Facts

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 action;
  • The plaintiff had the onus of proving the existence of those documents allegedly not discovered.

Decision

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 [2005] WASC 60 [3]- [6], 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 application."

He found that with the exception of one document, there was no need for the defendant to give further and better discovery and observed:

"...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 kind."

Costs

The plaintiff was ordered to pay the defendant's costs of the application in any event.

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