Woodley v Woodley
[2016] WASCA 226
•19 DECEMBER 2016
WOODLEY -v- WOODLEY [2016] WASCA 226
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 226 | |
| THE COURT OF APPEAL (WA) | 19/12/2016 | ||
| Case No: | CACV:128/2015 | 6 SEPTEMBER 2016 | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 6/09/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TERRY RAY WOODLEY ROSS MAXWELL WOODLEY |
Catchwords: | Application for leave to appeal from decision dismissing application for further and better discovery Turns on own facts Application dismissed |
Legislation: | Rules of the Supreme Court 1971 (WA) |
Case References: | Pearce v International Mining Technologies Limited [2009] WASCA 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WOODLEY -v- WOODLEY [2016] WASCA 226 CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- Applicant
AND
ROSS MAXWELL WOODLEY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : WOODLEY -v- WOODLEY [No 2] [2015] WASC 274
File No : CIV 2080 of 2013
Catchwords:
Application for leave to appeal from decision dismissing application for further and better discovery - Turns on own facts - Application dismissed
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr J M Burke
Solicitors:
Applicant : In person
Respondent : MDS Legal
Case(s) referred to in judgment(s):
Pearce v International Mining Technologies Limited [2009] WASCA 239
- MARTIN CJ: (This judgment was delivered extemporaneously on 6 September 2016 and has been edited from the Transcript).
1 This is an application for leave to appeal from a decision of the judge managing these proceedings in the commercial and managed cases list in which he dismissed an application for further and better discovery of documents made by the plaintiff in those proceedings, who is the applicant for leave in this appeal.
2 It is well established that before leave will be granted to appeal from an interlocutory decision, the applicant for leave will generally be required to show that the decision appealed against is wrong or at least arguably attended with sufficient doubt to support the grant of leave to appeal. The applicant must also establish that a substantial injustice would be done if leave to appeal was not granted and the interlocutory decision was not reversed.
3 Decisions of the highest authority establish that a tight rein must be kept upon interference with the orders of judges at first instance exercising discretions with respect to points of practice or procedure. In this court, it is also well established that there is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the commercial and managed cases list. The reasons for that restraint are explained by the court in Pearce v International Mining Technologies Limited:1
A judge who has a continuing involvement in the management of a case in the CMC List is likely to have a much better overall perspective of the litigation, and to be in a much better position to determine what particular procedural steps are appropriate, than this court. The advantage that such a judge will generally have from his or her familiarity with the case is not lightly to be put aside. While this court must be prepared to intervene where questions of legal principle arise or the interests of justice otherwise require it, restraint is necessary to avoid the appellate process becoming an obstacle to the proper and effective management of cases in the CMC List.
4 The applicant applied for further and better discovery of 14 categories of documents which are said to be relevant to the establishment of the financial position of the defendant and which are said to go to the question of the defendant's motive for fraudulent conduct, which the applicant will seek to establish at trial. The application appears to have been prompted by the voluntary provision of limited disclosure of documents going to the financial position of the defendant.
5 The primary judge enunciated the principles applicable to the determination of an application for further and better discovery in terms which cannot be faulted. In particular, he observed that the overriding principles enunciated by O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) require the court to assess whether the time and expense involved in the discovery and production of the documents sought is in the interests of the just, timely and cost effective disposal of the action. In that context, the nature and extent of the apparent relevance of the documents sought to the contentious factual issues in the case is a pertinent consideration, as the judge observed. The judge reviewed the contentious factual issues in the case by reference to the statement of claim. In that context, he found that there was no evidence to support the plaintiff's assertions that the documents sought would be of forensic benefit in the substantiation of various allegations the applicant seeks to make and which are based upon nothing more than assertion.
6 Consistently with the general principles the judge enunciated, he concluded that the discretion to order the provision of further and better discovery should not be exercised. There are eleven proposed grounds of appeal. A number are difficult to comprehend. Others appear to raise issues of no particular significance or, indeed, relevance to the proper exercise of the discretion with respect to the provision of further and better discovery. In the context of an application for leave to appeal, the time and effort that would be required to deal with each of the eleven proposed grounds is entirely
disproportionate to the forensic utility of that exercise, given that none of the proposed grounds are of any substance or merit.
7 In my view, it is sufficient for the disposition of this application to observe that none of the proposed grounds of appeal or the argument advanced in support of those grounds are capable of establishing that the decision of the primary judge is attended with sufficient doubt to support the grant of leave to appeal or that a substantial injustice would be done if leave to appeal was not granted and the decision of the primary judge not reversed. Accordingly, in my view, for those reasons the application for leave to appeal and the appeal should be dismissed.
8 NEWNES JA: I agree with the Chief Justice.
9 MURPHY JA: I agree with the Chief Justice.
1Pearce v International Mining Technologies Limited [2009] WASCA 239 [26] (Pullin & Newnes JJA).
0
2
1