Exxten Pty Ltd as trustee for the Mitchell Family Trust v David Campbell Transport Pty Ltd - [2024] WASC 204

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   EXXTEN PTY LTD AS TRUSTEE FOR THE MITCHELL FAMILY TRUST -v- DAVID CAMPBELL TRANSPORT PTY LTD [2024] WASC 204
CORAM:   MUSIKANTH J
HEARD:   22 APRIL 2024
DELIVERED          :   6 JUNE 2024
PUBLISHED           :   6 JUNE 2024
FILE NO/S:   CIV 1776 of 2020
BETWEEN:   EXXTEN PTY LTD AS TRUSTEE FOR THE MITCHELL FAMILY TRUST
First Plaintiff
CRAIG MITCHELL
Second Plaintiff
AND
DAVID CAMPBELL TRANSPORT PTY LTD
Defendant
DAVID CAMPBELL TRANSPORT PTY LTD
Plaintiff by counterclaim
EXXTEN PTY LTD AS TRUSTEE FOR THE MITCHELL FAMILY TRUST
First Defendant by counterclaim
CRAIG MITCHELL
Second Defendant by counterclaim

Catchwords:

Contract - Payment of 'royalty' in consideration for introduction as recommended contractor - Alleged secret commission - Section 533 of Criminal Code (WA) - Principles of statutory construction - Whether relationship of 'confidence' required - Meaning of 'assent' - Whether 'actual' or 'constructive' knowledge of agency contemplated

Practice and procedure - Application by defendant for leave to apply for summary judgment out of time - Summary judgment - Relevant principles - Whether serious question to be tried as to unenforceability of claim for payment of 'royalty'

Legislation:

Criminal Code Act Compilation Act 1913 (WA) s 533
Interpretation Act 1984 (WA) s 19(1) and s 32(1)
Rules of the Supreme Court 1971 (WA) O 1 r 4A and r 4B; O 16 r 1
Secret Commissions Act 1905 (WA)

Result:

Application for leave granted, summary judgment refused

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr B Mostafa
Second Plaintiff	:	Mr B Mostafa
Defendant	:	Mr M C Goldblatt
Plaintiff by counterclaim	:	Mr M C Goldblatt
First Defendant by counterclaim	:	Mr B Mostafa
Second Defendant by counterclaim	:	Mr B Mostafa

Solicitors:

First Plaintiff	:	Hotchkin Hanly
Second Plaintiff	:	Hotchkin Hanly
Defendant	:	MPH Lawyers
Plaintiff by counterclaim	:	MPH Lawyers
First Defendant by counterclaim	:	Hotchkin Hanly
Second Defendant by counterclaim	:	Hotchkin Hanly

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

Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424
Bennett v Minister for Public Works (NSW) [1908] HCA 50; (1908) 7 CLR 372
BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Brockway v Pando [2000] WASCA 192; (2000) 22 WAR 405
Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1
Cassaniti v Ball [2022] NSWCA 161; (2022) 109 NSWLR 348
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) [1981] HCA 26; (1981) 147 CLR 297
Crimmins v Stevedoring Committee [1999] HCA 59; 200 CLR 1; 167 ALR 1; 74 ALJR 1
Diedler v Borowiec [2021] WASC 394
Farrant v Blatchford (1863) 1 De GJ & S 107, 119-120; 46 ER 42
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Gerovich v Gerovich [2018] WASC 153
Hébert v Banque Nationale (1908) 40 SCR 458
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
King v Jones [1972] HCA 44; (1972) 128 CLR 221
Lashansky v Legal Practice Board of Western Australia (No 3) [2013] WASCA 260
Molina v Zaknich [2001] WASCA 337
Mondalephous KT Pty Ltd v Transalta Energy (Australia) Pty Ltd [2017] WASCA 176
O3 Capital Pty ltd v WY Properties Pty Ltd [2016] WASCA 82; (2016) WAR 517
Pickering v Smoothpool Nominees Pty Ltd [2001] SASC 387; 81 SASR 175
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rugs-a-Million (WA) Pty Ltd v Walker [2005] WASC 288
Silk Bros Pty Ltd v State Electricity Commission (Vic) [1943] HCA 2; (1943) 67 CLR 1
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Superline Enterprises Pty Ltd v Palassis Architects (a firm) [2021] WASC 430
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35
Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507
Victoria v The Commonwealth [1975] HCA 52; (1975) 134 CLR 338
Wallis v John Holland Pty Ltd [2024] WASCA 26
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

MUSIKANTH J:

Introduction

This is an application by the defendant (DCT) for summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules).
The application is made subject to a grant of leave, as it was commenced out of time.
Relevantly, s 533 of the Criminal Code (WA)[1] (Criminal Code) criminalises the receipt of 'valuable consideration' where:
(a)'advice' is given by one person to another;
(b)the 'advice' is intended to induce or influence the person advised to enter into a contract with a third person; and
(c)receipt of the 'valuable consideration' occurs without the 'assent' of the person advised,
unless the 'advice' giver was, to the 'knowledge' of the person advised, the agent of the third person.
[1] Schedule to the Criminal Code Act Compilation Act 1913 (WA).
The crisp question for determination is whether there is a high degree of certainty of a finding, at a trial, that the right asserted by the plaintiffs to receive a 'royalty' payment from DCT is unenforceable because of s 533 of the Criminal Code.
For the reasons which follow, I consider the answer to be 'no'.
In my view, there is therefore a serious question to be tried.
Accordingly, summary judgment is refused.

Background

The second plaintiff (Mr Mitchell) is and was at all relevant times a director and shareholder of the first plaintiff (Exxten) and of Newhaul Pty Ltd (Newhaul).
David Alexander Campbell (Mr Campbell) is and was at all relevant times the sole director and sole shareholder of DCT.
Relevantly, the plaintiffs plead that:
(a)by an agreement made with DCT on about 16 January 2020 by (Agreement), DCT agreed to pay a 'royalty' to Mr Mitchell, 'or his nominee Exxten', on all tonnes of ore hauled by DCT from an iron ore mine in South Australia (Mine) to a siding in that State (Siding);[2]
(b)the 'royalty' would be paid for 'assisting' DCT to secure haulage contracts directly with Australian Ocean Logistics Pty Ltd (AOL) in place of another company, Newhaul Peak Pty Ltd (Newhaul Peak);[3]
(c)on its proper construction, the following were among the material express terms forming part of the Agreement:
(i)Exxten would use Mr Mitchell's 'influence and knowledge' to introduce DCT to AOL as a recommended haulage contractor;[4]
(ii)DCT would pay the 'royalty' in consideration for that introduction and assistance;[5]
(d)pursuant to the term of the Agreement referred to in (c)(i) above, Mr Mitchell, in mid-January 2020 by email to Mr [Xiaobing] Lawrence Lu (Mr Lu) of AOL, introduced Mr Campbell and DCT to AOL, advised Mr Lu that DCT was ready to mobilise and commence haulage, and recommended DCT, in part by 'vouching for the professionalism of Mr Campbell';[6] and
(e)on 25 February 2020, following Mr Mitchell's 'introduction and recommendation', DCT entered into a contract with AOL to provide a haulage service.[7]
[2] Re-Amended Statement of Claim filed 25 October 2021 (statement of claim), [17].
[3] Statement of claim, [17].
[4] Statement of claim, [18(a)]. Emphasis added.
[5] Statement of claim, [18(c)] read with [18(a)].
[6] Statement of claim, [20].
[7] Statement of claim, [21].
According to the plaintiffs, the Agreement arose in consequence of, among other things:[8]
(a)two conversations between Mr Mitchell and Mr Campbell on 15 January 2020; one in person and one by phone; and
(b)exchanges of emails between Mr Mitchell and Mr Campbell on 15 and 16 January 2020.
[8] Statement of claim, [17].
By way of primary relief, the plaintiffs claim payment of the 'royalty' as a debt due and owing under the Agreement.[9]
[9] Statement of claim, Prayer A.
As of January and February 2020, AOL evidently had two directors, namely Yonggan Shan (Mr Shan) and Xiawei Lin, while Mr Lu was its company secretary.[10]
[10] Affidavit of Xiaobing Lu sworn 15 January 2024 (First Lu affidavit) annexure 'XL-1' page 6.
The following further facts relevantly emerge on the plaintiffs' account.[11]
[11] Where there is a conflict on the affidavit evidence, the Court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting the application for summary judgment will ultimately be accepted at trial: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608 and Gerovich v Gerovich [2018] WASC 153 [32] (Pritchard J).
Newhaul was incorporated for the purpose of providing haulage services and has engaged in joint venture agreements with various companies.[12]
[12] Affidavit of Craig Douglas Mitchell sworn 8 March 2024 (Mitchell affidavit) [2].
In about mid-July 2019, Mr Mitchell caused Exxten to acquire shares in a newly formed company, Peak Iron Mines Pty Ltd (Peak Iron),[13] which had acquired rights to mine iron ore at the Mine.[14]
[13] Mitchell affidavit [3].
[14] Statement of claim, [6].
Exxten acquired shares in Peak Iron following an approach to Mr Mitchell, in about May 2019, by Mr Gavin Argyle who had been seeking an investor with experience in transport logistics.[15]
[15] Mitchell affidavit [3]. Mr Argyle became a director and the main shareholder of Peak Iron following its incorporation: Mitchell affidavit [3].
Mr Mitchell became involved in looking at various options to transport iron ore for that company.[16]
[16] Mitchell affidavit [3].
Soon after Peak Iron was incorporated, Mr Mitchell proposed that Newhaul[17] and Peak Iron form a joint venture for the purposes of providing road haulage services for the Mine.[18]
[17] Then known as Minehaul Pty Ltd.
[18] Mitchell affidavit [4].
In late July 2019, Mr Mitchell travelled with directors of Peak Iron to Adelaide to meet with representatives of companies with which Peak Iron proposed to do business in operating the Mine.[19]
[19] Mitchell affidavit [6].
On 30 July 2019, Mr Mitchell, and directors of Peak Iron, met with representatives of two other companies[20] including Mr Shan and Mr Lu.[21] Mr Mitchell does not recall 'saying much' at this meeting with Mr Shan and Mr Lu.[22]
[20] 'Cu-river Mining Australia Ltd' and 'Young Steel Mining Pty Ltd'.
[21] Mitchell affidavit [7].
[22] Mitchell affidavit [8].
In about November 2019, Mr Mitchell called Mr Campbell and asked him whether DCT would be interested in sub-contracting to a joint venture company that Mr Mitchell was forming with Peak Iron (Proposed JV).[23]
[23] Mitchell affidavit [11].
On 13 November 2019, DCT submitted its expression of interest with indicative pricing for providing haulage services to Mr Mitchell.[24] DCT provided an updated and amended proposal on 28 November 2019.[25]
[24] Statement of claim, [10].
[25] Statement of claim, [10A].
On 11 December 2019, Newhaul Peak was incorporated as the vehicle for the Proposed JV.[26]
[26] Mitchell affidavit [14].
In about mid-January 2020, AOL assumed control of the mining operations at the Mine.[27]
[27] Statement of claim, [13].
On 14 January 2020, Mr Argyle informed Mr Mitchell that Peak Iron would not proceed with the Proposed JV.[28] As a result of this decision, Newhaul Peak would not be able to provide haulage services to AOL.[29]
[28] Statement of claim, [14].
[29] Statement of claim, [16].
On 15 January 2020, Mr Mitchell met with Mr Campbell.[30]
[30] Mitchell affidavit [20] - [21].
During their meeting, Mr Mitchell said words to the effect that he would be able to introduce and recommend Mr Campbell to the mine operator [ie. AOL] who would [now] need transport services in place of [Newhaul Peak].[31]
[31] Mitchell affidavit [21].
Mr Mitchell:
(a)told Mr Campbell that Mr Campbell should propose a rate of $9.10 per tonne for what was expected to be load and haul; and
(b)proposed to Mr Campbell that if he got the contract [with AOL], being for better rates than Mr Campbell's company proposed to charge as a subcontractor to Newhaul Peak, they would 'share the uplift';[32] with 70% of the uplift (in price) going to Mr Mitchell and 30% to DCT.[33]
[32] Mitchell affidavit [21].
[33] Mitchell affidavit [21].
Mr Mitchell and Mr Campbell then exchanged emails.[34]
[34] Mitchell affidavit annexure 'CM-7' page 32.
Shortly before 2:47 pm on 15 January 2020, Mr Mitchell called Mr Lu. Although Mr Mitchell cannot recall exactly what words he said to Mr Lu, he recalls Mr Lu mentioning that AOL had 'other contractors' and [DCT] 'would be tendering'.[35]
[35] Mitchell affidavit [23].
Mr Mitchell then sent an email to Mr Lu, copied to Mr Campbell.
The email read as follows: [36]
[Mr Mitchell to Mr Lu, copied to Mr Campbell, 15 January 2020 at 2:47 pm]
Hi Lawrence
As discussed, please find below Campbell Transport contact details.
[Mr Campbell] has already completed a site visit of [the Mine] and is ready to mobilise to commence operations.
I've known [Mr Campbell] for some time and can vouch for his professionalism. He may also be in a position to help with your own haulage requirements.
Should you need any help please don't hesitate to call.
Regards Craig
[Mr Campbell's contact details then follow]
[36] Mitchell affidavit annexure 'CM-7' page 35.
Two separate email exchanges then occurred, the second involving Mr Campbell.
The first exchange read:[37]
[37] Mitchell affidavit annexure 'CM-7' page 35.
[Mr Mitchell to Mr Lu, 15 January 2020 at 17:40, forwarding the email extracted in [33] above]
Lawrence, Separately you may want to [sic] David to speak with Lucas?
David said he able to be on a plane to Adelaide tomorrow understanding the tight time frames.
Regards Craig
…
[Mr Lu to Mr Mitchell, 16 January 2020 at 7:25 am, in response to above email]
Hi Craig, I have asked David to provide a quote. I think it would be better to see the pricing first.
If we decided to use David, then he comes, rather than waste his time and money flying.
Many thanks again.
…
[Mr Mitchell to Mr Lu, 16 January 2020 at 10:27 am, in response to above email]
Yes agreed. Thanks Lawrence
The second exchange read:[38]
[38] Mitchell affidavit annexure 'CM-7' page 33.
[Mr Lu to Mr Mitchell and Mr Campbell, 16 January 2020 at 7:24 am, in response to email extracted in [33] above]
Dear Craig, Thanks for your introduction.
Hi David, nice to meet you here.
My company has a policy to compare pricing and terms of all services and supplies our business demand before making any commitment of engagement. As I mentioned in my phone call with Craig, the starting point is to understand your pricing ($ per ton) and terms and profile of your team.
Can we please get a quote (terms) from you, while we are seeking the same from other parties. Your quote could be very simple as we wont going through a very complicated tendering process. Once we receive this, we will make a decision in a very timely matter and come back to you.
Many thanks
Lawrence Lu
…
[Mr Mitchell to Mr Lu, copied to Mr Campbell, 16 January 2020 at 10:27 am]
Thanks Lawrence, I'm sure David will come back to you today with a competitive proposal.
Regards Craig
According to Mr Mitchell:
(a)the above were 'the last emails' he exchanged with Mr Lu;[39]
(b)Mr Lu did not ask him for any advice, or request a recommendation from him, as to who should perform the haulage services, [40] or again make contact to ask him anything further about DCT or Mr Campbell. Nor did anyone else on behalf of AOL;[41] and
(c)Mr Mitchell did not know 'what had occurred' until he (later) found out that DCT 'had in fact been granted the contract'.[42]
[39] Mitchell affidavit [23].
[40] Mitchell affidavit [24].
[41] Mitchell affidavit [25].
[42] Mitchell affidavit [25].
Mr Mitchell does not suggest that he at any time informed Mr Lu, or anyone else associated with AOL, about the Agreement.

Procedural history

The plaintiffs commenced their action by writ of summons on 17 July 2020, and DCT filed an appearance six days later.
Between August 2020 and September 2023, successive iterations of pleadings were exchanged, particulars were provided, and discovery took place along with various other interlocutory steps.
On 8 September 2023, DCT filed a notice of change of representation.
On 15 January 2024, DCT filed its application for summary judgment (and for leave).
Two days later, on 17 January 2024, DCT filed a further re-amended defence and counterclaim. This pleading introduced a defence based on s 533 of the Criminal Code for the first time.[43]
[43] Further re-amended defence and counterclaim (defence), [34A].
The plaintiffs have yet to amend their reply to address these amendments specifically. However, they have provided a draft further amended reply.[44]
[44] Mitchell affidavit annexure 'CM-20' pages 39 - 45 (draft reply).
Relevantly, the draft reply foreshadows:
(a)a joinder of issue with respect to DCT's s 533 defence;[45] and
(b)an express plea that AOL knew that Mr Mitchell was 'acting or intending to act for or on behalf of [DCT]' being, relevantly, knowledge held by AOL 'through' Mr Lu being information which Mr Lu 'knew or should reasonably have known'.[46]
[45] Draft reply, [4A] read with [1]. In the meantime, there is in any event a joinder of issue with respect to all aspects of the s 533 defence in consequence of [1] of the plaintiffs' amended reply and defence to counterclaim filed 15 March 2021 and/or O 20 r 15(2)(a).
[46] Draft reply, [4A] read with particulars (a) and (b).
On 22 March 2024, DCT undertook that it would consent to a dismissal of its counterclaim should its summary judgment application succeed.
The application was heard before me on 22 April 2024.

The evidence

DCT relied upon four affidavits in support of its application; namely, an affidavit of Mr Campbell sworn 15 January 2024, an affidavit of Cheryl Hua-Chien Sun (Ms Sun), a director of DCT's current solicitors, sworn 15 January 2024, and two affidavits of Mr Lu sworn 15 January 2024 and 18 March 2024.
According to Mr Lu's affidavit evidence, Mr Mitchell did not disclose to him or AOL that Mr Mitchell had any agreement with DCT which required DCT to pay Mr Mitchell (or any associated entity) for introducing DCT to AOL or for vouching for Mr Campbell's professionalism.[47]
[47] First Lu Affidavit [8].
Nor, according to Mr Lu, did Mr Mitchell disclose that Mr Mitchell considered he was entitled to payment of a commission or royalty from DCT in exchange for doing so.[48]
[48] First Lu Affidavit [8].
Further, according to Mr Lu:
(a)neither Mr Lu nor, to his knowledge, any other officer or representative of AOL, knew that Mr Mitchell had such an entitlement when AOL awarded a subcontract for haulage to DCT on 25 February 2020;[49]
(b)Mr Lu had limited dealings with Mr Mitchell with respect of the contract between AOL and Peak Iron in relation to the operation of the Mine;[50]
(c)when Mr Lu received Mr Mitchell's first email of 15 January 2020, he understood Mr Mitchell was:
(i)communicating with him in his capacity as a shareholder of Peak Iron, or as a representative of the joint venture; and
(ii)introducing and recommending a haulage contractor with which he was familiar because of the change in haulage arrangements.[51]
[49] First Lu affidavit [9].
[50] Affidavit of Xiaobing Lu sworn 18 March 2024 (Second Lu affidavit) [5].
[51] Second Lu affidavit [7].
Mr Lu also says that did not know (or consider) that Mr Mitchell was acting or intending to act for DCT and was 'not aware of any other officer of AOL who held that belief'.[52]
[52] Second Lu affidavit [8].
The plaintiffs, in resisting the application, relied on an affidavit of Mr Mitchell sworn 8 March 2024.

Legal principles

Summary judgment

The principles of summary judgment are well-established.

Summary judgment will only be granted when there is no real question to be tried.[53] In the context of an application brought under O 16 r 1 of the Rules, the defendant bears the legal onus of establishing this.[54]
[53] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
[54] Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424, 74, 757 (Parker J, Owen J agreeing); Gerovich v Gerovich [29] (Pritchard J); BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248 [14] (Smith J).
The power to order summary judgment is one that should be exercised with great care.[55] It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly to be granted.[56]
[55] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [24].
[56] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [24].
Actions should not be disposed of summarily when the facts are in dispute.[57] When there is a conflict on the affidavit evidence, the court should approach the application on the basis that the facts set out in the affidavit(s) of the party resisting the application for summary judgment (in this case, the plaintiffs) will ultimately be accepted.[58]
[57] Webster v Lampard 608; Gerovich v Gerovich [32].
[58] Webster v Lampard 608; Gerovich v Gerovich [32].
Whilst the court may determine any difficult question of law on such an application, usually it will be appropriate to leave the determination of such questions for trial.[59]
[59] SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20]; Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507, 514 - 515; Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1 [36].
Further, although intricacy of a transaction does not necessarily disentitle a party from obtaining summary judgment in a 'very clear case', the nature, extent, and complexity of the range of legal questions raised may be such that the ordinary processes of the court should be followed, and the parties' rights determined at trial.[60]

Section 533 of the Criminal Code

[60] Mondalephous KT Pty Ltd v Transalta Energy (Australia) Pty Ltd [2017] WASCA 176 [121].

Section 533 reads as follows:
533.Secret commission given by third party to person advising another to contract with third party etc.
Whenever any advice is given by one person to another, and such advice is in any way likely or intended to induce or influence the person advised -
(a)to enter into a contract with any third person; or
(b)to appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appointment, of any third person as trustee,
and any valuable consideration is given by such third person to the person giving the advice without the assent of the person advised, the gift or receipt of the valuable consideration shall be a crime, but this section shall not apply when the person giving the advice was, to the knowledge of the person advised, the agent of such third person, or when the valuable consideration was not given in respect of such advice. (emphasis added)
Section 533 forms part of ch LV of the Criminal Code. The chapter is headed 'Corruption of agents, trustees, and others in whom confidence is reposed'.
Chapter LV had its genesis in the Secret Commissions Act 1905 (WA) (WA Secret Commissions Act).
The WA Secret Commissions Act was largely based on the Secret Commissions Prohibition Act 1905 (Vic) (Victorian Act).[61]
[61] Hansard, Legislative Council, Western Australia, 19 December 1905, page 608.
The WA Secret Commissions Act became ch LV of the Criminal Code when it was grafted into the Code in 1913.[62]
[62] Except for s 19 of the WA Secret Commissions Act which was omitted (and which is not presently relevant).
In the second reading speech introducing the bill which would become the WA Secret Commissions Act into the Legislative Council, it was described as a bill 'to avoid double-dealing' and '… a measure against bribery and fraud … not to be feared by any but evil-doers'.[63]
[63] Hansard, Legislative Council, Western Australia, 19 December 1905, page 608.
The clause which would become s 6 of the WA Secret Commissions Act was said to be made for the purpose of 'putting out of court the gift or receipt of a secret commission in return for advice given…'.[64]
[64] Hansard, Legislative Council, Western Australia, 19 December 1905, page 609.
Section 533 of the Criminal Code reads in terms identical to s 6 of the WA Secret Commissions Act save that the word 'crime' now appears in place of 'misdemeanour'.[65]
[65] The amendment was made by s 43 of the Criminal Law Amendment Act 1990 (WA).
Other provisions in ch LV of the Criminal Code include:
(a)section 529, which criminalises corrupt receipt or solicitation of valuable consideration by an agent;
(b)section 530, which criminalises the corrupt giving or offering of valuable consideration to an agent;
(c)section 531, which deems the giving or offering to, or receipt or solicitation by, an associate of an agent to be conduct in contravention of either or both of the preceding sections;
(d)section 532, which criminalises the giving to, or use by, an agent of a false or misleading document with intent to deceive or defraud the principal;
(e)section 534, which criminalises the offering or solicitation of valuable consideration in return for advice given, or to be given, by one person to another:
(i)'with a view' to induce or influence the person advised to contract with person offering or solicited (or to have that person appointed as a trustee); and
(ii)where:
(A)the giving or receipt of the valuable consideration is intended not to be made known to the person advised; and
(B)the person giving the advice is not the agent of the person offering or solicited;
(f)section 535, which criminalises the offering or giving of valuable consideration to, or its receipt or solicitation by, a trustee as an inducement or reward for the appointment of another person as substitute trustee, without the 'assent' of either the persons beneficially entitled to the estate or a judge of the Supreme Court; and
(g)section 543, which for the purposes of ch LV, places on the accused the burden of proving that valuable consideration was not received, solicited, given or offered in contravention of any of the provisions in ch LV, where it is shown that any valuable consideration 'has been' received or solicited by an agent from (or given or offered to any agent by) any person having business relationships with the principal without the 'assent' of the principal.
Section 546 of the Criminal Code relevantly provides that in construing ch LV:
(a)The word agent shall include any corporation or other person acting or having been acting or desirous or intending to act for or on behalf of any corporation or other person, whether as agent … or in any other capacity … .[66]
(b)The words valuable consideration shall include any money, … agreement to give … benefit, or advantage … and any commission … or percentage … or valuable thing; and the acceptance of any of the said things shall be deemed the receipt of a valuable consideration.[67]
(c)The words valuable consideration, when used in connection with the receipt thereof, shall include any acceptance of any agreement, promise, or offer to give, and of any holding out of any expectation of valuable consideration.[68]
(d)The words advice given and words to the like effect shall include every report, certificate, statement, and suggestion intended to influence the person to whom the same may be made or given, and every influence exercised by one person over another.[69] (emphasis added)
[66] Section 546(1).
[67] Section 546(4).
[68] Section 546(6).
[69] Section 546(12).
All the above provisions also read in substantially the same terms as their predecessors in the WA Secret Commissions Act.

Serious question to be tried?

In my view, several questions arise for consideration in the context of the application.
They include the following.
First, does s 533 contemplate a relationship of 'confidence' between the 'advice' giver and 'advice' recipient, where there is at least some capacity for influence by the former over the latter?
Secondly, whether or not s 533 contemplates such a relationship, was any 'advice' which Mr Mitchell may have provided to AOL 'likely or intended' to 'induce or influence' AOL to contract with DCT?
Thirdly, what does 'assent' mean on a proper construction of s 533?
Specifically, is 'assent' possible after 'receipt' of 'valuable consideration'?
Fourthly, if 'assent' is possible after 'receipt', has AOL assented to the receipt by the plaintiffs of any 'valuable consideration' that may be derived in consequence of the Agreement? And, if not, might it yet do so prior to any judgment?
Fifthly, in the context of the first (negative) proviso in s 533,[70] what form of 'knowledge' (of agency) is required on the part of the 'advice' recipient?
[70] '…this section shall not apply when the person giving the advice was, to the knowledge of the person advised, the agent of such third person…'.
In particular, is 'constructive knowledge' sufficient?
Sixthly, and regardless of the form of knowledge which may be required, can it safely be concluded, at this juncture, whether or not AOL knew that Mr Mitchell was acting, or was desirous of or intending to act, on behalf of DCT when he introduced DCT to Mr Lu in January 2020?[71]
[71] Assuming Mr Mitchell was in fact an 'agent' of DCT within the meaning of the Criminal Code s 533 read with s 546(1).
Resolving the questions of statutory construction[72] is not assisted by the dearth of authority relating to s 533 and its interstate analogues.
[72] The first, third and fifth questions.
Nor, in my view, are answers to any of the factual questions[73] manifestly apparent from the evidence presently before the Court.
[73] The second, fourth and sixth questions.
In my view, the above considerations alone support a conclusion that there is not a sufficiently high degree of certainty about the ultimate outcome to justify a grant of summary judgment.
Having said the above I will, in view of the parties' detailed submissions, make preliminary observations regarding some of the points of construction raised at the hearing before addressing the factual questions relevant to them.
I do so without expressing concluded views.

Principles of statutory construction

The fundamental object of statutory construction is to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole.[74]
[74] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [88] (Kiefel J); Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) [1981] HCA 26; (1981) 147 CLR 297, 304, 320 (Mason & Wilson JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; [78] (McHugh, Gummow, Kirby & Hayne JJ).
The principles of statutory construction are well-known and have been stated and restated on numerous occasions by both the High Court and Court of Appeal.
Recently, they were summarised, by reference to leading High Court authorities, by the Court of Appeal as follows:[75]
(a)The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.
(b)The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
(c)The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
(d)The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. (citations omitted)

Relationship involving 'confidence'

[75] Wallis v John Holland Pty Ltd [2024] WASCA 26 [36] - [39] (Buss P, Vaughan JA & Solomon J).

The plaintiffs contend, in effect, that on its proper construction s 533 [only] applies to situations in which the 'advice' recipient reposes 'confidence' in the 'advice' giver.[76]
[76] Plaintiffs' written outline of submissions dated 8 April 2024 (plaintiffs' written submissions), [26].
This, in turn, presupposes a relationship involving 'trust and confidence' between 'advice' receiver and 'advice' giver.[77]
[77] Plaintiffs' written submissions, [31]. See also ts 96 and 99.
The plaintiffs rely on several matters in support of such a construction, including the following.
First, the heading of ch LV which reads: '[c]orruption of agents, trustees, and others in whom confidence is reposed'.[78] (emphasis added)
[78] Plaintiffs' written submissions, [22] - [23].
Secondly, during the second reading speech in the Victorian Legislative Assembly introducing the bill which would become the Victorian Act (examples were given which are not inconsistent with such a construction).[79]
[79] Plaintiffs' written submissions, [25] - [26].
Thirdly, there is a single penalty provision for all offences in ch LV, s 538. This suggests a degree of 'commonality' in the conduct being criminalised by those provisions; namely, interference with relationships of 'trust and confidence'.[80]
[80] Plaintiffs' written submissions, [29] - [31].
Fourthly, the concept of 'inducing or influencing', found in both s 533 and s 546,[81] presupposes such a relationship.[82]
[81] See s 533, where both expressions appear, and s 546(12) (definition of 'advice given') where the expression 'influence' appears.
[82] Plaintiffs' written submissions, [31]. See also ts 96 and 99.
Fifthly, the concept of 'giving advice' also requires there to be such a relationship.[83]
[83] Plaintiffs' written submissions, [31].
Nonetheless, according to the plaintiffs, s 533 does not require there to be confidence 'in the sense of a fiduciary duty'.[84]
[84] ts 96.
DCT, on the other hand, submits there is no ambiguity in s 533 and that the 'natural and ordinary meaning of the words used accurately capture the mischief which the legislation seeks to combat',[85] and words need not be read into the provision.[86]
[85] ts 18.
[86] ts 40.
In my preliminary view, a prior relationship involving 'confidence' is not required on a proper construction of s 533.
I say this for the following reasons.
First, in circumstances where statutory construction both begins and ends with a consideration of the statutory text,[87] primacy must be given to the words actually used within in s 533. The words 'trust and confidence' and 'confidence' do not appear within the operative provision.
[87] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503.
Secondly, the evident purpose of s 533, as drawn from the words of the provision itself, read with the relevant defined expressions, is to criminalise the non-consensual receipt of a financial benefit by a person who gives 'advice' to another, where the 'advice' receiver is 'likely or intended' to be induced or influenced by the 'advice' provided, into contracting with the person who gave the financial benefit to the 'advice' giver.
In my preliminary view, it is unnecessary to infer a pre-existing relationship between the 'advice' giver and 'advice' receiver to give effect to this statutory purpose for at least the following reasons:
(a)the chapeau, of s 533, speaks of advice: (i) given 'by one person to another'; and (ii) which is in 'any way likely or intended to induce or influence the person advised'; (emphasis added)
(b)on its face, the expression referred to in (a)(i) above does not qualify the attributes of either person. Nor does it suggest the need for any pre-existing relationship between them;
(c)on its face, the expression referred to in (a)(ii) above is disjunctive. That is, for the relevant circumstance to be enlivened, the 'advice' must either be likely or intended to induce or influence the other person;
(d)for 'advice' to be 'likely … to induce or influence', there must be a sufficient objective basis to infer that inducement or influence is probable. The existence of a prior relationship may well assist in concluding, objectively, that 'advice' passing from one person is 'likely' to induce or influence the other. However, this is not invariably so. Confidence is also capable of being produced in an instant; including in circumstances where opportunism and naïveté combine;
(e)for 'advice' to be 'intended … to induce or influence', there must be a sufficient basis to infer that the 'advice' giver subjectively intended to do one of those things.[88] However, nothing either on the face of the provision or in common experience suggests that a pre-existing relationship is a prerequisite for the formation of an intention to 'induce or influence' another person.
[88] Absent an admission against interest by direct evidence, a finding as to a person's state of mind will be a matter of inference: Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [169] (Murphy & Beech JJA, Buss P agreeing at [4]); BHP Billiton Ltd v Dunning [2013] NSWCA 421 [51].
Thirdly, although headings of parts, divisions and subdivisions form part of a statute for construction purposes,[89] 'full effect must be given to the enactment' when the enacting words are 'clear and unambiguous'.[90]
[89] Interpretation Act 1984 (WA) s 32(1).
[90] Silk Bros Pty Ltd v State Electricity Commission (Vic) [1943] HCA 2; (1943) 67 CLR 1, 16 (Latham CJ), referring to Bennett v Minister for Public Works (NSW) [1908] HCA 50; (1908) 7 CLR 372, 383.
In my preliminary view the enacting words, reflected in the chapeau of s 533, are 'clear and unambiguous' for the same reasons as are set out in [103] above.[91]
[91] It ought also to be noted that the heading was not part of the WA Secret Commissions Act at the time of its enactment, having been added at the time most of the Act was transposed into what became ch LV of the Criminal Code in 1913.
Fourthly, and also for those same reasons, I do not consider that the concepts of 'inducing or influencing' and of 'giving advice', inherent in s 533 and s 546(12), require s 533 to be construed in a manner requiring the imposition of a pre-existing relationship between 'advice' giver and 'advice' recipient.
Fifthly, there is no suggestion that anything said by any speaker who participated in the second reading debate relating to the proposed Victorian Act was known to either House of the Western Australian Parliament when the draft WA Secret Commissions Act came to be considered.
Accordingly, I consider it doubtful whether anything that may have been said in the Victorian Parliament would be 'capable of assisting' the Court in ascertaining the meaning of s 533.[92]
[92] Interpretation Act 1984 (WA) s 19(1).
Sixthly, I do not consider the circumstance of there being a single offence provision within ch LV to be a persuasive factor in construing s 533 in a manner which appears inconsistent with the ordinary meaning of the words reflected in its text.
In any event, what is likely to matter in this case are the facts.
To the extent DCT asserts that any advice given by Mr Mitchell to Mr Lu was 'in any way likely' to induce or influence AOL, I consider this matter can only properly be determined after oral evidence has been given and tested under cross-examination.

In my view, the above is so whether or not a relationship of 'confidence' is required on a proper construction of s 533.
Having said that, I note that the plaintiffs' pleaded case appears to be premised on Mr Mitchell having agreed to use his 'influence' to introduce DCT to AOL as a recommended haulage contractor to secure haulage contracts for DCT directly with AOL.[93]
[93] Statement of claim, [17], [18(a)] and [18(c)].
Should this premise be proved correct at trial, a reasonable inference may follow that Mr Mitchell (and by necessary implication the plaintiffs) subjectively intended to 'influence' AOL in the ways the plaintiffs' pleading suggests.
However, it is possible that what was intended by the use of the word 'influence', as it appears in the plaintiffs' pleaded case, carries a different meaning to 'influence' in s 533. Intending to 'influence' within the meaning of s 533 may require more than intending to provide a mere recommendation. In other words, it may be that 'influence' in s 533 is a higher bar than what was intended by the plaintiffs' pleading.
Should DCT establish Mr Mitchell subjectively intended to 'influence' AOL, within the meaning of s 533, it may be unnecessary for DCT also to establish that any 'advice' given to AOL was objectively likely to induce or influence AOL.
Nonetheless, in circumstances where DCT currently denies each and every allegation in the relevant paragraphs of the statement of claim,[94] and DCT's s 533 defence is effectively a defence raised in the alternative,[95] it seems to me that evidence would in any event first need to be led, by the plaintiffs, to support the premise upon which their claim apparently rests.

Meaning of 'assent'

[94] Defence, [17] and [18].

[95] Defence, [34A].

The word 'assent' is not defined in the Criminal Code.
According to the Macquarie Dictionary, 'assent' means:
verb (i) 1. (sometimes followed by to) to agree by expressing acquiescence or admitting truth; express agreement or concurrence: to assent to a statement.
- noun 2. agreement, as to a proposal; acquiescence; concurrence. (emphasis added)
However, as with many other words deployed in a statute, the precise meaning of 'assent' depends on its context.[96]
[96] Eg.Crimmins v Stevedoring Committee [1999] HCA 59; 200 CLR 1; 167 ALR 1; 74 ALJR 1 [137] (McHugh J); Molina v Zaknich [2001] WASCA 337 [41] (McKechnie J, Malcom CJ & Templeman J agreeing).
In s 145 of the Canadian Bills of Exchange Act 1906, assent was construed to include 'ratification'. Specifically, the words 'assented to' in that section were:
'apt … to expressly cover not only the use or meaning of the words "consented to" which imply a privity to the act itself, but also … ratification …'[97]
[97] Hébert v Banque Nationale (1908) 40 SCR 458, 481 (Idington J). The provision (which was in terms practically identical to the first sentence of section 69(1) of the Bills of Exchange Act 1909 (Cth)) had read: '[w]here a bill or acceptance is materially altered, without the assent of all parties liable on the bill, the bill is voided, except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers'. Emphasis added.
In my preliminary view it is at least reasonably open to conclude that the word 'assent', in the context of s 533, includes subsequent approval or acquiescence.
I say this for the following reasons.
First, as has been seen from the extract of the Macquarie Dictionary, the ordinary meaning of 'assent' may include 'acquiescence'.
Secondly, the words appearing within s 533 do not on their face suggest that 'assent' must mean either prior consent or contemporaneous concurrence.
Thirdly, unlike 'consent' which appears in more than 20 operative provisions of the Criminal Code, 'assent' appears in only four such provisions. Three of them are within ch LV itself; namely, s 535, s 543 and s 533 itself.
The use of different words within the Criminal Code to express the concept of 'approval' being given to different types of (otherwise) offending conduct lends at least some support, however slight, to a conclusion that different meanings may have been intended.[98]
[98] Cf. King v Jones[1972] HCA 44; (1972) 128 CLR 221, 266 (Gibbs J); Victoria v The Commonwealth [1975] HCA 52; (1975) 134 CLR 338, 374 (Gibbs J), noting the presumption is not a very weighty presumption. See further Rugs-a-Million (WA) Pty Ltd v Walker [2005] WASC 288; Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579, 590.
Fourthly, read together the three provisions in ch LV in which 'assent' appears relevantly contemplate that no crime is committed if 'assent' is given by a beneficiary of a trust,[99] a principal,[100] or an 'advice' recipient.[101]
[99] Section 535.
[100] Section 543 read with any of ss 529, 530 or 531.
[101] Section 533.
At general law, a beneficiary of a trust may release a trustee from an earlier fiduciary breach if the release is freely given without pressure or undue influence, and with the beneficiary's full knowledge of all the circumstances and of their own legal rights and claims against the trustee.[102]
[102] Farrant v Blatchford (1863) 1 De GJ & S 107, 119-120; 46 ER 42, 46-47; Pickering v Smoothpool Nominees Pty Ltd [2001] SASC 387; 81 SASR 175, 200. See further Cassaniti v Ball [2022] NSWCA 161; (2022) 109 NSWLR 348 [97] – A beneficiary can either 'release' one or more specific trustees, or alternatively they can 'adopt, or ratify, or accept' the conduct which was a breach of trust.
So too at general law may a principal, after the event and with full knowledge of the relevant facts, ratify by clear acts of adoption, approval or acquiescence, an unauthorised act by an agent; even if the agent's act involved deceit.[103]
[103] Brockway v Pando [2000] WASCA 192; (2000) 22 WAR 405 [114] – [120] (Malcolm CJ, Kennedy and Murray JJ agreeing). See also O3 Capital Pty ltd v WY Properties Pty Ltd [2016] WASCA 82; (2016) WAR 517 [98].
No reason of policy would seem immediately apparent as to why, despite the general law position, Parliament might have intended to restrict 'approval' given by a beneficiary in relation to certain conduct by a trustee, or by a principal to that of an agent, only to consent or concurrence of the kind referred to in [125] above.
Nor would there seem to me to be any reason of policy to treat, any differently, the position of an 'advice' recipient and 'advice' giver in the context of s 533.
Nor would the evident purpose of either s 533,[104] or ch LV itself, appear to compel such a narrower construction.
[104] See [102] above.
As is clear from the terms of s 533, the absence of 'assent' by an 'advice' recipient is a necessary element of any crime.
DCT, expressly alleges as much.[105] However, a joinder of issue operates with respect to DCT's allegation.[106]
[105] DCT's defence, [34(j)].
[106] See fn. 45 above.
As O 20 r 15(4) of the Rules provides, a joinder of issue:
operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation. (emphasis added)
Accordingly, DCT bears the burden of proving the absence of 'assent'.
If, consistent with my preliminary view, a broader construction of 'assent' was intended, there would seem to me to be a serious question to be tried as to this matter.
In this regard, I note, in particular, that:
(a)the question of 'assent' is not canvassed in either of the affidavits of Mr Lu; and
(b)Mr Lu's position, and that of any other authorised representative(s) of AOL, including Mr Shan, concerning this matter is not presently before the Court.
Nor for that matter is there presently anything before the Court touching on the prospects, if any, of AOL giving its 'assent' at any time prior to judgment (if it has not already done so).
It follows, in my view, that it cannot presently be concluded, let alone to a high degree of certainty, that DCT has established the absence of 'assent' within the meaning of s 533.

Actual or constructive knowledge, agency

According to DCT, a construction that 'knowledge' in the context of s 533 extends to 'constructive knowledge' would be 'inconsistent with the very purpose of criminalising non-disclosure of secret commissions'.[107]
[107] ts 71.
The plaintiffs on the other hand say that 'knowledge', for the purposes of s 533, includes constructive knowledge.[108]
[108] Plaintiffs' written submissions, [33] - [36]; ts 105.
In my preliminary view, a construction in accordance with the plaintiffs' contention is reasonably open.
I say this for the following reasons.
First, as the plaintiffs correctly observe 'knowledge' may in certain circumstances include constructive knowledge.[109]
[109] Plaintiffs' written submissions, [33].
Secondly, there would to me seem to be nothing in the text, context or evident purpose[110] of s 533 to militate against such a construction.
[110] As to which, see [102] above.
Thirdly, the 'knowledge' of which s 533 speaks is that of the 'advice' recipient concerning the existence (or otherwise) of an agency relationship between the 'advice' giver and a third person.
The word 'agent' connotes, at its narrowest, 'an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties'; a broader conception covers 'a person who is able, by virtue of the authority conferred upon [the person], to create or affect legal rights and duties as between another person, who is called [the person's] principal, and third parties'; and a still wider conception is the characterisation of an agent as 'a person who has authority to act on behalf of a principal, either generally on in respect of some particular act or matter'.[111]
[111] Dal Pont, Law of Agency, 4^th edition (2020), [1.2] and the authorities there cited.
Moreover, an agent may bind their principal whether they act with their principal's actual authority (express or implied) or with their ostensible authority.
It is difficult to envisage many circumstances in which an 'advice' receiver might have 'actual' knowledge of any agency relationship between a person seeking to influence or induce them to contract with a third party, and the third party themself, given that it frequently (if not invariably) arises from interactions to which outside parties are not privy.
Such a situation would seem rarer still in the context of conduct said to fall within ch LV, where an 'agent' includes a person '…desirous or intending to act for or on behalf of any … or other person, whether as agent … or in any other capacity…'.[112] (emphasis added)
[112] Criminal Code, s 546(1).
In my preliminary view, the above considerations alone support a conclusion to the effect that 'knowledge', for the purposes of s 533, would likely include constructive knowledge.
Fourthly, the portion of s 533 in which the word 'knowledge' appears is a provision which gives rise to a potential defence to a criminal charge conviction for which carries the risk of imprisonment.
To the extent to which there may be any remaining ambiguity as to the meaning of 'knowledge' in the context of s 533, it should be resolved in favour of the accused.[113]
[113] The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 [52] (Kiefel CJ & Keane J).
In any event, and irrespective of the form of 'knowledge' contemplated by s 533, there would to me appear to be a serious question to be tried as to whether, in fact, AOL did not know that Mr Mitchell was acting, was desirous of acting, or intended to act, on behalf of DCT.
In this regard, the plaintiffs have (without detracting from their denial that s 533 is engaged) foreshadowed pleading a defence to the effect that AOL did in fact have the requisite 'knowledge'.
Although Mr Lu has deposed to affidavit evidence touching on this topic, the issue cannot, in my view, be resolved by the unquestioning acceptance of his evidence, thus depriving the plaintiffs of the opportunity to cross-examine him (and any other AOL witnesses) on contextual matters that may well be relevant to its proper determination.
For the above reasons, I do not consider it can safely be concluded, at this juncture, whether or not AOL knew Mr Mitchell was acting, or was desirous of or intending to act, on behalf of DCT.[114]

Conclusion - serious question to be tried

[114] Criminal Code, s 546(1) - the definition of 'agent' in ch LV includes any corporation or other person desirous or intending to act on behalf of any other person or corporation.

For the reasons which emerge from the above analysis, I consider there to be a serious question to be tried as to whether the right asserted by the plaintiffs to receive a 'royalty' payment from DCT under the alleged Agreement is unenforceable because of s 533 of the Criminal Code.

Leave

By O 16 r 1(1) of the Rules, DCT requires leave because its summary judgment application was not made within 21 days after appearance.
In Diedler v Borowiec,[115] Acting Master Strk (as her Honour then was)summarised as follows the principles that guide the court in deciding whether or not to exercise its discretion in favour of a defendant applying for summary judgment out of time:
(a)The time limit clearly reflects a policy view that such applications should be brought at an early stage in a proceeding, and before too much expense has been incurred.
(b)It is also well established that there are no set guidelines as to when leave to apply for summary judgment out of time will be granted. The court has a broad discretion to grant leave out of time, and the burden is on the applicant to show the delay is justifiable in all of the circumstances.
(c)In deciding whether or not to extend time, it is necessary to have regard to the history of the proceeding, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant and refusal of the application for the extension of time.
(d)The prospects of the application will be relevant. To proceed to trial, with the expense that that may incur, when there is no defence to an action, or where an action pursued by counterclaim has no prospect of succeeding, would of itself be contrary to modern principles of case management. Thus, where an application has some merit, the requirements for leave will not ordinarily be demanding.
(e)Prejudice to the other party occasioned by the delay in bringing the application, will also be relevant.[116]
[115] Diedler v Borowiec [2021] WASC 394.
[116] Diedler v Borowiec [59] - [63] (citations omitted). See also Superline Enterprises Pty Ltd v Palassis Architects (a firm) [2021] WASC 430 [24] (Smith J).
As noted earlier, DCT filed its summary judgment application in January 2024 in circumstances where it had entered its appearance in July 2020.
On any view, the interval between appearance and application was lengthy.
Nonetheless, the application was made with reasonable dispatch after DCT changed solicitors in circumstances where the action itself had not progressed with profound expedition.
Moreover, and putting any question of costs to one side, no obvious prejudice to the plaintiffs would seem readily apparent.
Taken together, O 1 r 4A and O 1 r 4B of the Rules reflect the overarching goal of the court in its civil procedure; namely to ensure that the civil processes of the court are used:
(a)for the fair and just determination of cases; and
(b)in a way which reflects the concept of proportionality, and which does so with efficiency and expedition.
Conduct properly directed at the narrowing of issues is consistent with this overarching goal.
So too is an application for summary judgment which on its face has some merit.[117]
[117] Cf. Lashansky v Legal Practice Board of Western Australia (No 3)[2013] WASCA 260[48].
I consider DCT's application to have satisfied this criterion.
The application also raised matters of potential legal and factual significance which may assist in the narrowing of issues at any trial.
Accordingly, leave will be granted.

Disposition

For the above reasons, I make the following orders:
(a)Pursuant to O 16 r 1(1) of the Rules, the defendant have leave to file its application for summary judgment out of time.
(b)The defendant's application for summary judgment be dismissed.

I will hear from the parties as to the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to the Judge
6 JUNE 2024