Rosenberg v Can't Escape Karma Pty Ltd - [2025] WASCA 83

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ROSENBERG -v- CAN'T ESCAPE KARMA PTY LTD [2025] WASCA 83
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   28 MAY 2025
DELIVERED          :   28 MAY 2025
PUBLISHED           :   28 MAY 2025
FILE NO/S:   CACV 24 of 2025
BETWEEN:   LANCE MICHAEL ROSENBERG
First Appellant
ELI SHELLIM
Second Appellant
GLENEAGLE SECURITIES NOMINEES PTY LTD
Third Appellant
AND
CAN'T ESCAPE KARMA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HOWARD J
Citation: ROSENBERG & ORS -v- CAN'T ESCAPE KARMA PTY LTD [2025] WASC 58
File Number            :   COR 133 of 2024

Catchwords:

Appeals - Appeal from interlocutory order concerning examination summonses and direction to produce - Urgent application for stay pending appeal - Principles for stay pending appeal - Stay of examination summonses pending appeal granted - Stay of direction to produce refused but inspection not to occur until determination of appeal - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(h)

Result:

Application to stay examination summonses granted

Category: B

Representation:

Counsel:

First Appellant	:	A P Young KC & P H Murray
Second Appellant	:	A P Young KC & P H Murray
Third Appellant	:	A P Young KC & P H Murray
Respondent	:	J P Cook

Solicitors:

First Appellant	:	K & L Gates
Second Appellant	:	K & L Gates
Third Appellant	:	K & L Gates
Respondent	:	Mendelawitz Morton Commercial Lawyers

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

Apache Energy Ltd v Alcoa of Australia Ltd [2012] WASCA 201
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Rosenberg v Can't Escape Karma Pty Ltd [2025] WASC 58
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2023] WASCA 96
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT:

Overview

On 28 May 2025 the court sat pursuant to a Registrar's Notice to Attend dated 22 May 2025 to consider the appellants' application in an appeal dated 21 May 2025 seeking to stay orders made by a judge of the General Division on 28 March 2025. The orders provided for examinations of the first and second appellants (respectively 'Mr Rosenberg' and 'Mr Shellim') under div 1 of pt 5.9 of the Corporations Act 2001 (Cth) together with the production of documents by Messrs Rosenberg and Shellim and the third appellant (Gleneagle) for the purpose of the examinations.
After hearing from the parties we allowed the appellants' application in part. We made orders having the effect of staying the examinations pending the hearing and determination of the appeal save to the extent as was necessary to enable the production of documents. Accordingly, the appellants are to produce documents pursuant to the examination summonses and the direction to produce. However, inspection of those documents is to be…

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: [2025] WASCA 83
Decision Date: 28 MAY 2025

CaseChat Overview and Summary

Rosenberg v Can't Escape Karma Pty Ltd was a case that came before the court where Rosenberg, the plaintiff, sought an appeal against an interlocutory order. The dispute related to examination summonses and a direction to produce documents issued by the defendant, Can't Escape Karma Pty Ltd. Rosenberg sought a stay of these orders pending the outcome of the appeal. The court, which was hearing an urgent application, had to determine whether to grant Rosenberg's request for a stay.

The central legal issue before the court was whether the principles for granting a stay pending appeal should apply in this case, particularly in light of the urgency of Rosenberg's appeal. The court had to balance Rosenberg's interest in preventing potential prejudice from the examination summonses and the direction to produce, against the public interest in the prompt resolution of the underlying litigation. The court also needed to consider whether Rosenberg had demonstrated a serious question to be tried on the appeal and whether Rosenberg would suffer irreparable harm if the stay was not granted.

In reaching its decision, the court considered the principles for granting a stay pending appeal. It found that Rosenberg had established a serious question to be tried on the appeal and that Rosenberg would likely suffer irreparable harm if the examination summonses were not stayed. The court held that Rosenberg's appeal was not frivolous and that Rosenberg had shown a sufficient probability of success. However, the court found that Rosenberg had not demonstrated that the inspection of the documents required by the direction to produce was likely to cause irreparable harm. Consequently, the court granted Rosenberg's application for a stay of the examination summonses but refused to stay the direction to produce. The court also ordered that the inspection of the documents should not occur until the determination of the appeal.

The court's final orders were that the examination summonses would be stayed pending the outcome of Rosenberg's appeal. The direction to produce was not stayed, but the inspection of the documents would be deferred until the appeal was determined. This decision highlights the court's cautious approach to granting stays pending appeal, particularly in cases involving interlocutory orders.

Orders