Sawtell v Thorlock International Ltd
[2003] WASCA 139
•10 JUNE 2003
SAWTELL & ANOR -v- THORLOCK INTERNATIONAL LTD [2003] WASCA 139
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 139 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:56/2003 | 10 JUNE 2003 | |
| Coram: | HASLUCK J PULLIN J | 10/06/03 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave refused | ||
| B | |||
| PDF Version |
| Parties: | OLGA PEARL SAWTELL KEENFERN PTY LTD (ACN 003 863 376) THORLOCK INTERNATIONAL LTD (ACN 071 648 309) |
Catchwords: | Appeal Interlocutory decision Leave to appeal Turns on own facts |
Legislation: | Nil |
Case References: | Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Eaton Developments Pty Ltd v NTC Pty Ltd (1998) WAR 552 Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285 Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Avery v Worldwide Testing Services Pty Ltd (1990) 2 ACSR 834 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gallo v Dawson (No 2) (1992) 109 ALR 319 Gilbert v Endean (1878) 9 Ch D 259 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 63 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SAWTELL & ANOR -v- THORLOCK INTERNATIONAL LTD [2003] WASCA 139 CORAM : HASLUCK J
- PULLIN J
- First Applicant
KEENFERN PTY LTD (ACN 003 863 376)
Second Applicant
AND
THORLOCK INTERNATIONAL LTD (ACN 071 648 309)
Respondent
Catchwords:
Appeal - Interlocutory decision - Leave to appeal - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application for leave refused
Category: B
Representation:
Counsel:
First Applicant : Ms K A Vernon
Second Applicant : Ms K A Vernon
Respondent : Mr M L Bennett
Solicitors:
First Applicant : Metaxas & Vernon
Second Applicant : Metaxas & Vernon
Respondent : Bennett & Co
Case(s) referred to in judgment(s):
Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Eaton Developments Pty Ltd v NTC Pty Ltd (1998) WAR 552
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285
Case(s) also cited:
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Avery v Worldwide Testing Services Pty Ltd (1990) 2 ACSR 834
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (No 2) (1992) 109 ALR 319
Gilbert v Endean (1878) 9 Ch D 259
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 63
(Page 3)
1 HASLUCK J: I will ask Pullin J to deliver reasons in this matter.
2 PULLIN J: This is an application for leave to appeal against a decision of Acting Master Chapman. The background is that the respondent is a company which owns certain intellectual property. The second applicant supplied the services of the first applicant, Ms Sawtell, to the respondent. Ms Sawtell worked as chief executive officer and also as a director of the respondent. Ms Sawtell's services as chief executive officer were terminated on 30 November 2001, and she was removed as a director on 9 January 2002.
3 In the proceedings leading to this appeal, the respondent sued Ms Sawtell and the second applicant, alleging breaches of fiduciary duties. When it came to discovery, the respondent applied to a case management Registrar for orders that the inspection of certain documents be prohibited until further order. The respondent relied on an affidavit stating that the documents were confidential relating to the respondent's research and that there was a rumoured likely takeover of the respondent by Ms Sawtell and others, and that pending that happening, inspection of the documents should not be allowed because the parties were, or had the potential to be, trade rivals.
4 Registrar C Boyle dismissed the respondent's application, meaning that Ms Sawtell and the second applicant were free to inspect the documents. The respondent filed a notice of appeal on 23 December 2002 but failed to enter it for hearing within the time specified in O 60A r 5(2), and so the appeal was "taken to have been discontinued". In Eaton Developments Pty Ltd v NTC Pty Ltd (1998) WAR 552 at 557, Owen J had this to say about this provision in the rules:
"Order 63A was introduced into the Rules of the Supreme Court in November 1996 to overcome what was seen as a mischief seriously impeding the administration of the civil justice system. The mischief was that appeals from interlocutory orders were treated in the same way (subject to the need to obtain leave in some cases) as appeals from final orders. This was adding to the delays then being experienced in getting matters to trial. The object of O 63A was to have appeals and applications that come within it disposed of in the shortest possible time so as to minimise delays in getting the substantive litigation to trial."
(Page 4)
5 The reference by Owen J was to O 63A, but the same comments apply in relation to O 60A r 5(2). Instead of seeking an extension of time to enter the appeal for hearing, the respondent decided to apply for an extension of time to institute a new appeal, and that extension was granted on 7 February 2003. I should pause to say for my part, and by way of obiter, that it would be most unfortunate if this procedure became the normal way of avoiding the restrictions in O 60A r 5, which would then set that provision at nought.
6 However, to return to the narrative, the parties had agreed that if the extension of time were granted, that the appeal should then be heard. Several affidavits had been filed by the parties, and the Acting Master took these into account. One was an affidavit produced by the respondent on the morning and read over the objection of Ms Sawtell's counsel.
7 The Acting Master, in effect, allowed the appeal in part. I say "in part" because he did not make the order the respondent was seeking, that is, to completely prohibit inspection. Instead, he made the following order:
"3. Subject to:
3.1 the appellants (respondents) nominating in writing to the solicitors for the respondent (appellant) their nominated legal representatives;
3.2 such nominated legal representatives undertaking to keep confidential and not to disclose to the appellants (respondents) or either of them information obtained by the legal representatives from the inspection of the respondent's (appellant's) confidential documents until further order by this Honourable Court,
the respondent (appellant) give inspection of the respondent's (appellant's) confidential documents to the appellants' (respondent's) nominated legal representatives, such inspection to be carried out at the premises of the respondent's (appellant's) solicitors by appointment during ordinary business hours."
(Page 5)
9 Now leave is sought to appeal against this interlocutory decision. The grant of leave is in the discretion of the Court, which must be exercised judicially. There are, however, two factors which are usually considered in the exercise of that discretion. The first is whether the Court is satisfied that the decision is attended with sufficient doubt to justify the grant of leave, and the second is whether substantial injustice would be done if the decision remained unreversed. See Wilson v Metaxas[1989] WAR 285 and Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40. I would also refer to the comments made by Sir Harry Gibbs and Aickin, Wilson and Brennan JJ in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, where they quoted the words of Sir Frederick Jordan, who said:
"… I am of the opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
10 This seems to be a case where an extraordinary amount of energy and ingenuity of both parties has gone into a fight involving an interlocutory matter. In my opinion, whether or not the decision of the Acting Master is attended with sufficient doubt as alleged in the grounds of appeal, I am not satisfied that any injustice will be done if the decision of the Acting Master is not reversed. The Acting Master's orders allow the legal representatives of Ms Sawtell and the second applicant to inspect the documents. If those legal representatives consider that it is essential to the conduct of the case that these documents be shown to Ms Sawtell, then the order contemplates an application might be made to vary the order to permit that to happen subject to any arguments that might arise at that time.
11 The order which allows that kind of staged and controlled process of inspection cannot, in my view, cause any prejudice to the second applicant and Ms Sawtell. For those reasons, I would refuse leave to appeal against the order to which I have referred.
(Page 6)
12 Ms Sawtell and the second applicant also seek leave to appeal against the order that the applicants pay the costs of the appeal, on grounds that:
"6. The learned Master was wrong in the exercise of his discretion in ordering that the appellants (respondents) pay the respondent's (appellant's) costs of the appeal in that:
6.1 the respondent (appellant) sought to prohibit the appellants (respondents) from having any right of inspection in the application dated 15 November 2002 and the respondent (appellant) was wholly unsuccessful in obtaining such order;
6.2 the learned Master found that the appellants (respondents) had sufficient interests to warrant a right of inspection, albeit limited with liberty to apply to vary the restriction following inspection."
13 The respondent wanted a complete prohibition on any inspection of the documents. On the other hand, the applicant wanted a complete freedom to inspect the documents. Viewed overall, the respondent gained orders protecting the documents unless undertakings were given by the solicitors for Ms Sawtell and the second applicant, and so the Acting Master, in effect, held that costs should follow the event, which was that the respondent had gained some success in its application, although not complete success.
14 In my opinion, that exercise of discretion cannot be said to be an exercise which was in error. It is not for this Court to substitute its own opinion for the exercise of that discretion. In my opinion, the decision is not attended with sufficient doubt to warrant the grant of leave to appeal, and I would refuse leave in relation to that ground.
15 It is therefore not necessary to consider questions raised by the respondent about whether, because of s 60(1)(e) of the Supreme Court Act 1935, this Court has jurisdiction to entertain the appeal.
16 HASLUCK J: I agree with the reasons for decision just expressed by Pullin J and with the orders proposed.
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