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Wright v Lemon [No 3]

Wright v Lemon [No 3]

Case [2025] WASC 41 12 February 2025

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT -v- DAVID JOHN NEALE LEMON as executor of the estate of MICHAEL JOHN MAYNARD WRIGHT [No 3] [2025] WASC 41
CORAM:   WHITBY J
HEARD:   31 JANUARY 2025
DELIVERED          :   12 FEBRUARY 2025
FILE NO/S:   CIV 1319 of 2017
BETWEEN:   JULIAN DAVID MAYNARD WRIGHT
Plaintiff
AND
DAVID JOHN NEALE LEMON as executor of the estate of MICHAEL JOHN MAYNARD WRIGHT
First Defendant
ANGELA MARY MAYNARD WRIGHT BENNETT
Second Defendant
LEONIE BALDOCK
Third Defendant
ALEXANDRA BURT
Fourth Defendant
VOC GROUP LTD
Fifth Defendant
AMB HOLDINGS PTY LTD
Sixth Defendant
WRIGHT PROSPECTING PTY LTD
Seventh Defendant
TERALANI PTY LTD
Eighth Defendant
LAREMONT PTY LTD
Ninth Defendant

Catchwords:

Civil procedure - Discovery - Application for discovery pursuant to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) to identify a potential party - Whether application can only be made against a 'non-party' - Proposed action for costs order against third-party litigation funder - Whether proposed action is a 'cause of action' - Relevance of confidentiality of funding arrangements - Discretionary considerations

Legislation:

Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Supreme Court Rules 1970 (NSW)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr T G Camp
First Defendant	:	Ms L A Coleman and Ms A Pieniazek
Second Defendant	:	Ms L A Coleman and Ms A Pieniazek
Third Defendant	:	Ms L A Coleman and Ms A Pieniazek
Fourth Defendant	:	Ms L A Coleman and Ms A Pieniazek
Fifth Defendant	:	Ms L A Coleman and Ms A Pieniazek
Sixth Defendant	:	Ms L A Coleman and Ms A Pieniazek
Seventh Defendant	:	Ms L A Coleman and Ms A Pieniazek
Eighth Defendant	:	Ms L A Coleman and Ms A Pieniazek
Ninth Defendant	:	Ms L A Coleman and Ms A Pieniazek

Solicitors:

Plaintiff	:	Butcher Paull & Calder
First Defendant	:	Clayton Utz
Second Defendant	:	Clayton Utz
Third Defendant	:	Clayton Utz
Fourth Defendant	:	Clayton Utz
Fifth Defendant	:	Clayton Utz
Sixth Defendant	:	Clayton Utz
Seventh Defendant	:	Clayton Utz
Eighth Defendant	:	Clayton Utz
Ninth Defendant	:	Clayton Utz

Cases referred to in decision:

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415
Civic Video Pty Ltd v Paterson [2013] WASCA 107
Cooke v Gill (1873) LR 8 CP 107
Court House Capital Pty Ltd v RP Data Pty Ltd [2023] FCAFC 192
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105
Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147
Hardingham v RP Data Pty Ltd [2023] FCA 480
Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [2018] WASC 348
Hooper v Kirella Pty Ltd (1999) 96 FCR 1
Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695
Reynolds v Higgins [2024] WASC 260
Wright…

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.

Continue reading Wright v Lemon [No 3]

Details

AGLC: Wright v Lemon [No 3] [2025] WASC 41
Case: [2025] WASC 41
Decision Date: 12 FEBRUARY 2025

CaseChat Overview and Summary

The plaintiff, Wright, filed an application for discovery under the Supreme Court Rules to identify a potential party, Lemon, who may be liable for contribution. Wright's application was made in the context of a proposed action against a third-party litigation funder for costs recovery. The case involved complex legal issues surrounding the interpretation and application of the relevant procedural rules and the nature of the proposed action against the litigation funder.

The court needed to determine whether the application for discovery could be made against a potential party who had not yet been formally joined as a party to the proceedings. Additionally, the court had to consider whether the proposed action against the litigation funder constituted a 'cause of action' for the purposes of the discovery rules. A further issue was the relevance of the confidentiality of the funding arrangements in determining the scope of the discovery application.

The court held that the application for discovery could indeed be made against a potential party, even if that party had not yet been formally joined. The court clarified that the term 'non-party' in the rules did not necessarily exclude a potential party who had been identified but not formally joined. Regarding the proposed action against the litigation funder, the court found that the action did not constitute a 'cause of action' for the purposes of the discovery rules, as it did not involve a claim for relief. The court also considered the importance of maintaining the confidentiality of funding arrangements and how this impacted the scope of the discovery application. In exercising its discretion, the court determined that the application should be denied, as the proposed action against the litigation funder did not warrant the disclosure of the funding arrangements.

The court ordered that the application for discovery be dismissed. The court also noted that the confidentiality of the funding arrangements was a significant factor in its decision, and it did not wish to set a precedent that would undermine the protection of such arrangements.

Orders