Arvind Pty Ltd v Lamers

Case [2020] WASCA 47


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ARVIND PTY LTD -v-LAMERS  [2020] WASCA 47

CORAM:   MITCHELL JA

VAUGHAN JA

HEARD:   24 MARCH 2020

DELIVERED          :   24 MARCH 2020

PUBLISHED           :   3 APRIL 2020

FILE NO/S:   CACV 24 of 2020

BETWEEN:   ARVIND PTY LTD (ACN 052 292 145)

First Appellant

SARO VINZI CARBONE

Second Appellant

BRIGHT IMAGE DENTAL PTY LTD

Third Appellant

AND

BERNARD HENRICUS LAMERS as trustee for THE BEN AND DEBRA LAMERS FAMILY TRUST

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   STRK AJ

File Number            :   CIV 2404 of 2017


Catchwords:

Practice and procedure - Discovery - Appeal from an interlocutory procedural order requiring supplementary discovery - Whether leave to appeal should be granted - Whether the appellants would suffer any substantial injustice if the order were to stand - Whether the primary decision is attended by sufficient doubt to justify the grant of leave to appeal - Whether there were grounds for interfering with the primary judge's interlocutory procedural decision relating to supplementary discovery

Legislation:

Rules of the Supreme Court 1971 (WA), Order 26 r 6

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant : A Metaxas
Second Appellant : A Metaxas
Third Appellant : A Metaxas
Respondent : T Darbyshire

Solicitors:

First Appellant : Metaxas Legal
Second Appellant : Metaxas Legal
Third Appellant : Metaxas Legal
Respondent : Kott Gunning

Case(s) referred to in decision(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Dodds v Kennedy [2011] WASCA 32

Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425

Girgis v Poliwka [2016] WASCA 158

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374

Lamers v Arvind Pty Ltd [2020] WASC 52

Pearce v International Mining Technologies Ltd [2009] WASCA 239

Re the Will of FB Gilbert (Dec) (1946) 46 SR (NSW) 318

Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218

The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Waller v Waller [2009] WASCA 61

Wilson v Metaxas [1989] WAR 285

REASONS OF THE COURT:

  1. At the conclusion of the hearing of the appellants' application for leave to appeal from an interlocutory decision, we made the following orders:

    (1)The application for leave to appeal is refused.

    (2)The appeal is dismissed.

    (3)The appellants pay the respondent's costs of the application for leave to appeal, and the appeal, fixed in the sum of $840.

  2. These are our reasons for making those orders.

Case management and further discovery

  1. This appeal is against an order of the primary judge requiring the appellants to give supplementary…

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AGLC
Arvind Pty Ltd v Lamers [2020] WASCA 47
Case
[2020] WASCA 47
Decision Date

CaseChat Overview and Summary

Arvind Pty Ltd, the appellant, brought an appeal against a decision of Lamers, the respondent, in the Supreme Court of Western Australia. The appeal concerns an interlocutory procedural order that required the appellants to conduct supplementary discovery. The primary issue before the court was whether leave to appeal should be granted to the appellants. The court also had to determine if the primary decision was attended by sufficient doubt to justify the grant of leave to appeal and whether there were grounds for interfering with the primary judge's interlocutory procedural decision relating to supplementary discovery.

The court considered the grounds for appeal and whether there was substantial injustice to the appellants if the orders were allowed to stand. The appellants argued that the primary judge had made an error in requiring supplementary discovery. However, the court found that the primary judge was correct in holding that the discovery order was properly made in the inherent jurisdiction of the court. The appellants' affidavits of discovery were not conclusive as to the documents in their possession, custody, and control, as they had excluded financial documents under a misconception of the respondent's case. The court found that there was no substantial injustice to the appellants if the orders were allowed to stand, and there was no proper ground for interfering with the primary judge's interlocutory procedural decision relating to supplementary discovery.

The court refused leave to appeal and dismissed the appeal. The court found that the primary judge's decision was correct and that there were no grounds for interfering with the primary judge's interlocutory procedural decision relating to supplementary discovery. The court held that an interlocutory appeal had the potential to divert and delay the primary proceedings and increase the parties' cost of resolving the dispute. Therefore, the appeal was dismissed, and the orders were allowed to stand.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ground 4 cannot lead to the appeal being allowed, as the judge was correct to hold that the Discovery Order was properly made in the inherent jurisdiction of the court. The appellants' affidavits of discovery were not conclusive as to the documents in their possession, custody and control when it was evident that they had excluded financial documents under a misconception of Mr Lamers' case.[20] Therefore, ground 5 is not established.[20] Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [4]. The present case is one in which an interlocutory appeal has the potential to divert and delay the primary proceedings and increase the parties' cost of resolving the dispute. No substantial injustice will be occasioned to the appellants by allowing the orders to stand. There is no proper ground for interfering with the primary judge's interlocutory procedural decision relating to supplementary discovery. For these reasons, we refused leave to appeal and dismissed the appeal.