Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd (in Liq) [No 8] - [2019] WASC 477

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST -v- JEAN MAURICE PTY LTD (IN LIQ) [No 8] [2019] WASC 477
CORAM:   KENNETH MARTIN J
HEARD:   29 OCTOBER 2019 AND BY WRITTEN SUBMISSIONS OF 7 AND 14 NOVEMBER 2019 AS TO COSTS
DELIVERED          :   29 OCTOBER 2019
FILE NO/S:   CIV 2935 of 2016
BETWEEN:   PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST
Plaintiff

AND

JEAN MAURICE PTY LTD (IN LIQ)
First Defendant

SANCHO BAKERY PTY LTD
Second Defendant

FRANK DUROLEK
Third Defendant

BELINDA DUROLEK
Fourth Defendant

Catchwords:

Practice and procedure - Recusal application - Whether hypothetical lay observer might entertain a reasonable apprehension of bias based on adverse generic observations against one defendant made in prior reasons for decision against all four defendants in case managed action

Costs - Whether previous costs orders to be varied or remain in the cause pending future liability trial

Legislation:

Australian Consumer Law
Trade Practices Act 1974 (Cth)

Result:

Application acceded to
Cost orders not varied

Category: B

Representation:

Counsel:

Plaintiff	:	Mr K A Dundo
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	Mr L A Warnick

Solicitors:

Plaintiff	:	KD Legal (Perth)
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	Havilah Legal

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

Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (1992) 26 NSWLR 411
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 3] [2018] WASC 24
Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 5] [2018] WASC 203
Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 6] [2018] WASC 204
Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Pierre Pty Ltd (in liq) [No 2] [2018] WASC 23
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

KENNETH MARTIN J:

(These reasons were delivered extemporaneously on 29 October 2019 and have subsequently been edited from the transcript and reasons as to costs by this judgment on 3 January 2020.)

I am dealing with the fourth defendant's application seeking that I recuse myself from further case management of this action and so from hearing a further liability trial in this matter against the fourth defendant. The recusal application is made on the grounds of apprehension of bias.
Before I determine the application, I will first set out some of the more relevant background.

Background

The civil liability of all four defendants in this action by final judgment of the court came to pass on 5 October 2017 - by reason of the taking effect of springing orders which I had earlier issued as against all defendants at the behest of the plaintiff, on 28 September 2017. I return to elaborate from the perspective of the fourth defendant upon those events in due course.

However, in the recent wake of the reasons of the Court of Appeal in Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138 (Durolek v Pier [No 2]), the since quantified damages civil liability of the fourth defendant to the plaintiff under my decision by Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 6] [2018] WASC 204 (Pier [No 6]) was set aside.
By Durolek v Pier [No 2] the Court of Appeal effectively ordered that judgment which 'sprang' against the fourth defendant, and had since become the subject of the assessment of damages against all defendants, be set aside - as against the fourth defendant. The Court of Appeal had also remitted back to me questions of costs, vis-à-vis the fourth defendant and the plaintiff and I will deal with that task as well. More pressing, however, at present is the fourth defendant's recusal application against my continued involvement in the matter.
Something more was said about the question of costs by counsel for the plaintiff this morning and I return to that at the end of these reasons.

The recusal application

The primary question arising now is whether I remain as designated case manager and trial judge to hear the civil action on liability that now needs to be substantively determined - as between the plaintiff and the fourth defendant. A trial is now needed to determine whether there was any misleading and deceptive conduct attributable to the fourth defendant surrounding the sale of a bakery and franchise business by the vendor defendants to the plaintiff. One of the corporate vendor defendants is now in liquidation.
A trial will also need to deal with a contention of the plaintiff that, in brief terms, the acquired bakery and franchise business was not all that it was held out to be by the vendors prior to sale. The action of the plaintiff is to effectively recoup the residual purchase price post resale of the business as damages, all of which I have explained in previous decisions.

Statement of claim

The pleading as between the plaintiff and all defendants, but relevantly towards fourth defendant, seeks to raise an alleged common law fraud, in a broad way, against all defendants. The pleadings also, as regards a statutory cause of action in alleged misleading or deceptive conduct, predicates the attack against the fourth defendant by the plaintiff, on the basis that she was a director and, with her husband, 'knowingly concerned' in or a party to the making of representations or conduct that were all made contrary to the Trade Practices Act 1974 (Cth) provisions, formerly s 52, and now its successor provisions within the Australian Consumer Law.
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 is still the leading authority in terms of accessorial liability for statutory misleading or deceptive conduct in Australia. In loose terms, by Yorke the High Court of Australia clarified that to render somebody liable as an accessory, in effect, there must be shown some level of direct knowledge on that person's part, or at least of something directly affirmative as regards their knowledge or conduct, essentially, to make them civilly liable along with the primary actors.
As a result of the recent setting aside of the judgment as against the fourth defendant in Durolek v Pier [No 2], a trial judge will now need to determine the liability issue, given that it is reopened as against the fourth defendant. The question raised now is should that be me. In short, I accept that it should not.

Evaluations

The present recusal application made by the fourth defendant is supported by helpful written submissions of 22 October 2019 prepared by pro bono counsel. The position of the plaintiff as respondent to the application is that it makes essentially no submission at all concerning what I should do in terms of the application.
Let me say two things at the outset. First, I am very much assisted by the careful written submissions of the fourth defendant put through pro bono counsel and which, on review, comprehensively collect all the leading cases in the area of ostensible curial bias.
Secondly, I will say at an early point I am persuaded that I believe that I should, in all circumstances, recuse myself at this point as regards me hearing a future civil liability trial against the fourth defendant. I reach that determination applying what has been referred to as the 'might' test, stated in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (Livesey's case). The Liversy test proceeds on a basis of whether a fair‑minded and impartial observer watching the proceedings might objectively consider that a judge might not bring an impartial mind to the resolution of the case.
Of course, this proceeding includes a very long history of all my prior interlocutory and other case management involvement as against all defendants. In particular, I have in mind my reasons in Pier [No 6] as regards the assessment of damages. It is suggested that some of what I have generically written in earlier reasons about all four defendants might suggest a negative perspective of the fourth defendant, and that some of my earlier determinations might suggest that at future hearings I might be adversely influenced as against the fourth defendant - in terms of not according her in future the impartial liability decision that she is entitled to in a future civil trial. I say now that I do not retreat one jot from anything written in prior reasons about the conduct of the defendants.

Recusal - decided cases

The practical difficulty in applying the current law in terms of these sorts of recusal evaluations is illustrated in some leading case authorities as collected in the fourth defendant's written submissions. I refer first to British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco) - a situation in which there was a division of 3:2 within the High Court itself over whether the case manager of that litigation ought to disqualify.
In British American Tobacco, the plurality (Heydon, Keifel and Bell JJ) had determined that the primary judge should be disqualified. This was in circumstances where the primary judge had previously heard and determined similar questions that were to arise at trial at an interlocutory stage of a similar proceeding some years previous. Whilst the plurality acknowledged that different evidence may be led at the trial, they observed that the primary judge had expressed his initial findings (as to fraud) without qualification or doubt: see [144] - [145]. However, French CJ and Gummow J, in separate and powerful dissents, both held that the primary judge should not have recused himself.
Another of the cases referred to in British American Tobacco as regards judges who have made prior adverse findings against parties in previous decisions is Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (1992) 26 NSWLR 411 (Spedley).
In Spedley another split decision is seen over recusal, by a strong five‑judge New South Wales Court of Appeal. Again there was a 3:2 majority decision, with Gleeson CJ (as his Honour then was of the New South Wales Supreme Court) and Samuels JA in the minority. The majority judges supporting recusal were Kirby P, Mahoney and Meagher JJA. The conclusion finally by that distinguished bench was that Cole J, the primary judge who had heard previous cases involving a Mr Maher, an executive of Spedley Securities, and had delivered some previous decisions, some in favour Spedley or Mr Maher, but also some against, ought not to hear that trial. Gleeson CJ, who agreed with Samuels JA, albeit in dissent, had observed at page 413:
It is impossible to identify and apply the principles relevant to a determination of the present problem without paying close attention to the circumstances of the case.
Gleeson CJ had quoted a passage from the primary judge's detailed analysis of the complexities of the interrelated pieces of litigation with which he had been dealing. The primary judge had concluded that it was not simply a question of finding one or two other judges to deal with the Spedley litigation, in the event that the argument propounded by the present respondent should fail (ie, that Cole J not be recused). Gleeson CJ had continued (at page 413):
Nothing that I have heard during the course of argument in this appeal persuaded me that [the primary judge] was exaggerating the practical consequences of the view of the law for which the respondents were contending, or that he was in error in observing that the procedure that would follow in the Spedley litigation from the adoption of such a view 'would be a scandalous waste of judicial resources and a ludicrous and unacceptable imposition from a costs viewpoint upon litigants'.
Nevertheless, that was a minority view in Spedley. The majority reasons in Spedley as given by Kirby P and Mahoney JA were, in the end, agreed with by Meagher JA, in short supporting reasons. At page 448, Meagher JA discussed the change in the law by the High Court as he saw it as between 1953 and the 1983 decision in Livesey's case. In Livesey's case the High Court had said, at pages 293 - 294:
That principle is that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. (emphasis added)
Meagher JA continued (at page 448 of Spedley):
The novel doctrine for which Livesey's case is responsible is that where a judgment determines either an issue or the credibility of a witness in one case and the same issue or the credibility of the same witness arises in a later case, he disqualifies himself from hearing that later case if a hypothetical observer might possibly suspect that he will be biased in embarking on the later case. It is a Spartan doctrine. It has been rendered increasingly so, both by constant judicial narrowing of the scope of 'necessity' as an exception to the rule, and by the developing law on the attributes of the hypothetical observer.
Meagher JA continued at between pages 448 - 449 by applying that line of recent authority. He ultimately found that Cole J should have disqualified himself so, joined in allowing the appeal, in alignment with the other two majority justices.

Recusal - the present application

The written submissions of the fourth defendant quite rightly have directed my attention to the two step evaluation necessary on the recusal application. The first limb is to identify the perceived problem in terms of an issue(s) where the trial judge (or here, a case management judge, more appropriately) has made an observation relevant to the recusal applicant. Then, perhaps more importantly, the second limb of the test requires the applicant to show why that issue is of concern, as regards applying the Livesey's case threshold of what that hypothetical lay observer 'might' observe.
For the present application, I will address three key factors which all bear upon the decision I reach at the end, namely, that I will recuse myself in respect of future case management and the trial of the forthcoming civil liability trial against the fourth defendant in this action.

First factor - springing orders made in 2017

The first consideration directs my attention at events surrounding the making of a springing order on 28 September 2017, which became the subject matter of my reasons first given ex tempore at the time, but subsequently edited and revised by me to become Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Pierre Pty Ltd (in liq) [No 2] [2018] WASC 23 (Pier [No 2]).
I had then been dealing with the application of the plaintiff argued through senior counsel in circumstances where I had made a tranche of earlier orders on 7 September 2017. Those earlier orders were only made as against the first, second and third defendants - as regards requiring the payment of the money into court or, alternatively, a delivery of 29 gold ingots into court.
As at 28 September 2017, the 7 September 2017 orders had not been complied with within the time that I had allowed for compliance by the defendants concerned. The time for compliance had elapsed shortly before the directions hearing of 28 September 2017.
A significant aspect of the 28 September 2017 interlocutory springing order application (and all the previous interlocutory applications to which I will refer) is that all defendants were still all then commonly represented by the same lawyers of record and by the same counsel. At that point, all four defendants had submitted in a common defence pleading. So, the fourth defendant did not then enjoy separate legal representation. Nor was this a case of the fourth defendant acting independently, as a self‑represented litigant. Her lawyers were the same lawyers as her husband and the corporate vendor defendants' lawyers.
On 28 September 2017, there was submitted to the court a minute of proposed orders by the plaintiff which effectively then sought judgment against all four defendants. The circumstances then, as I have mentioned, were that the first, second and third defendant were in clear default of my orders of 7 September 2017. The new question now posed then was whether I should (a) extend time to the defendants for their further compliance, and (b) extend the ambit of my earlier 7 September 2017 orders so as to embrace not just the three defendants who then were in default of those orders, but also to now incorporate the fourth defendant as well in a springing order against all defendants in the event of continued non‑compliance with the earlier orders.
On 28 September 2017, when that application was made by the plaintiff, there was some generic discussion about what would happen if an extended time for compliance by all defendants was not met. There was also discussion then about the making of a springing order as regards a future non‑compliance.
In due course, I was persuaded by senior counsel for the plaintiff to issue a springing order that would strike out the (common) defence of all the defendants, if compliance with the 7 September 2017 orders was not met by an extended time for compliance of 5 October 2017.
At that time, a second set of lawyers were on the record for all four defendants. On 28 September 2017, the only submission put to me then of any relevance made by the counsel for the defendants on this issue of compliance was to ask for more time to allow for a compliance by all the defendants generically. No submission was then made to me against fresh orders that envisaged a potential striking out of the commonly pleaded defence to include the fourth defendant as well. Rather, all that was then submitted on behalf of all defendants was to seek an extension of time for all defendants in order for them to comply with the then unmet orders of 7 September 2017. Counsel appearing that day for the defendants did then also foreshadow an application by his firm to get off the record as lawyers for the defendants.
I was also informed by the senior counsel for the plaintiff at the 28 September 2017 hearing as to the fourth defendant not making full disclosure of all her assets by reference to other discovered bank accounts. Consequently, I was then of the view that prior freezing orders and my ancillary orders in relation to asset disclosure had now been violated by the fourth defendant. This was under circumstances where, at that point, the third and fourth defendant, Mr and Mrs Durolek, both remained out of Australia, ostensibly in a direct breach of earlier passport surrender orders made in respect of them both - but which had been ignored.
As events later transpired, some months later, in April 2018, Mrs Durolek voluntarily returned to Australia and thereupon voluntarily surrendered both her passports to the Registrar of this court.
Mrs Durolek also participated at the first day of the assessment of damages hearing in May 2018, by an application by new lawyers, effectively, seeking to strike paragraphs from a solicitor's affidavit which had been read and relied upon for the plaintiff at the making of orders earlier made against her.
That unsuccessful application duly became the subject of my reasons in Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 5] [2018] WASC 203 (Pier [No 5]). I return to the circumstances surrounding that unsuccessful application later.
Returning to the events of 28 September 2017, Mr and Mrs Durolek still then had not surrendered their passports. They remained out of the country. Their joint solicitors of record were foreshadowing getting off the record. No submission was then put to me by their counsel as to a basis of justification for a widespread non‑compliance with my previous disclosure orders by Mrs Durolek. Consequently, I was persuaded then by counsel for the defendants to only extend time allowed as counsel for the defendants requested for the compliance with my 7 September 2017 orders to October 2017. I did that at the time, but on the basis that, if compliance was not met by that time, all defendants would have their common defence struck out and judgment entered automatically against them all.

I should say that at that time there was no hint of any differentiation of position as between the first, second and third defendants with the fourth defendant as regards compliances. Had there been, or had Mrs Durolek been then represented on the basis of a submission as to her unique compliance position, as distinct from the corporate vendor defendants and her husband, then her position would likely have been severally evaluated by me. In the end, it was not.
The question today is whether those events by themselves, in respect of some generic negative global observations I made that day against all defendants, in the face of what was put or, more correctly, was not put to me by the defendants' joint counsel, are in 2019 a sufficient basis to disqualify myself from hearing a future civil liability case against the fourth defendant on its merits.
I say that I am not persuaded that negative remarks made then would, alone, on a basis that my observations made at the time, which were essentially a product of what was then put (rather, not put) on Mrs Durolek's behalf, are enough. However, there are two further factors which, in aggregate, combine with the first factor to ultimately persuade me in the end to recuse.

Second factor - instructions to lawyers on record

The second significant factor is that, in due course, the defendants' second set of lawyers did remove themselves from the record as foreshadowed. A fresh (third) set of Perth based lawyers duly got on the record for all the defendants, this time with the assistance of senior and junior counsel from the independent bar.
Then, between October 2017 and January 2018, there ensued a series of application directions hearings convened before me made through the defendants' new lawyers and their counsel towards applications on behalf of all defendants. At this time there was not a slightest hint of any degree of differentiation as between the non‑compliance and default positions of any of the four defendants. Mr and Mrs Durolek, as the third and fourth defendants, still remained out of Australia, albeit said to be conveying instructions from France to their new lawyers: see my reasons in Pier (WA) Pty Ltd as trustee for the Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 3] [2018] WASC 24 (Pier [No 3]).
As I explained in Pier [No 3] at [50] - [53], then at [60] - [62], the defendants' third set of joint legal representatives, then freshly came to submit, under an application of 22 December 2017 that there should be even more time allowed for all four defendants to comply with my 7 September 2017 orders, in terms of them paying money into court, or by delivering the gold ingots at issue into court.
By that time in late 2017, everyone seems to have been proceeding on the basis that the existence of gold ingots held in a French bank purchased with the corporate vendors' obtained proceeds of settlement, was a false issue. That issue had been the subject of an earlier false statement sworn to by the third defendant, Mr Durolek. But the significant matter then in late 2017 as regards the fourth defendant, if her position is retrospectively viewed severally as a co‑defendant (which it was not then, on the basis of her position on her common joint legal representation), is that no application was then made for her asserting that she could not herself comply with the bringing about of the previously ordered payment of money into court or, say, to articulate that she was disadvantaged vis‑à‑vis, say, the money at issue only ever being held or controlled by her husband (not her) or by other persons that she no control over. That was not said for her then.
In fact, the only application commonly advanced on behalf of all four defendants at late December 2017 was that there be the further time for compliance with my orders of 7 September 2017 and, to that end, the springing order of 28 September 2017, which had obviously now sprung on 5 October 2018 on a self‑executing basis, be set aside.
In due course, for the reasons as explained in Pier [No 3] at [68] - [72], I rejected that fresh application of the defendants for more time for them all to comply, on the basis that my analysis of the materials then indicated the defendants were not, in fact, seeking to actually comply with the earlier orders at all. They were then commonly seeking to vary them after the event, in a way that was conceptually wrong.
Critically, the point is that some three months after the taking effect of the civil liability default judgments against all defendants as then sprung, all the same defendants, now with new (third tranche) lawyers, including by representation from senior counsel - were only applying then for more time to comply with my earlier orders.
All that was careful and deliberately legally instructed affirmation conduct on behalf of all defendants at the time to which I, as case manager, was exposed. I find it very difficult to overlook or put aside those events at any further rehearing of a trial concerning Mrs Durolek.

Third factor - indemnity costs made against the fourth defendant

The third factor, which independently persuades me that it is inappropriate for me to hear a liability trial against Mrs Durolek alone, is the circumstance in which, at the first day of the assessment of damages hearing in May 2018, I had to deal with her application to the effect that certain paragraphs in an affidavit by a legal practitioner acting for the plaintiff be struck out - on the basis that they had misled the court.
Why that application was ever made and its provenance I still ponder over. It is the subject of my reasons in Pier [No 5] delivered ex tempore on 7 May 2018 and published on 2 July 2018. Under those reasons, I then made the observation at [18] - [19] that:
On my assessment, this is a case where the present application ought not to have been brought. It is a serious thing to accuse a legal practitioner of misleading the court without foundation. Quite frankly, that suggestion ought to have been withdrawn. I remain concerned it was not withdrawn once the true position was exposed today.
Hence, there will be an order for indemnity costs as I am satisfied the principles for the application of such an extraordinary order are met ...
I duly issued an indemnity costs order against the fourth defendant under those circumstances towards that application. That event, I think, could well carry a problematic future concern towards what the hypothetical impartial observer might think sitting in the back of a courtroom were I to determine in future the merits of a liability trial against Mrs Durolek. I accept that my observations could be viewed to the effect that having expressed a position adverse to Mrs Durolek, based on my then exposure to that unsatisfactory conduct and by the order that I made sanctioning her because of it, I might not in future be seen as bringing a completely impartial or unbiased mind to a future trial exercise over her civil liability to the plaintiff.

Conclusions on recusal

I am of the end view that, with the action having been remitted back to me, I could bring a completely impartial mind to bear for a future trial of the fourth defendant. However, the question is not whether I could or could not. The question is how the position might present assessed on an objective basis to a hypothetical neutral observer holding some insights applying the 'might' test. Applying that test to all past events I have now outlined above, such an observer might consider that I might not bring an impartial mind to Mrs Durolek's future liability trial.
Together the three factors outlined above persuade me that there ought to be another curial officer to case manage and determine the liability hearing in this case for the fourth defendant. For that reason, I will recuse myself on the present application by Mrs Durolek.

Remitted costs determination

I must also resolve the costs issues as remitted by the Court of Appeal in Durolek v Pier [No 2]. To the extent that I need to deal with any specific unresolved costs issues, I afforded the plaintiff's lawyers the opportunity to put before me written materials by submission that the plaintiff's costs be other than made to abide the cause to ultimately be determined by another judge on Mrs Durolek's civil liability trial in this action.
I allowed the plaintiff's lawyers until Friday, 8 November 2019 to put a brief written submission as regards specific costs orders in terms of the remission order of the Court of Appeal to me. I extended a similar opportunity to respond to the lawyers for the fourth defendant until 20 November 2019, on the basis that any differences over costs orders could be dealt with on the papers by me.
For completeness, I note that earlier springing orders remain in effect as against the first, second and third defendants, as do the freezing orders issued in this action and augmented from time to time as against all defendants, including against Mrs Durolek.
Having now received and considered the parties' respective further written submissions on costs, I remain of the prima facie view as I had expressed it to counsel on 29 October 2019, namely, that all costs issues not otherwise specifically dealt with already as between the plaintiff and the fourth defendant prior to Mrs Durolek's successful appeal should be made to stand in the cause of the liability trial that now pends against her.
I also indicated to counsel on 29 October 2019 that such 'in the cause' orders would not vary, detract from or impinge in any way against the force and effect of earlier specific costs orders that had already issued as against the fourth defendant upon any prior interlocutory applications as already determined. Counsel for the fourth defendant had frankly accepted that to be the current position at the time and that acceptance remains so, under the subsequent exchange of written submissions.
To the extent that the plaintiff by its submitted Schedule B of 7 November 2019 now seeks special costs orders beyond those as already made, then I would decline now to interfere with interlocutory cost orders as already issued. That would not be appropriate so long after those events were determined.
Some of the interlocutory costs orders previously issued were issued against all defendants jointly. I accept that it is not appropriate now to recraft those earlier orders now for them to be directed specifically as against the fourth defendant.
As regards costs not made the subject of prior orders, they will be made to stand in the eventual cause outcome of the civil liability trial of the fourth defendant, as I have indicated.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin
3 JANUARY 2020