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:
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.
These are our reasons for making those orders.
Case management and further discovery
This appeal is against an order of the primary judge requiring the appellants to give supplementary…
Continue reading Arvind Pty Ltd v Lamers
Sign in free to access the full text
- AGLC
- Arvind Pty Ltd v Lamers [2020] WASCA 47
- Case
- [2020] WASCA 47
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
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.