Strike-Out Unavailable Where Discovery Eventually Made

Introduction

The recent case of Campion v Wat(1) has confirmed that an application to dismiss a claim for failure to make discovery will not succeed where the discovery obligation is complied with, notwithstanding the other party's reservations about the discovery actually made. Once deficiencies in making the discovery were resolved, the court found no basis to deprive the plaintiff of an opportunity to present its case. The case is a useful reminder that in making applications to strike out proceedings, the courts are slow to deprive litigants of a trial, and that curing a default in taking a particular step in the proceedings will normally satisfy the court.

Background

The case involved a dispute between a divorced couple regarding the ownership of rare stamps and associated certificates, as well as a security deposit cheque. With regard to the substance of the dispute, the defendant denied that:

the plaintiff was ever the owner; the defendant was ever in possession of the disputed items; and their return had been demanded. The defendant also raised preliminary objections, including that:

the claim was statute barred; the prosecution of the litigation had been subject to inordinate and excusable delay; and no cause of action in certain respects had been made out on the pleadings. Unsurprisingly, given the contention involved in the dispute, discovery was pursued.

The defendant had misgivings about the discovery originally made by the plaintiff and brought the application to dismiss the proceedings arising from the plaintiff's failings in that regard. At or about the hearing of the motion, a second supplemental affidavit of discovery was produced on behalf of the plaintiff. The plaintiff conceded that there were deficiencies in the previous affidavits sworn. However, it was contended that those deficiencies were unintentional and whatever deficiencies there were had since been rectified. Accordingly, the plaintiff contended that it would be unjust and unreasonable to be deprived of the opportunity to present his case. The defendant contended that the position could not be remedied, and that the latest affidavit was insufficient to excuse the plaintiff from the consequence of his previous recalcitrance.

Decision

At the outset, the court noted that the Rules of the Superior Courts Order 31, Rule 12 required the party to make an affidavit detailing documents that are or were in its possession or power relating to any matter in question in...