CLARK -v- PERTH FLYING SQUADRON YACHT CLUB (INC) [2026] WASC 358

[2026] WASC 358 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : CLARK -v- PERTH FLYING SQUADRON YACHT CLUB (INC) [2026] WASC 358 CORAM : BYDDER J HEARD : 20 AUGUST 2026 DELIVERED : 27 AUGUST 2026 FILE NO/S : CIV 1660 of 2026 BETWEEN : BRENDAN PAUL JAMES CLARK Plaintiff AND PERTH FLYING SQUADRON YACHT CLUB (INC) Defendant Catchwords: Practice and procedure - 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 - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 26A r 3, O 26A r 4 Result: Application dismissed -- 1 of 18 -- [2026] WASC 358 Page 2 Category: B Representation: Counsel: Plaintiff : Mr M Bennett Defendant : Mr M Bruce Solicitors: Plaintiff : Bennett Defendant : Bruce Legal Consultants (Perth) Case(s) referred to in decision(s): BWS v ARV [No 2] [2021] WASCA 62 Hirschberg (as trustee for LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [2018] WASC 348 Rexha v Curtin University of Technology [2002] WASC 152 Scanlan v 2-4 McCabe Pty Ltd [2023] WASCA 135 -- 2 of 18 -- [2026] WASC 358 BYDDER J Page 3 BYDDER J: Introduction 1 By originating summons filed 19 May 2026, the plaintiff seeks pre-action discovery from the defendant under O 26 r 41 of the Rules of the Supreme Court 1971 (WA) (Rules).2 Evidence 2 The evidence before the court comprises: (a) the plaintiff's affidavit sworn 19 May 2026 and filed the following day (Exhibit 1); (b) the affidavit of Jodi Agnes Martins affirmed and filed 20 August 2026 (Exhibit 2); (c) the first affidavit of Glen Deuble sworn and filed on 6 July 2026 (Exhibit 3); and (d) the second affidavit of Mr Deuble sworn and filed on 20 July 2026 (Exhibit 4). 3 None of the deponents were cross-examined. Findings of fact for the purposes of the application 4 For the purposes of determining the application, I make the following findings of fact in light of the evidence. The plaintiff and the defendant 5 The plaintiff is the owner of a 72-foot Sunseeker yacht called 'Enigma'. He was a member of the defendant from around October 2020 until 14 March 2026.3 6 The defendant is a yacht club and an incorporated association. 7 On 14 March 2026, the plaintiff sent an email to the defendant ceasing his membership of the defendant and making a number of demands of the defendant. Proceedings have since been issued by the 1 Despite a reference to O 26A r 3 in the originating summons, counsel for the plaintiff confirmed at the hearing of the application that the application was only made under O 26A r 4. 2 All references to statutory provisions are references to the Rules unless otherwise stated or apparent from the context. 3 Exhibit 1 [5] - [6]. -- 3 of 18 -- [2026] WASC 358 BYDDER J Page 4 plaintiff against the defendant in respect of matters referred to in that email, which do not involve an action in defamation. The defendant is defending those proceedings.4 The Allegation 8 The plaintiff is aggrieved by what he says are false and defamatory allegations of and concerning him and published to various persons on multiple media platforms. He describes those allegations (Allegation) in the following terms:5 The allegations assert that on Monday, 9 February 2026 at approximately 5:30 pm, the Enigma was involved in speeding past the Swan Yacht Club, Aquarama and the East Fremantle Yacht Club, causing large swells which damaged boats, jetties and snapped piles (Allegation). The Allegation is raised with the plaintiff by the defendant 9 On 18 February 2026 at 11.04 am, Mr Deuble sent an email to the plaintiff concerning the Allegation with the subject line 'Speeding Complaints' (18 February email). Mr Deuble is the defendant's General Manager. 10 The 18 February email was relevantly in the following terms:6 Hi Brendan The Club, Committee and Commodore have been receiving a lot of complaints from Swan Yacht Club, Aquarama, East Fremantle and many of their members, regarding a speeding incident that occurred last Monday, February 9 at approximately 5.30pm. The complaints relate to a large Sunseeker, registration DN700, speeding past Swan Yacht Club, Aquarama and East Fremantle Yacht Club creating large swells that damaged boats, jetties and snapped piles. As this registration matches Enigma, the Committee have instructed me to contact you and request that you attend the Club next Thursday, February 26 at 6pm, so that you can give the Committee your version of events of this incident. As you know there is always more than one side of the story and the Committee does not want to react to what other 4 Exhibit 3 [9] and Attachment GD-02. 5 Exhibit 1 [7] - [9]. The Allegation is materially to the same effect as the definition of the term 'Allegation' in the Originating Summons. 6 Exhibit 2 [2] and Attachment JAM-1 (5). While Attachment JAM-1 was part of an email chain, Exhibit 2 was tendered on the basis that no reliance was placed on the other emails in that email chain. -- 4 of 18 -- [2026] WASC 358 BYDDER J Page 5 people have claimed, instead they would like to hear from you so that they can fully understand the situation. Can you please confirm that you will attend the Club Thursday, February 26 at 6pm? The removal of Pen B52 and the related mooring piles 11 On 19 February 2026 at approximately 3.20 pm, Mr Deuble sent an email to the plaintiff and to Mr Jeff Braddock (the current Commodore of the defendant) with the subject line 'Pen B52' (19 February email).7 12 Pen B52 is where the plaintiff berthed Enigma from early October 2021 until mid-March 2026. During that time the pen was held by Mr Braddock.8 13 The email was materially in the following terms:9 Hi Brendan and Jeff Following the redevelopment meeting yesterday, we are commencing the replacement of B jetty with a floating jetty. In preparation for the construction of the new floating pens, we need to remove the mooring piles from the outside of B52 (the piles closest to A Jetty) so they can be installed on AA Jetty. Unfortunately, this means that B52 will no longer exist. Jeff, as the primary leaseholder of B52, I understand you are in the market for a new boat, you might want to hold off on that right now, as we don't have a pen for you as the Marina is at 100% capacity with no available pens. Brendan, as the Temporary occupier of B52, I need to inform you that you have 30 days to remove Enigma and vacate B52. Unfortunately, we do not have a pen available for Enigma. The Piling Contractors will remove the piles on the week commencing April 2. I apologise for the inconvenience, it's not the best situation, however, the replacement of B Jetty to a floating jetty, with an additional 20 pens will allow the Club to continue to grow and give the Members a much better boating experience. 7 Exhibit 1 [10] and Attachment BPC-1. 8 Exhibit 3 [2]. 9 Exhibit 1 [10] and Attachment BPC-1. -- 5 of 18 -- [2026] WASC 358 BYDDER J Page 6 14 As the plaintiff did in Exhibit 1,10 I will refer to the decision to remove mooring piles on the outside of Pen B52 as the Removal Decision. 15 The Removal Decision was made in the context of redevelopment works at the defendant's premises comprising three stages. The first stage had been completed by late 2025. The second of those stages involves marina redevelopment works, which has created a need to manage the removal of boats from pens and where possible reallocating pens to affected members. It was not possible to offer to berth Enigma in an alternative pen because the Enigma was the biggest boat in the marina and there was no other suitable-sized alternative pen which could safely berth that yacht.11 16 Mr Deuble denies that his email of 19 February 2026 had anything to do with the Allegation and says that the timing of the email was necessitated by the timing of the work affecting Pen B52.12 Whether EFYC has footage of the Enigma from 9 February 2026 17 The plaintiff believes that the East Fremantle Yacht Club (EFYC) has CCTV footage (Footage) showing the Enigma leaving its pen at the defendant's premises in the morning and returning to its pen on 9 February 2026. He does not depose to how it has come to his attention that EFYC has the Footage or the source of his information. While the plaintiff acknowledges that the circumstances of the circulation of the Footage are unknown to him, based on his understanding having been a member of the defendant, he says that the Footage would have originally been in the possession of the defendant.13 18 The defendant has not disclosed the Footage to EFYC,14 Swan Yacht Club, Aquarama or their members or agents. Further, EFYC has not received any CCTV footage of that kind.15 I prefer the evidence of Mr Deuble on the question of whether the defendant disclosed the Footage to EFYC, Swan Yacht Club, Aquarama or their members or agents. It is either direct evidence of matters within his knowledge or hearsay evidence where the sources are identified and those sources are 10 Exhibit 1 [10]. 11 Exhibit 3 [3] - [6]. 12 Exhibit 3 [8]. 13 Exhibit 1 [11] - [12]. 14 Exhibit 3 [11]. 15 Exhibit 4 [2] - [3] and Attachment GD-04 (4). -- 6 of 18 -- [2026] WASC 358 BYDDER J Page 7 well-placed to know whether there has been any disclosure or receipt of the Footage. In contrast, the plaintiff's evidence is hearsay and, as I have said, the plaintiff does not disclose the source of his information about the Footage. The plaintiff's serious concern 19 The timing of the Removal Decision, what appears to the plaintiff to be a connection between the Removal Decision and the Allegation, and the distribution of the Footage is of serious concern to the plaintiff.16 The plaintiff believes he may have a claim in defamation 20 The Allegation has been repeated and republished on a number of social media platforms and within the Perth boating community. This has generated further comments concerning the plaintiff which he says defame him.17 21 The examples provided by the plaintiff in Exhibit 1 begin with a notice posted on social media by EFYC on 11 February 202618 (EFYC's post) and range in date from 11 or 12 February 2026.19 22 On or about 24 May 2026,20 the plaintiff posted on his Facebook page an apology and retraction in respect of 'a notice of and concerning Mr Brendan Clark and the vessel ENIGMA' published by EFYC on or about 11 February 2026. The apology and retraction was signed by the Commodore of the EFYC and dated 11 May 2026. I am satisfied that the apology and retraction was given in respect of EFYC's post. 23 The plaintiff believes he may have a claim in defamation against the defendant (or parties related to the defendant) and potentially parties unknown at this time.21 The plaintiff's belief about the defendant's documents 24 The plaintiff also believes that the defendant has, or is likely to have or to have had, in its possession documents that may assist the 16 Exhibit 1 [14]. 17 Exhibit 1 [13] and Attachment BPC-2. 18 Exhibit 1 Attachment BPC-2 (9), (13). 19 Exhibit 1 [13] and Attachment BPC-2. 20 Exhibit 3 [10] and Attachment GD-03; Exhibit 4 [1]. I accept the date was on or about 24 May 2026 as Mr Deuble deposes that he took a screenshot of the plaintiff's post on 24 May 2026 and the post has under the plaintiff's name '12 hours ago', indicating the plaintiff's post was made approximately 12 hours before Mr Deuble took the screenshot. 21 Exhibit 1 [15]. -- 7 of 18 -- [2026] WASC 358 BYDDER J Page 8 plaintiff in deciding whether he has a basis to commence proceedings against the defendant or other related parties. Those documents are the categories of documents specified in the originating summons.22 Enquiries made to obtain information 25 There has been correspondence and telephone conversations between the solicitors for the plaintiff and the solicitors for the defendant on which the plaintiff relies to establish that reasonable enquiries have been made to obtain information which may assist him in determining whether he has a cause of action.23 26 The plaintiff says that despite those enquiries, he has been unable to decide whether he may have a cause of action.24 Desire to commence proceedings 27 On the basis of the matters to which the plaintiff deposes, he wants to commence proceedings against the defendant and any other potential defendants involved in the publication of the Allegation.25 Consideration Pre-action discovery and the relevant principles under O 26A r 4 28 As the Court of Appeal observed in BWS v ARV [No 2]:26 Order 26A RSC provides for two types of pre-action discovery: discovery to identify a potential party (O 26A r 3) and discovery from a potential party whose identity has been ascertained (O 26A r 4 RSC). 29 Order 26A r 4, on which the plaintiff relies, provides: (1) This rule applies if a person who may have a cause of action against a person whose description has been ascertained (the potential party) wants - (a) to commence proceedings against the potential party; or (b) to take proceedings against the potential party in the course of an action to which the person is a party, 22 Exhibit 1 [16] - [17]. 23 Exhibit 1 [18] - [19] and Attachments BPC-3 to BPC-9. 24 Exhibit 1 [20.2]. 25 Exhibit 1 [20.1]. 26 BWS v ARV [No 2] [2021] WASCA 62 (BWS) [27] (Murphy, Mitchell & Vaughan JJA). -- 8 of 18 -- [2026] WASC 358 BYDDER J Page 9 but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings. (2) If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this rule. (3) The application shall be supported by an affidavit and a copy of both shall be served on the potential party. (4) On the application the Court may order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision. 30 An application under O 26A r 4 is brought against the potential party. In contrast, an application under O 26A r 3 is brought against someone other than the potential party. O 26A r 3 relevantly provides: (1) This rule applies if a person who appears to have a cause of action against a person (the potential party) wants - (a) to commence proceedings against the potential party; or (b) to take proceedings against the potential party in the course of an action to which the person is a party, but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so. (2) If there are reasonable grounds for believing that another person (the non-party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, the person may apply for an order under this rule. (3) The application shall be supported by an affidavit and a copy of both shall be served on the non-party. (4) On the application the Court may order the non-party, and if the non-party is a body corporate, a person having the management of the body to do either or both of the following: (a) to give discovery to the applicant of all documents that are or have been in the non-party's possession relating to the description of the potential party; -- 9 of 18 -- [2026] WASC 358 BYDDER J Page 10 (b) to personally attend the Court to be examined in relation to the description of the potential party. 31 The principles applicable to an application under O 26A r 4 were summarised by the Court of Appeal in BWS.27 I respectfully adopt that summary and it is unnecessary for me to repeat that summary in full. 32 In order for the court's discretion to be enlivened under O 26A r 4, the court must be satisfied of five matters.28 Whether the plaintiff may have a cause of action against the defendant 33 They include that the plaintiff must establish that he may have a cause of action against the defendant as the potential party. As to this requirement, the Court of Appeal said in BWS:29 The requirement that an applicant for a pre-action discovery order establish that he or she 'may have a cause of action against' the potential party has been described as a 'jurisdictional question' in the sense that it must be answered affirmatively to enliven the court's jurisdiction. However, the purpose of the rule is to enable a prospective litigant to obtain documents that may assist in making a decision whether to commence proceedings. It would defeat the purpose of the rule to require an applicant to demonstrate the actual existence of a cause of action as a condition to the exercise of the power - meaning that it is incorrect in principle to approach the rule with an undue emphasis on the demonstration of the prospective cause of action. It is accepted that the words 'may have a cause of action against' the potential party in O 26A r 4(1) RSC: 1. Refer to a 'cause of action' as ordinarily understood, ie in the sense of facts or a combination of facts which give the right to sue. 2. Require an objective test - the court must make its own evaluation of the evidence and form an opinion as to whether, on the evidence, the applicant may have a cause of action against the potential party. 3. Do not require that the applicant have a prima facie cause of action. There must, however, be some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, 27 BWS [27] - [37] (Murphy, Mitchell & Vaughan JJA). See also Scanlan v 2-4 McCabe Pty Ltd [2023] WASCA 135 [46] - [51] (Beech & Hall JJA & Lundberg J). 28 BWS [29]. 29 BWS [31] - [33] (footnotes omitted). -- 10 of 18 -- [2026] WASC 358 BYDDER J Page 11 suspicion or assertion. The applicant 'must demonstrate more than mere assertion, conjecture or suspicion, but does not have to positively establish the existence of a cause of action. What the applicant must produce is evidence showing that he, she or it may have a cause of action'. There must be evidence objectively indicating - beyond the mere assertion, conjecture or suspicion of the applicant - that all facts necessary to give rise to a right to curial relief may be able to be established. 34 BWS was an appeal in which the respondent to the appeal had been granted pre-action discovery against his former spouse (appellant), who appealed from those orders to the Court of Appeal. 35 The respondent was also a party to proceedings in Singapore before the Islamic Religious Council of Singapore (IRCS), in which the respondent's uncle and cousins (complainants) were seeking to have the respondent removed as a 'mutawalli' (trustee) of a charitable trust. Documents were filed in those proceedings which contained statements about the respondent's personal life and affairs that he considered factually inaccurate and disparaging. The respondent believed those statements must have been based on comments made by the appellant in the course of communications to one or more of the complainants. He also deposed to a belief that the appellant may have published defamatory statements about him in communications to one or more of the complainants.30 36 The respondent's reasons for believing the statements must have been based on the appellant's comments to the complainants were summarised by the court in this way:31 The respondent's affidavit sets out the reasons why he has reached the conclusion that the statements made in the IRCS proceedings must be based on information given by the appellant to one or more of the complainants. Essentially there are two steps in the reasoning. First, that the respondent and the appellant were formerly husband and wife and involved in acrimonious proceedings in the Family Court. Second, that, to the respondent's knowledge, there is no other source who could have provided information to the complainants in the form in which it appears in the IRCS proceedings. In this respect, the master made an unchallenged finding that the respondent details contact between the appellant and the complainants and, while making a number of assumptions, presents a 'logically consistent argument' to support the proposition that the appellant has provided the complainants with information. 30 BWS [5] - [8]. 31 BWS [9] (footnote omitted). -- 11 of 18 -- [2026] WASC 358 BYDDER J Page 12 37 In assessing that reasoning, the court accepted that the appellant had provided the complainants with information. However, their Honours considered the more significant question to be 'what - beyond mere assertion, conjecture or suspicion - was established as to the content of the communications between the appellant and the complainants'.32 38 After assessing each of the categories of alleged defamatory statements,33 the court continued:34 Accordingly, in relation to each category of allegation it is said may constitute a defamatory statement of the respondent by the appellant, the respondent is unable to depose to and does not otherwise adduce any evidence going directly to the nature and content of the communications between the appellant and the complainants. The evidence goes no higher than to state a belief that the appellant may have published defamatory statements about the respondent in the course of other communications to one or more of the complainants. 39 The issue was whether this was sufficient to satisfy the requirement 'that the respondent satisfy the court that he may have a cause of action against the appellant in relation to the making of one or more defamatory statements'.35 Having considered the whole of the evidence, the court held that the inference could not be drawn that the appellant may have made defamatory statements about the respondent.36 40 In considering that evidence, the court noted that:37 There is no direct evidence that the appellant made or may have made a statement that was defamatory of the respondent. The respondent advances a circumstantial case. In considering a circumstantial case all the circumstances are to be considered and weighed in deciding whether the relevant inference is made out. The evidence is not to be looked at in a piecemeal fashion. 41 There is also no direct evidence in the application before me that the defendant made or may have made a statement that was defamatory of the plaintiff. I have taken the same approach as the Court of Appeal in BWS in considering the plaintiff's circumstantial case, including the matters specifically relied on by counsel for the plaintiff. 32 BWS [45]. 33 BWS [46] - [50]. 34 BWS [51]. 35 BWS [52]. 36 BWS [54] - [67]. 37 BWS [56]. -- 12 of 18 -- [2026] WASC 358 BYDDER J Page 13 42 As counsel for the plaintiff submitted, the 18 February email does not give rise to a cause of action in defamation against the defendant. On the evidence the 18 February email was sent to the plaintiff alone. If that is all there is on the evidence, I could not be satisfied that the plaintiff may have a cause of action against the defendant within the meaning of O 26A r 4(1). 43 Counsel for the plaintiff submits that is not all there is on the evidence. Instead, he submitted that: (a) the defendant has admitted in the 18 February email that the defendant, its Committee and Commodore had received a lot of complaints from Swan Yacht Club, Aquarama, EFYC and many of their members in relation to the Allegation; (b) the 18 February email also evidences internal communications within the defendant about the Allegation and that a meeting of the defendant occurred on 18 February 2026, when the Removal Decision was made; (c) the timing of the 18 February email, the meeting on 18 February 2026 at which the Removal Decision was made (immediately after the emergence of the Allegation) and the 19 February email raise a strong inference that the defendant had formed the view that the plaintiff was responsible for the speeding alleged in the Allegation and there exist communications made within the defendant that are defamatory of the plaintiff; (d) there is evidence of various communications involving the defendant before and since the alleged incident the subject of the Allegation, including but not limited to communications about or disclosing the Footage; (e) the plaintiff does not have to point to any specific communication to enliven the court's discretion under O 26A r 4; and (f) in the circumstances the plaintiff's contention that he may have a cause of action against the defendant (or others) is not 'mere assertion, conjecture or suspicion' in the sense those words were used in BWS. 44 I accept that the plaintiff does not have to point to any specific communication to enliven the court's discretion under O 26A r 4. -- 13 of 18 -- [2026] WASC 358 BYDDER J Page 14 45 I accept that the defendant and its Committee and Commodore had received a lot of complaints from Swan Yacht Club, Aquarama, EFYC and many of their members in relation to the Allegation. 46 I accept that there must have been communications internal to the defendant about the Allegation, at least between members of its Committee, because the Committee had instructed Mr Deuble to contact the plaintiff about the Allegation. However, the evidence does not support an inference that those communications may have been defamatory communications about the plaintiff. 47 Far from being defamatory, the best evidence of the communications internal to the defendant before the 18 February email was sent is Mr Deuble's statement in the 18 February email that:38 As you know there is always more than one side of the story and the Committee does not want to react to what other people have claimed, instead they would like to hear from you so that they can fully understand the situation. 48 Further, the 19 February email and the Removal Decision was made in the context of redevelopment works at the defendant's premises. These circumstances are inconsistent with an inference drawn from the content or timing of the 18 February email, the Removal Decision and the 19 February email that the defendant or its Committee had accepted that the Allegation was true or that communications by the defendant at least as at 19 February 2026 may have been defamatory of the plaintiff. 49 On the contrary, the 19 February email refers to a redevelopment meeting on 18 February, the same day that Mr Deuble had sent the 18 February email on the Committee's instructions in which the plaintiff was asked to attend a meeting of the Committee on 26 February 2026 'so that you can give the Committee your version of events of this incident'. That evidence does not support the inference that in the hours (at most) between the 18 February email being sent and the redevelopment meeting to which Mr Deuble refers in the 18 February email, the defendant had changed its position from wanting to hear from the plaintiff about the Allegation to accepting that the plaintiff was responsible for the speeding and damage alleged in the Allegation. 38 Exhibit 2 Attachment JAM-1 (5). -- 14 of 18 -- [2026] WASC 358 BYDDER J Page 15 50 I also reject the plaintiff's submission that Exhibit 3 does not sufficiently address the Removal Decision to have any determinative bearing on the plaintiff's application. The plaintiff's submission that the redevelopment meeting may have been brought forward based on the Allegation is inconsistent with the terms of the 18 February email. 51 The evidence that other kinds of communications were made by the defendant in relation to the Allegation provide no further support for an inference that those or earlier communications by the defendant may have been defamatory communications about the plaintiff. As I have found, the defendant did not disclose the Footage to EFYC, Swan Yacht Club, Aquarama or their members or agents and EFYC has not received any CCTV footage of that kind. The communications in evidence responding to the plaintiff's understanding to the contrary do not support such an inference either.39 Further, the Footage was said to be of the Enigma leaving and returning to the defendant's premises on 9 February 2026. The speeding the subject of the Allegation was not alleged to have been past the defendant's premises. 52 Unlike in BWS, it was not (and could not be) suggested that the defendant was the only possible source or origin of the Allegation. On the evidence there is an obvious source for the Allegation which has no connection to the defendant that can be discerned from the evidence. That source is EFYC's post on 11 February 2026, as to which I made findings above at [21] - [22]. 53 Of course this is not fatal to the plaintiff's circumstantial case, which could potentially be established where (as here) there was more than one source for the Allegation. Yet it does form part of the circumstances which must be considered and weighed in deciding whether it can be inferred that the defendant may have made defamatory statements about the plaintiff. 54 While I accept, as counsel for the plaintiff submitted, that EFYC must have been acting on information from others in making EFYC's post, the evidence does not support an inference that the defendant was the source of that information. Neither the Allegation nor the evidence suggests that the defendant or its members were affected by the speeding or damage that was the subject of the Allegation and there is no reference in the 18 February email (or the other evidence) to complaints being made by the defendant or its members in relation to that alleged speeding or damage. 39 Exhibit 4 [3] and Attachment GD-04 (4) - (5). -- 15 of 18 -- [2026] WASC 358 BYDDER J Page 16 55 Having carefully considered all the circumstances, including the matters specifically relied on by counsel for the plaintiff, I have concluded that the evidence provides no tangible backing or objective foundation that takes the existence of a cause of action against the defendant beyond a mere allegation, suspicion or assertion. A mere allegation, suspicion or assertion is not enough to enliven the court's discretion under O 26A r 4. The other four requirements 56 As I have found above at [27], the plaintiff wants to commence proceedings against the defendant. 57 I am satisfied that the enquiries to which the plaintiff deposes, referred to above at [25], satisfy the requirement for reasonable enquiries in the context of the plaintiff's application for pre-action discovery from the defendant under O 26A r 4. The test for whether the requirement is satisfied is objective40 and the threshold for establishing reasonable enquiries is low.41 The correspondence and telephone conversations evidenced by Exhibit 1 cross that threshold. 58 I am satisfied that, despite those reasonable enquiries, the plaintiff does not have sufficient information to enable him to decide whether to commence proceedings against the defendant. The sufficiency of the information is an objective standard, but it is determined by reference to the knowledge and circumstances of the plaintiff.42 59 The defendant contended that paragraphs 6 to 8 of the letter from the solicitors for the plaintiff to Mr Deuble dated 24 February 202643 identified the allegedly defamatory publication as the 18 February email and the plaintiff had sufficient information to decide whether to commence proceedings in respect of that email. I do not accept that contention. As counsel for the plaintiff submitted, of itself the 18 February email could not found a cause of action in defamation and the letter from the plaintiff's solicitors to Mr Deuble should be read accordingly. 60 If there was some tangible backing or objective foundation for the proposition that the plaintiff may have a cause of action against the 40 Hirschberg (as trustee for LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [2018] WASC 348 [34] (Smith J). 41 Rexha v Curtin University of Technology [2002] WASC 152 [23] - [26] (Hasluck J). 42 Hirschberg [34] (Smith J). 43 Exhibit 1 [19.1] and Attachment BPC-3 (24). -- 16 of 18 -- [2026] WASC 358 BYDDER J Page 17 defendant in defamation, then there may have been reasonable grounds for believing that the defendant had documents in its possession that may assist the plaintiff to decide whether to commence proceedings against the defendant. For the reasons I have given, there was no tangible backing or objective foundation for that proposition. Discretionary considerations and the scope of the proposed orders 61 If, contrary to the above, I had been satisfied that the court's discretion had been enlivened under O 26A r 4,44 counsel for the defendant submitted that the application should be dismissed in the exercise of that discretion. This was because, it was submitted, the plaintiff's Facebook post (to which I have referred above at [22]) shows that the application was made for the collateral purpose of pursuing third parties to the plaintiff's application with a view to harming their career prospects. 62 I am not persuaded that what the plaintiff said in his Facebook post would have justified the dismissal of his application on discretionary grounds. While some of his words could fairly be described as intemperate, they were also the words of a person who believes he has been defamed and that those responsible should own up to the defamation or face the consequences of their actions. In that context, the plaintiff was not required to 'behave like a stoic philosopher lost in apathy'.45 63 I accept that the conduct of an applicant for pre-action discovery can be relevant to the exercise of discretion under O 26A r 4. I am not satisfied that the conduct the plaintiff displayed in his Facebook post would have justified refusal of his application on discretionary grounds. 64 However, as the Court of Appeal observed in BWS:46 The power in O 26A r 4(4) is confined to requiring discovery of documents that may assist the applicant in making the decision whether to commence or take the contemplated proceedings. Only those documents actually relevant to a cause of action which the applicant may have should be the subject of the discovery order. 44 As to discretionary considerations in this context, see BWS [35] - [37]. 45 'The Boston Massacre (1770)' in Lovill J (ed), Notable Historical Trials, volume III (London: The Folio Society, 1999), 48. That phrase was used by John Adams in his closing speech as defence counsel for Private Hugh Montgomery, who was one of the soldiers charged with murdering five persons killed in what is commonly called the Boston Massacre of 1770. Adams asked what Montgomery was expected to do when he was under attack - 'Did the jury expect he should behave like a stoic philosopher lost in apathy - patient as Epictetus, while his master was breaking his legs with a cudgel?' 46 BWS [37]. -- 17 of 18 -- [2026] WASC 358 BYDDER J Page 18 65 The orders sought in the originating summons go well beyond seeking documents that may assist the plaintiff in deciding whether to commence proceedings against the defendant and are disproportionate to that objective. They reflect the plaintiff's wish to take proceedings against the defendant and any other potential defendants involved in the publication of the Allegation. 66 For example, proposed order 1.1 seeks 'all Communications between any club members of the Defendant regarding the Allegations or Enigma since 9 February 2026'. In addition, each of the categories of documents the plaintiff seeks specifies a time period that begins on 9 February 2026 and has no end date. 67 As I have noted above, there are two kinds of pre-action discovery. The plaintiff has only sought pre-action discovery under O 26A r 4. If I had otherwise been persuaded to grant the application, I would have only granted the application in part. Disposition 68 For these reasons, the plaintiff's application must be dismissed. I will hear the parties as to the costs of the application. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. ST Associate to the Hon Justice Bydder 27 AUGUST 2026 -- 18 of 18 --