Bidvest Australia Limited v Auzcorp Pty Ltd
[2016] WASCA 129
•20 JULY 2016
BIDVEST AUSTRALIA LIMITED -v- AUZCORP PTY LTD [2016] WASCA 129
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 129 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:41/2016 | 1 JULY 2016 | |
| Coram: | MURPHY JA | 20/07/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay granted | ||
| B | |||
| PDF Version |
| Parties: | BIDVEST AUSTRALIA LIMITED BIDVEST (WA) PTY LIMITED AUZCORP PTY LTD |
Catchwords: | Practice and procedure Stay application Appeal against decision providing for inspection of documents Turns on own facts |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 26 Rules of the Supreme Court 1971 (WA), O 26 r 16 |
Case References: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Auzcorp Pty Ltd v Bidvest Australia Ltd [2016] WASC 143 Civic Video Pty Ltd v Paterson [2013] WASCA 107 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 Schreuder v Murray [2009] WASCA 75 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BIDVEST AUSTRALIA LIMITED -v- AUZCORP PTY LTD [2016] WASCA 129 CORAM : MURPHY JA HEARD : 1 JULY 2016 DELIVERED : 20 JULY 2016 FILE NO/S : CACV 41 of 2016 BETWEEN : BIDVEST AUSTRALIA LIMITED
- First Appellant
BIDVEST (WA) PTY LIMITED
Second Appellant
AND
AUZCORP PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : AUZCORP PTY LTD -v- BIDVEST AUSTRALIA LTD [2016] WASC 143
File No : CIV 2736 of 2013
Catchwords:
Practice and procedure - Stay application - Appeal against decision providing for inspection of documents - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 26
Rules of the Supreme Court 1971 (WA), O 26 r 16
Result:
Application for stay granted
Category: B
Representation:
Counsel:
First Appellant : Mr P Mendelow
Second Appellant : Mr P Mendelow
Respondent : Mr M L Bennett
Solicitors:
First Appellant : Bowen Buchbinder Vilensky
Second Appellant : Bowen Buchbinder Vilensky
Respondent : Bennett + Co
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Auzcorp Pty Ltd v Bidvest Australia Ltd [2016] WASC 143
Civic Video Pty Ltd v Paterson [2013] WASCA 107
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Schreuder v Murray [2009] WASCA 75
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
- MURPHY JA:
Introduction
1 By an application dated 3 June 2016, the appellants (Bidvest) seek a stay of Master Sanderson's orders1 requiring Bidvest to give inspection to the respondent (Auzcorp) of certain documents outlined in Bidvest's informal list of documents dated 5 February 2016. In these reasons, I will refer to these documents as the 'disputed documents'.
2 The application for the stay is brought within an appeal against Master Sanderson's decision in Auzcorp Pty Ltd v Bidvest Australia Ltd.2
3 In those reasons (primary reasons), Master Sanderson addressed two applications that he heard on 15 April 2016. One was an application by Auzcorp filed 11 March 2016 for orders that Bidvest provide inspection of the disputed documents within three business days. The other was an application by Bidvest filed 22 March 2016 seeking, in effect, a variation of earlier orders that Bidvest provide inspection of documents and seeking additional orders that inspection of the disputed documents be subject to a confidentiality regime. The asserted need for a confidentiality regime was supported by an affidavit of Mr B Plit sworn 8 April 2016.
4 The earlier orders which Bidvest sought to vary were made by Registrar Boyle on 11 December 2015. Those orders required Bidvest to give informal discovery of specified categories of documents by 29 January 2016, and to make such documents available for inspection by 10 February 2016.
5 It appears that Bidvest provided its informal list of documents on or about 5 February 2016, but inspection of the disputed documents was not given following the emergence of a dispute about the confidentiality of the disputed documents. This led to the two applications referred to earlier being brought before the master.
6 At the conclusion of the oral hearing on 15 April 2016, the master said:
THE MASTER: … Well, I'm not satisfied that there should be a confidentiality regime imposed here. I think what I have to do is provide written reasons for that decision. Can I say by way of background that essentially, for the reasons set out in paragraphs 3.1 through to 3.7 of the plaintiff's written submissions, I've come to that conclusion. I am concerned about the variation of the orders made by Registrar Boyle.
I think it would take considerable persuasion that orders made at a hearing attended by both parties should in some way be varied. Had the issue been raised there, Registrar Boyle could either have considered or referred it off to some other party. Now, the difficulty I have here is producing the written reasons, because for logistical reasons I can't get them done before probably Wednesday of the week after next. And I think it would be appropriate to allow the defendants to consider those reasons and, if necessary, apply for a stay before the inspection should take place. Can you live with that, Mr Bennett?
BENNETT, MR: Yes.
THE MASTER: All right. So what I will do at the moment is simply foreshadow that that will be my decision. I will produce those reasons just as quickly as I can and then I will call the parties back and make orders which will facilitate the defendants having enough time to consider their position and seeking a stay either from me or from the Court of Appeal.
BENNETT, MR: And we would seek costs, obviously.
THE MASTER: Yes. Yes. Well, once you've seen the reasons the costs issue can be dealt with.
BENNETT, MR: Yes.
7 The primary reasons were published on 11 May 2016. The primary reasons included the following:3
The two chamber summonses were heard together with the defendants moving on their chamber summons first. After hearing argument I dismissed the defendants' chamber summons and indicated I would make an order requiring inspection but that order would not be made until these reasons were published. What follows are my reasons for dismissing the defendants' application and granting the plaintiff an order for inspection.
8 The master concluded the primary reasons as follows:4
For these reasons I determined the defendants' application ought be dismissed. The defendants ought pay the costs of the application including reserved costs. There should be an order for inspection largely in terms of the plaintiff's chamber summons. They should have the costs on that chamber summons although clearly there will be a large overlap between the two applications. I will hear the parties as to any stay of these orders pending a decision by the defendants as to whether an appeal should be lodged.
9 The appeal notice was filed on 25 May 2016, and Bidvest's application for a stay was filed on 3 June 2016. In the meantime, on 1 June 2016, Auzcorp brought a further application before the master to enforce inspection of the disputed documents. It appears that that application was adjourned.
10 Auzcorp contends that the relevant orders were made in the primary court on 15 April 2016, and that as the appeal had to be commenced within 14 days of that date under pt 5 r 26 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), the appeal was commenced out of time in respect of which there has been no application for an extension. Auzcorp contends that this compounds the earlier delays by Bidvest in relation to the provision of discovery and inspection. Alternatively, it contends that no orders had been made and the appeal is premature.
The primary proceedings
11 In the primary proceedings, Auzcorp, by its statement of claim, alleged in effect, as follows:
(a) Auzcorp carries on business, particularly in the north west of Western Australia, of providing accommodation services for tourism, mining and other hospitality, in connection with which it is a 'substantial purchaser … of considerable foodstuffs and other produce';
(b) Bidvest carries on business as a supplier of wholesale volumes of foodstuffs and other produce to a variety of businesses, including businesses servicing and supplying accommodation, hospitality and tourism demand in Western Australia;
(c) up to 6 August 2003, Auzcorp acquired foodstuffs and other wholesale products from Foodlink Food Service (Foodlink), a division of IGA Distribution (WA) Pty Ltd;
(d) in or about July or August 2003, Mr Houston, then an employee of Foodlink, met with Mr Kassim of Auzcorp, and made certain representations to the effect that:
(i) he (Mr Houston) intended to change his employment to Bidvest;
(ii) Bidvest sought the future custom of Auzcorp;
(iii) if Auzcorp dealt with Mr Houston as account manager at Bidvest, then Mr Houston would act as the account manager for Auzcorp and 'purchase such products as Auzcorp required and ordered through Bidvest and sell them to Auzcorp at a very competitive rate than could otherwise be obtained by Auzcorp';
(iv) by virtue of its superior buying power, Bidvest would receive from food producers and national supply organisations bonuses and rebates which enabled Bidvest to supply at more competitive rates than other food suppliers with whom Auzcorp could deal; and
(v) Bidvest would share the benefit of the bonuses and rebates with Auzcorp, in addition to the supply by Bidvest at competitive rates superior to that which Auzcorp would obtain if it dealt with other food suppliers;
(e) Mr Houston also agreed at the same meeting that if Auzcorp transferred its business to Bidvest, the sharing of rebates could proceed in a manner whereby Auzcorp would be given the benefit of a rebate as and when it sought that benefit, and for the value thereof to accumulate;
(f) in reliance on the representations made by Mr Houston at the meeting, Auzcorp transferred its business from Foodlink to Bidvest and placed orders with Bidvest to the general exclusion of other suppliers;
(g) the representations made by Mr Houston at the meeting were made by Bidvest and were continuing representations, and insofar as there was a representation that Auzcorp could accumulate its share of rebates and bonuses, that was a present representation and a representation as to a future matter;
(h) at the time the representations were made, Bidvest had no reasonable basis for making the representations or had no honest belief in the truth of the representations. Further, and in the alternative, Bidvest subsequently ceased to hold any honest belief that it would apply the benefit of bonuses or rebates 'as directed by Auzcorp' and failed or neglected to disclose the same to Auzcorp;
(i) the representations were maintained by Bidvest without qualifying or withdrawing the same or otherwise disclosing Bidvest's change of position to Auzcorp;
(j) the representations were false in that:
(i) Bidvest did not supply at rates more competitive than Auzcorp could otherwise obtain; and
(ii) Bidvest did not conduct any practice or business of allowing Auzcorp to accumulate for subsequent use, Auzcorp's share of rebates and bonuses obtained; and
(k) Bidvest's conduct was misleading or deceptive, or likely to mislead or deceive, as a result of which Auzcorp suffered damage in that:
(i) Auzcorp dealt with Bidvest to the exclusion of other suppliers and thereby incurred costs significantly in excess of that which it would have incurred had it not relied on the representations; and
(ii) by reason of Bidvest's conduct, Auzcorp lost the benefit of taking immediately its share of bonuses or rebates received by Bidvest.
The primary reasons
13 After referring to the pleadings, the master said:5
It is clear the plaintiff is not in a position to calculate what its claim might be. Paragraph 23 of the statement of claim is in the following terms:
'By reason of Bidvest's conduct, Auzcorp lost the benefit of taking immediately its share of bonuses or rebates received by Bidvest
Particulars
- Full particulars will be supplied prior to trial and after discovery has been given by Bidvest but in the meantime Auzcorp calculates its loss and damage at not less than 15% of the its [sic] total purchases being $2,248,641.'
14 The master noted that the application by Bidvest was not an appeal against Registrar Boyle's decision and that Bidvest relied on O 26 r 16 of the Rules of the Supreme Court 1971 (WA) (Rules), which is in the following terms:
Revocation and variation of orders
Any order which has been made under this Order, including an order made on appeal, may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in relation to which the original order was made.
15 The master held, in effect, that he had no power under O 26 r 16 to make the orders sought by Bidvest. He said, in effect, that O 26 r 16 could not be read literally on the basis that a literal application would undermine the case management regime and the appeal process.6 The master said:7
It would appear when O 60A r 3 was amended late last year no consideration was given to O 26 r 10 [sic - O 26 r 16]. Be that as it may the extensive powers given to case management registrars and the importance of the procedural orders that they make means in my view if those orders are to be varied it should be done by an appeal process. Otherwise there can be no certainty or finality. In other words I would read down O 26 r 10 [sic - O 26 r 16] to the extent necessary to have it operate much as the so-called slip rule operates. Beyond that it has the potential to undermine the case management regime and that is undesirable.
16 The master went on to consider the merits of Bidvest's application in any event. He referred to the decision of this court in Civic Video Pty Ltd v Paterson,8 and said:9
In my view there is no doubt that the documents in question are commercially sensitive. The last thing the defendants would want is for these documents to be publically available. The question is whether or not the plaintiff and the defendants are trade rivals. It was the plaintiff's submission it was a retailer of food and other goods and the defendants were wholesalers of foods and other goods. They operated in entirely different markets. They were not actually in competition with one another. In my view that submission should be accepted. It may be there is some overlap between the two parties so far as their trading enterprises are concerned but they do appear to operate in separate and distinct markets. Moreover, the plaintiff pointed to the difference in size between the two corporations. The first-named defendant is a global company which employs 141,015 people world wide of which 4,098 are in Australia. Its Australasian turnover was in the region of $2.5 billion in 2015. The plaintiff on the other hand is incorporated in Western Australia and has its sole office in Cottesloe. It operates only in the Pilbara region. To that extent the companies cannot be said to be trade rivals.
17 The master then gave further discretionary reasons for not granting Bidvest's application. He said that there was no real explanation for the delay and that also, the application for confidentiality had not been made until after Auzcorp had sought an order for inspection and that the application appeared 'way beyond what was a reasonable time frame in which to seek an amendment of the discovery orders'.
The appellants' case in the appeal
18 In its appellants' case, Bidvest relies on five grounds of appeal to the following effect:
1. The master erred in law in concluding that O 26 r 16 of the Rules did not empower the master to vary order 2 of the orders made by Registrar Boyle on 11 December 2015.
2. The master erred in concluding that Bidvest and Auzcorp were not trade rivals.
3. The master erred in concluding that the disparity in size between Bidvest and Auzcorp was relevant to whether they were trade rivals.
4. The master erred in fact in concluding that Bidvest had failed to explain the delay in bringing the application to vary order 2 of Registrar Boyle's orders.
5. The master erred in fact in concluding that there was contradiction in the evidence of Mr Plit where he deposed that it was not until Bidvest collated documents relevant to the categories of documents set out in order 2 of Registrar Boyle's orders that it first became aware that a number of the documents captured by the order were commercially sensitive and/or confidential, and that the documents were protected by a tight regime of confidentiality within Bidvest itself.
Principles in relation to stay
19 In Tradesman Technologies Pty Ltd v Ameduri,10 Pullin JA observed:
[T]he principles are as follows:
(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.
20 Also, in Schreuder v Murray,11 Buss JA observed:
Although it is ordinarily necessary for an applicant for a stay pending an appeal to establish that he or she has reasonable prospects of success on the appeal, the applicant's prospects of success are, to some extent, interdependent with the balance of convenience where any right of appeal (with or without leave) would be rendered nugatory if a stay was not granted. Compare, in the context of an application for interlocutory injunctive relief, OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270, 272 - 273.
The parties' arguments
21 Bidvest contends, in effect, that the appeal will be rendered nugatory if a stay is not granted. It referred to the observations of Hayne JA (as his Honour then was) in Mobil Oil Australia Ltd v Guina Developments Pty Ltd:12
Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed.
22 Bidvest also contends that it has reasonable prospects of success as outlined in its grounds of appeal and accompanying submissions in the appellants' case dated 2 June 2016.
23 Bidvest also contends that the balance of convenience favours the grant of a stay in that the confidentiality regime it proposes at least allows Auzcorp's solicitors to engage an expert to determine what loss, if any, Auzcorp has allegedly suffered as a result of the conduct pleaded in its statement of claim. This would, in effect, allow inspection to continue, albeit on a limited basis, and assist the litigation to move forward, whilst at the same time preserving what Bidvest says are important claims to confidentiality pending a determination of the appeal on its merits.
24 Auzcorp contends, in effect, that the application for a stay should be dismissed because:
(a) Bidvest does not have reasonable prospects of success;
(b) as a matter of discretion, Bidvest has failed to act promptly and has reacted only to applications by Auzcorp seeking to progress the litigation; and
(c) the appeal will not be rendered nugatory as the protection sought by Bidvest is unnecessary.
25 In relation to the question of delay, Auzcorp emphasises, inter alia, that Registrar Boyle's orders were made after a contested interlocutory hearing; Bidvest provided its informal list of discovery on or about 5 February 2016 rather than 29 January 2016; and that Bidvest refused to give inspection thereafter and only filed its application to vary Registrar Boyle's orders following Auzcorp's own application to enforce compliance with the order for inspection. Auzcorp contends that the master was correct in finding that there was no real explanation for the delay. Auzcorp also contends, as noted earlier, that the appeal was filed out of time. In this regard, it relies in particular on [18] of the primary reasons. Alternatively, it submitted that no orders had been made.
26 In relation to prospects of success on the appeal, the respondent's case summarises the position, in effect, as follows:
(a) Bidvest failed to apply for an extension of time within which to seek leave to appeal;
(b) the appeal is in respect of an interlocutory decision that involved the exercise of the court's discretion;
(c) there is no error in principle that has been clearly alleged; and
(d) there are strong reasons why the court should not grant leave in the light of the principles enunciated in O 1 r 4A and O 1 r 4B of the Rules, coupled with the delay in Bidvest seeking to vary Registrar Boyle's orders or act promptly.
27 Auzcorp contends that it is not a competitor of Bidvest, and that the assertions of likely prejudice to Bidvest are 'fanciful'. It contends that the production of documents for inspection would, in any event, carry with it substantive legal obligations discussed by the High Court in Hearne v Street.13
28 Auzcorp also contends that these considerations indicate that the balance of convenience weighs strongly against the grant of discretionary relief. Auzcorp contends that the interim confidentiality regime proposed by Bidvest pending the determination of the appeal is 'inherently unworkable' and 'so unworkable as to be unacceptable'.14 Counsel for Auzcorp, who it appears is also the principal solicitor handling the matter for Auzcorp, said in oral submissions, in effect, that he would not give an undertaking not to disclose the disputed documents to his client even if orders were made in relation to an interim confidentiality regime pending the determination of the appeal. I should add here that while the orders proposed by Bidvest in their application require the non-disclosure of the disputed documents to Auzcorp, they do not contemplate the giving of an undertaking to that effect by Auzcorp's legal advisers. It is only expert witnesses in receipt of disputed documents who, under the proposed orders, are required to give such an undertaking. Nevertheless, the substantive point made by Auzcorp's counsel is that he would not participate in any interim confidentiality regime pending determination of the appeal in relation to which the disputed documents were only disclosed to legal advisers and expert witnesses, and not to his client.
Disposition
29 I adopt, for present purposes, the law in relation to confidentiality as outlined in Civic.15
30 Having considered carefully all of the materials and arguments, the following matters would appear to me to be most relevant for present purposes.
31 First, I accept that the appeal will be rendered nugatory if a stay is not granted. If the Court of Appeal determined to grant leave and allow the appeal, officers of Auzcorp will have obtained commercially sensitive information to which they otherwise would have had no access and which could not be forgotten for the reasons explained by Hayne JA in Mobil Oil Australia Ltd in the passage referred to earlier. Whilst Auzcorp contends that Bidvest and Auzcorp are not competitors or rivals for present purposes, the correctness of that proposition will likely fall for determination in the appeal, and Auzcorp's contentions in that regard would likely be rejected in the event that the court were ultimately persuaded to allow the appeal.
32 Secondly, whilst Master Sanderson's decision was an interlocutory decision concerning practice and procedure, with all that that entails for a party seeking leave to appeal,16 the matter does nevertheless at least arguably raise an important point of principle about the proper interpretation and application of O 26 r 16 of the Rules. For present purposes, my preliminary assessment is that Bidvest's appeal in that regard is reasonably arguable.
33 Thirdly, I also accept, for present purposes, that it is reasonably arguable that Bidvest and Auzcorp may be regarded as competitors or rivals at least for the purchase of foodstuffs and other produce from manufacturers, in the case of Auzcorp (on its pleaded case) as a substantial purchaser of such products for its provision of accommodation services in Western Australia in tourism, mining and in the hospitality fields, and in the case of Bidvest as a general wholesaler for such products.
34 Fourthly, my necessarily preliminary view is that it is reasonably arguable that the appeal was not commenced late when the primary reasons are read as a whole, including [3] and [18], and in the context of what was said at the hearing on 15 April 2016. It is at least arguable that the master in effect made conditional orders on 15 April 2016 in relation both to Auzcorp's application dated 11 March 2016 and Bidvest's application dated 22 March 2016, with such orders to take effect upon the publication of his reasons. Even if there were delays in commencing the appeal, on their own or taken into account in relation to the other delays referred to by Auzcorp, it is reasonably arguable that Bidvest would not be refused leave or be denied relief on account of delay. Moreover, having considered all the submissions and materials referred to, I would conclude for present purposes that the application for leave and the appeal itself, on a preliminary assessment, are reasonably arguable and in that regard have reasonable prospects of success.
35 I have also taken into account that the appellants' case was filed on 2 June 2016, that the respondent's answer was filed on 23 June 2016, and that the appeal books are to be settled on 4 August 2016. The appeal will be a short one of narrow compass.
36 Further, an interim confidentiality regime broadly of the kind proposed by Bidvest which would allow inspection to take place for the purpose of Auzcorp briefing its experts pending the determination of the appeal, appears to me to be reasonable. I am not persuaded by Auzcorp's contention that a confidentiality regime of that kind, amended to provide for inspection conditional on undertakings to be given by nominated legal advisers (rather than orders directly imposing confidentiality on nominated legal advisers) is inherently unworkable. Such a regime would not be dissimilar to ones not infrequently encountered in legal practice. Nevertheless, there is no point in making interim orders of this kind given the attitude of Auzcorp's principal solicitor referred to in [28] above.
37 Taking everything into account, in all the circumstances, I would order that, subject to further order, the disputed documents not be inspected prior to the determination of the appeal herein. I would also give Auzcorp liberty to apply, to give Auzcorp the opportunity to seek to have the order revisited for consideration in the event that Bidvest is guilty of delay in the future prosecution of the appeal.
1 As noted later in these reasons, there is a dispute as to precisely what orders (if any) were made by Master Sanderson, and when.
2Auzcorp Pty Ltd v Bidvest Australia Ltd [2016] WASC 143.
3 Primary reasons [3].
4 Primary reasons [18].
5 Primary reasons [6] - [7].
6 Primary reasons [10] - [14].
7 Primary reasons [14].
8Civic Video Pty Ltd v Paterson [2013] WASCA 107.
9 Primary reasons [16].
10Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].
11Schreuder v Murray [2009] WASCA 75 [7].
12Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38.
13Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.
14 Respondent's outline of submissions in opposition to appellants' application filed 27 June 2016, par 19.
15Civic [26] - [31].
16Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.
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