Nedroc Pty Ltd v Welling [No 3] - [2016] WASC 427

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NEDROC PTY LTD -v- WELLING [No 3] [2016] WASC 427

CORAM: PRITCHARD J

HEARD: 15 NOVEMBER 2016

DELIVERED : 15 NOVEMBER 2016

FILE NO/S: CIV 2756 of 2016

BETWEEN: NEDROC PTY LTD
Plaintiff
AND
PAULINE LESLEY WELLING
First Defendant
BARRY KIM WELLING
Second Defendant

Catchwords:

Practice and procedure - Suppression orders - Whether order should be extended - Where criminal investigations may be commenced

Practice and procedure - Costs - Freezing Order - Whether ordinary approach to costs should be taken - Where application for freezing order made on notice to defendant and defendant did not oppose application

Legislation:

Rules of the Supreme Court 1971 (WA), O 52A r 8

Result:

Suppression order continued for 6 months to 15 May 2017
Costs of the application for freezing orders be in the cause of the underlying action

Category: B

Representation:

Counsel:

Plaintiff:     Mr J E Scovell
First Defendant              :     Mr J Smith
Second Defendant         :     Mr J Smith

Solicitors:

Plaintiff:     Vogt Graham Lawyers
First Defendant              :     Patrick Legal
Second Defendant         :     Patrick Legal

Cases referred to in judgment:

Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
Nedroc Pty Ltd v Welling [2016] WASC 363
Nedroc Pty Ltd v Welling [No 2] [2016] WASC 364
PRITCHARD J:
(This judgment was delivered extemporaneously on 15 November 2016 and has been edited from the transcript.)

Before me today are two issues. The first is whether the suppression order which I made on 17 October 2016 (the Suppression Order)[1] should be continued until further order of the Court, or for some more limited period. The Suppression Order pertained to reasons for decision I gave in respect of the plaintiff's successful application for a freezing order against each of the defendants (the Freezing Order Reasons)[2]. In the Freezing Order Reasons, I indicated that I proposed to make freezing orders for a limited time. This was to give the defendants the opportunity to be heard in respect of the extension of those freezing orders. The continuation of the Suppression Order was, to some extent, consequential upon the outcome of that hearing in respect of the freezing orders. In the end, the defendants have consented to the continuation of the freezing orders until the order of the Court.
[1]Nedroc Pty Ltd v Welling [No 2] [2016] WASC 364.
[2] Nedroc Pty Ltd v Welling [2016] WASC 363.
Secondly, there is a dispute between the parties as to the costs order which should be made in respect of the plaintiff's application for freezing orders.

Suppression order

Having now heard from counsel for the parties, and in view of the defendants' consent to the continuation of the freezing orders until further order, the question arises as to whether the Suppression Order should also continue and, if so, for what period.
The concern that largely underlay the making of the Suppression Order was the potential that the publication of the Freezing Order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASC 427
Decision Date: 15 NOVEMBER 2016

CaseChat Overview and Summary

The case of Nedroc Pty Ltd v Welling [No 3] involved a dispute between the plaintiff, Nedroc Pty Ltd, and the defendant, Welling. The primary issue was whether a suppression order and a freezing order, previously made against the defendant, should be extended. Additionally, the court was required to determine whether the ordinary approach to costs should be applied in light of the defendant's failure to oppose the freezing order application.

The court examined the criteria for extending suppression orders, which are typically based on the potential for harm to ongoing or future criminal investigations if the information were to be disclosed. The court also considered the nature of the freezing order, which is designed to prevent the dissipation of assets that might be required to satisfy a potential judgment. The court further assessed whether the defendant's failure to oppose the freezing order application warranted a departure from the usual approach to costs, where the party making the application is typically responsible for the costs of the other party if the application is unsuccessful.

In its reasoning, the court held that the suppression order should be extended as there was a genuine risk to the integrity of potential criminal investigations if the order were lifted. The court found that the defendant's failure to oppose the freezing order application did not justify a departure from the ordinary approach to costs, as the defendant had not provided any evidence that would have altered the outcome of the application. Consequently, the costs of the freezing order application were to be borne by the defendant.

The court ordered the extension of the suppression order and the freezing order, with the defendant to bear the costs of the freezing order application.

Orders