Jebb v Superior Lawns Australia Pty Ltd - [2018] WASCA 123

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JEBB as trustee for TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [2018] WASCA 123
CORAM:   MITCHELL JA
BEECH JA

HEARD:   17 JULY 2018
DELIVERED          :   17 JULY 2018
PUBLISHED           :   19 JULY 2018
FILE NO/S:   CACV 58 of 2018
BETWEEN:   PATRICK GERARD GLADWYN JEBB as trustee for TRAFALGAR WEST INVESTMENTS TRUST
Appellant
AND
SUPERIOR LAWNS AUSTRALIA PTY LTD (ACN 008 798 007)
First Respondent
KINGSLEY CRAIG FLUGGE
Second Respondent
MARGARET FLUGGE
Third Respondent
JEROME MATTHEW FLUGGE
Fourth Respondent
LINLEY FLUGGE
Fifth Respondent
DAMIEN CRAIG FLUGGE
Sixth Respondent
TRAFALGAR WEST INVESTMENTS PTY LTD ( IN LIQUIDATION)
Seventh Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: PATRICK GERARD GLADWYN JEBB as trustee of the TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [2018] WASC 166
File Number             :   CIV 1704 of 2018

Catchwords:

Corporations - Practice and procedure - Power of the court to grant interlocutory relief pending determination of the appeal - Whether power extends to order that related proceedings be removed from the Inactive Cases List in order to protect the effective exercise of the court's appellate jurisdiction - Whether appropriate in the circumstances for an order to be made

Legislation:

Corporations Act 2001 (Cth), s 232, s 233, s 234, s 1337B(2)
Rules of the Supreme Court 1971 (WA), O4A r 27, O4A r 28

Result:

Application dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	Mr M L Bennett
Second Respondent	:	Mr M L Bennett
Third Respondent	:	Mr M L Bennett
Fourth Respondent	:	Mr M L Bennett
Fifth Respondent	:	Mr M L Bennett
Sixth Respondent	:	Mr M L Bennett
Seventh Respondent	:	No appearance

Solicitors:

Appellant	:	Jebb Legal
First Respondent	:	Bennett + Co
Second Respondent	:	Bennett + Co
Third Respondent	:	Bennett + Co
Fourth Respondent	:	Bennett + Co
Fifth Respondent	:	Bennett + Co
Sixth Respondent	:	Bennett + Co
Seventh Respondent	:	Not applicable

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

Ardrey v The State of Western Australia (No 2) [2017] WASCA 41
Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335
Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335 (S)
Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Re Wakim; ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Rosebridge Nominees Pty Ltd (in Liq) v Commonwealth Bank of Australia [2018] WASCA 112
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261
Tait v The Queen (1962) 108 CLR 620
Timar v The Minister for Justice and Customs [2001] FCA 295
Trafalgar West Investments Pty Ltd v LCM Litigation Management Pty Ltd [2016] WASC 159
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 12) [2016] WASC 216
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2012] WASC 169
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2013] WASC 143
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 3) [2013] WASC 150
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 7) [2015] WASC 280
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 8) [2016] WASC 34
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [2011] WASC 171
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [2011] WASC 92
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [2012] WASC 460
Trafalgar West Investments Pty Ltd v Superior Lawns Pty Ltd (No 9) [2016] WASC 68
Williams v Minister for the Environment and Heritage [2003] FCA 627; (2003) 199 ALR 352

REASONS OF THE COURT:

Introduction

This is an appeal from the decision of Kenneth Martin J (the primary judge) made on 1 June 2018 in CIV 1704 of 2018 (Primary Proceedings). That decision was to dismiss the appellant's (Mr Jebb's) application to be substituted as plaintiff in related proceedings pending in the General Division of this court, COR 59 of 2011 (Oppression Proceedings).
In the Oppression Proceedings, Trafalgar makes a statutory oppression claim under pt 2F.1 of the Corporations Act 2001 (Cth) in relation to the affairs of the first respondent (Superior Lawns). The Oppression Proceedings are currently on the Inactive Cases List.
The seventh respondent (Trafalgar) is the current plaintiff in the Oppression Proceedings, and is currently in liquidation. Through its liquidators, Trafalgar consented to leave being granted in the Primary Proceedings for the application to proceed against it. In the Primary Proceedings, Trafalgar indicated its support for the substitution of Mr Jebb as plaintiff in the Oppression Proceedings.[1] Trafalgar has filed a notice of its intention not to take part in the appeal.
[1] Jebb v Superior Lawns Australia Pty Ltd [2018] WASC 166 (Primary decision) [5].
The first to sixth respondents are defendants in the Oppression Proceedings.

Current applications

On 17 July 2018, three applications in the appeal were listed for hearing:
(1)The first to sixth respondents' application in an appeal filed on 14 June 2018, seeking an order that Mr Jebb pay $40,000 into court as security for their costs in the appeal;
(2)Mr Jebb's application in an appeal filed on 18 June 2018, seeking an order that the Oppression Proceedings be removed from the Inactive Cases List.
(3)Mr Jebb's application in an appeal filed on 5 July 2018, seeking leave to rely on an affidavit of Mr Jebb sworn on 4 July 2018.
After hearing submissions on Mr Jebb's application for an order that the Oppression Proceedings be removed from the Inactive Cases List, we made the following orders in the appeal:
(1)The appellant's application in an appeal filed on 18 June 2018 is dismissed.
(2)The appeal is dismissed.
(3) The appellant is to pay the first to sixth respondents' costs of the appeal, to be assessed if not agreed, such costs to include the costs of all applications in the appeal.
What follows are our reasons for making those orders. In broad summary, we were satisfied that the court has power under O4A r 27(2) of the Rules of the Supreme Court 1971 (WA) (Rules) to order that the Oppression Proceedings be removed from the Inactive Cases List, in order to protect the effective exercise of this court's jurisdiction to determine the appeal. However, we were not satisfied that the court should exercise that power in all of the circumstances of the present case. That was primarily because we were not satisfied on the evidence that, if substituted as plaintiff, Mr Jebb has the capacity to bring the Oppression Proceedings to trial in a timely way. We therefore dismissed Mr Jebb's application in an appeal filed on 18 June 2018. Mr Jebb then sought an order dismissing the appeal on the basis that it would shortly be rendered nugatory. The first to sixth respondents consented to the dismissal of the appeal.

Uncontentious background facts

The following are background facts, which we do not understand to be controversial in this appeal. Generally, the facts are drawn from the record of this court, particularly as reflected in the many judgments of the court which have been published in the Primary Proceedings and related proceedings.
Mr Jebb claims that, on 8 September 2005, he started working as a director of Superior Lawns and, for 3 years, received no remuneration in return for Trafalgar receiving an allotment of shares in Superior Lawns.[2] Trafalgar held the shares in Superior Lawns as trustee for the Trafalgar West Investments Trust (Trafalgar Trust). Trafalgar was controlled by Mr Jebb, who was the sole director and company secretary of, and is 50% shareholder of, Trafalgar. Mr Jebb is the appointor of the Trafalgar Trust.
[2] Affidavit of Patrick Gerard Gladwyn Jebb sworn 22 June 2018 (Second Jebb Affidavit), par 8. The first to sixth respondents objected to this paragraph of the Second Jebb Affidavit, however the paragraph is clearly admissible at least so far as it evidences a claim made by Mr Jebb.
On 18 March 2011, the third respondent, in her capacity as Company Secretary of Superior Lawns, wrote to Trafalgar indicating that the board of that company had resolved to raise additional working capital by way of a pro-rata rights issue. Trafalgar was offered the opportunity to subscribe for 3 million shares at an issue price of 10 cents per share, on that basis that Trafalgar held 30% of the shares in Superior Lawns.[3] At that time, Trafalgar held 345 ordinary shares and one D class share in Superior Lawns.[4] Obviously, if Trafalgar did not take up the rights issue and other members of the company did, the value of Trafalgar's shareholding (as a proportion of the total shareholding in Superior Lawns) would be very significantly diluted.
[3] The letter appears as annexure PGJ 10 to the affidavit of Patrick Gerard Gladwyn Jebb sworn 18 June 2018 (First Jebb Affidavit).
[4] See the register of members of Superior Lawns, which is annexure PGJ 1 to the First Jebb Affidavit.
On 24 March 2011, Trafalgar commenced the Oppression Proceedings in the General Division of this court.[5] On 25 March 2011, EM Heenan J granted an interim injunction. The interim injunction restrained Superior Lawns, until further order, from proceeding with, and accepting any moneys in respect of, the rights issue proposed in its notice to shareholders dated 18 March 2011.[6]
[5] Primary decision sch A.
[6] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [2011] WASC 92.
On 15 April 2009, Mr Jebb resigned as a director of Superior Lawns.[7]
[7] Second Jebb Affidavit, par 30; Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 7) [2015] WASC 280 [29].
On 21 April 2011, the primary judge made an order discharging the interim injunction granted by EM Heenan J, subject to an undertaking being provided by Superior Lawns. An undertaking was subsequently provided. Superior Lawns relevantly undertook: [8]
(1)to inform Trafalgar, within 7 days of the rights issue being completed, of the identity of persons who are issued shares pursuant to the rights issue;
(2)not to discharge so much of certain loan accounts, specified in an affidavit of Mr Jebb, following receipt of funds pursuant to the rights issue; and
(3)not to declare or pay any dividend on any shares issued pursuant to the rights issue until further order of the court.
The primary judge published reasons explaining why he would discharge the interim injunction on receipt of such an undertaking.[9] It appears that the undertaking remains in force.
[8] The order of the primary judge and the undertaking respectively appear at annexures PGJ 11 and PGJ 12 of the First Jebb Affidavit.
[9] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [2011] WASC 171.
On 25 May 2011, Superior Lawns advised Trafalgar that the second and third respondents, as trustees for the Jacaranda Trust, applied for 3,495,652 shares in Superior Lawns on 3 May 2011. The letter indicated that the share subscription was partly funded in cash and partly by converting a loan provided by the third respondent.[10] The effect of the issue of these shares was to dilute the shareholding of Trafalgar (which did not take up the rights issue) in Superior Lawns from 30% to about 0.01%.[11]
[10] The letter appears at annexure PGJ 13 to the First Jebb Affidavit.
[11] That is the extent of Trafalgar's holding revealed in the company extract for Superior Lawns dated 28 October 2016, which is annexure PGJ 2 to the First Jebb Affidavit.
Trafalgar's claim in the Oppression Proceedings is for orders under s 233 of the Corporations Act, essentially seeking a repurchase of its shares by Superior Lawns. The primary judge has frequently described the complexity of the claim. In broad terms it concerns what the primary judge has described as two distinct 'baskets' of statutory oppression grievances:[12]
A first 'basket' of statutory oppression grievances concerns wrongs alleged to have been directly perpetrated by one or other of the defendants against Trafalgar, qua that corporation being a minority shareholder in Superior Lawns (initially a 20% shareholder from 16 June 2006, but later rising to become a 30% shareholder from 16 December 2008, before the contentious rights issue of 2011 saw Trafalgar's proportionate shareholding in Superior Lawns diminish to an infinitesimal level).
…
The second 'basket' of oppression grievances articulated by Trafalgar … seeks to complain of derivative, or quasi-derivative, wrongs which Trafalgar would seek to ventilate at a trial, in effect, as the causes of action of Superior Lawns which are directed against various defendants. This is done only in a context of Trafalgar seeking the end relief under s 232/s 233 of the Corporations Act of a court ordered compulsory acquisition order against the defendants for its minority shareholders in Superior Lawns at a 'buy-out' price fixed by the court. These derivative grievances are directed at having the assessed value of the assets of Superior Lawns increased - to take account of the value of such factors, thereby, it would be hoped, pushing up the value of Superior Lawns shares for the purposes of the compulsory 'buy out' relief sought under s 232/s 233, if Trafalgar wins and gets that far.
[12] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 7) [2015] WASC 280 [28], [30].
On 26 October 2011, Mr Jebb, acting as appointor of the Trafalgar Trust, substituted himself as trustee of the Trafalgar Trust.[13] On 8 December 2011, a share transfer form was signed by Mr Jebb on Trafalgar's behalf, and on 9 January 2012, Trafalgar was removed and Mr Jebb included as the holder of the shares on Superior Lawns' share register.[14]
[13] Primary decision, sch A.
[14] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2012] WASC 169 [28].
In 2011 and 2012, Mr Jebb applied to be substituted as a plaintiff in the Oppression Proceedings. The primary judge explained Mr Jebb's motivation in seeking to become plaintiff as seeking to resolve the following problem faced by Trafalgar: Trafalgar could not afford legal representation but was required, by O4 r 3(2) of the Rules, to have legal representation.[15]
[15] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2012] WASC 169 [6].
In dealing with the second substitution application on 29 May 2012, the primary judge expressed the view that, in order to maintain the Oppression Proceedings, it was necessary for the plaintiff to be a member of Superior Lawns both at the time the proceedings were commenced and at the time they were determined.[16] Trafalgar's loss of status as a member of Superior Lawns meant that it could not maintain the Oppression Proceedings, which were then stayed.[17] The primary judge refused to substitute Mr Jebb as plaintiff, essentially on the ground that it would be pointless to do so as he was not a member of Superior Lawns at the time that the Oppression Proceedings were commenced.[18]
[16] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2012] WASC 169 esp at [63].
[17] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2012] WASC 169 esp at [60].
[18] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2012] WASC 169 esp at [62] - [65].
Mr Jebb then took steps to reappoint Trafalgar as trustee of the Trafalgar Trust, and to have Trafalgar entered as the holder of the shares on Superior Lawns' share register. On 30 November 2012, after a contested hearing, the primary judge found that Superior Lawns was not entitled to refuse to re-register Trafalgar as a member of Superior Lawns.[19]
[19] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [2012] WASC 460.
On 29 April 2013, again following a contested hearing, the primary judge ruled that, since Trafalgar had been re-registered as a member of Superior Lawns, it could continue to pursue the Oppression Proceedings.[20]
[20] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 2) [2013] WASC 143.
Also on 29 April 2013, the primary judge decided that the first to sixth respondents' application for security for costs should be granted in the amount of $150,000, to be paid in three tranches.[21] On 25 June 2013, orders were made to that effect, with the first tranche of $32,648 being payable by 17 June 2013. The orders provided that the proceedings remained stayed pending provision of the first tranche of the security.[22] Trafalgar did not pay the first tranche of the security until 12 September 2013, following the making of a springing order on 17 July 2013.[23]
[21] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 3) [2013] WASC 150.
[22] The orders appear at annexure AJT 4 to the affidavit of Alexander James Tharby affirmed on 14 June 2018 (First Tharby Affidavit).
[23] Primary decision sch A.
The Oppression Proceedings were active, to some extent, between December 2013 and November 2015, during which time Trafalgar received litigation funding from LCM Litigation Fund Pty Ltd (LCM).
On 21 November 2014, consent orders were made uplifting the security for costs in the Oppression Proceedings to $350,000, with:[24]
(1)the amount of the first tranche being increased to $60,000 (the balance of which was paid on 27 November 2014);
(2)the amount of the second tranche being $100,000, due within 7 days of the close of discovery and inspection; and
(3)the balance of $190,000 being due within 14 days after entry for trial.
[24] The orders are reproduced at annexure AJT 5 to the First Tharby Affidavit.
On 8 October 2015, LCM terminated Trafalgar's litigation funding agreement.[25]
[25] Primary decision sch A; Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 8) [2016] WASC 34 [13], [33].
Discovery and inspection of documents in the Oppression Proceedings was completed on 19 November 2015. The second tranche of security for costs was due on 26 November 2015. The second tranche was not paid on that date, with the result that the Oppression Proceedings were again stayed.[26]
[26] Primary decision sch A; Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd(No 8) [2016] WASC 34.
On 24 November 2015, Trafalgar's solicitors, Corrs Chambers Westgarth, terminated its retainer with Trafalgar. On 4 December 2015, Mr Jebb filed a notice of change of solicitor indicating that Jebb Legal (which is the trading name of a business carried on by Mr Jebb as a sole practitioner) represented Trafalgar.[27]
[27] Primary decision sch A.
In January 2016, Trafalgar commenced proceedings against LCM. Trafalgar contended that, notwithstanding the termination of the litigation funding agreement, LCM remained liable to pay the second and third tranches of security for costs. Those proceedings were dismissed on 26 May 2016, essentially on the basis that the obligation to satisfy the requirement for security for costs did not survive termination of the litigation funding agreement.[28] Trafalgar was ordered to pay LCM's costs of those proceedings, which were subsequently taxed in the amount of $31,000.[29]
[28] Trafalgar West Investments Pty Ltd v LCM Litigation Management Pty Ltd [2016] WASC 159.
[29] On 21 September 2016: see Primary decision sch A.

On 30 May 2016, following the making of a springing order,[30] the $100,000 second tranche of security for costs was paid into court.[31]
[30] See Trafalgar West Investments Pty Ltd v Superior Lawns Pty Ltd (No 9) [2016] WASC 68, and the order of 8 April 2016 which is annexure AJT 6 to the First Tharby Affidavit.
[31] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 12) [2016] WASC 216 [1]; Para 11.8 of the First Tharby Affidavit.
On 19 July 2016, the primary judge issued an injunction restraining Mr Jebb and Jebb Legal from acting as solicitors for Trafalgar, on conflict of interest grounds.[32] The primary judge has observed that the Oppression Proceedings have not been effectively progressed since that date.[33]
[32] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd(No 12) [2016] WASC 216.
[33] Primary decision [81].
On 16 August 2016, Zafara Legal went on record as solicitors for Trafalgar in the Oppression Proceedings.[34]
[34] See the letter at AJT 20 to the affidavit of Alexander James Tharby affirmed on 29 June 2018 (Second Tharby Affidavit); Primary decision [83].
On 4 November 2016, LCM issued a statutory demand for its taxed costs of the proceedings referred to at [27] above. On 8 December 2016, LCM advised Trafalgar that it intended to apply to wind up Trafalgar for failure to comply with the statutory demand.[35]
[35] Primary decision sch A.
In December 2016, Trafalgar resigned as trustee of the Trafalgar Trust, and Mr Jebb was again appointed in its place. On 8 February 2017, the members of Trafalgar (Mr Jebb and his former wife) resolved to wind up Trafalgar and appoint liquidators.[36]
[36] Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335 [20] - [26]; Primary decision [85], sch A.
On 2 February 2017, Mr Jebb commenced CIV 1179 of 2017 (Vesting Order Proceedings), seeking vesting orders in respect of the shares in Superior Lawns held by Trafalgar. On 20 November 2017, the primary judge, at the invitation of the parties, gave reasons in the Vesting Order Proceedings which explored the impact that the proposed vesting orders would have on the Oppression Proceedings. The primary judge indicated that he was prepared to make the vesting orders, but that the proposed application to substitute Mr Jebb as plaintiff in the Oppression Proceedings would likely be refused. This was on the basis that Mr Jebb would not have standing to continue the Oppression Proceedings, as he was not a member of Superior Lawns at the date that those proceedings were commenced. Further, the primary judge expressed the view that the effect of the proposed vesting order would be to immediately non-suit Trafalgar, because it would no longer be a member of Superior Lawns.[37]
[37] Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335.
On 14 February 2018, the primary judge made an order in the Vesting Order Proceedings that the shares in Superior Lawns, held by Trafalgar as trustee for the Trafalgar Trust, be vested in Mr Jebb as trustee for the Trafalgar Trust.[38]
[38] Primary decision [38]. A copy of the order appears at annexure AJT 32 to the Second Tharby Affidavit.
On 18 January 2018, the primary judge ordered that the Oppression Proceedings be placed on the Inactive Cases List.[39] The Principal Registrar gave the parties notice of that fact and of the effect of O 4A r 28 of the Rules on the same day.[40]
[39] The order appears at annexure AJT 29 to the Second Tharby Affidavit.
[40] The notice appears at annexure AJT 31 to the Second Tharby Affidavit.
On 23 February 2018, Trafalgar ceased to be, and Mr Jebb became, recorded on Superior Lawn's register of members as the holder of the shares.[41]
[41] Primary decision [37].
On 28 March 2018, Mr Jebb wrote to the primary judge's associate requesting that the Oppression Proceedings be removed from the Inactive Cases List.[42] On the same day, the solicitors for the first to sixth respondents wrote to the court opposing the request, on grounds including that, as Mr Jebb was not a party to the Oppression Proceedings, his letter did not properly invoke the jurisdiction of the court.[43]
[42] The request appears at annexure AJT 35 to the Second Tharby Affidavit.
[43] This response appears at annexure AJT 37 to the Second Tharby Affidavit.
On 29 March 2018, the primary judge's associate emailed the parties indicating that, in light of the first to sixth respondents' opposition, it was not appropriate to proceed informally.[44] The email advised:
[I]t will be necessary for there to be an application made to the Court by a party conformable with RSC Order 4A rule 26(1)(a) and rule 27(1), in order for his Honour to programme, hear and ultimately determine any such application for removal from the Inactive Cases List.
[44] The email appears at annexure AJT 38 to the Second Tharby Affidavit.
On 6 April 2018, Mr Jebb, as trustee for the Trafalgar Trust, filed a chamber summons in the Oppression Proceedings, seeking an order that the proceedings be removed from the Inactive Cases List.[45]
[45] The Chamber Summons is reproduced at annexure PGJ 7 to the First Jebb Affidavit and annexure AJT 39 to the Second Tharby Affidavit.
On 20 April 2018, there was a brief contested hearing of that chamber summons. In subsequent reasons, the primary judge characterised this chamber summons as seeking to have Mr Jebb substituted as plaintiff in the Primary Proceedings. The primary judge observed that, given that the Oppression Proceedings were on the Inactive Cases List, this course was misconceived even for a party to the Oppression Proceedings, let alone for a non-party such as Mr Jebb.[46] The orders made at the hearing on 20 April 2018 in effect adjourned the chamber summons sine die.[47]
[46] Primary decision [4].
[47] The orders made appear at annexure AJT 42 of the Second Tharby Affidavit.

Effect of entry of the Oppression Proceedings on the Inactive Cases List

Provision for the Inactive Cases List is made by Division 5 of O4A of the Rules.
The Rules are applied to the Oppression Proceedings by r 1.3(2) of the Supreme Court (Corporations) (WA) Rules 2004 (Corporations Rules), made under s 1337T of the Corporations Act, to the extent that they are relevant and not inconsistent with the Rules. There is no suggestion of any inconsistency between Division 5 of O4A of the Rules and the Corporations Rules.
Relevantly, O4A r 22(4) of the Rules provides for the case manager to order that the case be put on the Inactive Cases List if not satisfied that the case is being conducted in a timely way, having regard to the requirements of the Rules and the circumstances of the case. When such an order is made, the Principal Registrar must put the case on the Inactive Cases List and give parties written notice of that fact and why the case was moved to the Inactive Cases List and of the effect of O4A r 28 of the Rules.[48]
[48] O4A r 25(1) of the Rules.
Order 4A r 26(1) provides for the following consequence of a case being placed on the Inactive Cases List.
If a case is on the Inactive Cases List, only these documents may be filed in the Court in relation to the case:
(a)a request for an order under rule 27(1);
(b)a notice of discontinuance by the plaintiff under Order 23 rule 2;
(c)a request made by the plaintiff or the defendant for leave under Order 23 rule 2 [for leave to file a notice of discontinuance];
(d)a written consent under Order 43 rule 16 to the making of an order that would finally dispose of the case.
Order 4A r 27 provides for the manner in which a case may be taken off the Inactive Cases List:
(1)Any party to a case on the Inactive Cases List may make a request to the Court for an order that the case be taken off the Inactive Cases List.
(2)The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.
(3)An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.
Order 4A r 28(1) provides that:
If a case is on the Inactive Cases List for 6 continuous months after the date on which notice is given under rule 25(1)(b) to the parties to the case, the case is taken to have been dismissed for want of prosecution.
Under O4A r 28(2):
If no procedural step (except an application to dismiss the case for want of prosecution) is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to have been dismissed for want of prosecution.
Once a case is taken to have been dismissed under O4A r 28(1), there is generally no capacity to have the case reinstated.[49]
[49] See, by analogy with District Court Rules to the same effect, Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116. A challenge to the decision in Rowe v Stoltze was rejected in Rosebridge Nominees Pty Ltd (in Liq) v Commonwealth Bank of Australia [2018] WASCA 112 [54] - [58].

The decision subject to appeal

On 23 April 2018, Mr Jebb applied by originating motion in the Primary Proceedings to be substituted for Trafalgar as plaintiff in the Oppression Proceedings.[50]
[50] Primary decision sch A.
On 1 June 2018, the primary judge published reasons as to why Mr Jebb's substitution action should be dismissed. In very broad summary, his Honour did so on essentially two grounds:
(1)The substitution of Mr Jebb as plaintiff in the Oppression Proceedings would be a futile exercise, as Mr Jebb was not in the category of persons, defined by s 234 of the Corporations Act, who could advance an application for orders under s 233 of that Act. This is because Mr Jebb was not a member of Superior Lawns at the time that the Oppression Proceedings were commenced. Trafalgar's chose in action for breach of s 232 of the Corporations Act is a non-assignable personal right. State provisions of the Trustees Act 1962 (WA), which provide for the vesting of property in a new trustee, do not augment or enlarge the parameters of potential plaintiffs provided for by the Corporations Act.[51]
(2)Even if that had not been the case, the primary judge would have exercised his discretion under O18 r 6 of the Rules to refuse substitution of Mr Jebb as plaintiff. The primary judge gave a number of reasons for that conclusion, which in very broad summary were:
(a)The Oppression Proceedings are effectively 'dead' under Trafalgar as plaintiff.[52]
(b)Mr Jebb had displayed a gross lack of judgement whilst in control of Trafalgar as regards its decision-making in the Oppression Proceedings.[53]
(c)There was no clear or overwhelming merit in the claim, and the Oppression Proceedings on its face is a speculative action (particularly in relation to the second basket of grievances referred to at [12] above).[54]
(d)The Oppression Proceedings remain a considerable distance away from being ready for what will be a longish trial.[55]
(e)While Mr Jebb claimed to have secured litigation funding from a UK based litigation funder, Balance Legal Capital LLP (BLC), few details of that funding arrangement had been disclosed.[56]
(f)It was theoretically open to Mr Jebb to commence his own statutory oppression action under s 233 of the Corporations Act, complaining of oppressive conduct against Superior Lawns. There were other options still open to Mr Jebb beyond his substitution as plaintiff in the Oppression Proceedings.[57]
The primary judge considered that these adverse discretionary considerations dictated a refusal of the application for Mr Jebb to be substituted as plaintiff in the Oppression Proceedings, leaving Mr Jebb to commence a fresh application for statutory oppression if he can.[58]
[51] Primary decision [64] - [73], [91].
[52] Primary decision [81] - [88] (a).
[53] Primary decision [88] (b) - (c).
[54] Primary decision [88] (d).
[55] Primary decision [88] (e).
[56] Primary decision [45] - [47], [88] (f) - (g).
[57] Primary decision [88] (h) - (i).
[58] Primary decision [91].
It is not entirely clear from the court's record whether any order was made on 1 June 2018. It appears that the reasons were published administratively on that date. The last paragraph of the reasons indicates that dismissal of Mr Jebb's substitution application would take effect upon publication of those reasons. The court's electronic record shows an outcome that the matter was completed by final judgment on 1 June 2018. However, an order formally dismissing the Primary Proceedings was made on 11 June 2018. In the circumstances, we will proceed on the basis that the Primary Proceedings were dismissed on 1 June 2018.

The appeal

On 8 June 2018, Mr Jebb filed an appeal notice in this court against the primary judge's dismissal of his application, made in the Primary Proceedings, to be substituted as a plaintiff in the Oppression Proceedings.
On 13 July 2018, Mr Jebb lodged an appellant's case with grounds of appeal which sought to impugn both aspects of the primary decision summarised at [50] above. On a preliminary basis, and without hearing oral submissions to the contrary from the first to sixth respondents, it appeared to us that those grounds were reasonably arguable, and the appeal had reasonable prospects of success.

Application for relief preserving the subject matter of the appeal

On 18 June 2018, Mr Jebb filed an application in the appeal seeking an order that the Oppression Proceedings be removed from the Inactive Cases List pending the determination of the appeal or until further order, and be dismissed in the event that the 'appeal is rejected'.
By this application, Mr Jebb sought to overcome a fundamental difficulty facing his appeal. As things stood on 17 May 2018, the Oppression Proceedings would have been taken to have been dismissed for want of prosecution on 18 July 2018, by force of O4A r 28(2) of the Rules. That is on the basis that the Oppression Proceedings would, by that date, have been on the Inactive Cases List for 6 months. At that point, the appeal against the refusal of the primary judge to substitute Mr Jebb as plaintiff in the Oppression Proceedings would be rendered nugatory, as there would be no point in substituting a plaintiff in proceedings which have been dismissed.
Thus, Mr Jebb asked this court to make an order removing the Oppression Proceedings from the Inactive Cases List. He did so in a context where his other attempts to have the Oppression Proceedings removed from the Inactive Cases List have been rebuffed, in part on the basis that, as he is not a party to those proceedings, he has no standing to apply to have them removed from the Inactive Cases List.

This court's power to grant interim relief

Mr Jebb has an arguable case with reasonable prospects of success for contending that the primary judge erred in refusing to substitute him as plaintiff in the Oppression Proceedings. The appeal would be rendered nugatory unless the Oppression Proceedings were removed from the Inactive Cases List. The question which arises is whether this court has power to make orders which will have the effect of removing the Oppression Proceedings from the Inactive Cases List, in order to preserve the subject matter of the appeal pending its determination. The first to sixth respondents contend that the court lacks the power to make any such order. For the following reasons, we do not accept that submission.
In the appeal, this court is exercising federal jurisdiction in a matter arising under the Corporations Act.[59] Jurisdiction 'with respect to civil matters arising under the Corporations legislation' is conferred on the Supreme Court of Western Australia by s 1337B(2)(a) of the Corporations Act. The term 'Corporations legislation' is defined in s 9 to include the Corporations Act. By s 1337B(5) of the Corporations Act, that jurisdiction is not limited by any limits to which any other jurisdiction of the Supreme Court may be subject.
[59] Section 76(ii) of the Commonwealth Constitution.
This investment of federal jurisdiction includes appellate jurisdiction within the provisions made for it by this State's judicial system.[60] The relevant aspect of this State's judicial system is the provision for the Court of Appeal division of the Supreme Court to hear and determine appeals from a judge, subject to presently immaterial exceptions.[61]
[60] Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287 [9].
[61] Section 7 and s 58(1)(b) of the Supreme Court Act 1935 (WA).
The court on which federal jurisdiction is conferred is a Supreme Court of a State, continued as a superior court of record by s 6 of the Supreme Court Act 1935 (WA). By s 16 of that Act, the court is a court of common law and equity. Implicit in the establishment of such a court, and its conferral of federal jurisdiction, is the conferral of power to make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its jurisdiction.[62] That implicit power, which inheres in the establishment of a superior court of record, extends to the making of interim orders to protect the exercise of the court's appellate as well as its general jurisdiction.[63] That is an aspect of the principle that:[64]
[T]he grant of power carries with it everything necessary for its exercise. That is, the conferral of statutory jurisdiction or powers on a court carries with it such powers as are incidental and necessary to the exercise of the jurisdiction or powers so conferred. In this context 'necessary' is used in the sense of matters which are reasonably required or legally ancillary (as opposed to 'essential') to the exercise of the jurisdiction or powers. (citations omitted)
[62] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35].
[63] Tait v The Queen (1962) 108 CLR 620, 623 - 624.
[64] Ardrey v The State of Western Australia (No 2) [2017] WASCA 41 [161].
The inherent power of the court, apart from statutory provision, to grant a stay or issue an injunction is a well-recognised manifestation of this implied power. But the grant of that kind of relief does not mark the limits of the power. The cognate power of the Federal Court of Australia was well described by Lindgren J in Williams v Minister for the Environment and Heritage:[65]
A 'superior court of record and ... a court of law and equity', such as this court (FCA Act s 5(2)), has inherent or implied power to make an interlocutory order which is necessary to enable it to perform its function as such a court. An example of that power is the power to make an order directed to preserving the subject matter of litigation or to preventing its processes from being frustrated and an available form of proceeding from being rendered nugatory. The power is available whether the court is exercising original or appellate jurisdiction (including jurisdiction to grant leave to appeal). In the case of an appellate court, the order may take the form of a stay of execution of the order appealed from. Provided the court is seized of a juridical dispute in respect of which it has jurisdiction and that dispute remains to be finally determined, the court has the power mentioned.
It is appropriate that the power be stated in broad terms of the kind set out in the preceding paragraph. The reason is that the power derives from the nature of a 'court' and the unique role of courts in our society as the repositories of judicial power. It would be inconsistent with the rule of law if courts could be denied their role of resolving judicial disputes in accordance with law. Whether the power mentioned is described as 'inherent' or 'implied' is immaterial. In the case of a court created by statute, such as this court, it can be said that the power is implied because it is inherent in the legislature’s use of the concept of 'a superior court of record and ... a court of law and equity'.
[65] Williams v Minister for the Environment and Heritage [2003] FCA 627; (2003) 199 ALR 352 [16] - [17]. The cases supporting that description of the power are referred to at [19]. Williams was cited with evident approval by Besanko and Jagot JJ in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 [281].

As is illustrated by the decision of the High Court in Tait, the exercise of this implied power to protect the effective exercise of the court's jurisdiction is not confined by the kind of final relief which may be granted in the determination of the matter.[66]
[66] See also the discussion in Timar v The Minister for Justice and Customs [2001] FCA 295 [14] - [18].
It is unnecessary to attempt to set out the limits of this power. For present purposes, it is sufficient to say that we have no doubt that, where proceedings are pending in this court between the parties to an appeal, the Court of Appeal division of the court may exercise the court's power to make such procedural directions in those proceedings as are necessary for the purpose of preserving the integrity of the exercise of this court's appellate jurisdiction. That is so whether the proceedings are pending in the General Division or the Court of Appeal division of the Supreme Court.
Different issues, which it is unnecessary to consider in the present case, might arise where the parties to the appeal and the other pending proceedings are not the same. It is unnecessary to identify or consider those issues here, as the parties to the appeal and the Oppression Proceedings are the same and (apart from Trafalgar, which, through its liquidators, has expressed its support of Mr Jebb's position) are represented in the appeal.
It may also be noted that both the appeal and the Oppression Proceedings are concerned with the same matter arising under the Corporations Act. For these purposes, the 'matter' is the justiciable controversy raised for determination in legal proceedings, rather than the legal proceedings themselves.[67] The 'matter' in this case is the justiciable controversy as to whether the court should exercise its powers under s 233 of the Corporations Act.[68] The making of procedural orders in the Oppression Proceedings involves the exercise of jurisdiction in the same matter which is the subject of the appeal.
[67] See, for example, Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, 289 - 290.
[68] As to the concept of a 'matter' in this context, see Re Wakim; ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 [135] - [140] and cases there cited.
In the present case, O4A r 27(2) of the Rules gives the court a power to remove a case from the Inactive Cases List. Absent conflict or inconsistency with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), that power may be exercised by this court in any matter which the Court of Appeal has jurisdiction to hear and determine.[69] The Rules and the Court of Appeal Rules are applied to this court's exercise of federal jurisdiction under the Corporations Act by r 1.3(2) of the Corporations Rules.
[69] Rule 5 of the Court of Appeal Rules.
Where this court exercises its power in a matter for the purpose of preserving the effective exercise of the court's appellate jurisdiction in the matter, it is exercising its appellate jurisdiction conferred by s 1337B(2)(a) of the Corporations Act read with s 58(1)(b) of the Supreme Court Act. That the same power might be available when the General Division of the court is exercising original jurisdiction does not deny the availability of the power when the Court of Appeal division of the court exercises its appellate jurisdiction.
The first to sixth respondents submit that the making of procedural directions in proceedings other than those being appealed is not incidental to the court's exercise of jurisdiction in determining the appeal. We do not accept that submission. The exercise of the power is incidental to the exercise of the court's appellate jurisdiction when it is undertaken in order to ensure the effective exercise of that jurisdiction.
We do, however, accept the first to sixth respondents' submission that the power to remove a case from the Inactive Cases List must be exercised in a manner that is consistent with the Rules.[70] The power to remove a case from the Inactive Cases List is conferred by O4A r 27(2) of the Rules, and the power must be exercised conformably with the terms of that provision.
[70] Section 21 of the Supreme Court Act.
The first to sixth respondents also submit that this court has no power to order removal of the Oppression Proceedings from the Inactive Cases List because Mr Jebb is not a party to those proceedings and, by O4A r 27, only a party to the Oppression Proceedings can apply for removal. In our view, the existence of the court's power to order removal is not confined by a requirement that a party to the case make a request that it be taken off the Inactive Cases List. The express condition for the existence of the power is the court's satisfaction that the case will be conducted in a timely way or there is some other good reason for removing the case from the Inactive Cases List. Provision for a party to make a request under O4A r 27(1) provides a mechanism for a party to require the court to consider whether the case should be removed, but does not deny the existence of the power to remove a case in the absence of a request. In any event, were it necessary to do so, this court has power to order, on an interim basis, that Mr Jebb be substituted as plaintiff in the Oppression Proceedings for the limited purpose of applying for the removal of those proceedings from the Inactive Cases List.
In our view, this court has power to order that the Oppression Proceedings be taken off the Inactive Cases List subject to the condition that the order will be discharged ab initio if the appeal is dismissed. In that manner, the exercise of the power will be limited to what is required to ensure the effective exercise of the court's appellate jurisdiction in a way that will not ultimately prejudice the rights of the parties if the appeal is dismissed.
However, in considering the exercise of that power in this case, it is necessary to recognise that if the primary judge had made an order substituting Mr Jebb as plaintiff in the Oppression Proceedings, it would have remained necessary from Mr Jebb to convince the court that the case should be removed from the Inactive Cases List. It must also be recognised that, if this court makes an order of the kind referred to in the previous paragraph and the appeal is allowed, the Oppression Proceedings would have been removed from the Inactive Cases List. Such an outcome exceeds, in a significant respect, what success in this appeal should provide to Mr Jebb. In these circumstances, it would not be appropriate to exercise the power unless such an exercise would be appropriate in the event that Mr Jebb is substituted as plaintiff. In other words, Mr Jebb's application for the removal of the Oppression Proceedings from the Inactive Cases List must succeed on its merits.
That is, it is necessary for this court to consider whether it is appropriate to exercise the power to remove the Oppression Proceedings from the Inactive Cases List on the hypothesis that Mr Jebb is substituted as plaintiff in those proceedings. Unless it is appropriate to do so in that circumstance, Mr Jebb's application to be substituted as a plaintiff would have been an exercise in futility from the outset.
The success of Mr Jebb's application should not put him in a position that is better than it would have been if the final orders sought in the appeal had been made at first instance. Mr Jebb accepted this to be the case.[71] He also accepted that, in order for us to exercise the power under O4A r 27(2), we have to be satisfied that the Oppression Proceedings will be conducted in a timely way or that there is other good reason for the case to be taken off of the Inactive Cases List. Mr Jebb also accepted that, in the circumstances of this case, we would not be satisfied of those matters unless we were satisfied that, if Mr Jebb were substituted as plaintiff, he would have the capacity to bring the Oppression Proceedings to a timely trial.[72]

Exercise of the discretion to remove the Oppression Proceedings from the Inactive Cases List

[71] Appeal ts 7.

[72] Appeal ts 7, 8.

It is clear that the Oppression Proceedings have not been conducted in a timely way to date. The proceedings were commenced over 7 years ago, and have only reached the point where the respective cases have been pleaded and discovery and inspection undertaken.
It may well be that Mr Jebb is correct in submitting that not all of this delay is attributable to Trafalgar. However, substantial parts of the delay are attributable to Trafalgar. In particular, the fact that there has been no substantive progress since discovery and inspection was completed on 19 November 2015 has been attributable to the failure by Trafalgar to comply with a requirement to pay the third tranche of security for costs, the failure to arrange for suitable legal representation and funding and its insolvency.
The extent of the delay is not such as to preclude the court from exercising its discretion if it were satisfied that, if Mr Jebb were substituted as plaintiff, the Oppression Proceedings would then be progressed to trial in a timely way. However, the evidence does not give us any confidence that this will be the case.
Mr Jebb is currently self-represented and, while he is a legal practitioner, he has not in the past demonstrated the capacity to bring the Oppression Proceedings to trial in a timely way. It is common ground that Mr Jebb is impecunious. The only asset of the Trafalgar Trust is its shares in Superior Lawns and any chose in action claimed against the first to sixth respondents. It is clear that Mr Jebb is not in a financial position to bring the matter to trial without external support. He will not be able to do so simply by doing his own legal work, as it is clear that there will be costs (such as those involved in the provision of expert reports and providing the third tranche of security for costs) which will need to be met. The primary judge found that the Oppression Proceedings remain a considerable distance away from being ready for trial, with much preparatory work remaining to be done. Mr Jebb accepts that he lacks the capacity to bring the Oppression Proceedings to a timely trial without external support.[73]
[73] Appeal ts 8.
Mr Jebb has not presented any plan to this court explaining how he will progress the Oppression Proceedings to what would appear to be a long, complex and expensive trial. Nothing in Mr Jebb's written submissions in support of this application even addresses the question of the progressing of the action to a timely resolution.
Mr Jebb has deposed that he has obtained litigation funding in the event that he is substituted as plaintiff. However, it is clear that the funding is not unconditional. The redaction of the funding agreement means that this court cannot reach any conclusion as to the extent of that funding or the conditions to which it is subject. There is no evidence as to whether the funding includes payment of the third tranche of security for costs, currently fixed in the sum of $190,000, which must be paid when the matter is to be listed for trial, and which the evidence clearly indicates Mr Jebb has no capacity to pay absent external funding. Nor is there any evidence as to whether, and to what extent, the funding will cover the cost of obtaining significant expert evidence that will be required in a trial of this kind. Submissions made by or on behalf of Mr Jebb as to the broad effect of the litigation funding agreement, to which he referred, are no substitute for evidence as to the terms of the agreement.
Mr Jebb referred to evidence before the primary judge which he submits demonstrates the capacity of BLC to meet the costs of the Oppression Proceedings.[74] Such capacity may be assumed, but does not assist Mr Jebb in the absence of evidence as to the extent to which BLC has committed to the expenditure of its resources in the Oppression Proceedings. Mr Jebb also referred to evidence of LCM's support for the continuation of the proceedings, however there is no evidence that LCM is willing to provide further financial assistance.
[74] Appeal ts 10.
These long-running proceedings must have imposed a significant burden on the first to sixth respondents, including by the continued operation of the undertaking referred to at [13] above. The financial and emotional strain which the proceedings have caused the first to sixth respondents is referred to in par 6 - 8 of the Second Tharby Affidavit. The undertaking has remained in place over that time, and precludes Superior Lawns from paying any dividend on shares granted in the rights issue.
Having regard to the principles of case flow management referred to in O1 r 4B(1) of the Rules, it would not be appropriate to remove the Oppression Proceedings from the Inactive Cases List in the absence of evidence indicating that Mr Jebb, if substituted as plaintiff, is in a position to bring the case to a timely conclusion. On the evidence before this court, his capacity to do so depends, among other things, on his being able to access litigation funding from third parties. Mr Jebb's decision not to disclose the terms and conditions on which funding has been offered means that the evidence does not establish that Mr Jebb has or can obtain sufficient external funding to bring the Oppression Proceedings to trial. As a result, the evidence does not establish that, if substituted as plaintiff in the Oppression Proceedings, Mr Jebb has the capacity to bring the case to trial in a timely way.
For these reasons, we are not satisfied that the Oppression Proceedings will be conducted in a timely way if taken off the Inactive Cases List and Mr Jebb is substituted as plaintiff in those proceedings. In the absence of evidence establishing that Mr Jebb has the capacity to bring the Oppression Proceedings to trial in a timely way if substituted as plaintiff, we are not satisfied that there is any other good reason to remove the Oppression Proceedings from the Inactive Cases List in all of the circumstances of this case. That is so notwithstanding that the appeal will be rendered nugatory if the Oppression Proceedings are not removed from the Inactive Cases List.
This conclusion is reinforced by, although not dependent upon, Mr Jebb's dilatory conduct since the Oppression Proceedings were placed on the Inactive Cases List.
The primary judge published his reasons on the Vesting Order Proceedings in November 2017, but did not make orders on that day, so that the parties could consider their positions.[75] Mr Jebb did not procure the court to actually make the vesting orders until 14 February 2018.[76]
[75] Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335 [231].
[76] See Jebb v Superior Lawns Australia Pty Ltd [2017] WASC 335 (S) [2] - [4].
The originating summons in the Primary Proceedings, applying for substitution orders, was not filed until 23 April 2018, more than three months after the Oppression Proceedings had been placed on the Inactive Cases List. Mr Jebb has not made any application for urgent appeal orders in this appeal.

Orders

For the reasons explained above, we were of the view that Mr Jebb's application in the appeal filed on 18 June 2018 should be dismissed.
In reaching that view, it was not necessary to resolve objections which had been made to the First and Second Jebb Affidavits by the first to sixth respondents. Nor was it necessary to determine whether leave to rely on an additional affidavit sworn by Mr Jebb on 4 July 2018 should be granted. We received the affidavits provisionally, and reached the view that Mr Jebb's application in an appeal filed on 18 June 2018 should be dismissed even if all of the affidavit material on which he relied is received.
After the court announced its order dismissing the application in an appeal filed on 18 June 2018, Mr Jebb indicated that he sought an order that the appeal be dismissed on the basis that it would be rendered nugatory.[77] The first to sixth respondents agreed to that course, and an order dismissing the appeal was made by consent. It was unnecessary to deal with the first to sixth respondents' application in an appeal for security for costs. We were of the view that the costs of the appeal should follow the event, as Mr Jebb accepted.[78]
[77] Appeal ts 13.
[78] Appeal ts 13.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL
19 JULY 2018