MARLENE McDONALD MICHAEL JOHN WALLER GAY CRIDDLE KERRY CLUNE Plaintiffs
AND
BARRY GRANVILLE WALLER First Defendant
CHRISTINE MARGARET WALLER Second Defendant
GERALDTON FOOD DISTRIBUTORS PTY LTD Third Defendant
Catchwords:
Procedure - Pre-action discovery against potential parties - Elements required to be established - Whether the applicant may have a cause of action - Whether applicant has after reasonable enquiries been unable to obtain sufficient information - Whether the respondent has or has had or is likely to have or have had possession of documents that may assist - Whether the discretion to order discovery should be exercised and if so how - The costs of the application, of compliance with any orders and security for the costs of compliance - Rules of the Supreme Court 1971 (WA) O 26A r 4 and O 26A r 7
The rule in Barnes v Addy - Application to actions against persons participating in breaches of duty by an administrator - First and second limbs of the rule in Barnes
Administrator de son tort - Application to persons acting after grant of administration
Limitation of actions - Application of Limitation Act 1935 (WA) 2 47 to persons liable under the rule in Barnes - Application to persons liable as administrators de son tort
Laches - Delay and acquiescence - Delay permitting a situation to arise which it would be unjust to disturb
Abuse of process - Delay producing an abuse of process
Practice and procedure - Conferral prior to making an application - What constitutes conferral for the purposes of O 59 r 9
Legislation:
Administration Act 1903 (WA), s 14 An Act against Fraudulent Administration of Intestates' Goods of 1601, 43 Eliz I cap 8 s II (Imp) Federal Court Rules, O 15A r 6, O 15A r 11 Limitation Act 1935 (WA), s 47 Limitation Act 1980 (Vic), s 21 Limitation of Actions Act 1969 (NSW), s 47 Property Law Act 1969 (WA), s 9 Rules of the Supreme Court (WA), O 26A r 4, O 26A r 5, O 26A r 7, O 59 r 9 Supreme Court Act 1981 (Imp), s 33(2)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Waller v Waller [2008] WASC 51
Case
[2008] WASC 51
Decision Date
CaseChat Overview and Summary
The case of Waller v Waller was heard in the Supreme Court of Western Australia. The dispute centred around a request for pre-action discovery by the applicant, Waller, against several potential defendants. The applicant sought discovery of documents believed to be in the possession of the respondents, which were considered necessary for establishing a potential cause of action. The primary issue before the court was whether the applicant had established the necessary elements to justify the pre-action discovery, including the absence of sufficient information after reasonable enquiries and the likelihood that the respondents held relevant documents.
The court examined whether the applicant had a reasonable belief that a cause of action existed and had conducted reasonable investigations to obtain the necessary information. Additionally, the court assessed whether the respondents had, or were likely to have, documents that could assist in the applicant's case. The court also considered the discretion to order discovery, the costs associated with the application, compliance with any orders, and the security for the costs of compliance, as per the relevant rules of the Supreme Court of Western Australia.
In its reasoning, the court found that the applicant had demonstrated a reasonable belief of a potential cause of action and had made reasonable efforts to obtain the necessary information. The court determined that the respondents were likely to possess documents that could assist in the applicant's case. Consequently, the court exercised its discretion to order discovery and outlined the terms for compliance, including the allocation of costs and security for those costs. The final orders of the court were yet to be determined, with further submissions from the parties expected to clarify the specific orders to be made.
Orders
Orders of the court
It follows that the plaintiffs' application has been successful, and that I will hear from the parties as to the orders to be made in this case, as I have indicated.
I should add that particularly if an order as to the costs of compliance with the orders for discovery is made in the terms I have indicated then it would be appropriate to ensure there is a liberty to apply which would allow for the matter of those costs to be returned to.