Troy SMSF Pty Ltd as trustee for the Troy Superannuation Fund v Bux.Com Global Limited
[2019] WASC 116
•5 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: TROY SMSF PTY LTD as trustee for THE TROY SUPERANNUATION FUND -v- BUX.COM GLOBAL LIMITED [2019] WASC 116
CORAM: ACTING PRINCIPAL REGISTRAR WHITBY
HEARD: ON THE PAPERS
DELIVERED : 5 APRIL 2019
PUBLISHED : 5 APRIL 2019
FILE NO/S: CIV 2271 of 2016
BETWEEN: TROY SMSF PTY LTD as trustee for THE TROY SUPERANNUATION FUND
Plaintiff
AND
BUX.COM GLOBAL LIMITED
Defendant
Catchwords:
Order 67B rule 16(1)(e) of the Rules of the Supreme Court 1967 (WA) - Application by non-party for access to inspect documents in case commenced before 1 March 2018 - Application dismissed
Legislation:
Rules of the Supreme Court 1967 (WA), O 67B r 16(1)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Solomon Brothers |
| Defendant | : | Whittens, McKeough & Sandraj |
Case(s) referred to in decision(s):
Nicholson v Morgan [2012] WASC 65
Troy SMSF Pty Ltd v Bux.com Global Ltd [2016] WASC 249
Vikas Rambal (atf the Rambal Family Trust) v Pankaj Oswal (atf the Burrup Trust) [2014] WASC 86
ACTING PRINCIPAL REGISTRAR WHITBY:
This is an application by Glenn Chittleborough (the Applicant) pursuant to Order 67B r 16(1)(e) of the Rules of the Supreme Court 1971 (WA) (RSC), for access to the following documents:
(a)statement of claim dated 30 August 2016; and
(b)Minute of Consent Orders dated 28 June 2017 (collectively 'the Documents').
Order 67B rule 16(1)(e) RSC provides:
16. Documents that can be inspected or copied
(1)Any person referred to in rule 15 is, on payment of the prescribed fee, entitled during office hours to inspect and be given a copy of any of these filed documents –
…
(e)with the leave of the Court or a registrar, any other document.
Background
On 25 July 2016, the plaintiff commenced this action (Supreme Court Action) by a Writ of Summons with an Indorsement of Claim. The Applicant is not a party to this action.
On 20 December 2018, the plaintiff commenced proceedings in the District Court against the Applicant - District Court CIV 4783 of 2018 (District Court Action).[1]
[1] The Writ of Summons in the District Court action is Annexure DCH3 to the affidavit of David Charles Huggins dated 11 February 2019.
I have had regard to the following documents in considering the application for access to the Documents:
(a)Affidavit of David Charles Huggins sworn 11 February 2019;
(b)Applicant's submissions in support of the application for access dated 27 February 2019; and
(c)Plaintiffs' submissions in opposition dated 11 March 2019.
Applicable legal principles
In the case of Vikas Rambal (atf the Rambal Family Trust) v Pankaj Oswal (atf the Burrup Trust)[2] (Rambal) Le Miere J considered an application by a non‑party for access to documents pursuant to O 67 r 11(1)(d) (the predecessor to O 67B r 16):
[8]… the principle of open justice is a strong reason for allowing access to documents that have been read by the court as part of the decision-making process, including the process of determining pre-trial applications. 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.
[9]… a party who is engaged in litigation has a legitimate interest in inspecting documents which contain information relevant to the issues in the litigation in which the applicant is involved.
[10]… where the documents sought have been filed but not read the principle of open justice is not engaged at all and the court should only give access to such documents where there are strong grounds for thinking it necessary in the interests of justice to do so.
[2] Vikas Rambal (atf the Rambal Family Trust) v Pankaj Oswal (atf the Burrup Trust) [2014] WASC 86 [6].
The Applicant submits that the Documents have been read by the court as part of the decision making process including the process of determining pre‑trial applications.
The plaintiffs submit that the Documents have not been read in open court or in the determining of pre‑trial applications.
There has only been one interlocutory application in the Supreme Court Action – Troy SMSF Pty Ltd v Bux.com Global Ltd.[3] This is a decision that predates the filing of the Documents.
[3] Troy SMSF Pty Ltd v Bux.com Global Ltd [2016] WASC 249.
There is no evidence to establish that the Documents have been referred to in open court. I am of the view that the Documents do not fall within that category of documents that have been read by the court.
Therefore, the appropriate consideration is that referred to at [10] of the Rambal case – there must be strong grounds for thinking that it necessary in the interests of justice to grant access to the documents.
In Nicholson v Morgan,[4] Corboy J permitted non‑parties to access only the parts of the statement of claim that had been referred to in open court during a strike‑out application. His Honour stated:
However, I am not persuaded that it is in the interests of justice that Mr and Ms Boase be given leave to inspect the whole of the statement of claim having regard to the principles and considerations that apply where access is sought to material that has not been used in open court. I accept that they have a legitimate interest in the subject matter of this action and that the reasons why they sought access to the statement of claim were broadly concerned with the efficient and economical management of their action. However, I would not have allowed them to inspect the statement of claim if it had not been referred to in detail in open court having regard to the nature of the allegations made against the defendants, the likelihood that any application for consolidation of the Boase action and this action would be premature, the apparent knowledge that Mr and Ms Boase already possess about this action and the fact that for some time the seventh defendant had indicated that it would apply to strike out parts of the statement of claim if no agreement could be reached with the plaintiffs over the pleading.
[4] Nicholson v Morgan [2012] WASC 65 [35].
Determination of the Application
The Applicant relies upon the following facts in support of his application for access:
(a)The Supreme Court Action and the District Court Action concern the same matters of fact;
(b)The purpose of the District Court Action is to recover losses that the Plaintiffs are not able to recover in the Supreme Court Action; and
(c)The Documents are required to determine whether issues of estoppel can be raised in the District Court Action, whether the District Court Action is an abuse of process and to enable proper framing and conduct of the defence in the District Court Action.
The Plaintiffs oppose the application for access to the Documents on the grounds that:
(a)The Statement of Claim contains allegations that are made against third parties who are not party to the District Court Action. The allegations in a statement of claim in respect of different parties with different causes of action, seeking different relief, cannot be a document that a third party has a right, expectation or legitimate interest to inspect; and
(b)If the documents are, or become relevant they will be produced in the ordinary course as part of the discovery process.
I am not satisfied that there is a sufficient legitimate interest demonstrated by the Applicant that warrants granting access to the Documents, in circumstances where I find the Documents have not been referred to in open court. I dismiss the application for non‑party access to the Documents pursuant to O 67B r 16(1)(e) RSC.
I make the following orders:
(a)Mr Chittleborough's application for access to the Documents be dismissed; and
(b)Mr Chittleborough pay the plaintiff's costs of the application for access, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to Acting Principal Registrar Whitby5 APRIL 2019
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