In a recent District Court decision, in Perth, Deputy Registrar
Hewitt considered an application for further and better discovery
by a plaintiff seeking damages for personal injury in litigation
against the State of Western Australia.
The plaintiff filed an application for further and better
discovery of various categories of documents pursuant to Order 26
Rule 6, Rules of the Supreme Court 1971 (WA). Order 26 Rule 6 gives
the Court power to order a party to make an affidavit stating
whether any document specified or described in the application has
been in its possession, custody or power and, if not, what has
become of the document. The defendant had already provided
discovery and opposed the application.
For many months before the application, the plaintiff had
requested further discovery of numerous categories of documents
which, in the opinion of the defendant, were not relevant.
The defendant opposed the application asserting that:
The Court had to be fairly certain that there were other
relevant documents that ought to have been discovered;
The plaintiff had not filed an affidavit stating a belief that
the defendant had in its possession, custody or power the documents
or classes of documents specified in the application and that they
related to one or more of the matters in question in the
The plaintiff had the onus of proving the existence of those
documents allegedly not discovered.
Deputy Registrar Hewitt delivered written reasons for decision
on 14 February 2012. Referring to the decision of Youlden
Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd  WASC 60
- , Deputy Registrar Hewitt stated:
"In my view the onus on an applicant making an
application for further and better discovery is to demonstrate to a
fairly high level of certainty that the documents of which
discovery is sought exist, that they are relevant to the issues in
the proceedings, and that they are or have been in the custody,
control, possession or power of the respondent to the
He found that with the exception of one document, there was no
need for the defendant to give further and better discovery and
"...in my view this application was almost wholly
misconceived and was brought either in ignorance of or disregard
for the relevant considerations for an application of this
The plaintiff was ordered to pay the defendant's costs of
the application in any event.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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