Global Smart Cities Pty Ltd v City of Wanneroo [No 4] - [2025] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GLOBAL SMART CITIES PTY LTD -v- CITY OF WANNEROO [No 4] [2025] WASC 63
CORAM:   HOWARD J
HEARD:   26 FEBRUARY 2025
DELIVERED          :   26 FEBRUARY 2025
PUBLISHED           :   5 MARCH 2025
FILE NO/S:   CIV 1493 of 2022
BETWEEN:   GLOBAL SMART CITIES PTY LTD
Plaintiff

AND

CITY OF WANNEROO
Defendant

Catchwords:

Practice and procedure - Application under O 3 r 5(2) of the Rules of the Supreme Court 1971 (WA) - Whether to extend Orders made in October 2023 - Where Orders previously made dealt with the costs of pre-action discovery - Application dismissed.

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr D H Solomon
Defendant	:	Mr S D Hubbard

Solicitors:

Plaintiff	:	Solomon Brothers
Defendant	:	DLA Piper

Cases referred to in decision(s):

Global Smart Cities v City of Wanneroo [2023] WASC 174
Global Smart Cities v City of Wanneroo [2023] WASCA 167
Global Smart Cities v City of Wanneroo [No 2] [2023] WASC 366
Global Smart Cities v City of Wanneroo [No 3] [2023] WASC 395
Kelbush v ANZ [2016] WASCA 14 (S)

HOWARD J:

(This judgment was delivered extemporaneously on 26 February 2025 and has been lightly edited from the transcript)

Introduction

This is an application which has been brought by the plaintiff's minute of proposed orders on 15 January 2025, pursuant to O 3 r 5(2) of the Rules of the Supreme Court 1971 (WA) (Rules).
It is supported by the affidavit of Leonard Colin Luxford made 10 January 2025 and filed 15 January 2025.
The plaintiff filed submissions on 14 February 2025 and the defendant filed responsive submissions on 21 February 2025.

Procedural history

The procedural history to this matter is contained within the decision of the Master in Global Smart Cities v City of Wanneroo [2023] WASC 174, and by my decisions in Global Smart Cities v City of Wanneroo [No 2] [2023] WASC 366 and Global Smart Cities v City of Wanneroo [No 3] [2023] WASC 395. These reasons should be read with my earlier reasons.
The Orders which are relevant to today's application, as identified by the plaintiff, are Orders 5 and 6 made by the Master on 2 September 2022 and Order 2 that I made on 13 October 2023.
What has occurred since I made that Order includes:
1.there was an appeal heard and dismissed in the decision of Global Smart Cities v City of Wanneroo [2023] WASCA 167 from the earlier orders that I made; and
2.it is common ground that the Disputed Documents as defined in my earlier decisions were supplied to the plaintiff's solicitors by no later than 27 November 2023.
The plaintiff sets out, in paragraphs 6 to 8 of its submissions filed 14 February 2025, other matters which, from the evidence, it says have occurred since the making of my orders on 13 October 2023.
I accept (as per paragraph 6 of the plaintiff's submissions) that the plaintiff considers it needs to retain an expert to assist in its decision as to whether to commence substantive proceedings or not.
That need for expertise, outside of the plaintiff and outside of its solicitors, has been a common and repeated submission on the part of the plaintiff, at least for the time the matter has been before me.
The question, on the plaintiff's application, is really whether the Order I made, which extended the time in which if the plaintiff commenced proceedings it was not to pay the City's costs of the pre‑action application and production, should be further extended.
Counsel for the plaintiff nominated a period at or about the end of December 2023 as to when Order 2 that I made on 13 October 2023 would have expired. Whether it is late December 2023 or early January 2024, is neither here nor there.
I accept, as the plaintiff has submitted, that O 3 r 5(2) of the Rules contains a very broad power, and I accept the submission that I have power to extend the date in Order 2. There may be a nice question as to whether that would need to be extended before it had expired on some nunc pro tunc basis, but that is not a significant matter for these reasons.
I accept, further, the remedial intention of O 3 r 5(2) of the Rules, and how that should govern, in part, the exercise of the discretion.
The decision of the Court of Appeal in the supplementary reasons in Kelbush v ANZ [2016] WASCA 14 (S) at [2] - [4] seems to me to provide further guidance for the exercise of the discretion.
That is, firstly, the starting position is that pre-action discovery is an indulgence, and the applicant for that indulgence should pay the respondent's costs of the application and the costs of complying with the order made.
Secondly, that the obligation to pay costs should not be deferred indefinitely merely because proceedings are subsequently commenced by the applicant against the respondent.
As the plaintiff's counsel correctly identifies, the judgment of the Chief Justice for the Court of Appeal identifies that there may be reasons why those two principles would not apply.
What the Chief Justice identified in [3] of that judgment was a mechanism which would allow the applicant for pre-action discovery to commence proceedings and then have the costs of the pre‑action discovery determined in the (later) substantive proceedings.
I consider, in making his Orders 5 and 6, the Master recognised and adapted that mechanism but also sought to give effect to the statements of principle in [2] of the Chief Justice's reasons that the obligation should not be deferred indefinitely.
The Master made Order 6, which is now commonly made in these actions. The idea being that these matters should be addressed promptly, and the question of costs not left to hang indefinitely, as the Chief Justice might have said.
Order 2 I made on 13 October 2023 sought to extend that to a definable or knowable date to give effect to Order 6, as made by the Master, in light of the confidentiality regime which I considered should be imposed.
The question is whether it should be extended by more than a year from its initial operation. In all of the circumstances, I consider that it should not be extended.
The question of the appointment of an expert has been in the plaintiff's mind throughout the time that the proceedings have been in front of me, and there has been an ability on the part of the plaintiff to either approach the Court, after conferring with the defendant, or to seek to extend that time period before now. As the plaintiff's counsel identifies, that was not done by the plaintiff until November 2024.
There is an explanation for the delay in Mr Luxford's affidavit. I take that explanation at its face.
What appears to be plain is that there has been a holding-off by the plaintiff while it sought information from unrelated tenders. I do not think that weighs in favour of the exercise of the discretion.
And Mr Luxford deposes, over the last six months or so, to have been busy with work and also travelling for work. Again, I do not think those matters, while they may be accepted, necessarily weigh significantly in favour of the exercise of the discretion.
It seems to me that the plaintiff has not taken advantage of the time that was extended by my Order, and it seems to me in the interests of justice that that time period ought not to be further extended. So I dismiss the application made by the plaintiff in its minute of proposed orders dated 15 January 2025.
At the conclusion of my reasons, the plaintiff sought orders to provide for a 'mechanism' it says was required by [3] of the Chief Justice's reasons in Kelbush. Such an application was not made before that oral agitation. It would involve a revisiting of the Master's Orders made in September 2022. It seemed to me I should only decide the application made 15 January 2025, and not further revisit the Master's Orders.

Orders

At the conclusion of the hearing, I made the following orders:
1.the dismissal of the plaintiff's application of 15 January 2025; and
2.the plaintiff to pay the defendant's costs of the application, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
5 MARCH 2025