christine of the shares in Geraldton Food Distributors to which the respondents were entitled on the distribution of the estate in consideration for the payment of an amount less than their real value.

1. In my respectful opinion the primary judge misapprehended the effect of the deed.  Mary did not decide to transfer to the appellants the shares to which the respondents were entitled in consideration for a payment of $15,000 to each of the respondents.  Each of the respondents agreed to sell to Barry and Christine the shares to which they were entitled in consideration for $15,000 each.  Each of the respondents directed Mary, as administratrix, to transfer to the appellants the shares to which the respondents were entitled.  In transferring the shares to Barry and Christine, Mary was carrying out the directions of the respondents.  In doing so Mary did not breach any fiduciary duty.

2. The primary judge then considered whether the respondents may have a cause of action against the appellants by reference to the duties of an 'administrator de son tort'.

3. The primary judge held that there was evidence that established reasonable cause to believe that Barry may have made some claim to act as executor/administrator of the estate or committed some act equivalent to so acting.  The primary judge referred to the following evidence.  Clive asked Mary about his 'inheritance' and she told him he should go see Barry.  When Gay asked Mary about the family business, Mary told her to mind her own business or ask Barry.  On another occasion Gay asked Mary why everyone except Barry seemed to get nothing from the family business and her mother replied 'Barry's in control now, if you want anything, go and see him'.  Barry gave the instructions for the preparation of the deed.

4. A person only becomes an executor or administrator de son tort if they exert command and control over the assets of the estate:  see Nolan v Nolan [2004] VSCA 109 per Ormiston JA [19] - [20]. The stranger to the trust must be in control of the trust property to such an extent as to have been capable of disposing of it in some way: Re Barney [1892] 2 Ch 265, 274 ‑ 276. The primary judge held at [124] that the evidence represented reasonable cause to believe Barry might have made a claim to act as executor or done some act equivalent to such a claim as to make him an administrator de son tort, at least in respect of the interest of the estate of the deceased in Geraldton Food Distributors, that is the shares in Geraldton Food Distributors held by the estate.

5. In my respectful opinion, the primary judge misapprehended the effect of the deed.  Barry did not assume command or control over the shares.  Barry did not claim any control of the shares or do any act equivalent to such a claim.  Barry did not determine, or purport to determine, the manner in which the shares should be distributed to the respondents.  As I have said, Barry and Christine agreed with the respondents for the sale to Barry and Christine of the shares to which the respondents were entitled under the estate.  The deed gave effect to that agreement.  Under the deed, the respondents directed the administratrix to transfer to Barry and Christine the shares to which the respondents were entitled under the estate in consideration for a payment by Barry and Christine to each of the respondents of $15,000.

6. The respondents have not established that they might have a cause of action on the grounds found by the primary judge.  The respondents have not filed a notice of contention.  Accordingly, it is not necessary, or appropriate, for this court to consider whether or not the respondents might have any other cause of action against any of the appellants.  Grounds of appeal 1 to 3 are made out.

Ground 4 ‑ Limitation defence

1. Ground 4 is that the primary judge erred in failing to hold that the proposed causes of action for knowing receipt of estate property transferred in breach of trust, or knowing assistance in a fraudulent and dishonest design of Mary and for breach of trust as an administrator or executor de son tort, must clearly fail because they are subject to a limitation defence. 

2. In Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 Mason CJ, Dawson, Gaudron and McHugh JJ said:

   We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.  Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question (533).

3. The court should show a similar reticence to decide limitation questions in applications for pre‑action discovery from a potential party.

4. The court will nevertheless consider a limitation defence in appropriate circumstances.  Since an applicant is required to satisfy the court that he may have a cause of action against the potential party, the court could take a limitation defence into account as a matter relevant either to its power under O 26A r 4 or the exercise of its discretion although it should not normally do so, given the limited nature of the material available at that stage:  see Harris v Newcastle‑Upon‑Tyne Health Authority [1989] 1 WLR 96.

5. The primary judge assumed without deciding that the Limitation Act 1935 (WA) (Limitation Act) s 47 is applicable to liability under the rule in Barnes v Addy. His Honour held that the Limitation Act s 47 would not apply if there were 'fraud or a fraudulent breach of trust'. His Honour then stated that he had found that there is a reasonable basis for the view that there might have been a dishonest and fraudulent design by Mary in which the appellants might have participated. For the reasons I have already stated I have found that the evidence did not establish that there might have been a dishonest and fraudulent design by Mary in which the appellants might have participated.

6. The court will often consider a ground of appeal even though it depends on matters of fact and law that the court has found are wrong or not made out.  The court will do so by identifying the facts or principles on which the ground of appeal depends and assume they are established notwithstanding the court's finding to the contrary.  In this case it is not appropriate to assume any facts and then consider whether the cause or causes of action to which those facts give rise are defeated by a limitation defence.  To undertake that task would require the court to speculate what facts might give rise to the causes of action relied upon by the respondents.  It is not appropriate to do so.

Appeal ground 5 - Laches

1. Ground 5 is that the primary court erred in law, alternatively in fact and law, by failing to hold that the doctrine of laches applies in this case so as to make the possible causes of action bound to fail.

2. The primary judge found that there was not any basis in the evidence for the application of laches.  It is unnecessary and inappropriate to consider this ground of appeal for the same reasons that it is unnecessary and inappropriate to consider appeal ground 4.

Appeal ground 6 - Defence of abuse of process

1. This ground of appeal is that the primary judge erred in law, alternatively in fact and law, by holding that, until pre‑action discovery of the type sought had been given, a conclusion could not be reached that insufficient evidence was available upon which to conduct a trial of this matter, in circumstances where the primary court ought to have held that the absence of evidence from Mary and the deceased's solicitor who advised Mary about the Estate meant that a fair trial was not possible and that the proposed action would be struck out as an abuse of process.

2. Both the appellants and the primary judge referred to Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256. In that case the driver of a car alleged that he was severely injured as a result of an accident on a road which was caused by the design and marking of the road. The driver suffered from intellectual disabilities before the accident occurred. Some 29 years after the accident, the driver commenced proceedings in negligence against the Newcastle City Council and the Roads and Traffic Authority of New South Wales responsible for the construction and maintenance of the road. Section 52 of the Limitation Act 1969 (NSW) provided that the running of a limitation period fixed by that Act was suspended for the period that a person was under a disability, subject to an ultimate limitation period of 30 years provided by s 51(1). The defendants applied for orders that the proceedings be dismissed or stayed permanently or be struck out as an abuse of process. Gleeson CJ, Gummow, Hayne and Crennan JJ said:

   The critical holding by Bryson JA appears in the sentence:

   'No more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place; it cannot be expected that the process would be just.'

   Bryson JA also stated:

   'To my mind the simple and overwhelmingly clear position is that no useful evidence is available upon which to conduct a trial into the question whether the plaintiff's injuries were caused by negligence of the defendants, and no further search or inquiry is in any way likely to locate any such evidence; so that a trial of the proceedings could not rise above a debate about the effect of scraps of information, and it is impossible to inform the debate with any realistically useful information [55].'

   And later in their judgment:

   … attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants [69].

   The primary judge concluded in relation to this issue:

   In my view, at least until further material of at least some of the kinds sought in the present proceedings is obtained and examined, it is not possible to arrive at the assessment described in the second of the two extracts above from the judgment of Bryson JA as quoted in the High Court. In that state of affairs, it is not possible in my view to reach the conclusion that the action is 'bound to fail' or 'doomed to fail' on the present consideration [160].

3. The appellants submit that it will be impossible for the appellant to obtain a fair trial in the absence of evidence from its major witnesses.  At the time of the hearing Mary suffered from dementia and could be of no assistance in the matter.  The solicitor who advised Mary about the estate, Mr E M Franklyn (later the Honourable Justice Franklyn) is deceased.  The appellants submit that the primary judge did not even refer to the loss of evidence from Mary and the Honourable Mr Franklyn QC in the part of its reasons that relate to abuse of process.  The appellants submit that notwithstanding any relevant documentary material that may be produced by way of pre‑action discovery, the appellants will be put at such serious disadvantage if they are forced to defend the foreshadowed claim in the absence of such evidence, that it is clear the foreshadowed proceeding is bound to be struck out as an abuse of process.

4. It was open to the primary judge to reach the view that he did in relation to the abuse of process submission by the appellants.  After pre‑action discovery the respondents may choose not to commence proceedings.  If the respondents commence proceedings then until the proceedings are commenced, the parties joined and elements of causes of action pleaded out and the documentary evidence disclosed it is difficult to make any meaningful assessment of the prospects of success of an application for a stay on abuse of process grounds.  Ground 6 is not made out.

Ground 7 ‑ Failure to make reasonable enquiries

1. Ground 7 is that the primary court erred in law, alternatively in fact and law, by holding that the respondents had not failed to make reasonable enquiries within the meaning of O 26A r 4(1) to obtain sufficient information to determine whether to commence proceedings against the appellants, despite failing to make enquiries about trends in the value of assets owned by Geraldton Food Distributors between 1971 (being the date of the earliest of the transactions referred to in the 1973 deed) and 30 June 1974 (being the earliest date for which the respondents have balance sheet information for Geraldton Food Distributors).

2. The primary judge found that without financial data for Geraldton Food Distributors, it appeared that the respondents would not have sufficient information to enable a decision to be made to commence the proceedings in question.  That is because the information as to trends may not hold good for the shares in Geraldton Food Distributors.

3. I am not satisfied that the trial judge made any error or that his Honour's finding on that issue was not open.  This ground is not made out.

Grounds 8 and 9 - Linkage and possession, custody or power

1. Ground 8 is that the primary judge erred in law, alternatively in fact and law, by failing to hold that each of the appellants did not have, or was not likely to have or to have had, possession of each of the classes of documents referred to in the originating summons.  Ground 9 is that the primary judge erred in law, alternatively in fact and law, by holding that discovery of each of the classes of documents referred to in the respondents' originating summons by each of the appellants was necessary for the respondents to make a decision as to whether to commence proceedings in relation to each of the proposed causes of action against each of the appellants, and thereby effectively, and without power, ordering non‑party pre‑action discovery by each appellant with respect to possible causes of action against the other appellants.

2. These matters were dealt with together by the primary judge.  The primary judge said:

   Counsel for the [appellants], as I understood his submission, put the application of this element to the present case in terms of the requirement that there be an appropriate linkage between the cause or causes of action the plaintiffs might be found to have established for present purposes, and the orders sought.  Counsel put it to me that such a linkage had not been established in this case.  I did not understand his submissions to be that there are no reasonable grounds to believe the defendants did not have and have not had any of the documents sought.

   I consider that the element does indeed require such a linkage, expressed as O 26A r 4(2) does.  I consider that such a linkage has been shown in this case, however.  The documents sought by orders 1 to 12 in my view relate to matters which go to the causes of action which I consider the plaintiffs have shown there is reason to believe they may have.  I return to the orders and their relationship to those of causes of action in somewhat more detail under the heading of the exercise of my discretion in this case, below [169] - [170].

3. The appellants submit that the primary judge correctly held that O 26A r 4(2) requires there to be a linkage between the documents of which pre‑action discovery is sought, the party against whom they are sought and the possible cause or causes of action against that party but that the primary judge erred in finding that there was such a linkage between each of the appellants, each of the possible causes of action against each of the appellants and the documents referred to in the schedule to the order. The appellants submit that there is no connection between the classes of documents referred to in [7] ‑ [9] of the schedule to the order and the possible causes of action against Christine and Geraldton Food Distributors. The appellants submit that the order effectively requires Christine and Geraldton Food Distributors to provide non‑party pre‑action discovery in respect of the classes of documents in [7] - [9] of the schedule to the order in respect of possible causes of action against Barry. The appellants submit there is no power to order non‑party pre‑action discovery: non‑party discovery is available only in pending proceedings ‑ O 26A r 5.

4. The respondents submit that if there is a cause of action against Barry there is at least the possibility of causes of action against Christine and Geraldton Food Distributors on the basis of accessorial liability in equity.

5. Item 7 ‑ 9 in the schedule to the order are:

   7.All documentation or correspondence or notes prepared by Mr Barry Waller or exchanged between Mr Barry Waller and his mother, Mary Stevens, relating to the affairs of the GFD, GA and Waller & Son and the distribution of the Estate of the Deceased, including communications with the companies' accountants for the period 1959 to 1974.

   8.Any documentation held by the First Defendant evidencing distributions from his mother in respect of the Estate of the Deceased from the period 1959 to 13 November 1973.

   9.Any documentation or correspondence prepared by the First Defendant or his mother relating to the distribution of the Estate of the Deceased or in the dealing of the assets of the companies GFD, GA and Waller & Son.

6. On the face of it, there is no connection between the classes of documents referred to in [7] - [9] of the schedule to the order and the possible causes of action against Christine and Geraldton Food Distributors.  The respondents' submissions are predicated on the existence of a cause of action against Barry and the consequential possibility of causes of action against Christine and Geraldton Food Distributors on the basis of accessorial liability.  The materials before the court do not establish that any of the respondents may have any of the causes of actions against the appellants relied upon by the respondents and found by the primary judge.  It necessarily follows that the respondents have not established that they may have a cause of action or causes of action against Christine and Geraldton Food Distributors on the basis of accessorial liability.  It is not appropriate to consider further whether the respondents may have causes of action against Christine and Geraldton Food Distributors on the basis of accessorial liability.  To do so would require the courts to assume unspecified hypothetical facts.  It is not necessary or appropriate to consider these grounds of appeal further.

Ground 10  - Exercise of discretion

1. Ground 10 is that the primary judge erred in law in holding that it was appropriate for the court to exercise its discretion to order pre‑action discovery.  The first matter relied upon by the appellants is that the primary judge should have held it was unlikely that the possible causes of action may be found to exist against the appellants.  I have found that the respondents failed to establish that they may have the possible causes of action against the appellants.  It follows that the primary judge did not have power to order pre‑action discovery and the question of the exercise of discretion did not arise.

2. If, contrary to my finding, the primary judge had power to order pre‑action discovery then in exercising the discretion whether or not to grant pre‑action discovery the primary judge should have considered a number of factors including the likelihood of the potential causes of action being found to exist and the nature and significance of the potential causes of action:  CentralExchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33 [81] - [83] per Steytler J, Malcolm CJ and Wallwork J agreeing. The respondents did not establish that they may have a cause of action against the appellants and hence the exercise of discretion to make an order for pre‑action discovery did not arise. It is not appropriate to consider how the court should have exercised its discretion if the respondents had made out that they may have a cause of action against the appellants. To undertake that task would require the court to speculate what facts and findings may give rise to the causes of action relied upon by the respondents. It is not appropriate to do so.

Is leave to appeal required?

1. The respondents argue that the appellant requires leave to appeal on the basis that the judgment of the primary judge was an interlocutory judgment and that leave to appeal was therefore necessary under s 60(1)(f) of the Supreme Court Act 1935.  The appellants argue that the judgment is final and leave is not required but if leave to appeal is necessary, leave should be granted.

2. Section 60(1)(f) provides relevantly that, except in cases which are not presently relevant, no appeal shall lie to the Court of Appeal without the leave of the judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a judge.

3. In Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59 the Full Court held that an order of a Master setting aside a statutory demand served by the appellant on the respondent pursuant to s 459E of the Corporations Law was a final order and leave to appeal was not required. Kennedy J, with whom Ipp J agreed, was persuaded that the court should follow the decision of the Court of Appeal in New South Wales in A‑Pak Plastics Pty Ltd v Merhone Pty Ltd (1995) 13 ACLC 896. Kennedy J said:

   In the New South Wales case of A-Pak Plastics Pty Ltd v Merhone Pty Ltd (1995) 13 ACLC 896, a strong Court of Appeal, comprising Kirby P, Priestley and Sheller JJA, has held that the relevant lis in such an application is whether the opponent is entitled to have the statutory demand set aside.  Sheller JA, in whose judgment the other members of the court agreed, identified the issue before the court as being whether the company was insolvent (or, perhaps, whether it owed the claimant the debt which was the subject of the statutory demand) or whether the statutory demand should be set aside.  Following the decision in A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701, his Honour pointed out that the only proceedings on foot between the parties at that time were those commenced by the company for setting aside the demand. He concluded that the order which had been made setting aside the statutory demand was a final order.

4. In Aussie Victoriaplant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121 the Victorian Court of Appeal held that an order dismissing an application to set aside a statutory demand was an interlocutory order. The members of the court considered that that decision was not inconsistent with the decision in A‑Pak Plastics. Maxwell P and Neave JA said at [12]:

   As Nettle JA also points out, the fact that an order setting aside a statutory demand is final (as in A‑Pak Plastics) does not mean that an order dismissing an application to set aside a statutory demand must be characterised in the same way.  There is ample authority for the proposition that an application may give rise to a final order if it is decided in one way, even though if it were decided the other way the order would be interlocutory, because it would have finally determined the rights of the parties.

5. The appellants submit that the principles stated in Asian Century Holdings (applying A‑Pak Plastics) are of general application and, until overturned, represent the law in this state and should be followed.

6. I do not agree that the principles stated in Asian Century Holdings determine the issue in this case.  Strictly speaking Asian Century Holdings is authority only that an order setting aside a statutory demand served pursuant to s 459E of the Corporations Law is a final order.

7. In Licul v Corney (1976) 180 CLR 213 Gibbs J said:

   The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined.  One view … is that the test depends on the nature of the application made to the court.  The other view which, since Hall v Nominal Defendant …, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is:  does the judgment or order, as made, final dispose of the rights of the parties (225)?

8. In Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 the High Court considered an appeal from a decision of the New South Wales Court of Appeal determining an appeal from an order declining to set aside a judgment by default. Gibbs J said:

   The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty.  The test now applied in this court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties:  Licul v Corney (1976) 180 CLR 213. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.

   In my opinion the test in Licul v Corney requires the court to have regard to the legal rather than the practical effect of the judgment.  If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain that it is at present.  In some cases it would be necessary for the court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken ‑ - an inquiry quite inappropriate when the only issue is whether a right of appeal exists.  As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted.  The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the court's power to grant special leave to appeal (248).

9. In Malouf v Malouf [1999] FCA 284; (1999) 86 FCR 134, 42 ‑ 143 Beaumont, Lee and Dowsett JJ considered whether an order dismissing an application for pre‑trial discovery was interlocutory or final. The court reviewed relevant authorities and concluded:

   For present purposes, we need only consider Hall. That decision has been followed consistently in Australia and appears to be materially indistinguishable from the present case in that it involved an application in advance of the commencement of substantive proceedings. It establishes that for the purposes of determining whether there is an appeal as a right, itself dependent upon whether the decision in question was final or interlocutory, the test is whether or not the order in question precludes a further application. There is nothing in the rule currently under consideration which would preclude an applicant from making more than one application thereunder. No doubt, an application based on the same grounds as a previous application would be unsuccessful, but for the reasons advanced by the High Court, that is not relevant. The order is interlocutory. There is no appeal as of right [36].

10. For the reasons stated by Beaumont, Lee and Dowsett JJ an order dismissing an application for pre‑trial discovery is interlocutory.  However, that does not answer the question of whether or not an order that a person make pre‑trial discovery is final or interlocutory.

11. The appellants submit that the relevant 'lis' here is whether pre‑action discovery should be awarded and the legal effect of the primary court's order was to finally determine the rights of the parties in relation to that 'lis', and the primary court's order is therefore a final order.

12. In Airservices Australia v Transfield Pty Ltd [1999] FCA 886; (1999) 92 FCR 200 the applicant sought preliminary discovery from the respondent to determine whether the applicant had a basis on which to take proceedings against the respondent under the Trade Practices Act 1974 (Cth). The respondent moved to have the application for preliminary discovery dismissed on the ground that preliminary discovery did not involve an exercise of the judicial power of the Commonwealth. Finn J held that because the function of preliminary discovery is to assist in a determination of the rights amongst themselves of the parties in any proceeding based upon information revealed in the preliminary discovery, an application for such discovery involves a clear exercise of judicial power. Finn J said that the 'distant ancestor of both O 15 (discovery and inspection of documents) and O 15A was the bill of discovery in Chancery - a bill made available in the auxiliary jurisdiction of equity because of the inability of the courts of common law to compel discovery by the parties to a suit, or to compel the production of material documents in the custody or power of the parties' [9]. His Honour referred to the description of the bill in Story, Commentaries on Equity Jurisprudence (1st ed, 1884). Finn J said:

    Accepting as I must that the 'term "matter" has meaning only in the context of a legal proceeding': Abebe at 11; the subject of AsA's inquiry and complaint has the capacity to constitute a matter. The real question in the present case, in my view is not whether there is a matter, but how the jurisdiction of the court in respect of that matter can properly be enlivened. That involves a question of judicial power. In this particular setting the answer to that question depends upon whether preliminary discovery of the type envisaged by O 15A r 6 is an incident of the exercise of judicial power in relation to the matter: cf Re Wakim; Ex Parte McNally (1999) 73 ALJR 839 at 866 ‑ 867; 163 ALR 270 at 307 - 308. In my view it clearly is.

    Ordinarily a court's jurisdiction is enlivened by an initiating process seeking a determination of the substantive claim one party alleges it has against another. But as I indicated earlier in these reasons such need not necessarily be the case. Necessity may require otherwise if a person's right is to be vindicated in a substantive claim. Preliminary discovery of the types provided in O 15A rr 3 and 6 have long been accepted as a proper and appropriate precursor to the making of a substantive claim ‑ and appropriate because it assists in the administration of justice in relation to the making of the claim itself. There is no reason for present purposes to distinguish between the two types of discovery. Each reflects a different necessity.

    Though in form a discrete proceeding (as was the old bill of discovery:  see the quotation from Story) preliminary discovery is, as a matter of substance, properly to be regarded as interlocutory in character in that it does not, nor is it intended to, determine finally the rights inter se of the parties to the substantive application:  cf Malouf v Malouf.  Its function rather is to assist in that determination when or if the substantive application is brought consequent upon what is revealed in the preliminary discovery itself [25] ‑ [27].

13. The better view is that proceedings seeking an order under O 26A r 4 are interlocutory in character and that an order that a person give discovery under O 26A r 6 is an interlocutory order. Just as proceedings in equity's auxiliary jurisdiction were in aid of the proceedings at law, proceedings under O 26A are in aid of the proceedings contemplated by the applicant. The O 26A proceeding does not settle any of the rights between the parties which are the basis of the contemplated proceedings.

14. The appellants characterise the 'lis' to be whether or not the appellants had to produce the documents in question.  If the matter is approached in that way then the order for pre‑action discovery finally resolved that issue.  However, in my view the proper question is whether the O 26A proceedings finally settle the allegations comprising the applicants' apprehended rights to relief referred to in O 26A r 4.  The question of producing documents is a preliminary step to resolving that controversy.

Should leave be granted?

1. Leave should be granted where the decision below is plainly wrong or is attended with sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains unresolved:  Wilson v Metaxas [1989] WAR 285 at 294 per Malcolm CJ (Brinsden and Smith JJ agreeing). I have found that the primary court's decision was wrong.

2. What is substantial injustice will depend on all the circumstances of the case.  To be wrongly subjected to an order for pre‑action discovery is a serious invasion of privacy:  McCarthy v Dolpag Pty Ltd [2000] WASCA 106 at [13] per Anderson and Scott JJ. In this case, the order made by the primary judge was beyond power. That is because the respondents failed to establish that they may have a cause of action against each of the respondents or any of them. In the circumstances of this case a substantial injustice would be done if the order appealed from remains unreversed.

Appeal and leave to appeal - Conclusion

1. I would grant the appellants leave to appeal and allow the appeal.

Cross‑appeal

1. The primary judge granted to the respondents leave to appeal against the order that the respondents pay the appellants costs of the application.  The respondents submitted that the primary judge should have held that the successful applicant should be awarded the costs of the application on the basis that costs follow the event.

2. I would allow the appellants' appeal and hence the appellants and not the respondents are the successful parties to the application.  The cross‑appeal falls away and must be dismissed.