Woodley v Woodley

[2017] WASC 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WOODLEY -v- WOODLEY [2017] WASC 176

CORAM:   TOTTLE J

HEARD:   31 MAY 2017

DELIVERED          :   31 MAY 2017

FILE NO/S:   CIV 1406 of 2016

BETWEEN:   WAYNE CHARLES WOODLEY

Plaintiff

AND

TERRY RAY WOODLEY
Defendant

Catchwords:

Practice and procedure - Discovery - Application for further and better discovery - Where documents sought either no longer in possession, custody or power, or have already been provided

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr S J Davis

Defendant:     In person

Solicitors:

Plaintiff:     MGD Law

Defendant:     In person

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

Nil

TOTTLE J: 

(This judgment was delivered extemporaneously on 31 May 2017 and has been edited from the transcript.)

1. The defendant has brought an application by way of a minute dated 18 April 2017.  In that minute, the defendant identifies seven categories of documents of which he seeks discovery. 

2. The documents sought by this application for discovery have either been discovered by the plaintiff by a list of documents dated 24 October 2016, verified by affidavit sworn on the same date, or are addressed in an affidavit sworn by the plaintiff on 17 May 2017.  In that affidavit, the plaintiff deposes to the fact that he has either formerly had documents falling within the categories in his possession, custody or power, but no longer has them, or that he has given discovery of those documents, and related the discovery or the categories of discovery back to his earlier affidavits. 

3. The plaintiff has adopted this approach without prejudice to a contention that the documents are not relevant, in a discovery sense, to the issues in the proceedings.  I consider that the plaintiff's concerns about the lack of relevance of those documents are well-founded.  But in the light of the way the plaintiff has chosen to deal with the matter, it is not necessary for me to consider the question of relevance for the purposes of disposing of this application. 

4. The affidavits of discovery sworn by the plaintiff are conclusive.[1]  Mr Woodley, the defendant acting in person, has not sought to challenge the conclusiveness of those affidavits by putting on what is sometimes referred to as a contentious affidavit, although he has made submissions to the effect that the discovery is inadequate and there are other documents in the plaintiff's possession, custody or power which should have been discovered.  But none of those submissions have sufficient force to disturb the operation of the principle that the further affidavit sworn by the plaintiff on 17 May 2017 is conclusive. 

   [1]   See Kendall & Curthoys Civil Procedure - Western Australia [26.6.7].

5. For those reasons, I dismiss the defendant's application brought by way of the minute of 18 April 2017.