Global Smart Cities Pty Ltd v City of Wanneroo

[2023] WASCA 167

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   GLOBAL SMART CITIES PTY LTD -v- CITY OF WANNEROO [2023] WASCA 167

CORAM:   MITCHELL JA

VAUGHAN JA

HEARD:   24 NOVEMBER 2023

DELIVERED          :   24 NOVEMBER 2023

PUBLISHED           :   27 NOVEMBER 2023

FILE NO/S:   CACV 116 of 2023

BETWEEN:   GLOBAL SMART CITIES PTY LTD

Appellant

AND

CITY OF WANNEROO

First Respondent

MUSCARA HOLDINGS PTY LTD T/AS STREETSIDE ADVERTISING

Second Respondent

CLAUDE OUTDOOR PTY LTD

Third Respondent

NATSALES ADVERTISING PTY LTD

Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   HOWARD J

Citation: GLOBAL SMART CITIES PTY LTD -v- CITY OF WANNEROO [No 3] [2023] WASC 395

File Number            :   CIV 1493 of 2022

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   HOWARD J

Citation: GLOBAL SMART CITIES PTY LTD -v- CITY OF WANNEROO [No 2] [2023] WASC 366

File Number            :   CIV 1493 of 2022

Catchwords:

Appeals - Practice and procedure - Leave to appeal against an interlocutory procedural decision - Where primary orders impose confidentiality regime for the inspection of documents in third party discovery proceedings - Where regime imposed subject to further order of the primary court - Whether any substantial injustice in leaving primary orders undisturbed - Turns on own facts

Legislation:

Supreme Court Act 1935 (WA), s 60(1)(f)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	D H Solomon
First Respondent	:	No appearance
Second Respondent	:	D J Pratt
Third Respondent	:	D J Pratt
Fourth Respondent	:	D J Pratt

Solicitors:

Appellant	:	Solomon Brothers
First Respondent	:	DLA Piper Australia - Perth
Second Respondent	:	McVay Bates & Associates
Third Respondent	:	McVay Bates & Associates
Fourth Respondent	:	McVay Bates & Associates

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

Arvind Pty Ltd v Lamers [2020] WASCA 47

Girgis v Poliwka [2016] WASCA 158

Low v Romaro [2023] WASCA 155

REASONS OF THE COURT:

[These reasons were given extemporaneously and have been edited from the court's record of the decision.]

1. We are considering the appellant's (GSC's) application for leave to appeal against interlocutory procedural orders made in the primary proceedings on 13 October 2023 (Primary Orders). 

The primary proceedings

1. The primary proceedings were an application for pre-action discovery against the first respondent (City).  GSC was unsuccessful in tendering to the City for work involving the supply installation, maintenance and advertising on seats.  The second respondent (Streetside), the third respondent (Claude Outdoor) and the fourth respondent (Natsales) also submitted tenders.  The primary judge referred to Streetside, Claude Outdoor and Natsales collectively as the Interested non-Parties.  The City awarded the contract to Streetside.  GSC sought pre-action discovery in contemplation of commencing proceedings against the City for breach of a tender process contract.

2. The City provided discovery which listed a number of documents over which the Interested non-Parties, who are GSC's competitors, claimed commercial confidentiality (Disputed Documents).  GSC sought orders for inspection of unredacted copies of the Disputed Documents.  The Interested non-Parties sought confidentiality orders which would restrict access to the unredacted Disputed Documents to a limited number of GSC's legal representatives and nominated experts and external advisers.  The City remained neutral in this dispute.

3. The primary judge heard oral submissions as to inspection of the Disputed Documents on 18 September 2023.  At that hearing, the primary judge, with GSC's acquiescence, received clean copies of the Disputed Documents.  On 27 September 2023, the primary judge published reasons in which he concluded that inspection of the Disputed Documents should be subject to a confidentiality regime.[1]  The judge directed the parties to prepare minutes and confer about the form of the orders which should be made.

   [1] Global Smart Cities Pty Ltd v City of Wanneroo [No 2] [2023] WASC 366 (Primary Decision).

4. In response, on 29 September 2023, GSC filed a minute seeking orders that the primary judge disqualify himself from making orders and that the matter be listed before another judge.  GSC submitted that the judge denied it procedural fairness by failing to permit its legal representatives to inspect the Disputed Documents and make submissions as to the confidentiality of the documents before making the Primary Decision.  GSC also contended that a reasonable apprehension of bias would arise if the judge were then to reconsider the issue of inspection, as he had pre-judged the issue in the Primary Decision. 

5. The Interested non-Parties filed a joint minute setting out their proposed confidentiality regime.

6. On 13 October 2023, the primary judge published reasons for making the Primary Orders - those orders establishing a confidentiality regime.[2]  The primary judge concluded that he had not denied GSC procedural fairness in circumstances which included that GSC consented to the procedure adopted by the primary judge.  The primary judge also said that, even if he had denied GSC procedural fairness, GSC had lost nothing as the orders his Honour would make would provide GSC's legal representatives with clean copies of the Disputed Documents and GSC with liberty to apply to the court for a variation of the regime as the matter progressed.[3] 

   [2] Global Smart Cities Pty Ltd v City of Wanneroo [No 3] [2023] WASC 395 (Orders Decision).

   [3] See Orders Decision [20] - [21].

7. Order 1 of the Primary Orders required the City to make available clean copies of the Disputed Documents for inspection by the persons identified in Annexure A to the orders (Annexure A) subject to the inspecting persons complying with the terms of Annexure A.

8. Paragraph 1 of Annexure A in effect provided for the Disputed Documents to be kept confidential and not disclosed save to the extent it is reasonably necessary to refer to their contents in the course of evidence and submissions.  Paragraph 2 provided that, subject to any further order, access to the Disputed Documents be restricted to identified 'Authorised Persons'.  The Authorised Persons did not include GSC's officers but did include:

   (b) subject to each individual first signing an undertaking in the form of the attached undertaking …:

   (i) the external solicitors and counsel for the parties to the [primary] proceedings or any appeal therefrom or fresh proceedings brought against the [City];

9. The confidentiality undertaking required the solicitors and counsel to undertake to the court and the relevant Interested non-Party that, unless the relevant Interested non-Party agrees or the court otherwise orders, they will keep the Disputed Documents confidential including from GSC's officers.  It is clear from the carve-out - ie the proviso 'unless … the court otherwise orders' - that the confidentiality regime is subject to the supervision of the court.  The plain meaning of the undertaking is that an order of the court is sufficient to release the undertaker from the confidentiality requirement without the agreement of the relevant Interested non-Party.

10. Order 6 of the Primary Orders and par 7 of Annexure A provide that the parties have liberty to apply to the court.  The primary judge observed:[4]

    If there is any difficulty in the operation or effect of that order, then the parties can come back before the Court pursuant to the liberty to apply.

    [4] At [49] of the Orders Decision.

11. As previously mentioned, the primary judge had stated earlier that GSC would have liberty to apply to the court for a variation of the confidentiality regime as the matter progressed.[5] 

    [5] See Orders Decision [21].

The appeal to this court

1. The appellant now seeks leave to appeal to this court against the Primary Orders on four grounds.  These are expressed in a prolix manner.  In essence:

   1.Ground 1 contends that the primary judge was subject to a reasonable apprehension of bias when he made the Primary Orders.

   2.Ground 2 contends that the primary judge failed to accord procedural fairness to GSC by making the Primary Decision without giving GSC's legal representatives access to, and an opportunity to make submissions about the confidentiality of, the Disputed Documents.

   3.Ground 3 contends that the primary judge engaged in an inquisitorial process by which his Honour sought to remedy deficiencies in the cases of the Interested non-Parties.

   4.Ground 4 contends that the primary judge made weighting errors in the exercise of the discretion which amount to a failure to properly exercise the discretion, failed to give adequate reasons for the Primary Decision and failed to specify parts of the Disputed Documents to be the subject to the confidentiality regime even though not everything in the documents was confidential.

The requirement for leave to appeal

1. The Primary Orders are interlocutory in character. Leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA).

2. We summarised the general principles governing the grant of leave to appeal from interlocutory procedural decisions in Arvind Pty Ltd v Lamers,[6] and recently repeated that summary in Low v Romaro.[7]  Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed.  Further, as Martin CJ (Newnes and Murphy JJA agreeing) observed in Girgis v Poliwka,[8] there is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the commercial and managed cases list.  That said, the discretion is broad and these considerations are not applied as if they were rigid or exhaustive criteria.  The ultimate touchstone is whether the grant of leave to appeal is in the interests of justice.

   [6] Arvind Pty Ltd v Lamers [2020] WASCA 47 [15] ‑ [17].

   [7] Low v Romaro [2023] WASCA 155 [28] - [30].

   [8] Girgis v Poliwka [2016] WASCA 158 [1].

Disposition

1. Having reviewed the appellant's case, it is not obvious to us that any appellable error was involved in making the Primary Orders.  However, it is unnecessary for us to express any concluded view as to the merit, or lack thereof, in the appellant's grounds of appeal.  That is because, even assuming favourably to GSC that the Primary Orders were wrongly made, there is no substantial injustice in leaving those interlocutory procedural orders undisturbed.

2. GSC submits that it is settled that refusal of an order for pre-action discovery may justify a grant of leave to appeal because of the injustice which may result.[9]  That submission may be accepted.  It has been recognised that an order refusing pre-action discovery may leave an appellant unable to commence proceedings because, without the additional documentation, it may have no adequate evidentiary basis for pleading a claim.  As such, refusal of an application for pre-action discovery may preclude an appellant from asserting its rights.  

   [9] Citing Scanlan v 2-4 McCabe Pty Ltd [2023] WASCA 135 [125] - [126].

3. However, in the present case there has been a grant rather than a refusal of pre-action discovery, and provision for inspection of unredacted copies of the Disputed Documents by GSC's legal representatives.  We do not accept that the confidentiality orders are equivalent to a refusal of pre-action discovery.

4. GSC then submits that:

   The arguably inappropriate imposition of a stringent confidentiality regime which will seriously impede the due exercise by [GSC] of its rights under the Pre-Action Discovery Order and interfere with the due exercise of those rights clearly justifies a grant of leave to appeal against the [Primary] Orders.

5. However, the Primary Orders do not prevent GSC from being placed in a position to make an informed decision about whether to commence the proposed proceedings.  Importantly, the parties including GSC have been given liberty to apply in respect of the confidentiality regime and the required undertaking is to maintain the relevant confidentiality unless the court otherwise orders.  In making the Primary Orders, the primary judge recognised that, if there is any difficulty in the operation or effect of the Orders, then the parties can come back before the court pursuant to the liberty to apply.

6. The appellant submits that liberty to apply could only properly be exercised if there was a material change in circumstances.  However, the requirement for a material change in circumstances would be satisfied by the fact that the appellant's legal representatives had seen the documents.  Counsel for the Interested non-Parties accepts that a change of circumstances is axiomatic in the opportunity to inspect the documents.

7. It may be that, after they review the Disputed Documents, GSC's legal representatives will feel that the confidentiality regime prevents them from properly advising GSC.  After its legal representatives have reviewed the Disputed Documents, GSC may contend that disclosure of particular information to its officers is required to place it in a position to make an informed decision as to whether or not to commence the contemplated proceedings against the City.  If those circumstances arise, then the Primary Orders enable GSC to apply to vary the confidentiality regime. 

8. In doing so, assuming that there was a proper evidentiary foundation for the submission, it would be open to counsel for GSC to submit that the parts of the Disputed Documents required to be disclosed for that purpose are not confidential in nature.  It would also be open to counsel for GSC to submit that the interests of justice favour disclosure of that necessary information even though it may be commercially confidential in nature.  Nothing in the Primary Orders prevents GSC from adopting that course and counsel making submissions of that kind.  The court would then be in a position to reconsider the question of inspection in light of submissions directed to a concrete problem which has actually arisen. 

9. In reconsidering the issue, the court could have regard to the particular extent of disclosure to GSC's officers said to be necessary to place GSC in a position to make an informed decision about whether to institute the contemplated proceedings.  The court could focus on the confidentiality, or lack thereof, of that particular information and why disclosure of that information is necessary to place GSC in a position to make an informed decision.

10. The foregoing assumes that the confidentiality regime either prevents GSC's legal representatives from properly advising GSC or prevents GSC making a properly informed decision on whether or not to commence proceedings against the City.  It may not do either of those things.  Whether in fact there is, or is likely to be, such a difficulty is something that will only emerge from inspection.  The legal representatives for GSC have chosen not to inspect and have instead sought leave to appeal.  It is difficult to understand why this course has been taken.  It can only be inferred that GSC's legal representatives assume a practical difficulty will arise.  There may or may not be such a difficulty; and, in any event, if there is a difficulty, it may be overcome by a further application to the General Division.  In such circumstances the interests of justice are not served by the fragmentation associated with an interlocutory appeal.  Nor is an interlocutory appeal consistent with the goal and objects enshrined in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).

11. We do not accept the appellant's submission that the court should adjourn the application for leave to appeal to enable the appellant to develop further submissions in support of leave.  The appellant made written submissions on the question of leave to appeal in its appellant's case.  All appellants seeking leave to appeal from interlocutory decisions must fully develop their case for leave to appeal in their appellant's case.  The question of leave is no mere procedural nicety.  It requires proper consideration in commencing and presenting any appeal against any interlocutory order.   The appellant was notified by the registrar's notice to attend that the court would consider the application for leave to appeal today, and has had a sufficient opportunity to advance written and oral submissions on that question.

12. In the circumstances, no substantial injustice arises from leaving the Primary Orders undisturbed even assuming that they were incorrectly made.  Nor is it in the interests of justice to grant leave to appeal.  The application for leave to appeal must be refused and the appeal must be dismissed.

Orders

1. For these reasons, the court unanimously makes the following orders:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.

   3.The appellant is to pay the second respondent's, third respondent's and fourth respondent's costs of the appeal to be assessed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RL

Associate to the Honourable Justice Mitchell

27 NOVEMBER 2023