Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd

Murray Riverside Pty Ltd (Murray Riverside) appealed against the orders of a master of the Supreme Court of Western Australia (Master) who dismissed Murray Riverside's application for leave to use documents produced on subpoena in earlier proceedings against Westpac, to bring the primary proceedings against the respondents (Toscana, Ivo Nominees, Ivo Paul Letari and Oren Zohar). The master found that there had been no oral conferral between the parties and that, on that basis alone, the application must fail. The master then proceeded to consider aspects of the merits of the application, before concluding that the application should be dismissed. The master also concluded that the primary proceedings should be dismissed as an abuse of process. The appeal was allowed, the orders of the master set aside, and leave granted nunc pro tunc to Murray Riverside and to its director, Kasi Palaniappan, to be released from the obligation not to use the documents set out in schedule A of the amended chamber summons dated 8 January 2020 for a purpose other than in connection with Supreme Court proceedings CIV 1307 of 2014 for the limited purposes of providing the documents to Murray Riverside for use by Murray Riverside in the primary proceedings. The master had erred in dismissing Murray Riverside's application on the basis of the absence of oral conferral. The master's orders must be set aside. The master had also erred in dismissing Murray Riverside's application for leave without determining whether there were special circumstances justifying the grant of leave. The master had failed to consider all the circumstances in determining the question whether special circumstances existed justifying the grant of leave. The master had failed to consider the importance of the documents to Murray Riverside in the formulation of the primary proceedings, the fact that they would have been discoverable in the primary proceedings and the public interest in ensuring that all relevant material was before the court to discharge its function. In the circumstances of the present case, the inadvertent failure of Murray Riverside's solicitor to seek leave in advance should be excused, and Murray Riverside and Mr Palaniappan should be relieved from their Harman obligations to the extent they seek.