Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd
[2022] WASC 127
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: KINGSFIELD HOLDINGS PTY LTD -v- SULLIVAN COMMERCIAL PTY LTD [2022] WASC 127
CORAM: ACTING REGISTRAR HOSKING
HEARD: ON THE PAPERS
DELIVERED : 12 APRIL 2022
PUBLISHED : 12 APRIL 2022
FILE NO/S: CIV 2270 of 2020
BETWEEN: KINGSFIELD HOLDINGS PTY LTD
First Plaintiff
JEFFREY STEWART LEE
Second Plaintiff
AND
SULLIVAN COMMERCIAL PTY LTD
First Defendant
PETER ANDREW DUFFIELD
Second Defendant
IVAN NEWBY RUTHERFORD
Third Defendant
DAVID JOHN HENDERSON
Fourth Defendant
PAOLO FILIPPO AMARANTI
Fifth Defendant
ROTTNEST ISLAND AUTHORITY
Sixth Defendant
DEPARTMENT OF HEALTH
Seventh Defendant
Catchwords:
Practice and procedure – Application by non-party for access to inspect affidavits filed in proceeding commenced after 1 March 2018 – Rules of the Supreme Court (WA) O 67B, r 9 and 11
Legislation:
Rules of the Supreme Court (WA) O 67B, r 9 and 11
Result:
Non-party allowed access to affidavits
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
| Non-party | : | No appearance |
Solicitors:
| First Plaintiff | : | Bayview Legal |
| Second Plaintiff | : | Bayview Legal |
| First Defendant | : | Lawton Gillon |
| Second Defendant | : | Lawton Gillon |
| Third Defendant | : | Lawton Gillon |
| Fourth Defendant | : | In person |
| Fifth Defendant | : | Mills Oakley |
| Sixth Defendant | : | State Solicitor's Office |
| Seventh Defendant | : | In person |
| Non-party | : | Popperwell & Co |
Case(s) referred to in decision(s):
Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289
ACTING REGISTRAR HOSKING:
This is an application by Lawfirst Pty Ltd, a non-party to this proceeding, brought pursuant to O 67B r 11 of the Rules of the Supreme Court 1971 (WA) (RSC) for access to the following affidavits filed in this action:
(a)affidavit of Ivan Newby Rutherford sworn on 18 June 2021;
(b)affidavit of Peter Andrew Duffield sworn on 18 June 2021;
(c)affidavit of Peter Frederick Smith sworn on 24 May 2021; and
(d)affidavit of Paolo Filippo Amaranti sworn on 18 June 2021,
(together, Requested Affidavits).
The applicant is the defendant in the proceeding known as CIV 2167 of 2021. The plaintiffs in that proceeding are the same plaintiffs as in this proceeding.
On 18 February 2022, a letter addressed to the Acting Principal Registrar was filed on behalf of the applicant in CIV 2167 of 2021, seeking access to the Requested Affidavits. On 21 February 2022, a letter was filed on behalf of the plaintiffs in CIV 2167 of 2021 opposing the application.
The applicant relies on the letter filed on 18 February 2022 in CIV 2167 of 2021 and an outline of submissions filed on 16 March 2022 in support of its application.
None of the parties to this proceeding filed any submissions in relation to the application. In determining the application, I have had regard to the plaintiffs' letter filed on 21 February 2022 in CIV 2167 of 2021, opposing the application.
For these reasons, the applicant will be granted leave to obtain copies of the Requested Affidavits.
Background
The applicant is an incorporated legal practice that trades as Bennett + Co and was solicitor on the record for the plaintiffs when two proceedings in this court were tried before his Honour Kenneth Martin J.[1]
[1] Applicant's submissions [1]-[2].
The first plaintiff in this proceeding (Kingsfield) was the plaintiff in the proceeding known as CIV 1106 of 2013. The second plaintiff in this proceeding (Mr Lee) was the plaintiff in the proceeding known as CIV 1147 of 2013. Those proceedings (together, Defamation Actions) were tried together in November 2015 and for the reasons published by his Honour Martin J in Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117, both actions were dismissed.[2]
[2] Applicant's submissions [3]-[5].
Kingsfield and Mr Lee are the plaintiffs in CIV 2167 of 2021, in which the applicant is the defendant. That proceeding concerns the applicant's representation of Kingsfield and Mr Lee in the Defamation Actions.[3]
[3] Applicant's submissions [7]-[8].
As outlined by his Honour Allanson J in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289 at [1]-[2], this proceeding concerned allegations by Kingsfield and Mr Lee that they were misled into commencing and maintaining the Defamation Actions (in addition to another proceeding) by the fraudulent conduct of the defendants who, acting in pursuit of a common design caused the plaintiffs to suffer loss and damage by becoming liable for costs, including their own costs, in those actions. Five of the seven named defendants to this action successfully applied for summary judgment.
If the application to access the Requested Affidavits is successful, the applicant intends to seek leave to read and rely on the Requested Affidavits at the hearing of its application CIV 2167 of 2021, to dismiss, alternatively permanently stay, or to strike out all or parts of the statement of claim (strike out application).
Legal principles
For proceedings commenced after 1 March 2018, RSC O 67B div 3 sets out the documents non-parties are entitled to access as of right.
Non-parties may not access affidavits as of right pursuant to RSC O 67B div 3. Non-parties may only access affidavits with the permission of the court given under O 67B r 9, on an application made under O 67B r 11.[4]
[4] RSC O 67B r 8(a).
RSC O 67B r 11(4) provides that the application is taken to be an interlocutory application in the proceeding in respect of which the information, record or other thing is held by the court. Accordingly, although this application was made by letter filed in CIV 2167 of 2021, it is taken to be an application in this proceeding. I am satisfied that the letter filed on behalf of the applicant on 18 February 2022 in CIV 2167 of 2021 is an application for the purpose of O 67B r 11.
Pursuant to O 67B r 13(4), if the court is satisfied that the applicant needs permission to have the access wanted, it must determine the application in accordance with O 67B r 9.
RSC O 67B r 9(3) relevantly provides that the court must give permission if satisfied:
(a)the application -
(i)relates to information or a record or other thing that was considered by the Court in the proceeding to which the application relates; or
(ii)relates to the transcript of the whole or a part of a hearing in that proceeding that the applicant was entitled to attend; and
(b)the application does not relate to an audio or audio-visual recording of a hearing in that proceeding; and
(c)if the application relates to information or a record or other thing that was considered by the Court in that proceeding but was not admitted into evidence or was struck out - that giving permission would not prejudice or adversely affect any person; and
(d)that giving permission would not breach -
(i)any legislation; or
(ii)an order made by a court in Australia; and
(e)the arrangements necessary to give the applicant access would not -
(i)be unreasonably expensive or time consuming for the Court or a party; or
(ii)unduly impede the efficient conduct of the proceeding; and
(f)there is no other good reason to refuse the application.
Disposition
With reference to RSC O 67B r 9(3)(a)(i) and the decision of his Honour Allanson J in this proceeding, the applicant submits its application for the Requested Affidavits relates to records that were considered by the court in this action.[5] Having reviewed his Honour's decision, I am satisfied that is the case.[6]
[5] Applicant's submissions [15].
[6] Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289 [70]-[83] and [86]-[87].
In relation to RSC O 67B r 9(3)(b)-(d), I accept the applicant's submissions and am satisfied that:
(a)the application does not relate to an audio or audio-visual recording of a hearing in this proceeding;[7]
(b)the application does not relate to information or a record or other thing that was considered by the court in this proceeding but was not admitted into evidence or was struck out;[8] and
(c)giving permission would not breach any legislation or an order made by a court in Australia.[9]
[7] Applicant's submissions [16].
[8] Applicant's submissions [17].
[9] Applicant's submissions [18].
Pursuant to RSC O 67B r 9(3)(e), and particularly in circumstances where the applicant seeks electronic copies of the Requested Affidavits,[10] I am satisfied that the arrangements necessary to give the applicant access would not be unreasonably expensive or time consuming for the court or a party, or unduly impede the efficient conduct of the proceeding.
[10] Applicant's letter filed on 18 February 2022 in CIV 2167 of 2021.
The only remaining consideration is whether there is no other good reason to refuse the application.[11]
[11] RSC O 67B r 9(3)(f).
The applicant submits that in circumstances where the deponents to the Requested Affidavits do not object to access, subject to any submissions by the plaintiffs, it is difficult to imagine that there is any other good reason to refuse the application.[12]
[12] Applicant's submissions [20].
The applicant further submits:
(a)in CIV 2167 of 2021 it has made the strike out application;
(b)its submissions in support of the strike out application (annexed to the submissions filed in support of this application) reveal that the thrust of much of the statement of claim in CIV 2167 of 2021 appears to mirror the contest in this proceeding;
(c)as such, the evidence before his Honour Allanson J (i.e. the Requested Affidavits) is directly relevant to the applicant's strike out application in which it contends that Kingsfield and Mr Lee cannot seek, in CIV 2167 of 2021, to establish facts which are contrary to the facts disclosed in the Requested Affidavits and which Allanson J accepted in circumstances where he dismissed as speculation and conjecture the contrary propositions put by Kingsfield and Mr Lee in this proceeding.[13]
[13] Applicant's submissions [20].
The plaintiffs did not file any submissions in relation to the application, despite having the opportunity to do so pursuant to programming orders made on 11 March 2022.
I have considered the letter filed on 21 February 2022 on behalf of Kingsfield and Mr Lee in CIV 2167 of 2021, opposing this application. That letter also sets out their opposition to the applicant's intention to seek leave to read and rely on the Requested Affidavits at the hearing of its strike out application. Any application for leave on that basis will be determined separately to this application. In my view, the plaintiffs' letter does not raise any good reason to refuse this application.
I am satisfied there is no other good reason to refuse the application. The applicant will be granted leave to obtain copies of the Requested Affidavits.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IJ
Associate to Acting Registrar Hosking
12 APRIL 2022
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