Westpoint Corporation Pty Ltd v Marsh - [2005] WASC 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WESTPOINT CORPORATION PTY LTD & ORS -v- MARSH & ORS [2005] WASC 127

CORAM: HASLUCK J

HEARD: 1 JUNE 2005

DELIVERED : 1 JUNE 2005

FILE NO/S: CIV 1579 of 2003

BETWEEN: WESTPOINT CORPORATION PTY LTD (ACN 009 395 751)
First Plaintiff
NORMAN PHILIP CAREY
Second Plaintiff
SHARYN JOAN VOST
Third Plaintiff
AND
JANINE SUE MARSH
First Defendant
KAREN RICHARDSON
Second Defendant
DIANE CAREY
Third Defendant

Catchwords:

Practice and procedure - Application to strike out claim pursuant to springing order concerning discovery - Issue as to adequacy of discovery - Leave granted to file further affidavits of discovery - Turns on own facts

Legislation:

Nil

Result:

Application to file further affidavits of discovery allowed
Application to strike out adjourned

Category: B

Representation:

Counsel:

First Plaintiff                :     Ms J D Kenny
Second Plaintiff            :     Ms J D Kenny
Third Plaintiff               :     Ms J D Kenny
First Defendant             :     Mr D M Fairweather
Second Defendant         :     Mr C E Chenu
Third Defendant           :     No appearance

Solicitors:

First Plaintiff                :     Dwyer Durack
Second Plaintiff            :     Dwyer Durack
Third Plaintiff               :     Dwyer Durack
First Defendant             :     Maxim Litigation Consultants
Second Defendant         :     Durack & Zilko
Third Defendant           :     No appearance

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

Pulitano v Ginbey [1999] WASC 5
The Nordglimt [1988] QB 183
Westpoint Corporation Pty Ltd & Ors v Marsh & Ors [2005] WASC 29

Case(s) also cited:

Nil

HASLUCK J: I have before me two applications. First, I have an application dated 18 March 2005 whereby the first and second plaintiffs seek orders that certain paragraphs of the substituted statement of claim dated 5 March 2004 be struck out and, more importantly, that the first and second plaintiffs have leave to file affidavits of discovery with an amended list of documents in place of earlier affidavits of discovery.
The proposed orders are set out in the application dated 18 March 2005. As to the discovery issue, par 2 says this:
"The first plaintiff have leave to file an affidavit of discovery with an amended list of documents in terms of the first plaintiff's affidavit of discovery annexed to this application to substitute the first plaintiff's affidavit of discovery filed on 19 November 2004 ('first plaintiff's original affidavit of discovery')."
I pause to note that the same is said in par 3 in respect of the second plaintiff's application for leave to file an affidavit of discovery with an amended list of documents.
Put shortly, the plaintiffs seek leave to file and serve so‑called "substituted" affidavits of discovery and related lists. I will call this the "plaintiffs' discovery application".
The grounds for the plaintiffs' discovery application are described in these terms:
"1.Paragraph 6 in the List of Documents annexed to the First and Second Plaintiffs' Original Affidavit of Discovery contained a number of qualifications and at the request of the First Defendant, the First and Second Plaintiffs now seek to delete some of the qualified paragraphs.
2.The First and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WASC 127
Decision Date: 1 JUNE 2005

CaseChat Overview and Summary

Westpoint Corporation Pty Ltd and another, the plaintiffs, filed a claim against Marsh and others, the defendants, for slander. The claim, which was issued on 20 May 2003, alleged that Marsh made defamatory statements about Westpoint Corporation, causing significant financial loss. At the first status conference on 4 July 2003, the defendants highlighted the extensive discovery requirements due to the nature of the slander claim. The plaintiffs were thus aware of the need for comprehensive financial documentation to substantiate their claims. On 5 November 2004, Registrar Boyle issued orders requiring the plaintiffs to file affidavits of discovery by 19 November 2004, with the threat of striking out the claim if the requirements were not met. The plaintiffs filed the necessary affidavits by the deadline, but the defendants contested the adequacy of the discovery, prompting an application to strike out certain paragraphs of the statement of claim.

The central legal issue before the court was whether the plaintiffs' affidavits of discovery were sufficient under the orders made by Registrar Boyle. The defendants argued that the discovery was inadequate and sought to strike out parts of the plaintiffs' statement of claim. The plaintiffs countered that they had complied with the orders and that the defendants' dissatisfaction with the discovery was not a valid basis for striking out the claim. The court had to determine whether the plaintiffs had indeed complied with the rigorous discovery requirements and if the defendants' application was justified under the circumstances.

The court, after considering the arguments and the relevant orders, concluded that the plaintiffs' affidavits of discovery were not satisfactory. The defendants' application to strike out the claim was granted, and the plaintiffs were allowed to file further affidavits of discovery. The court's decision hinged on the specific facts of the case, particularly the defendants' dissatisfaction with the adequacy of the initial discovery. This decision underscores the importance of compliance with court-imposed discovery requirements and the consequences of failing to meet those requirements.

The final orders reflect the court's decision to grant the defendants' application to strike out certain paragraphs of the statement of claim due to inadequate discovery. The plaintiffs were permitted to file further affidavits of discovery within a specified timeframe, and further directions were given to manage the discovery process going forward. This outcome emphasises the court's commitment to ensuring that all parties adhere to procedural requirements, particularly in cases involving significant claims and extensive discovery.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I pause to note that an appeal against the ruling of Registrar Boyle was made to Master Sanderson. The learned Master dismissed the appeal. His reasoning is reflected in Westpoint Corporation Pty Ltd & Ors v Marsh & Ors [2005] WASC 29. The full text of the orders made by Registrar Boyle is set out in that judgment. The Sanderson judgment contains at par 6 a useful overview of the situation which is now before me. The summary is presented in these terms:"Before dealing with each of the particular grounds of appeal it is appropriate to set out a brief chronology of events as they transpired prior to 5 November 2004. This is a claim for slander. The slander was allegedly uttered by the first defendant in or about May or June 2001 and on other dates. The writ was issued on 20 May 2003. As was required by the Rules, it was generally endorsed. A statement of claim was filed on 1 July 2003. The first status conference was held on 4 July 2003. At that conference the first defendant drew to the attention of both the Registrar and the plaintiffs' solicitors the magnitude of the discovery task involved, given the nature of the plaintiffs' claims. Without going into detail it is said that the slander allegedly uttered by the first defendant impacted adversely on the business of the first plaintiff resulting in losses of many millions of dollars. It must have been apparent to the plaintiffs at the outset that to prove this loss they would have to actually establish the adverse effect on the first plaintiff's business. Effectively what that would require was an audit of the first plaintiff's business, in other words discovery of just about every financial record the plaintiff had available to it. One might have expected the plaintiffs' solicitors to embark upon the process of discovery as soon as the writ was issued, if not before it was issued. Be that as it may, as at 4 July 2003 the plaintiffs must have been aware that they faced a difficult discovery exercise." It was against the background described by Master Sanderson that the matter came before Registrar Boyle. The orders he made on 5 November 2004 show that he took a rigorous view of the requirements to be met by the plaintiffs with the ultimate sanction of a striking out if there were a lack of compliance. Time limits were imposed, including a requirement that affidavits of discovery be filed by 19 November 2004. In purported compliance with the orders made by Registrar Boyle affidavits of discovery sworn by the second plaintiff, Norman Philip Carey, were filed and served on behalf of the plaintiffs on 19 November 2004. Prima facie, the orders made by the Registrar had been complied with. However, as it happened, the defendants were dissatisfied with the affidavits that had been filed and served. Accordingly, as I have indicated, by an application dated 24 December 2004 they applied for orders striking out certain paragraphs of the statement of claim pursuant to the order previously made by Registrar Boyle on the grounds that the discovery provided was inadequate. The Boyle orders undoubtedly allowed for an application to strike out of this kind.