Jaytona Pty Ltd v Downer EDI Works Pty Ltd
[2023] WASC 484
•21 DECEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JAYTONA PTY LTD -v- DOWNER EDI WORKS PTY LTD [2023] WASC 484
CORAM: HOWARD J
HEARD: ON THE PAPERS
DELIVERED : 21 DECEMBER 2023
FILE NO/S: CIV 1295 of 2012
BETWEEN: JAYTONA PTY LTD
Plaintiff
AND
DOWNER EDI WORKS PTY LTD
Defendant
SOCLEVER INVESTMENTS PTY LTD
Appellant
Catchwords:
Practice and procedure - Appeal from decision of a Registrar - Applicant sought inspection and copies of certain documents pursuant to O 67B r 16(1)(e) of the Rules of the Supreme Court 1971 (WA) - Registrar allowed access to some documents requested - Where documents are factually relevant to the current proceedings - Where documents are discoverable in the current proceedings - Appeal allowed - Appellant granted access to inspect and copy balance of the documents requested
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
| Appellant | : | No appearance |
Solicitors:
| Plaintiff | : | Barry Nilsson Lawyers (WA) |
| Defendant | : | Tottle Partners |
| Appellant | : | Weeks & Co |
Case(s) referred to in decision(s):
CVW Group Holdings v Addison [2011] WASC 267
Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] [2021] WASC 2010
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2019] WASC 262
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Paul Douglas Nicholson v Morgan [2012] WASC 65
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Vikas Rambal (ATF The Rambal Family Trust) v Pankaj Oswal (ATF The Burrup Trust) [2014] WASC 86
HOWARD J:
There are two proceedings relevant to the appeal dealt with in these reasons.
The first is CIV 1295 of 2012 between Jaytona Pty Ltd (Jaytona) as plaintiff and Downer EDI Works Pty Ltd (Downer) as defendant. Those proceedings, subject to the present appeal, were finalised by agreement on 26 May 2015. I refer to them from here as the Completed Proceedings.
The second is between Soclever Investments Pty Ltd as trustee for the Andrew Tonner Family Trust as plaintiff (Soclever or Appellant) and, relevantly, Jaytona as first defendant and Jaysen Andrew Taylor as second defendant in CIV 2833 of 2019. I refer to these proceedings from here as the Current Proceedings.
The Appellant applied for inspection and copies of certain documents pursuant to O 67B r 16(1)(e) of the Rules of the Supreme Court 1971 (WA) (Rules). The requested documents were all documents in the Completed Proceedings and were either a pleading (as to the vast majority) or two witness statements.
A Registrar granted the Appellant leave to inspect and copy a number of pleadings as requested, but refused the Appellant's application in relation to the witness statements.
The Appellant appeals from that refusal pursuant to O 60A of the Rules which relevantly provides:
4.Appeals from decisions of registrars
(1)A party who is dissatisfied with an order or decision of a registrar may appeal from it.
(2)The appeal must be made to a judge, but a judge may order that it be heard by a master.
…
6.Appeal is by way of new hearing
An appeal from a registrar is to be by way of a new hearing of that matter that was before the registrar.
The grounds of appeal are:
The Registrar erred in refusing to grant the applicant leave to inspect and copy folios 52 and 53 (Witness Statements) in CIV 1295 of 2012 because:
1.it was in the interests of justice, having regard to all of the circumstances, for leave to have been granted and this was so notwithstanding whether the Witness Statements had been read, formally accepted, or tests in, open Court;
2.the Registrar incorrectly applied the test with respect to whether access to the Witness Statements was necessary in the interests of justice by placing undue weight upon whether the Witness Statements had been read, formally accepted, or tests in, open Court, and without having sufficient regard to broader consideration of the interests of justice;
3.there was no factual basis, nor available finding, to support a conclusion that there was a relevant 'real risk of harm' in granting access to the Witness Statements;
4.there was no basis for putting the applicant in a position of disadvantage in having access to the pleadings, but not the Witness Statements, such that it is in the interests of justice that leave be granted.
The orders sought by the Appellant are:
1.On payment of the prescribed fee, the Applicant have leave to inspect and copy folios 52 and 53 in CIV 1295 of 2012.
The relevant principles in such an appeal were stated by Le Miere J in Priority Networking Pty Ltd v Peterson [2018] WASC 36 [27][1] as follows:
The appeal from a registrar to a judge is not a hearing anew as if there had been no hearing before, and decision by, the registrar … The appeal may be on the evidence before the registrar or as supplemented by any further evidence the judge admits. The appeal from a registrar to a judge is a hearing de novo in the sense that the powers of the court on appeal are exercisable and only where the appellant can demonstrate that, having regard to all the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. On an appeal from a registrar the court may exercise its powers regardless of error [17].
[1] From his earlier judgment in CVW Group Holdings v Addison [2011] WASC 267 [17].
Because of the careful set of reasons prepared by the Registrar and the narrowness of the appeal, I have sought to state my reasons in short form in the expectation that they will be read with the Registrar's reasons.
Before the Registrar, Downer did not object to the requested access by the Appellant to any of the documents.
Perhaps more significantly, for present purposes, Jaytona neither consented, nor opposed, the Appellant's application before the Registrar and did not wish to make any submissions.
The position of Jaytona and Downer did not change on this appeal.
In those circumstances, I have determined the appeal on the papers.
By reference to: Paul Douglas Nicholson v Morgan [2012] WASC 65; Vikas Rambal (ATF The Rambal Family Trust) v Pankaj Oswal (ATF The Burrup Trust) [2014] WASC 86; Mineralogy Pty Ltd v Sino Iron Pty Ltd [2019] WASC 262; Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] [2021] WASC 2010, the Registrar, with respect, correctly identified the following principles:
1.where documents sought have been filed by not read the principle of open justice is not engaged at all;
2.the court should only give access to such documents where there are strong grounds for thinking it is necessary in the interests of justice; and
3.caution must be exercised in granting access to documents on a court file that have not been 'deployed' or used in open court.
The two witness statements were filed in the Completed Proceedings on 18 October 2013 on behalf of Jaytona and were of:
1.Jaysen Andrew Taylor (who, as noted, is the second defendant in the Current Proceedings); and
2.Joseph Andrew Tonner.
They were respectively Folios 52 and 53 in the Completed Proceedings.
The witness statements were not 'read' in the Completed Proceedings.
In relation to the documents which the Registrar permitted the Appellant to inspect, she concluded:
[54]… Having considered all of the relevant circumstances, I consider that there are strong grounds for thinking access to the Permitted Documents is necessary in the interests of justice.
…
[56]I consider that it would not be in the interests of justice, having regard to the nature of the Current Proceedings and having reviewed the pleadings in the Completed Proceedings, to deny the Applicant access to the Permitted Documents. To do so would place the Applicant in a position of disadvantage. I am satisfied that the Applicant has a legitimate interest in accessing the Permitted Documents for the purpose of 'collateral investigation' in the Current Proceedings.
[57]Moreover, I do not consider that there is any prejudice to Jaytona in the grant of leave in respect of access to the Permitted Documents. Neither Jaytona or Downer have made any submissions which address the issue of whether there are 'good reasons' to refuse access to the documents. In circumstances were Jaytona and Downer have not been given an opportunity to be heard in the Application, I cannot identify any possible prejudice in the circumstances.
However, in relation to the witness statements, the Registrar stated:
[58]I am not satisfied that there are strong grounds for thinking access to the witness statements of Mr Tonner and Mr Taylor (folios 52 and 53) is necessary in the interests of justice in circumstances where the witness statements have not been read in open court.
[59]A witness statement is not evidence in court until formally received, and may be excluded by the court as irrelevant, objectionable, unfairly prejudicial or otherwise inadmissible. In this regard, I consider that there is a real risk of harm given that the witness statements have not been admitted into evidence and remain untested. In any event, the parties' cases in the Completed Proceedings are set out in the pleadings and I am not satisfied it is necessary in the interests of justice to go beyond the pleadings.
From the reasons as a whole, and particularly the passages quoted above, the Registrar accepted that there was a sufficient overlap of issues in the Completed Proceedings and the Current Proceedings such that it was in the interests of justice for access to the documents be allowed, but not to the witness statements.
Notwithstanding the Registrar's careful and thorough reasons, I have, with respect, come to a different view in relation to the witness statements. I have not done so on the basis of a detected error.
For the reasons that the Registrar gave as to access to the pleadings, I consider that (although I have not inspected them) the witness statements are factually relevant to the Current Proceedings.
Further, the witness statement of Jaysen Andrew Taylor (Folio 52 from the Completed Proceedings) has already been discovered in the Current Proceedings by Jaytona; albeit it has objected to its inspection.
It is not clear why Jaytona has not, by parity of reasoning, also discovered the witness statement of Joseph Andrew Tonner in the Current Proceedings.
As recorded in the Registrar's reasons [48], Jaytona objected to the inspection of the witness statement of Jaysen Andrew Taylor on the basis that it was 'privileged, confidential or otherwise documents the subject to implied undertakings (in Supreme Court action CIV 1295 of 2012)'.
Given the witness statements were filed and served voluntarily by Jaytona in the Completed Proceedings, it is difficult to understand how they might be 'privileged, confidential' or otherwise subject to a Harman obligation in the hands of Jaytona. Indeed, it appears that the claim to non-inspection of the witness statement of Jaysen Andrew Taylor in the Current Proceedings is misconceived.
I consider it relevant that it appears that the witness statements appear to be discoverable in the Current Proceedings, (without there being a proper objection as to their inspection).
It is also of significance that Jaytona, which filed the witness statements in the Completed Proceedings, has not objected and has not sought to be heard before the Registrar or on this appeal.
The Court of Appeal recently distilled the principles on the release from the Harman obligation in Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 and listed the considerations which may be relevant to a release at [74]. That included at [74(g)], 'the likely contribution of the document to achieving justice in another proceeding'; which at [75] the Court of Appeal stated:
… has been recognised as being the most important. There is a public interest in ensuring that all relevant material is before a court to enable it to discharge its function. It has been said that special circumstances will fairly readily be found where it is established that the use of documents discovered in proceedings is reasonably required for the purpose of doing justice between the parties in other proceedings.
While of course this is not an application to be released from a Harman obligation, in my view, there is a strong analogy from the 'special circumstances' under discussion in Murray Riverside and the principle identified by the Registrar that there needed to be 'strong grounds for thinking it necessary in the interests of justice'.
Further, Jaytona is a common party between the Completed Proceedings and the Current Proceedings. And one of the witness statements is that of the second defendant in the Current Proceedings.
In short, as I understand the Registrar's reasons, the witness statements are or may be relevant to and of assistance to both the Appellant and for the Court in the Current Proceedings.
The 'real risk of harm' which the Registrar identified in her reasons [59] seems to me, with respect, to be a matter which can be adequately managed if it eventuates in the Current Proceedings and is not, in my view, sufficient to take away from the other factors favouring access.
Summary
In the broad, it appears to me that all of the reasons which led the Registrar to allow access to the other documents, apply equally and with the same force, to favour the Appellant having access to the witness statements.
As set out above, my reasons in summary to allow access to the witness statements are:
1.they appear relevant to the Current Proceedings;
2.it will allow the Court in the Current Proceedings to have access to all the relevant documents;
3.they are discoverable by Jaytona in any event;
4.Jaytona does not object to access and asserts no prejudice if access is granted; and
5.consequently, I consider there are strong grounds for thinking access to them is in the interests of justice.
Disposition
I would allow the appeal and make the orders sought by the Appellant as quoted above.
In the circumstances where I may exercise the discretion afresh without having to find error on the part of the Registrar, I have not considered in detail the grounds of appeal asserted by the Appellant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
21 DECEMBER 2023
0
6
1