Trafalgar West Investments Pty Ltd as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 10]
[2016] WASC 111
•5 APRIL 2016
TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [No 10] [2016] WASC 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 111 | |
| Case No: | COR:59/2011 | 18 DECEMBER 2015 AND ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 5/04/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Production of copy directed | ||
| B | |||
| PDF Version |
| Parties: | TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST SUPERIOR LAWNS AUSTRALIA PTY LTD KINGSLEY CRAIG FLUGGE MARGARET FLUGGE JEROME MATTHEW FLUGGE LINLEY FLUGGE DAMIEN CRAIG FLUGGE |
Catchwords: | Practice and procedure Confidential litigation funding agreement Document Production Objections to production withdrawn |
Legislation: | Nil |
Case References: | Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34 Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- AND ON THE PAPERS
- Plaintiff
AND
SUPERIOR LAWNS AUSTRALIA PTY LTD
First Defendant
KINGSLEY CRAIG FLUGGE
Second Defendant
MARGARET FLUGGE
Third Defendant
JEROME MATTHEW FLUGGE
Fourth Defendant
LINLEY FLUGGE
Fifth Defendant
DAMIEN CRAIG FLUGGE
Sixth Defendant
Catchwords:
Practice and procedure - Confidential litigation funding agreement - Document - Production - Objections to production withdrawn
Legislation:
Nil
Result:
Production of copy directed
Category: B
Representation:
Counsel:
Plaintiff : Mr S Penglis (Pro Bono)
First Defendant : Mr M L Bennett
Second Defendant : Mr M L Bennett
Third Defendant : Mr M L Bennett
Fourth Defendant : Mr M L Bennett
Fifth Defendant : Mr M L Bennett
Sixth Defendant : Mr M L Bennett
Solicitors:
Plaintiff : Jebb Legal
First Defendant : Bennett + Co
Second Defendant : Bennett + Co
Third Defendant : Bennett + Co
Fourth Defendant : Bennett + Co
Fifth Defendant : Bennett + Co
Sixth Defendant : Bennett + Co
Case(s) referred to in judgment(s):
Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34
Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68
1 KENNETH MARTIN J: As explained in my reasons Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 8] [2016] WASC 34, delivered 9 February 2016, this action is currently stayed, by reason of the plaintiff's failure to meet a $100,000 security for costs instalment payment that fell due on 27 November 2015.
2 As those reasons also explain, there were further issues of disputation canvassed on 18 December 2015, but not then resolved: see [3] and [4] of the 9 February 2016 reasons. Those residual areas of disputation have, in effect, been presently overtaken by the force of the stay which remains in place.
3 But one of the residual issues not determined has capacity to bear upon forthcoming arguments which I will need to address at a looming, urgent, special appointment sought by the plaintiff that is set for hearing at 2.15 pm on Thursday, 7 April 2015. At that appointment the plaintiff foreshadows seeking adjustments to previous security for costs orders that were issued, in effect, by consent in these proceedings in 2014, as well as seeking an interruption to springing orders which I issued on 4 March 2016 - and which are the subject of my separate reasons, Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68.
4 The unresolved issue that presents now concerns the question of production of and access to a copy of a confidential document in the possession of the plaintiff. Prior to 18 December 2015 the defendants had requested the plaintiff produce a copy of a written litigation funding agreement, entered between the plaintiff and LCM Litigation Funding Pty Ltd: see my 9 February 2016 reasons, at [3a]. There were two documents requested by the defendants which were refused as to their production by the plaintiff. I am expressly not dealing with the other document that was also sought by the defendants, namely, the plaintiff's retainer agreement with its former solicitors, Corrs Chambers Westgarth. That production issue remains for a determination, if required, at some later point.
Disposition
5 Following the hearing on 18 December 2015 in chambers the parties exchanged, in accord with my directions of that day, written submissions upon the issues 3(a) and 3(b), as are identified in my 9 February 2016 reasons - to facilitate a disposition of those residual issues on the papers.
6 Concerning the non-production of the LCM Litigation Funding agreement, the plaintiff's partial resistance position to the production of that confidential document has now changed, over the period 18 December 2015 to 27 January 2016.
7 The document was pressed for by the defendants under their written submissions of 13 January 2016 (see par 3.1 and pars 21 - 29). Production of a copy of that funding document was sought, upon the basis that it is a document that is explicitly referred to under par 3 of Mr Patrick Jebb's affidavit of 14 December 2015 - in a context of that agreement having been said to have been terminated by LCM, in October 2015.
8 By the responding written submissions of 27 January 2016, the plaintiff, through pro bono counsel, whilst maintaining the confidentiality of the litigation funding agreement between the plaintiff and LCM, indicated then a revised position of, in effect, non-resistance to production if directed by the court. Those written submissions say:
1. The plaintiff neither consents to (which it cannot do due to confidentiality provisions which bind it) nor opposes the defendants' application for a copy of the funding agreement between the plaintiff and LCM.
2. The plaintiff therefore makes no submissions regarding the same.
9 That same position has been confirmed verbally by pro bono counsel for the plaintiff at his subsequent appearance on 18 February 2016: see ts 270 - 271. Mr Penglis then said:
Your Honour probably doesn't recall, but we changed our approach to that document, and we don't oppose. We don't consent to, but nor do we oppose … Now the reason for that is obvious. We have no difficulty with the court and my learned friend seeing the document. But we can't volunteer it for otherwise, we would be in breach of the confidentiality agreement, and we don't want to be in that position … If your Honour made a direction that the affidavit be provided, we wouldn't - or my learned friend sought a direction, I wouldn't oppose it. Your Honour understands the point. We can't volunteer it.
10 In my view, the LCM Litigation Funding agreement should now be produced under a direction of this court. On my assessment, it is relevant and could bear upon any disposition of the application of the plaintiff to interrupt the taking effect of springing orders currently made.
11 There is now pending before another case manager (Beech J) the separate litigation that was commenced by Trafalgar against LCM Litigation Management Pty Ltd, under an originating summons of 21 January 2016: see CIV 1102 of 2016.
12 The originating summons indicates that Trafalgar is pressing for a declaration in terms which I set out at [36] of the reasons Trafalgar West v Superior Lawns [No 9].
13 Effectively, those other proceedings seek to determine construction issues as regards Trafalgar's contentions in relation to LCM's funding obligations under that written agreement. Naturally, I will not be determining the merits or demerits of those arguments, which I now understand have been set down for a determination on 5 May 2016 before Beech J.
14 However, it may still be relevant for me to examine the LCM agreement, in a context of assessing the surrounding circumstances applicable to the variation and interruption applications as foreshadowed by Trafalgar to be heard urgently, on 7 April 2015. I may need to consider whether the plaintiff holds a respectably arguable basis to secure longer term the declaratory relief which it seeks as a matter of contractual construction in relation to that funding agreement. Hence, it should now be produced to that end by the plaintiff.
15 Consequently, I will direct upon the publication of these reasons that a copy of the LCM agreement be produced by the plaintiff to the defendants' solicitors. I am, of course, well cognisant of the current stay which is in place but, in my view, the present direction, is made in relatively uncontroversial circumstances, where it is necessary in order to prepare for and conduct the forthcoming application of Trafalgar. Such a direction is not inconsistent with the present stay. Once production occurs, I would expect that one or other of the parties would then annex a copy of the litigation funding agreement to an affidavit and it would then be submitted for the purposes of consideration at the forthcoming application on Thursday, 7 April 2016, at 2.15 pm.
16 This direction should issue upon publication of these reasons which will also be emailed to the parties' legal practitioners of record. Costs associated with the resolution and determination of arguments concerning this document are reserved.
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