Application for pre-action discovery pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA)
Potential cause of action against defendant for defamation
Whether discretion to order discovery should be exercised
Quick Take
1To enliven the court's discretion under O 26A r 4, an applicant must produce evidence objectively 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; on the facts, the circumstantial case fell short of that threshold.
2Where the potential defamation claim rests on a circumstantial case, all circumstances must be considered and weighed together; the existence of an obvious alternative source for the allegedly defamatory publication, and evidence inconsistent with the potential party having accepted or republished the allegation, weighed against drawing the necessary inference.
3The scope of proposed discovery orders must be proportionate to the objective of assisting the applicant to decide whether to commence proceedings; orders seeking all communications among club members with no end date went well beyond that objective.
