Vicario-Adams v Relative Networks Pty Ltd

[2025] WASC 60

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   VICARIO-ADAMS -v- RELATIVE NETWORKS PTY LTD [2025] WASC 60

CORAM:   STRK J

HEARD:   ON THE PAPERS

DELIVERED          :   4 MARCH 2025

FILE NO/S:   COR 103 of 2021

BETWEEN:   ROSALBA VICARIO-ADAMS

Plaintiff

AND

RELATIVE NETWORKS PTY LTD

First Defendant

MARCO VICARIO

Second Defendant

Catchwords:

Practice and procedure - Discovery - Categories of documents - Exercise of discretion - Case management considerations - Proportionality - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 233, s 461
Rules of the Supreme Court 1971 (WA) O 26
Supreme Court (Corporations) (WA) Rules 2004 (WA) r 1.3(2)(a)

Result:

Application granted
Additional categories of documents to be discovered; one category refused

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Vogt Legal
First Defendant	:	Trinix Lawyers
Second Defendant	:	Trinix Lawyers

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

Atlas Copco Australia Pty Ltd v Oxair Gases Pty Ltd [2013] WASCA 43

B v State of Western Australia [2002] WASC 298

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25

Dynasty Pty Ltd v Coombs (1995) 13 ACLC 1290

In re A Company [1983] 1 WLR 927; [1983] All ER 854

In the matter of Optimisation Australia Pty Ltd [2018] NSWSC 31

Joint v Stephens [2008] VSCA 210; (2008) 26 ACLC 1467

Kitay v Frigger [2022] WASC 284

Maek Pty Ltd v Ibrahim [2022] WASC 285

Mopeke Pty Ltd v Airport Fine Foods Pty Ltd [2007] NSWSC 153

Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33

Roe v The State of Western Australia [2013] WASC 130

Singh v Friedman [2013] WASC 78

Tah Land Pty Ltd v Western Australian Planning Commission [2022] WASC 219

STRK J:

Introduction

1. Marco Vicario (the second defendant) is the sole director of Relative Networks Pty Ltd (the first defendant), which was incorporated in July 2000 and operates a business which provides information, technology and communications services to clients in Western Australia. Mr Vicario holds 67 of the 100 ordinary class shares issued by Relative Networks, and Rosalba Vicario‑Adams (the plaintiff and Mr Vicario's sister) holds the remaining 33 ordinary class shares.

2. By this proceeding commenced under the Corporations Act 2001 (Cth), Ms Vicario‑Adams seeks that Relative Networks be wound up on various grounds. The application to wind up Relative Networks is made pursuant to s 233(1)(a) of the Corporations Act on the ground that the conduct of Relative Networks' affairs is oppressive to its members; alternatively, pursuant to s 461(1)(e) on the ground that the director of Relative Networks (Mr Vicario) has acted in affairs of Relative Networks in his own interests and/or in a manner that appears to be unfair or unjust to Ms Vicario‑Adams as a member of Relative Networks; alternatively, pursuant to s 461(1)(f) on the ground that the affairs of Relative Networks are being conducted in a manner that is oppressive against a member; alternatively, pursuant to s 461(1)(k) on the ground that it is just and equitable that Relative Networks be wound up. As an alternative to Relative Networks being wound up, Ms Vicario‑Adams seeks an order pursuant to s 233(1)(d) of the Corporations Act that Mr Vicario purchase at fair value Ms Vicario‑Adams' shares in Relative Networks.

3. Ms Vicario-Adams' application is supported by the affidavit she made on 11 June 2021. On her behalf, an amended statement of facts and contentions was subsequently filed,[1] in response to an order that she outline each claim intended to be prosecuted; the material facts alleged to give rise to each such claim; the relief sought from the court in relation to each such claim; and the primary legal grounds for relief sought in relation to each such claim.[2] A list of documents which Ms Vicario‑Adams relies upon to support each claim was also filed.[3]

   [1] Plaintiff's amended statement of facts, issues and contentions filed on 25 August 2023.

   [2] Order 1(a) of the orders made on 14 December 2022.

   [3] Plaintiff's amended list of documents referred to in the plaintiff's statement of facts, issues and contentions filed on 25 August 2023, as required by order 1(b) of the orders made on 14 December 2022.

4. In her amended statement of facts, issues and contentions, Ms Vicario‑Adams describes a factual background and makes various allegations which largely concern the conduct of Mr Vicario. In that context, Ms Vicario‑Adams raises four issues.

5. First, Ms Vicario-Adams complains that Mr Vicario wrongfully deleted invoices issued by Ovviare Pty Ltd (a company incorporated by Ms Vicario‑Adams and through which Ms Vicario‑Adams provided consultancy services to Relative Networks) in 2015 and 2017; refused to pay other invoices that remained outstanding; and exerted pressure on Ms Vicario‑Adams to accept the deletion of the invoices. Ms Vicario‑Adams says this was conduct of Mr Vicario in contravention of s 233(1)(a) and s 461(1)(e), (f) and (g) of the Corporations Act in relation to the affairs of Relative Networks.[4]

   [4] Plaintiff's amended statement of facts, issues and contentions filed on 25 August 2023 pars 2.1 - 2.12.

6. Secondly, Ms Vicario‑Adams complains that in 2004, at or about the time of incorporation of Relative Networks, Mr Vicario offered to her, and she accepted, an equal (50%) shareholding and directorship in Relative Networks, so that she and Mr Vicario would be, in effect, equal partners; Ms Vicario‑Adams was not appointed a director of Relative Networks and did not receive any allocation of shares in Relative Networks until in or about 27 September 2008, when she received 33% of the shares on issue (contrary to the agreement reached in 2004); and no further transfer or allocation of shares was made to her after September 2008. Ms Vicario‑Adams maintains that she is entitled to a 50% shareholding in Relative Networks and is entitled to be appointed a director of Relative Networks in accordance with the agreement reached at or about the time of Relative Networks' incorporation. She further says that Mr Vicario's refusal and failure to adhere and implement that agreement is conduct of Mr Vicario in contravention of s 233(1)(a) and 461(1)(e), (f) and (g) of the Corporations Act in relation to the affairs of Relative Networks.[5]

   [5] Plaintiff's amended statement of facts, issues and contentions filed on 25 August 2023 pars 2.13 - 2.16.

7. Thirdly, Ms Vicario‑Adams complains that in light of the matters complained of (summarised at [6] above), she sought to have her interest in Relative Networks bought out by Mr Vicario, and says that his refusal and failure to buy out her interest in Relative Networks is conduct of Mr Vicario in contravention of s 233(1)(a) and s 461(1)(e), (f) and (g) of the Corporations Act in relation to the affairs of Relative Networks.[6]

   [6] Plaintiff's amended statement of facts, issues and contentions filed on 25 August 2023 pars 2.17 - 2.19.

8. Fourthly, Ms Vicario‑Adams complains that she was denied, among other things, access to the Relative Networks accounting system software on a number of occasions, and her access to banking was removed. She says that the unlawful failure to provide her with access to the books and records of Relative Networks is conduct of Mr Vicario in contravention of s 233(1)(a) and s 461(1)(e), (f) and (g) of the Corporations Act in relation to the affairs of Relative Networks.[7]

   [7] Plaintiff's amended statement of facts, issues and contentions filed on 25 August 2023 pars 2.20 - 2.28.

9. On 28 October 2022 Mr Vicario made an affidavit in opposition to the application. Further, on behalf of Relative Networks and Mr Vicario, a response to each of Ms Vicario‑Adams' claims (that is, a response to an earlier version of the statement of facts, issues and contentions filed on behalf of Ms Vicario‑Adams),[8] together with a list of documents upon which the defendants rely in support of the response to each claim, were filed.[9]

   [8] Plaintiff's statement of facts, issues and contentions filed on 27 February 2023.

   [9] Defendants' response to plaintiff's statement of facts, issues and contentions filed on 24 April 2023, and the defendant's list of documents filed on 24 April 2023, as required by order 2(a) and (b) of the orders made on 14 December 2022.

10. The defendants describe in response to Ms Vicario‑Adams' statement what they say is an accurate account of factual background to the issues raised by Ms Vicario‑Adams.

11. As to the first issue raised by Ms Vicario‑Adams, in summary, the defendants deny that any amount invoiced to Relative Networks is outstanding, and also say that reduced invoicing equally impacted Mr Vicario and Eye‑T Holdings Pty Ltd (a company incorporated by Mr Vicario and through which Mr Vicario provided consultancy services to Relative Networks).[10]

    [10] Defendants' response to plaintiff's statement of facts, issues and contentions filed on 24 April 2023 pars 10 ‑ 12.

12. As to the second issue, the allegations are denied by Mr Vicario, who says that no such agreement was reached.[11]

    [11] Defendants' response to plaintiff's statement of facts, issues and contentions filed on 24 April 2023 pars 13 ‑ 14.

13. As to the third issue, the defendants say that while Ms Vicario‑Adams contacted Relative Networks' accountant for a valuation of Relative Networks, no valuation was ever passed onto Mr Vicario for his consideration, and Ms Vicario‑Adams never pursued a share buy‑out. They further say that Mr Vicario refusing to buy out Ms Vicario‑Adams' shareholding is not conduct contravening s 233(1)(a) and s 461(1)(e), (f) and (g) of the Corporations Act in relation to the affairs of Relative Networks.[12]

    [12] Defendants' response to plaintiff's statement of facts, issues and contentions filed on 24 April 2023 par 15.

14. As to the fourth issue, among other things, Mr Vicario says that as Ms Vicario‑Adams was never a director of Relative Networks, she had no entitlement to access Relative Networks' systems or banking. They further say that Ms Vicario-Adams was provided the financial statements of Relative Networks for the financial years ending 30 June 2018; 30 June 2019; and 30 June 2020 once finalised.[13]

    [13] Defendants' response to plaintiff's statement of facts, issues and contentions filed on 24 April 2023 pars 16 ‑ 20.

15. In summary, Mr Vicario denies that any of his acts or omissions alleged by Ms Vicario‑Adams establish that he had conducted himself in a manner that contravened s 233(1)(a), s 461(1)(e), (f) or (g) of the Corporations Act in relation to the affairs of Relative Networks, and he maintains that consequently, Ms Vicario‑Adams is not entitled to an order that Relative Networks be wound up, nor to an order that Mr Vicario purchase her shares in Relative Networks. Nevertheless, Mr Vicario has recorded his willingness to purchase Ms Vicario‑Adams' shares in Relative Networks, or to sell his shares in Relative Networks to Ms Vicario‑Adams, at proper market value.[14]

    [14] Defendants' response to plaintiff's statement of facts, issues and contentions filed on 24 April 2023 par 21.

16. Various documents were attached to the affidavits made by Ms Vicario‑Adams and Mr Vicario in this proceeding,[15] and the documents relied upon to support each claim and in response to each claim, respectively, were identified in the lists filed on behalf of the parties.

    [15] Affidavit of R Vicario-Adams, RVA-1 - RVA-30; affidavit of M Vicario, MV01 - MV37.

17. The parties have conferred with respect to discovery, and the defendants accept that they ought make a list of documents or classes of documents, which are or have been in their possession, custody or power in the form of Form 17 prescribed by the Rules of the Supreme Court 1971 (WA), second schedule. Further, there is no dispute as between the parties that discovery of certain categories of documents ought be given. However, Ms Vicario‑Adams seeks that the defendants give discovery of documents falling within more broadly defined categories (by reference to date range and subject) than drawn and promoted on behalf of the defendants.

Categories of discovery and points of controversy

1. Conferral as between the parties appears to have resulted in largely agreed categories of documents, with three exceptions. The controversy between the parties otherwise concerns the date ranges for discovery of the agreed categories.

2. All parties also seek an order that there be liberty to apply in relation to the discovery orders that are made upon the giving of 48 hours' notice by the party intending to apply of the precise orders that party intends to seek, reserving the right to apply for further discovery should the need arise.

3. It is convenient to describe the categories of documents and the points of controversy in turn.

Category (a)

1. Ms Vicario‑Adams and the defendants agree that the defendants ought give discovery of financial statements (including taxation returns, profit and loss statements, balance sheets, and business activity statements) of Relative Networks. They differ in so far as Ms Vicario‑Adams says that financial statements for the financial year 2014 to date (inclusive) ought be discovered, whereas the defendants say that only financial statements for the financial year 2019 to date (inclusive) ought be discovered.

Category (b)

1. Ms Vicario‑Adams and the defendants agree that the defendants ought give discovery of any internal budgets and profit forecasts, prepared in relation to Relative Networks. They differ in so far as Ms Vicario‑Adams says that such documents for the financial year 2014 to date (inclusive) ought be discovered, whereas the defendants say that only such documents for the financial year 2019 to date (inclusive) ought be discovered.

Category (c)

1. Ms Vicario‑Adams says that payroll records (including payroll summaries) in relation to payroll of Relative Networks for the financial year 2014 to date (inclusive) ought be discovered, whereas the defendants resist discovery of any such documents.

Category (d)

1. Ms Vicario‑Adams says that Relative Networks' Asset registers for the financial year 2014 to date (inclusive) ought be discovered, whereas the defendants say that the Relative Networks' Asset register ought be discovered.

Category (e)

1. Ms Vicario‑Adams and the defendants agree that the defendants ought give discovery of contracts for services provided to Relative Networks in respect of:

   (a)the office holders of Relative Networks;

   (b)the shareholders of Relative Networks; and

   (c)companies related to the shareholders of Relative Networks (including Ovviare Pty Ltd and Eye-T Holdings Pty Ltd).

2. They differ in so far as Ms Vicario‑Adams says that such documents for the financial year 2017 to date (inclusive) ought be discovered, whereas the defendants say that only such documents for the financial year 2019 to date (inclusive) ought be discovered.

Category (f)

1. Ms Vicario‑Adams says that any current employee contracts for services provided to Relative Networks on a fixed‑term basis ought be discovered, whereas the defendants resist discovery of any such documents.

Category (g)

1. Ms Vicario‑Adams says that any current contracts with customers and suppliers of Relative Networks' business on a fixed‑term basis ought be discovered, whereas the defendants resist discovery of any such documents.

Category (h)

1. Ms Vicario‑Adams and the defendants agree that the defendants ought give discovery of leases in relation to Relative Networks' operating premises. They differ in so far as Ms Vicario‑Adams says that such documents for the financial year 2017 to date (inclusive) ought be discovered, whereas the defendants say that only such documents for the financial year 2019 to date (inclusive) ought be discovered.

Overview of the parties' positions

1. The court is informed that Ms Vicario‑Adams seeks discovery of categories of documents in addition to those that the defendants are prepared to provide, only for the purpose of obtaining a valuation of the shares in Relative Networks.[16]

Date range - categories (a), (b), (d), (e) and (h)

[16] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 2.

1. Save as to the controversy as to the appropriate date range, proposed categories (a), (b), (d), (e) and (h) are agreed. The court is told that the differences in the date ranges comes about by reason of the parties holding different views as to the appropriate date for valuation.[17]

   [17] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 7.

2. It is Ms Vicario‑Adams' position that the appropriate date for valuation could be the date of commencement of the proceeding;[18] the date of the court's order following trial;[19] or a date immediately before the acts of oppression were carried out.[20]

   [18] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 8, citing Joint v Stephens [2008] VSCA 210; (2008) 26 ACLC 1467 [154] - [156].

   [19] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 8, citing Mopeke Pty Ltd v Airport Fine Foods Pty Ltd [2007] NSWSC 153 [93] - [96].

   [20] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 8, citing Dynasty Pty Ltd v Coombs (1995) 13 ACLC 1290.

3. In support of the same, it was submitted on behalf of Ms Vicario‑Adams that there is no firm rule as to the date at which the valuation must occur, and that the court has a wide discretion to decide the date of valuation informed by the justice and fairness of the particular situation.[21] Further, it was submitted that the discovery orders made should not foreclose the possibility that the appropriate date of valuation could be a date immediately before the alleged acts of oppression were carried out in 2017; and that in the absence of any evidence of the burden of the request, there is no compelling reason why the question as to the appropriate date of the valuation should, in effect, be decided now in the discovery phase of the litigation.[22]

   [21] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 8, citing Campbell v Backoffice Investments Pty Ltd [2009] HCA 25 [178].

   [22] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 9.

4. On behalf of Ms Vicario‑Adams, the financial year 2014 had been selected as the start of the date range for discovery of records so that a valuation with a date of valuation of 2017 could be prepared (that is, discovery of documents for the period going back three years from 2017). It was also noted on behalf of Ms Vicario‑Adams that, given the position adopted by the defendants, it did not appear to be in contention that historic records should be provided for valuation purposes to discern patterns in performance, including any volatility in the business.[23]

   [23] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 10.

5. In contrast, the defendants maintain that the date of valuation should be the date of trial, or at the earliest, the date of the commencement of the proceeding. The defendants therefore contemplate discovery of historic records going back to financial year 2019 to facilitate the preparation of a valuation as at the date of the commencement of the proceeding (that is, going back two years for the preparation of a valuation with a valuation date of 11 June 2021).[24]

   [24] Defendants' outline of submissions in opposition to the application for additional categories of documents pars 2 - 3.

6. It is accepted on behalf of the defendants that as a matter of law, there is no hard and fast rule as to when a valuation is to occur, nor is there at law a 'default' position.[25] However, it was submitted that in practice, the overwhelming majority of cases determine valuation as at the date of the trial, reversing out the conduct found to constitute oppression.[26] The defendants further complain that missing from the submissions made on behalf of Ms Vicario‑Adams is an explanation as to why she asserts the valuation would occur earlier than the date of trial (or indeed, earlier than the commencement of the proceeding).[27]

   [25] Defendants' outline of submissions in opposition to the application for additional categories of documents par 4, citing Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 [97.6], [99] - [108].

   [26] Defendants' outline of submissions in opposition to the application for additional categories of documents par 4.

   [27] Defendants' outline of submissions in opposition to the application for additional categories of documents par 5.

1. In circumstances where Ms Vicario‑Adams has the onus of satisfying the court why additional categories should be ordered, the defendants complain that she has not done so. Noting that none of the alleged acts of oppression complained of go to the value of Relative Networks, the defendants say that this is not a case where it is alleged that there has been a systematic oppression by, for example, the syphoning of work from Relative Networks to the advantage of a company associated with one of the other shareholders; and say that not only has Ms Vicario‑Adams failed to point to anything that would arguably cause the court to fix an earlier date of valuation, an analysis of the statement of facts, issues and contentions establishes that there is no reason available to Ms Vicario‑Adams.[28]

   [28] Defendants' outline of submissions in opposition to the application for additional categories of documents pars 7 - 8.

2. As to the date range promoted, the defendants also note that there is no basis for Ms Vicario‑Adams selecting 2014 (three years prior to the alleged misconduct and seven years prior to the commencement of the proceeding), rather than two years prior to the alleged misconduct.[29]

Payroll records - category (c)

[29] Defendants' outline of submissions in opposition to the application for additional categories of documents pars 9 - 10.

1. As noted above, Ms Vicario‑Adams says that payroll records (including payroll summaries) in relation to the payroll of Relative Networks for the financial year 2014 to date (inclusive) ought be discovered, whereas the defendants resist discovery of any such documents.

2. In support of the same, Ms Vicario‑Adams says that adjustments may be necessary for excessive remuneration and that the payroll records will assist in identifying who is on the payroll of Relative Networks; the role they perform; and the level of their remuneration, which information may not readily be discernible form financial statements.[30]

   [30] Plaintiff's outline of submissions in support of the application for additional categories of discovery pars 12 ‑ 13.

3. The defendants complain that there is nothing in the statement of facts, issue and contentions asserting 'excessive remuneration', and no expert evidence has been filed to say that a valuer would require such information to perform a valuation (at whatever date). It is submitted that not only is 'excessive remuneration' not a pleaded issue, but that there is nothing in the material filed in support of the application that comes close to making it relevant (even if the latter would override the former, which it could not); and that this is an endeavour by Ms Vicario‑Adams to trawl for documents that may give rise to an allegation which is not presently made.[31]

Current contracts on a fixed term basis - categories (f) and (g)

[31] Defendants' outline of submissions in opposition to the application for additional categories of documents pars 11 ‑ 13.

1. As noted above, Ms Vicario‑Adams says that any current employee contracts for services provided to Relative Networks on a fixed‑term basis ought be discovered (category (f)), whereas the defendants resist discovery of any such documents; and Ms Vicario‑Adams says that any current contracts with customers and suppliers of Relative Networks' business on a fixed‑term basis ought be discovered (category (g)), whereas the defendants resist discovery of any such documents.

2. It is Ms Vicario‑Adams' position that the terms of such contracts may be relevant to a present-day valuation to determine future contingencies which may attach to the company, and to assess ongoing financial performance, and the security (risk factors) of the company.[32]

   [32] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 15.

3. The defendants again complain that there is no issue raised with respect to Relative Networks' current contracts, and no evidence to support the submission made on behalf of Ms Vicario‑Adams summarised at [43] above; and that this is an endeavour by Ms Vicario‑Adams to trawl for documents that may give rise to an allegation which is not presently made.[33]

   [33] Defendants' outline of submissions in opposition to the application for additional categories of documents pars 11, 13 - 14.

4. On behalf of Ms Vicario‑Adams, submissions were filed on reply to those filed on behalf of the defendants. I deal with the matters there raised in my disposition below.

Legal principles governing application for discovery

1. Discovery is generally not ordered in respect of actions commenced by originating process under the Corporations Act pursuant to the Supreme Court (Corporations) (WA) Rules 2004 (WA). That said, an order for discovery under O 26 of the Rules of the Supreme Court is available in any civil proceeding, including applications commenced under the Supreme Court (Corporations) (WA) Rules.[34]

   [34] Kitay v Frigger [2022] WASC 284 [136].

2. Neither party references the order and rule of the Rules of the Supreme Court pursuant to which the dispute as to the categories of discovery comes before the court. As neither party has filed an affidavit in support of the orders they seek, it would appear that the court's power under O 26 r 7 of the Rules of the Supreme Court is invoked.[35] An application for an order for discovery under O 26 r 7 may be made at any time by a party whose request under O 26 r 1 for discovery has not been satisfied. It is not necessary for a party to file an affidavit in support of the application.

   [35] By operation of the Supreme Court (Corporations) (WA) Rules 2004 (WA) r 1.3(2)(a).

3. I do not understand the principles which guide the Court in the exercise of the discretionary power to make discovery orders to be in issue. As was observed by Quinlan CJ in Maek Pty Ltd v Ibrahim [2022] WASC 285 at [25], the contemporary principles in relation to discovery are now well‑established. They include:[36]

   1. A party does not have a strict entitlement to an order for discovery.

   2. The power to order discovery is discretionary.

   3. The discretion is to be exercised having regard to the timely and cost effective disposal of litigation.

   4. On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.

   5. Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'.

   6. The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings.

   7. Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered.

   [36] Maek Pty Ltd v Ibrahim [25], citing Singh v Friedman [2013] WASC 78 [3] - [4]; Tah Land Pty Ltd v Western Australian Planning Commission [2022] WASC 219 [14].

4. Further, as Martin CJ observed in Roe v The State of Western Australia [2013] WASC 130 at [10] - [11]:

   [T]he extent of the obligation to give discovery and the entitlement to discovery will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court 1971 (WA) and in particular the principles enunciated in O 1 r 4A and r 4B. Those principles include and expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties.

   In the context of discovery, this means that when issues arise with respect to the breadth of the discovery to be ordered, the ambit of discovery will be determined taking into account the cost and delay associated with the provision of discovery over a broader ambit, as compared to the forensic benefit likely to be derived from the provision of discovery over that broader ambit. Unless the cost and delay involved in the provision of that discovery is proportionate to the forensic benefit likely to be derived from a broader ambit of discovery, and to the value and importance or complexity of the subject matter of the proceedings, a narrower ambit of discovery will be ordered.

5. While discovery is available in Corporations Act proceedings, discovery should only be ordered where the matters in issue in the proceedings are appropriately defined and discovery does not facilitate a 'fishing expedition'.[37]

   [37] B v State of Western Australia [2002] WASC 298, cited by Hill J in Kitay v Frigger [136].

Disposition

1. For the purposes of the exercise of discretion to make discovery orders, I proceed on the basis that the matters which are in issue in this case are defined by reference to Ms Vicario‑Adams' statement of facts, issues and contentions, Mr Vicario's response, the admissions of the parties and the nature of the action.[38] While noting the various allegations and giving due regard to the context in which the application is prosecuted, in making discovery orders I make no findings as to factual disputes which arise.

Date range - categories (a), (b), (d), (e) and (h)

[38] Atlas Copco Australia Pty Ltd v Oxair Gases Pty Ltd [2013] WASCA 43 [20].

1. As to the appropriate date range for categories (a), (b), (d), (e) and (h), I am prepared to make orders in the form promoted on behalf of Ms Vicario‑Adams, having had regard to the following.

2. First, as noted above, as an alternative to Relative Networks being wound up, Ms Vicario‑Adams seeks an order pursuant to s 233(1)(d) of the Corporations Act that Mr Vicario purchase at fair value Ms Vicario‑Adams' shares in Relative Networks; and Mr Vicario has also recorded his willingness to purchase Ms Vicario‑Adams' shares, or sell his shares in Relative Networks to Ms Vicario‑Adams at proper market value. Although s 233(1)(d) gives the court power to make an order for the purchase of shares by a member, the Corporations Act is silent about the terms on which such a sale may be ordered. In particular, the Corporations Act does not identify the basis upon which the price for the shares is to be fixed if an order for compulsory purchase is made.[39] I accept, as was submitted on behalf of Ms Vicario‑Adams, that there is no firm rule as to the date at which the valuation must occur, and that the court has a wide discretion to decide the date of valuation informed by the justice and fairness of the particular situation.

   [39] Campbell v Backoffice Investments Pty Ltd [178].

3. Secondly, as was noted on behalf of Ms Vicario‑Adams, there have been circumstances in which the court has found it to be just to determine value as at the date immediately before the established acts of oppression were carried out.[40]

   [40] Plaintiff's submissions in reply par 5, citing In the matter of Optimisation Australia Pty Ltd [2018] NSWSC 31. See also In re A Company [1983] 1 WLR 927; [1983] All ER 854, 862, referred to by the High Court in Campbell v Backoffice Investments Pty Ltd [178].

4. Thirdly, as was observed on behalf of Ms Vicario‑Adams, it appears to be common ground that some historic records should be discovered (and are required) for valuation purposes. Ms Vicario‑Adams says that such records are required so as to discern patterns in performance, including volatility in the business conducted by Relative Networks.[41] For categories (a), (b) and (d), Ms Vicario‑Adams seeks discovery of historic documents going back to the financial year 2014, and for categories (e) and (h) back to financial year 2017. The defendants contemplate by their minute providing discovery of historic documents going back to the financial year 2019, being two years before the year in which the proceeding was commenced.[42]

   [41] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 10.

   [42] As was noted in the defendants' outline of submissions in opposition to the application for additional categories of documents par 3.

5. Fourthly, there is no question that the court's discretion is sufficiently broad to accede to Ms Vicario‑Adams' promoted date ranges.

6. Fifthly, Ms Vicario-Adams alleges that she was excluded from the management of Relative Networks by oppressive acts in 2017,[43] without her shares being acquired by Mr Vicario.[44] For present purposes, it cannot be said that it clearly follows from the facts, issues and contentions raised on behalf of Ms Vicario‑Adams that the appropriate date of valuation would be 2017. That said, in the end, the appropriate date of valuation is a matter for trial, when the justice and fairness of the particular situation may be determined. I considered persuasive the submission made on behalf of Ms Vicario‑Adams that in the absence of any evidence of the burden of the request, there is no compelling reason why the question as to the appropriate date of the valuation should, in effect, be decided now in the discovery phase of the litigation.

   [43] Plaintiff's submissions in reply par 4, referring to the plaintiff's amended statement of facts, issues and contentions filed on 25 August 2023 pars 1.30, 2.6 - 2.12, 2.20 - 2.23.

   [44] Plaintiff's submissions in reply par 4, referring to the plaintiff's amended statement of facts, issues and contentions filed on 25 August 2023 pars 2.18 - 2.19.

7. Sixthly, I cannot discern any cogent basis to order the discovery of records for only two, rather than three, years prior to the earliest potential date of valuation, in circumstances where both parties proceed on the basis that historic documents are required for valuation purposes.

8. Seventhly, the discretion is to be exercised having regard to the timely and cost effective disposal of litigation. There is no evidence however that the date ranges promoted on behalf of Ms Vicario‑Adams would unduly burden the defendants, by reference to costs of compliance or otherwise. Further, the making of orders with a more limited date range as promoted by the defendants gives rise to a possible delay in the grant of final relief, if following trial, the court were to in the end find it to be just to determine value as at 2017.

Payroll records - category (c)

1. For the purposes of s 233(1)(d) of the Corporations Act, in appropriate circumstances, the terms on which a purchase of shares may be ordered may require adjustment to be made for circumstances which might include excessive remuneration. Section 233(1)(d) is silent about the terms on which a sale may be ordered. As to whether documents falling within the ambit of category (c) ought be discovered in this case, in the exercise of the discretion, I had regard to the following.

2. As is noted above, the matters which are in issue in this case are to be determined by reference to Ms Vicario‑Adams' statement of facts, issues and contentions, Mr Vicario's response, the admissions of the parties and the nature of the action.[45]

   [45] Atlas Copco Australia Pty Ltd v Oxair Gases Pty Ltd [2013] WASCA 43 [20].

3. 'Excessive remuneration' is not a matter in issue.

4. While the amount paid in wages and other remuneration may be relevant to the valuation of shares of a company that operates a business, the total cost of such matters ought readily be discernible from the financial records. In this case, there is no basis to compel discovery of anything more than the financial records of the company that record the total remuneration cost. Further, I do not consider that the nature of the action, of itself, properly grounds discovery of the requested category of documents. I accept that an order compelling discovery of documents within the ambit of category (c) would facilitate a 'fishing expedition', as was the defendants' complaint. The application for discovery of category (c) documents is refused.

Current contracts on a fixed term basis - categories (f) and (g)

1. As to whether documents falling within the ambit of categories (f) and (g) ought be discovered, I accept that the current fixed term contracts Relative Networks has with employees, customers and suppliers may be relevant to a present‑day valuation of Relative Networks.

2. In contrast to the category (c) documents, the categories do not require discovery of historic contracts and I do not understand Ms Vicario‑Adams to seek the categories (f) and (g) documents to test their commerciality. Rather, I understand current contracts are sought so as to 'determine future contingencies, which may attach to the company, and to assess ongoing financial performance, and the security (risk factors) of the company'.[46] In circumstances where there is no evidence that discovery of these categories would unduly burden the defendants, I am satisfied that discretion should be exercised to order discovery of the same.

   [46] Plaintiff's outline of submissions in support of the application for additional categories of discovery par 15.

Conclusion and orders

1. In light of the above, and subject to hearing from the parties as to the final form of orders and costs, I propose to make the following orders, designed to give effect to a discovery regime necessary for fairly disposing of this proceeding:

   1.Within 21 days of the date of these orders, the defendants must make a list of documents or classes of documents, which are or have been in the defendants' possession, custody or power in the form of Form 17 prescribed by the Rules of the Supreme Court 1971 (WA):

   (a)[Category (a)]: financial statements (including taxation returns, profit and loss statements, balance sheets and business activity statements) of the first defendant for the financial year 2014 to date (inclusive);

   (b)[Category (b)]: any internal budgets and profit forecasts, prepared in relation to the first defendant for the financial year 2014 to date (inclusive);

   (c)[Category (d)]: the first defendant's Asset registers for financial year 2014 to date (inclusive);

   (d)[Category (e)]: contracts for services provided to the first defendant for the financial year 2017 to date (inclusive) in respect of :

   (i)the office holders of the first defendant;

   (ii)the shareholders of the first defendant;

   (iii)companies related to the shareholders of the first defendant (including Ovviare Pty Ltd ACN 160 186 633 and Eye-T Holdings Pty Ltd ACN 093 864 834).

   (e)[Category (f)]: any current employee contracts for services provided to the first defendant on a fixed-term basis;

   (f)[Category (g)]: any current contracts with customers and suppliers of the first defendant's business on a fixed‑term basis; and

   (g)[Category (h)]: leases in relation to the first defendant's operating premises from financial year 2017 to date (inclusive).

   2.Within 21 days of the date of these orders, the defendants must file and serve a copy of the list referred to in order 1 above.

   3.Within 21 days of the date of these orders, the defendants must serve on the plaintiff a legible photocopy (or PDF image) of each document referred to in Part 1A of the list referred to in order 1 above, which, is not the subject of an objection set out in Part 1B of the list, the cost of the provision of which is in the cause of the proceeding.

   4.There be liberty to apply in relation to these orders upon the giving of 48-hours' notice by the party intending to apply of the precise orders that party intends to seek.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KO

Associate to the Honourable Justice Strk

4 MARCH 2025