BWS v Arv [No 2]

[2021] WASCA 62

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pre-action discovery
3. › Discovery from potential party
4. › Whether applicant 'may have a cause of action'
5. › Threshold jurisdictional requirement
6. › Whether evidence rose above mere assertion, conjecture or suspicion
7. › Rules of the Supreme Court 1971 (WA), O 26A r 4
1. Practice and Procedure
2. › Pre-action discovery
3. › Discovery from potential party
4. › Standard of proof
5. › Circumstantial case
6. › Whether inference of defamatory publication could be drawn from motive, opportunity and provision of source materials
7. › Rules of the Supreme Court 1971 (WA), O 26A r 4(1)
1. Practice and Procedure
2. › Pre-action discovery
3. › Discretion
4. › Proportionality
5. › Factors relevant to exercise of discretion
6. › Rules of the Supreme Court 1971 (WA), O 26A r 4(4), O 1 r 4B
1. Appeal
2. › Leave to appeal
3. › Interlocutory order
4. › Pre-action discovery
5. › Whether decision attended by substantial doubt
6. › Whether substantial injustice if unreversed
7. › Invasion of privacy

Quick Take

Evidence of motive, opportunity and provision of source materials to a third party is insufficient to establish that an applicant 'may have a cause of action' in defamation for the purposes of pre-action discovery under O 26A r 4 RSC, where there is no evidence going to the content of the communications and the circumstances are equally consistent with no defamatory statement having been made. The 'may have a cause of action' threshold requires more than a logically consistent argument that information was provided; there must be objective grounds beyond mere assertion, conjecture or suspicion as to the defamatory content of the communications.