Gh v Ab

[2019] WASCA 47

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of proceedings
3. › Stay pending appeal
4. › Interlocutory order
5. › Whether appeal would be rendered nugatory
6. › Whether reasonable prospects of success
7. › Whether balance of convenience favours applicant
1. Practice and Procedure
2. › Discovery
3. › Pre-action discovery
4. › Jurisdictional requirement
5. › Whether applicant 'may have a cause of action against' potential party
6. › Whether potential party must be party against whom curial relief is sought or merely necessary party
7. › Rules of the Supreme Court 1971 (WA), O 26A r 4
1. Practice and Procedure
2. › Discovery
3. › Pre-action discovery
4. › Standard of proof
5. › Whether cause of action is more than hypothetical
6. › Objective test requiring more than mere assertion, conjecture or suspicion
7. › Rules of the Supreme Court 1971 (WA), O 26A r 4
1. Practice and Procedure
2. › Appeals
3. › Leave to appeal
4. › Interlocutory orders
5. › Whether substantial injustice would result if order undisturbed

Quick Take

The established test for pre-action discovery under O 26A r 4 requires evidence indicating, beyond mere assertion, conjecture or suspicion, that all facts necessary to give rise to a right to curial relief may be able to be established; it does not require the applicant to positively establish the existence of a cause of action. Even if a Master errs in construing the jurisdictional requirement of O 26A r 4, the error will not be material if the requirement is necessarily satisfied on the correct construction. The question whether 'cause of action against' a potential party requires that curial relief be sought against that party (as opposed to the party being merely a necessary party) remains open.