William Buck (WA) Pty Ltd v Faulkner

[2013] WASCA 162

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WILLIAM BUCK (WA) PTY LTD -v- FAULKNER [2013] WASCA 162

CORAM:   PULLIN JA

NEWNES JA

HEARD:   14 JUNE 2013

DELIVERED          :   14 JUNE 2013

PUBLISHED           :  16 JULY 2013

FILE NO/S:   CACV 63 of 2013

BETWEEN:   WILLIAM BUCK (WA) PTY LTD

First Appellant

WILLIAM BUCK HOLDINGS (WA) PTY LTD
Second Appellant

AND

CRAIG PETER FAULKNER
First Respondent

FAULKNER & CO PTY LTD
Second Respondent

CSF CORPORATE PTY LTD
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :KENNETH MARTIN J

Citation  :WILLIAM BUCK (WA) PTY LTD -v- FAULKNER [No 5] [2013] WASC 206

File No  :CIV 2995 of 2011, COR 174 of 2011

Catchwords:

Interlocutory appeal concerning conduct of trial - Rarely appropriate

Legislation:

Nil

Result:

Application for leave to appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     Mr D H Solomon

Second Appellant          :     Mr D H Solomon

First Respondent           :     Mr M L Bennett

Second Respondent      :     Mr M L Bennett

Third Respondent          :     Mr M L Bennett

Solicitors:

First Appellant               :     Solomon Brothers

Second Appellant          :     Solomon Brothers

First Respondent           :     Bennett + Co

Second Respondent      :     Bennett + Co

Third Respondent          :     Bennett + Co

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

Swindle v Babic [No 2] [2007] WASCA 262

William Buck (WA) Pty Ltd v Faulkner [No 5] [2013] WASC 206

PULLIN JA: 

(This judgment was delivered extemporaneously on 14 June 2013 and has been edited from the transcript.)

1. This is an application for an urgent appeal order. Rule 46(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) reads:

   An urgent appeal order in relation to an appeal is an order that the appeal is an urgent appeal that must be heard as quickly as practicable consistent with the proper administration of justice.

2. The appeal is an appeal against interlocutory orders made by Kenneth Martin J in relation to two cases being heard together:  William Buck (WA) Pty Ltd v Faulkner [No 5] [2013] WASC 206. The orders made by the trial judge were to refuse leave to the appellants to issue a subpoena, and to refuse leave to administer certain interrogatories.

3. In the first action, CIV 2995 of 2011, one of the Buck parties seeks nominal damages for attempted solicitation of Buck's clients by Mr Faulkner, who was a former employee.  An associated trust was a minority shareholder in one of the Buck companies.  One of the Buck parties seeks a repayment of the loan from one of Mr Faulkner's companies of about $28,000.  By counterclaim, Mr Faulkner claims damages for breach of his employment contract, which the trial judge considers cannot exceed approximately $11,000.

4. As the trial judge says:

   By the monetary jurisdictional thresholds of the Supreme Court (even the District Court) of Western Australia the financial parameters of CIV 2995 of 2011 are tiny, especially balanced against eight days of a trial (now looming as a 12 day trial) [17].

5. In the company matter, the trustee of a company associated with Mr Faulkner alleges oppression, and seeks relief in the form of the winding up of one of the Buck companies.  The trial has run for eight days, more than estimated, and four more days have been listed for completion starting on 24 June 2013.

6. So many subpoenas were apparently issued, that eventually the trial judge ordered that no more subpoenas issue without the leave of the court.  At the completion of the eight days, the Buck parties were still running their case.  They will be leading more evidence at the resumed hearing.  It

was never intended that Mr Faulkner would call any witnesses other than Mr Faulkner.

1. On day eight, counsel for Mr Faulkner announced that he was giving thought to not calling Mr Faulkner as a witness.  This prompted the application for leave to issue the subpoenas, and to administer the interrogatories which are the subject of this appeal.

2. The reasons for decision of Kenneth Martin J adequately explain why the application for leave to issue the subpoena was dismissed, and the reason why leave was refused in relation to the interrogatories which remain in contention.  The administration of justice does not require an urgent appeal order.  It would not be appropriate to entertain an appeal about orders made by a trial judge about matters bearing on the admission of evidence eight days into the conduct of a trial, either urgently or indeed any time before judgment in the trial proceedings.  The comments made by Newnes JA in Swindle v Babic [No 2] [2007] WASCA 262 bear repeating. His Honour said:

   I should say at the outset that in my view, the course which has been followed in this case of adjourning the trial part heard to allow the question of the admissibility of the evidence to be determined is a course to be followed only in exceptional circumstances.  It is rarely a necessary or appropriate course.  It is clear that a party may challenge the correctness of a final judgment entered in a matter on the ground that some interlocutory decision which was relevant to the final result was wrong:  Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 483, 497. To encourage the prosecution of appeals against interlocutory orders at trial before final judgment in the action would be to encourage the unnecessary fragmentation of proceedings, interfering with their orderly disposal and increasing costs: see Gerlach v Clifton Bricks. It will also be to encourage appeals in circumstances where the final judgment may have the effect of rendering the appeal unnecessary [18].

3. The application for an urgent appeal order is refused.  Counsel for the appellant agreed that if that was the outcome we should refuse leave to appeal.  As a result, the application for leave to appeal is dismissed.

4. NEWNES JA:  I agree with Pullin JA.