Civic Video Pty Limited v Paterson
[2013] WASCA 107 (S)
•13 JUNE 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | CIVIC VIDEO PTY LIMITED -v- PATERSON [2013] WASCA 107 (S) |
| CORAM | : PULLIN JA |
MURPHY JA
| HEARD | : | 23 APRIL 2013 & ON THE PAPERS |
| DELIVERED | : | 13 JUNE 2013 |
| FILE NO/S | : | CACV 116 of 2012 |
| BETWEEN | : | CIVIC VIDEO PTY LIMITED Appellant |
| AND | ||
| ROBERT HENRY PATERSON Respondent | ||
| ON APPEAL FROM: | ||
| Jurisdiction | : | SUPREME COURT OF WESTERN AUSTRALIA |
| Coram | : MASTER SANDERSON | ||
| Citation |
| ||
| File No |
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| Catchwords: |
Application to recall reasons - Final orders
[2013] WASCA 107 (S)
Legislation:
Nil
Result:
Application to recall dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr I R Pike SC |
| Respondent | : | Mr A Metaxas |
Solicitors:
| Appellant | : | Marque Lawyers |
| Respondent | : | Metaxas & Hager |
Case(s) referred to in judgment(s):
Auto Desk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300
| REASONS OF THE COURT | [2013] WASCA 107 (S) |
REASONS OF THE COURT: These supplementary reasons deal with two matters - an application by the respondent to recall the principal reasons for judgment, and the question of final orders. The application to recall was made at the time of delivery of the principal reasons for judgment, when the respondent handed up an outline of submissions to that effect dated 23 April 2013.
2 In relation to the application to recall the reasons, the respondent
submitted that the court's reasons were 'erroneous' in two respects. First, it was said that the court's reasons suggest that the respondent's solicitors could have informed the respondent of the locality of all the Civic Video stores in document 114 inconsistently with the confidentiality undertaking which prohibits the respondent's solicitors from revealing to the respondent anything about the contents of document 114. Secondly, the respondent submitted (par 1.2 of his submissions dated 23 April 2013) that, contrary to the reasons for judgment at [66], there was no need to file a notice of contention challenging the master's finding (at [18] of the master's reasons) that it was not difficult to see how the commercial position of Civic could be undermined if document 114 were made available for inspection by a competitor, because the master had found (at [15], [16] and [21] of the master's reasons) that the 'information [contained in document 114] about turnover from 2006 and later years was not particularly sensitive and the issue became more serious as the information became more current'.
3 Neither contention has any merit. As to the first point, the
respondent knew, from the description of document 114, that it referred to the total annual revenue figures for all Civic stores in Western Australia. The whereabouts of Civic stores in Western Australia is not confidential information and it is to be inferred that the locations of the stores could be ascertained without looking at a document which contained the revenue figures from those stores. As to the second point, the master's findings at [15] and [16] of the master's reasons addressed documents 112 and 113 respectively, and not document 114. As to [21] of the master's reasons, the master did not find, contrary to the effect of the respondent's contention in par 1.2 of his submissions of 23 April 2013, that the commercial sensitivity of the revenue information in document 114 diminished over time. Moreover, [21] of the master's reasons must be read in the context of the reasons as a whole. Although the first sentence of [21] of the master's reasons refers to the three documents in question, when read with the second sentence, in light of the master's findings at [18], the effect of [21] is that the commercial risks to the appellant resulting from disclosure to Mr Paterson, a trade rival, were outweighed
| REASONS OF THE COURT | [2013] WASCA 107 (S) |
by the prejudice to Mr Paterson if he did not see the document. This court found that that was a balancing exercise which could not be undertaken without ascertaining, by reference to the respondent's evidence, the precise prejudice to Mr Paterson if he did not personally see the document (see [67] of the principal reasons). If the respondent wished to contend that all of the information in document 114, or some of it (and if the latter, he would need to specify which) was not commercially sensitive, and that the master was wrong when he found, at [18], that it was 'not difficult to see how the commercial position of the [appellant] could be undermined', these contentions required a notice of contention. For these reasons, the respondent's application should be dismissed.
4 It should also be noted, however, that pars 7 - 14 of the respondent's
written submissions in reply, in substance seek to re-agitate a number of questions in the appeal generally. That is impermissible - see Auto Desk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300, 302 - 303.
5 As to final orders, on 7 May 2013 the appellant filed a minute of
proposed orders in accordance with the court's directions dated 23 April 2013. There has been no response to this from the respondent apart from the general contention, contrary to the court's principal reasons, that the appeal should be dismissed. The appellant's minute reflects the appropriate disposition of the matter in accordance with the court's principal reasons for judgment. The appellant's minute also broadly reflects an appropriate disposition of the matter with respect to costs, save that we would not differentiate between the costs of the appeal and the costs of the notice of contention, and that the appropriate order is that the respondent pay 75% of the costs of the appeal, including the notice of contention.
Orders will be made in the following terms:
1. Leave to appeal be granted.
2. The appeal be allowed in respect to the document described as 'Document 114' in the affidavit of Mr Laycock dated 14 March 2012.
3. Order 2 of the orders made on 13 September 2012 be set aside and in lieu thereof it be ordered that:
(a)
the First Defendant be permitted an unrestricted right to inspect Documents 112 and 113;
| REASONS OF THE COURT | [2013] WASCA 107 (S) |
(b) the First Defendant not be permitted to inspect Document 114; (c) the First Defendant have liberty to apply with respect to personally inspecting Document 114. 4. The Notice of Contention be dismissed.
5. The Respondent pay 75% of the Appellant's costs of the appeal, including the notice of contention, to be taxed if not agreed.
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