Vikas Rambal (atf the Rambal Family Trust) v Pankaj Oswal (atf the Burrup Trust)
[2014] WASC 86
•19 MARCH 2014
VIKAS RAMBAL ATF THE VIKAS RAMBAL FAMILY TRUST -v- PANKAJ OSWAL ATF THE BURRUP TRUST [2014] WASC 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 86 | |
| Case No: | COR:144/2006 | ON THE PAPERS | |
| Coram: | LE MIERE J | 19/03/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application granted in part | ||
| B | |||
| PDF Version |
| Parties: | VIKAS RAMBAL ATF THE VIKAS RAMBAL FAMILY TRUST PANKAJ OSWAL ATF THE BURRUP TRUST SIVAN JEYARAJAH ROGER CHRISTIAN STEINEPRIES BURRUP FERTILISERS PTY LTD BURRUP HOLDINGS PTY LTD VIKAS RAMBAL ATF THE VIKAS RAMBAL TRUST YARA AUSTRALIA PTY LTD PANKAJ OSWAL EDWARD JOSEPH CAVAZUTI RADHIKA OSWAL VIKAS RAMBAL EDWARD JOSEPH CAVEZUTI |
Catchwords: | Practice and procedure Application by third parties for access to inspect documents Order 67 r 11(1) of the Supreme Court Rules 1971 (WA) Originating processes Identified affidavits Interlocutory processes Unidentified affidavits |
Legislation: | Rules of the Supreme Court 1971 (WA), O 67 r 11 |
Case References: | Dian AO v Davis Frankel & Mead (a firm) [2005] 1 All ER 1074 Maruti Holdings Pte Ltd v Sinclair Strategies Ltd (Unreported, High Court of Justice, 17 July 2013) Rambal v Oswal [2006] WASC 312 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PANKAJ OSWAL ATF THE BURRUP TRUST
First Defendant
SIVAN JEYARAJAH
ROGER CHRISTIAN STEINEPRIES
Second Defendants
BURRUP FERTILISERS PTY LTD
Third Defendant
BURRUP HOLDINGS PTY LTD
Fourth Defendant
Burrup Fertilisers Pty Ltd
- Plaintiff
AND
PANKAJ OSWAL ATF THE BURRUP TRUST
First Defendant
YARA AUSTRALIA PTY LTD
Second Defendant
PANKAJ OSWAL
Third Defendant
EDWARD JOSEPH CAVAZUTI
Fourth Defendant
ROGER CHRISTIAN STEINEPRIES
Fifth Defendant
RADHIKA OSWAL
Sixth Defendant
Burrup Fertilisers Pty Ltd
- Plaintiff
AND
PANKAJ OSWAL ATF THE BURRUP TRUST
First Defendant
YARA AUSTRALIA PTY LTD
Second Defendant
PANKAJ OSWAL
Third Defendant
EDWARD JOSEPH CAVEZUTI
Fourth Defendant
ROGER CHRISTIAN STEINEPRIES
Fifth Defendant
RADHIKA OSWAL
Sixth Defendant
BURRUP FERTILISERS PTY LTD
BURRUP HOLDINGS PTY LTD
Seventh Defendants
Catchwords:
Practice and procedure - Application by third parties for access to inspect documents - Order 67 r 11(1) of the Supreme Court Rules 1971 (WA) - Originating processes - Identified affidavits - Interlocutory processes - Unidentified affidavits
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 11
Result:
Application granted in part
Category: B
Representation:
COR 144 of 2006
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendants : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Lavan Legal
First Defendant : Maxim Litigation Consultants
Second Defendants : Maxim Litigation Consultants
Third Defendant : Blake Dawson
Fourth Defendant : Blake Dawson
COR 95 of 2006
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Solicitors:
Plaintiff : Lavan Legal
First Defendant : Maxim Litigation Consultants
Second Defendant : Clayton Utz
Third Defendant : Maxim Litigation Consultants
Fourth Defendant : Clayton Utz
Fifth Defendant : Maxim Litigation Consultants
Sixth Defendant : Maxim Litigation Consultants
COR 96 of 2006
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendants : No appearance
Solicitors:
Plaintiff : Lavan Legal
First Defendant : Maxim Litigation Consultants
Second Defendant : Clayton Utz
Third Defendant : Maxim Litigation Consultants
Fourth Defendant : Clayton Utz
Fifth Defendant : Maxim Litigation Consultants
Sixth Defendant : Maxim Litigation Consultants
Seventh Defendants : Blake Dawson
Case(s) referred to in judgment(s):
Dian AO v Davis Frankel & Mead (a firm) [2005] 1 All ER 1074
Maruti Holdings Pte Ltd v Sinclair Strategies Ltd (Unreported, High Court of Justice, 17 July 2013)
Rambal v Oswal [2006] WASC 312
1 LE MIERE J: Apache Corporation and other companies associated with Apache Corporation who I will collectively refer to as the 'applicants' have applied for access under O 67 r 11 of the Rules of the Supreme Court 1971 (WA) to inspect documents in these matters. The applicants are parties in a number of proceedings in the Federal Court and the Supreme Court of Victoria. The application is opposed by Mr Rambal in his personal capacity and as trustee of the Vikas Rambal Family Trust. None of the other parties to the proceedings have made any submissions in relation to the applicant's request to inspect the documents in these proceedings.
The proceedings in this court
2 I summarise the nature and subject matter of each of these proceedings in Vikas Rambal as trustee for the Vikas Rambal Family Trust the Pankaj Oswal as Trustee for the Burrup Trust [2006] WASC 312. I will not add to the length of these reasons by repeating that summary.
Documents sought by applicants
3 The applicants seek to inspect and copy the following documents:
(a) originating process filed in COR 95/2006 on 31 May 2006;
(b) interlocutory process filed by Mr Rambal in COR 95/2006 heard on 19 June 2006;
(c) originating process filed in COR 96/2006;
(d) interlocutory process filed by Mr Rambal in COR 96/2006;
(e) originating process filed in COR 144/2006 on 7 September 2006;
(f) interlocutory process filed in COR 144/2006 on 6 December 2006;
(g) Mr Rambal's affidavit in support of his interlocutory process filed in COR 144/2006;
(h) the affidavit of Hemant Deshmukh sworn 11 December 2006;
(i) the affidavit of Mr Rambal of 29 November 2006;
(j) the affidavit of Rohit Akhaury Kumar of 11 December 2006;
(k) the affidavit of Sivan Jeyarajah sworn 11 December 2006;
(l) the affidavit of Sivan Jeyarajah sworn 12 December 2006; and
(m) the affidavit of Pankaj Oswal sworn 11 December 2006.
4 In addition, the applicants seek to inspect all affidavits filed in each of these proceedings and in particular any affidavits filed on behalf of Pankaj and Radhika Oswal and Mr Rambal.
The Rules
5 Order 67 r 11(1) of the Rules of the Supreme Court 1971 (WA) provides:
(1) Any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Central Office, namely –
(a) the copy of any writ, and the statement of claim (if any) indorsed thereon under Order 6 rule 3; and
(b) any originating application made under the Corporations Act 2001 of the Commonwealth; and
(ba) any appeal notice filed under the Supreme Court (Court of Appeal) Rules 2005; and
(c) any judgment or order given or made in court or the copy of any such judgment or order; and
(d) with the leave of the court or a registrar, any other document.
6 The principles applied by and practice of this court in granting leave to non-parties to inspect and copy filed documents have been referred to in numerous cases. Some of the principles and practice that emerge from the authorities are as follows. First, there is no unfettered right to inspect documents on the court file except for the documents referred to in (a) to (c) of O 67 r 11(1).
7 Secondly, the applicant must identify the document or class of document in respect of which leave is sought. That point is made by Moore-Bick J in Dian AO v Davis Frankel & Mead (a firm) [2005] 1 All ER 1074 when considering r 5.4(2) of the UK Civil Procedure Rules which relevantly provided that any person may inspect and take a copy of any document, other than a claim form which has been served or a judgment or order given or made in public, if the court gives permission. Moore-Bick J said:
It is necessary therefore to go back to the rules to see what they provide. In my view it is clear from the language of r 5.4(2) that the court's permission is required before a search may be made for any document which, if found, may then be inspected and copied. I think this makes it clear, even without recourse to the practice direction, that the documents which the applicant wishes to be allowed to look for must be identified with reasonable precision. The rule clearly does not contemplate permission to inspect the file as a whole. What it contemplates is permission as a necessary first step to search the record for a particular document or documents. It is difficult to see on what basis the court can exercise its discretion to permit a search unless the applicant has first identified which documents it wishes to search for.
It is no surprise, therefore, to find that para 4.4 of the practice direction expressly requires the applicant to identify the document in respect of which permission is sought. …
I agree, however, that the need to identify documents with reasonable precision does not preclude an applicant from seeking permission to search for, inspect and copy a class of documents … but I see no reason to construe r 5.4(2)(c) in such a way as to require identification of individual documents rather than a class of documents. What is necessary, in my view, is that the documents be identified with sufficient particularity to enable the court properly to consider all the relevant factors when exercising its discretion. Thus, an application to inspect 'the pleadings' is likely to be acceptable because it is unlikely that different considerations will apply in relation to individual documents within that class. On the other hand, an application to inspect 'the witness statements' may well be too broad, because different factors could well apply to individual documents within that class … [32] - [34].
8 Thirdly, 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 Fourthly, 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 Fifthly, 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 interest of justice to do so.
11 I will now consider each of the documents, or classes of documents, the applicants seek to inspect and copy.
Originating processes
12 Under O 67 r 11(1) the applicants are entitled, on payment of the prescribed fee, to inspect and copy the originating processes filed in COR 95 of 2006, COR 96 of 2006 and COR 144 of 2006.
The identified affidavits
13 The applicants seek to inspect and copy the affidavits identified as documents (g), (h), (i), (j), (k), (l) and (m) above. Each of those affidavits was read, or taken as read, on the hearing of the plaintiff's interlocutory process dated 6 December 2006 in COR 144 of 2006. Each of those affidavits is referred to in my reasons for judgment on that interlocutory process: Rambal v Oswal [2006] WASC 312.
14 Apache Corporation is a party to proceedings brought by Pankaj Oswal in the Federal Court (WAD 389 of 2013). In that proceeding Mr Oswal asserts claims against Apache Corporation in relation to the entry into a gas supply agreement and further dealings under that agreement. Mr Oswal seeks to recover cost overruns that he allegedly incurred in constructing the Burrup ammonia plant. Apache's solicitors have provided a copy of the judgment of Justice Bannister of the Eastern Caribbean Supreme Court Territory of the Virgin Islands in Maruti Holdings Pte Ltd v Sinclair Strategies Ltd (Unreported, High Court of Justice, 17 July 2013) (the BVI Judgment). At the time of the BVI Judgment, Mr Oswal was the managing director of Maruti Holdings Pte Limited (Maruti). Maruti pleads that Mr Oswal entered into an oral agreement with Burrup Fertilisers Pty Ltd that he would pay any cost overruns arising in connection with the construction of the Burrup plant. Apache's solicitors say that those are the same alleged cost overruns that are the subject of Mr Oswal's suit against Apache Corporation in WAD 389/2013 and that the BVI Judgment demonstrates the connection between Mr Oswal, Mr Rambal and the Federal Court proceedings.
15 I am satisfied that the matters the subject of evidence in COR 144 of 2006 sufficiently touch the issues in the litigation to which Apache Corporation is a party for the applicants to have a legitimate interest in the affidavits read by the court as part of the decision making process in the interlocutory process in COR 144 of 2006 which resulted in the reasons for judgment in [2006] WASC 312. No good reason has been put forward for refusing the applicant's access to those documents. The applicants should have leave to inspect and copy those affidavits.
Interlocutory processes
16 The applicant seeks to inspect and copy interlocutory processes in COR 95 of 2006, COR 96 of 2006 and COR 144 of 2006. Those interlocutory processes are each referred to in the reasons for judgment in [2006] WASC 312. The principle of open justice favours giving the applicants leave to inspect those documents. However, the content of those interlocutory processes are set out in the reasons for judgment in [2006] WASC 312 and there is no utility in giving the applicants leave to inspect and copy those documents and putting the court staff to the trouble of facilitating that. I will not give leave to inspect those documents.
The unidentified affidavits
17 The applicants seek 'general access to all affidavits filed in the proceedings' and in particular 'to any affidavits filed on behalf of Pankaj and Radhika Oswal and Mr Rambal'. I will not give leave to inspect and copy those documents. As I have said, an applicant must identify the document or class of documents in respect of which leave to inspect is sought. The documents must be identified with sufficient precision to enable the court to identify the document, or class of documents, and to enable the court properly to consider all the relevant factors when exercising its discretion. The affidavits in COR 95 of 2006 and in COR 96 of 2006 were filed in 2006. No substantive step took place in either proceeding after 2006. It is not appropriate for the court to trawl through the affidavits filed in COR 95 of 2006 and COR 96 of 2006 and the court record of the hearing of the interlocutory process in COR 95 of 2006 and COR 96 of 2006 to see which if any of the affidavits were read in the hearing of the interlocutory process and consider whether the contents, or any part of the contents, of any of them is or may be relevant to the proceedings in which the applicants are engaged in the Federal Court and the Supreme Court of Victoria.
18 The same consideration applies to any other affidavits filed in COR 144 of 2006. Insofar as any of the affidavits were not read in the course of the hearing in COR 144 of 2006 different considerations apply. The principle of open justice is not engaged at all where the documents have been filed but not read. In those circumstances the court will generally only give access where there are good reasons for thinking it necessary in the interests of justice to do so. The court is not able to form the opinion that access is necessary in the interests of justice in circumstances where the applicants are unable to identify the affidavits they seek to inspect and hence the relevance of those affidavits to the litigation in which the applicants are engaged.
Conclusion
19 The applicants are entitled, on payment of the prescribed fee, to inspect and take a copy of:
(a) originating process filed in COR 95/2006 on 31 May 2006;
(c) originating process filed in COR 96/2006;
(e) originating process filed in COR 144/2006 on 7 September 2006;
20 The court gives leave to the applicants, on payment of the prescribed fee, to inspect and take a copy of the following documents:
(g) Mr Rambal's affidavit in support of his interlocutory process filed in COR 144/2006, sworn 19 September 2006;
(h) the affidavit of Hemant Deshmukh sworn 11 December 2006;
(i) the affidavit of Mr Rambal of 29 November 2006;
(j) the affidavit of Rohit Akhaury Kumar of 11 December 2006;
(k) the affidavit of Sivan Jeyarajah sworn 11 December 2006;
(l) the affidavit of Sivan Jeyarajah sworn 12 December 2006; and
(m) the affidavit of Pankaj Oswal sworn 11 December 2006.
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