Waller v Waller

[2009] WASCA 61

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Pre-action discovery
4. › Discovery against potential parties
5. › Whether applicant may have a cause of action against potential party
6. › Objective test
7. › Jurisdictional threshold
8. › Rules of the Supreme Court 1971 (WA), O 26A r 4
1. Practice and Procedure
2. › Discovery
3. › Pre-action discovery
4. › Whether proposed action would be struck out as abuse of process
5. › Whether fair trial possible given loss of witnesses
6. › Whether pre-action discovery should be refused
1. Appeal
2. › Interlocutory or final orders
3. › Pre-action discovery orders
4. › Whether order granting pre-action discovery is interlocutory or final
5. › Supreme Court Act 1935 (WA), s 60(1)(f)
1. Appeal
2. › Leave to appeal
3. › Interlocutory orders
4. › Whether decision attended with sufficient doubt
5. › Whether substantial injustice would result
6. › Invasion of privacy from wrongly ordered discovery

Quick Take

The jurisdictional threshold for pre-action discovery under O 26A r 4 requires an objective assessment by the court that the applicant may have a cause of action — more than mere assertion, conjecture or suspicion is required, but a prima facie case need not be demonstrated. The question is whether there might be a cause of action which could be demonstrated by the provision of the documents sought. An order granting pre-action discovery is interlocutory in character (per majority), requiring leave to appeal. The question whether such orders are final or interlocutory remains contested, with Pullin JA holding the contrary view.