McCarthy & Ors v Dolpag Pty Ltd

[2000] WASCA 106

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Discovery before action
4. › Threshold test
5. › Whether applicant 'may have a cause of action'
6. › Whether enforceability of restraint of trade clause can be determined on interlocutory application
7. › Rules of the Supreme Court (WA), O 26A r 4
1. Practice and Procedure
2. › Discovery
3. › Discovery before action
4. › Scope of order
5. › Whether order confined to documents relevant to potential cause of action
6. › Business competitors
7. › Rules of the Supreme Court (WA), O 26A
1. Contract
2. › Restraint of trade
3. › Enforceability
4. › Whether question of reasonableness can be determined without trial of facts

Quick Take

Orders for discovery before action under O 26A of the Rules of the Supreme Court (WA) must be no wider than necessary and confined to documents actually relevant to the cause of action the applicant may have. The enforceability of a restraint of trade clause cannot be determined on an interlocutory application for discovery before action, as it requires a trial of the facts.