Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2009] WASC 34

CORAM:   MURRAY J

HEARD:   9 FEBRUARY 2009

DELIVERED          :   25 FEBRUARY 2009

FILE NO/S:   CIV 1949 of 2008

BETWEEN:   WRIGHT PROSPECTING PTY LTD (ACN 008 677 021)

Plaintiff

AND

HANCOCK PROSPECTING PTY LTD (ACN 008 676 417)
Defendant

Catchwords:

Practice and procedure - Application by plaintiff  for discovery by potential party - Application by defendant for plaintiff to produce documents relative to plaintiff's application - Whether order should be made as to accounting records of plaintiff - Whether order should be made as to advice given to plaintiff - Legal professional privilege - Waiver of privilege

Legislation:

Nil

Result:

Production of specified documents ordered

Category:    B

Representation:

Counsel:

Plaintiff:     MrG K Rich

Defendant:     Mr C R C Newlinds SC & Mr I R Pike

Solicitors:

Plaintiff:     Lavan Legal

Defendant:     Hunt & Humphry

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

Beston Parks Management Pty Ltd v Sexton [2008] VSC 392

Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341

Ledger v Natwest Aust Bank Ltd (Unreported, WASC, Library No 980061, 16 February 1998)

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Mason & Cox Pty Ltd v KPMG Peat Marwick [1999] SASC 214; (1999) 74 SASR 171

1. MURRAY J:  The principal matter before the court is an application by the plaintiff, by way of originating summons, for pre‑action discovery by the defendant, a party whom the plaintiff asserts it wishes to sue if it has a cause of action upon which it may rely.

2. This application depends upon the Rules of the Supreme Court 1971 (WA), O 26A r 4, which applies where a person, who may have a cause of action against a potential party, wishes to proceed against that party, but, after reasonable enquiries, has not been able to obtain sufficient information to enable it to decide whether it may commence the proceedings. In that event, by r 4(2):

   If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents which may assist in making the decision, the person may apply for an order under this rule.

   Thereupon, the court may order the potential party to give discovery of all documents which are or have been in the potential party's possession, which may assist the applicant in making the decision.

3. I have to yet to hear that application, but it may be seen that the court may make the order envisaged by the rule -

   1.on the application of a party who may have a cause of action against another,

   2.who wishes to take proceedings,

   3.who has made reasonable inquiries, but is unable to decide whether or not it may proceed upon the supposed cause of action, and

   4.there are reasonable grounds to believe that the potential defendant had or has documents which may…