Application for leave to appeal from interlocutory decision - Appeal - Subpoena for production of documents - Order for inspection - Order for production and inspection of copies of affidavits filed in proceedings in Family Court of Western Australia - Confidential material - Extent of inspection permissible - Procedure to be followed on return of subpoena
Legislation:
Nil
Result:
Leave to appeal granted Appeal allowed in part Matter remitted for Master to consider extent of inspection, if any, of documents produced which may be permitted
Category: B
Representation:
Counsel:
Applicants
(First & Second Defendants) : Mr A R Beech
First Respondents (Plaintiffs) : Mr J A Thomson
Second Respondents
(Third & Fourth Defendants) : Ms L A Del Fuoco
Solicitors:
Applicants
(First & Second Defendants) : Fairweather & Lemonis
JUDGMENT OF THE COURT: This application for leave to appeal from an interlocutory order made by Master Sanderson on 29 May 2003 was heard and determined on 10 March when we granted leave to appeal, allowed the appeal in part and remitted to the Master for further consideration the question of whether and if so to what extent and in accordance with these reasons the first respondents (plaintiffs) may inspect all…
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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AGLC
Stanley v Layne Christensen Co [2004] WASCA 50
Case
[2004] WASCA 50
Decision Date
CaseChat Overview and Summary
In the matter of Stanley v Layne Christensen Co, the applicants sought leave to appeal an interlocutory decision made by Master Sanderson on May 29, 2003, which was subsequently heard and determined on March 10. The applicants were granted leave to appeal, and the appeal was allowed in part. The matter was remitted to the Master for further consideration of whether and to what extent the respondents (plaintiffs) could inspect affidavits filed in the Family Court of Western Australia in the proceedings between the first-named applicant and another party. The applicants alleged that the first-named applicant, Mr. R F Stanley, was bound by a restraint of trade clause contained in a "consulting agreement" with the second-named first respondent, Stanley Mining Services Pty Ltd. The respondents claimed that Stanley had acted in breach of the consultancy agreement by providing financial resources and assistance to the second respondents, enabling them to establish a business in competition with SMS. The court was required to decide on the extent of inspection permissible and the procedure to be followed on the return of the subpoena.
The court examined the subpoenas issued and accepted certain amendments to their original form. The applicants' application to set aside certain subpoenas and vary others was dismissed by the learned Master, who allowed the subpoenas in their amended form to stand. The Master also made orders permitting the solicitors for the first and second respondents (plaintiffs) and the appellants (first and second defendants) to inspect all documents produced under the subpoenas in accordance with a set timetable. The court's decision hinged on the permissible extent of inspection and the procedure to be followed on the return of the subpoena, taking into account the confidential nature of some of the material.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
JUDGMENT OF THE COURT: This application for leave to appeal from an interlocutory order made by Master Sanderson on 29 May 2003 was heard and determined on 10 March when we granted leave to appeal, allowed the appeal in part and remitted to the Master for further consideration the question of whether and if so to what extent and in accordance with these reasons the first respondents (plaintiffs) may inspect all or any part of the affidavits filed in the Family Court of Western Australia in the proceedings between the firstnamed appellant and another. At the disposition of the appeal we gave brief reasons for that decision indicating that more detailed reasons would follow later. These are our detailed reasons for that decision. It is not necessary to set out in full the rather complex issues which have arisen in this litigation nor the history of the proceedings in this Court. To a significant extent such a narrative is to be found in an earlier decision of Master Sanderson dealing with disputes over discovery in the action: Layne Christensen Company & Anor v Stanley Mining Services Pty Ltd & Ors [2002] WASC 249 at [2] which the learned Master incorporated in his subsequent reasons for decision on the matter now subject to appeal. It is enough to say that the first respondents (plaintiffs) allege that the firstnamed applicant/appellant, Mr R F Stanley, is bound by a restraint of trade clause contained in a "consulting agreement" to which he and the secondnamed first respondent, Stanley Mining Services Pty Ltd ("SMS") are parties. The restraints in this consulting agreement included alleged obligations by Stanley to avoid any participation or interest in any business which is or becomes a competitor of SMS, not to disclose confidential information belonging to SMS, not to solicit any employees of SMS to leave their employment and other cognate responsibilities. The first respondents, as plaintiffs, in the action allege that Stanley acted in breach of the consultancy agreement in a variety of ways by providing financial resources and other assistance to the second respondents and others to act in competition with SMS. Issue has been joined over whether or not the restraints in the consulting agreement are binding upon Stanley, whether he acted as alleged, whether his alleged conduct constitutes a breach of the consulting agreement, and whether any loss or damage has been suffered by the first respondents for which a remedy can or should be granted. For present purposes it is enough to focus on the allegations made by the first respondents, as plaintiffs, that at a time when it is alleged that Stanley was bound by the terms of the consultancy agreement he provided assistance for the second respondents and participated in a course of transactions which, eventually, led to them obtaining financial support to set up a business in competition with SMS. On 16 December 2002, pursuant to RSC O 36 r 12(4), the second respondents applied for and obtained leave, ex parte, to issue subpoenas returnable before trial against a number of persons or corporations. The subpoenas were returnable on 5 February 2003 and, before then, the appellants applied to set aside certain of the subpoenas and to vary others. The applications for variation of some of the subpoenas was, in effect, an expedient adopted by the parties without objection which, in effect, asserted that the subpoenas should be set aside as invalid, irregular or embarrassing unless they were in a different form. Nothing turns on the procedure so adopted. This application came on before the learned Master on the basis that there was a challenge to all 17 subpoenas which had issued. After examining all the subpoenas which had issued and accepting certain amendments to the original form of some of them, the learned Master dismissed the appellants' application and allowed the subpoenas in their amended form to stand. In addition, the learned Master made orders allowing the solicitors for the first and second respondents (plaintiffs) and the appellant (first and second defendants) to inspect all the documents which had been produced under those subpoenas to the court in accordance with a timetable which he then set.