Re Great Southern Managers Australia Ltd (In Liq); Ex Parte Martin Bruce Jones, Darren Gordon Weaver And James Henry Stewart (In Their Capacity As Liquidators Of Great Southern Managers Australia Ltd (In Liq))
[2014] WASC 312 (S)
•15 September 2014
RE GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ); EX PARTE MARTIN BRUCE JONES, DARREN GORDON WEAVER AND JAMES HENRY STEWART (IN THEIR CAPACITY AS LIQUIDATORS OF GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ)) [2014] WASC 312 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 312 (S) | |
| Case No: | COR:129/2014 | ON THE PAPERS | |
| Coram: | PRITCHARD J | 15/09/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted to inspect some documents | ||
| B | |||
| PDF Version |
| Parties: | MARTIN BRUCE JONES, DARREN GORDON WEAVER AND JAMES HENRY STEWART (IN THEIR CAPACITY AS LIQUIDATORS OF GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ)) |
Catchwords: | Practice and procedure O 67 r 11(1) of the Rules of the Supreme Court 1971 (WA) Application by third party for leave to inspect documents Whether leave to inspect and copy the documents should be granted |
Legislation: | Rules of the Supreme Court 1971 (WA) |
Case References: | Nicholson v Morgan [2012] WASC 65 Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86 Re Great Southern Managers Australia ltd (in liq); Ex parte Martin Bruce Jones, Darren Gordon Weaver and James Henry Stewart (In Their Capacity As Liquidators of Great Southern Managers Australia Ltd (In Liq)) [2014] WASC 312 Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MARTIN BRUCE JONES, DARREN GORDON WEAVER AND JAMES HENRY STEWART (IN THEIR CAPACITY AS LIQUIDATORS OF GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ))
Plaintiffs
Catchwords:
Practice and procedure - O 67 r 11(1) of the Rules of the Supreme Court 1971 (WA) - Application by third party for leave to inspect documents - Whether leave to inspect and copy the documents should be granted
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Leave granted to inspect some documents
Category: B
Representation:
Counsel:
Plaintiffs : No appearance
Third Party Applicant : No appearance
Solicitors:
Plaintiffs : DLA Piper Australia
Third Party Applicant : King & Wood Mallesons
Cases referred to in judgment:
Nicholson v Morgan [2012] WASC 65
Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86
Re Great Southern Managers Australia ltd (in liq); Ex parte Martin Bruce Jones, Darren Gordon Weaver and James Henry Stewart (In Their Capacity As Liquidators of Great Southern Managers Australia Ltd (In Liq)) [2014] WASC 312
Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192
1 PRITCHARD J: I delivered reasons for decision in this matter on 5 September 2014 (the earlier reasons).1 These reasons for decision should be read in conjunction with the earlier reasons.
2 In the earlier reasons I referred to the PWC Action. By letter dated 26 August 2014, PWC's solicitors made an application pursuant to O 67 r 11 of the Rules of the Supreme Court 1971 (RSC) for leave to inspect and copy the following documents (the Documents) which were filed in the present proceedings:
1. The affidavits, with attachments, of:
(i) Darren Weaver sworn 4 July 2014;
(ii) Brett Orzel sworn 24 July 2014;
(iii) David Shaw sworn 24 July 2014;
(iv) David Shaw sworn 29 July 2014; and
(v) Brett Orzel sworn 19 August 2014.
2. The outline of written submissions filed by the Liquidators;
3. The supplementary outline of written submissions filed by the Liquidators on 22 August 2014; and
4. The transcript of the hearing on 19 August 2014.
3 In order to determine the application, I requested that PWC's solicitors file submissions outlining their claim that PWC has a legitimate interest in inspecting the Documents. Those submissions were filed on 10 September 2014 (PWC's submissions).
4 The solicitors for PWC have also conferred with the solicitors for the Liquidators and the Claimants. According to PWC's submissions, the Liquidators neither consent to nor oppose the request for leave to inspect the Documents, while the Claimants are concerned only about inspection of the Statements of Claim in the WA Proceedings. By letter dated 11 September 2014, PWC's solicitors advised that following further conferral the Claimants had indicated that their concerns would be met if the Statements of Claim filed in the WA Proceedings could be redacted from the Documents, and that for the time being PWC was prepared to proceed on this basis.
5 PWC's solicitors have also advised that PWC is prepared to rely on the PWC Submissions and does not seek an oral hearing in relation to its application.
6 For the reasons outlined below, leave will be granted for PWC to inspect, and make copies of, the following documents (subject to payment of any prescribed fee):
1. The affidavit, with attachments, of Darren Weaver sworn 4 July 2014, save for attachment DGW1 to that affidavit;
2. The affidavit, with attachments, of Brett Orzel sworn 24 July 2014;
3. The outline of written submissions filed by the Liquidators;
4. The supplementary outline of written submissions filed by the Liquidators on 22 August 2014; and
5. The transcript of the hearing on 19 August 2014.
Principles in relation to the grant of leave to inspect under O 67 r 11 RSC
7 Order 67 r 11 RSC provides that, on the payment of the prescribed fee, any person is entitled to search for, inspect and take a copy of certain documents described in O 67 r 11(1)(a) to (c) RSC. There is no unfettered right to inspect documents on the Court's file except the documents referred to in O 67 r 11(1)(a) to (c) RSC.2
8 A person may inspect and take a copy of other documents which are not in that list, only with the leave of the court or a registrar, pursuant to O 67 r 11(1)(d) RSC.
9 The Court clearly has a discretion as to whether to grant leave to inspect under O 67 r 11(1)(d) and that discretion must be exercised judicially. Whether leave should be granted will require consideration of a range of factors. These will include whether, and if so, to what extent, the document sought has been referred to in open court, the stage reached in the proceedings, the contents of the document, the nature of the proceedings, whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and of the judicial process, and the purpose for which access is required.3
10 An important consideration in relation to the grant of leave under O 67 r 11(1)(d) is that justice should be administered in the open.4 The principle of open justice is a factor which strongly supports the grant of leave to inspect documents that have been tendered, in their entirety, in court, or read by the court as part of the decision-making process.5 In such cases 'the court should lean in favour of disclosure if a legitimate interest can be shown for obtaining the documents and there is no good reason to refuse access'.6
11 A party engaged in litigation has a legitimate interest in inspecting documents which contain information relevant to the issues in the litigation in which that party is involved.7
12 In contrast, where documents have been filed but not read, the principle of open justice is not engaged, and the Court should only grant leave to inspect such documents where there are strong grounds for thinking it necessary in the interests of justice to do so.8
13 Even if leave to inspect is granted, restrictions may nevertheless be appropriate on the use of discovered and court documents for a collateral purpose.9
Factors relevant to leave to inspect the Documents
14 In considering PWC's application for leave, I have taken into account, first, that the present proceedings have been concluded.
15 Secondly, the affidavits which are among the Documents sought were all referred to in open court, although as I explain below the terms of the Settlement Deed (which was attached to Mr Weaver's affidavit) were not referred to in open court in their full detail. The written submissions filed prior to the hearing were referred to extensively in the course of the hearing and of course the transcript records what was said during the hearing. Finally, the supplementary submissions filed by the Liquidators were read by the Court as part of the decision-making process in these proceedings. The principle of open justice supports the disclosure of these documents if PWC has a legitimate interest in obtaining the documents and there is no good reason to refuse access.
16 Thirdly, I turn to PWC's claim to a legitimate interest in inspecting the Documents.
17 PWC submitted10 that one of the issues currently before Justice Allanson in PWC's application to set aside the extension of the writ in CIV 2611 of 2012 is the extent of any prejudice that PWC may have suffered by virtue of the Liquidators' delay in serving the writ of summons in that action. One of the types of prejudice that has been claimed by PWC is a diminished ability for it to recover by way of a cross claim against the directors and officers of GSMAL. PWC claims that the delay in service of the writ has given rise to this prejudice because the liability of the directors and some companies within the Great Southern Group appears to be covered by various insurance policies, and that funds available from insurance policies which would otherwise respond to a cross-claim brought by PWC against the directors and officers may have been depleted by reason of the Victorian Proceedings and the WA Proceedings (and the intended settlement thereof).
18 It appears that PWC wishes to ascertain what, if anything, is disclosed in the Documents, and what was said in the course of submissions in the present proceedings, in relation to GSMAL's insurance, including the scope of its insurance coverage, and the extent of the depletion of its insurance coverage (the insurance issue). PWC wish to ascertain whether there is any inconsistency between the position adopted by the Liquidators in relation to the insurance issue in the course of the PWC Action, and in the Documents relied upon, and the submissions made, by the Liquidators in relation to the insurance issue in the present proceedings.
19 I accept that PWC has a legitimate interest in ascertaining what was said in the course of the submissions, and what was disclosed by the Documents, advanced by the Liquidators in the present proceedings in relation to the insurance issue, for the purpose of determining whether any of those submissions or that evidence is relevant to the PWC Action.
Whether leave to inspect and copy the Documents should be granted
20 The fact that PWC has a legitimate interest in inspecting documents that contain information relevant to the insurance issue does not mean that PWC necessarily has a legitimate interest in inspecting the totality of the Documents. A number of the Documents do not relate to the insurance issue at all. The affidavits of Mr Shaw dated 24 July 2014, 29 July 2014 and 20 August 2014 and the affidavit of Mr Orzel sworn 19 August 2014 simply attach copies of pleadings in the WA Proceedings, correspondence about the disclosure in the present proceedings of documents in the PWC Proceedings and the Directors action, a company search, and the notice to creditors to which I referred in the earlier reasons (at [41]). I am not persuaded that PWC has a legitimate interest in inspecting these affidavits, and for that reason, decline to grant leave to PWC to inspect these affidavits.
21 The affidavit of Mr Weaver sworn 4 July 2014 deals, in part, with the insurance issue. One of the attachments to that affidavit is a copy of the proposed Settlement Deed (attachment DGW1). I am not persuaded that PWC should have leave to inspect attachment DGW1 to Mr Weaver's affidavit, for the following reasons. First, the content of the Settlement Deed does not deal with the insurance issue. To the extent that the proposed settlement will have a bearing on the insurance issue, any information which may be relevant to that issue is addressed in the balance of the affidavit. Furthermore, PWC does not claim to have any interest in knowing the precise terms of the proposed settlement of the WA Proceedings. Secondly, as I noted in the earlier decision, the Settlement Deed contains a confidentiality clause. The discussion in the earlier decision of the terms of the Settlement Deed was truncated so as not to undermine the utility of that clause.11 Accordingly, although the Settlement Deed was referred to in Court, and in my reasons, the terms of that Deed have not been publicly disclosed in their entirety. In my view this constitutes a good reason for not disclosing the terms of the Settlement Deed, especially in circumstances where PWC has not established a legitimate interest in inspecting the Deed.
22 Accordingly, I will grant leave to PWC to inspect Mr Weaver's affidavit, and the attachments thereto, save for attachment DWG1.
23 The balance of the Documents - namely the affidavit of Mr Orzel sworn 24 July 2014, the written submissions filed by the Liquidators, and the transcript of the hearing on 19 August 2014 - may deal, in part, with matters bearing on the insurance issue. In circumstances where these documents were referred to or record what was said in open court, or were used by the Court for the purpose of reaching the determination recorded in the earlier reasons, and where there does not appear to be any good reason why PWC should not have access to these documents, leave should be granted to PWC to inspect these documents.
Order
24 The Order I will make is as follows:
1. PWC has leave to inspect, and make copies of, the following documents (subject to payment of any prescribed fee):
(i) The affidavit, with attachments, of Darren Weaver sworn 4 July 2014, save for attachment DGW1 to that affidavit;
(ii) The affidavit, with attachments, of Brett Orzel sworn 24 July 2014;
(iii) The outline of written submissions filed by the Liquidators;
(iv) The supplementary outline of written submissions filed by the Liquidators on 22 August 2014; and
(v) The transcript of the hearing on 19 August 2014.
1Re Great Southern Managers Australia ltd (in liq); Ex parte Martin Bruce Jones, Darren Gordon Weaver and James Henry Stewart (In Their Capacity As Liquidators of Great Southern Managers Australia Ltd (In Liq)) [2014] WASC 312.
2Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86 [6] (Le Miere J).
3Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 [27] (McLure J).
4Nicholson v Morgan[2012] WASC 65 [32] (Corboy J).
5Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86 [8] (Le Miere J).
6Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86 [8] (Le Miere J).
7Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86 [9] (Le Miere J).
8Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86 [10] (Le Miere J).
9Nicholson v Morgan[2012] WASC 65 [32] (Corboy J).
10 Outline of Submissions filed on behalf of PWC in support of application for leave to inspect documents under O 67 r 11(1)(d) dated 10 September 2014 at [19] - [25].
11Re Great Southern Managers Australia ltd (in liq); Ex parte Martin Bruce Jones, Darren Gordon Weaver and James Henry Stewart (In Their Capacity As Liquidators of Great Southern Managers Australia Ltd (In Liq)) [2014] WASC 312 [30].
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