Clambake Pty Ltd v Owston Nominees No 2 Pty Ltd

[2007] WASCA 286

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Interlocutory appeal
3. › Leave to appeal
4. › Whether leave should be granted
5. › Order made to facilitate proof at trial
6. › Whether substantial injustice if order not set aside
7. › Whether Court of Appeal being asked to give advisory opinion
8. › Supreme Court Act 1935 (WA), s 60(1)(f)
1. Practice and Procedure
2. › Case management
3. › Facilitation of proof
4. › Order that expert reports stand as prima facie evidence of facts relied upon
5. › Power under RSC O 29 r 2(1)(c)
6. › Parties at liberty to lead other evidence

Quick Take

An interlocutory order directing that expert reports stand as prima facie evidence of facts relied upon therein, where the opposing party retains the right to lead other evidence, does not give rise to substantial injustice warranting leave to appeal before trial. The party who obtained such an order bears the risk of inadequate proof if the order is later found to lack power or to be unjust. An appellate court should not determine the fairness of such an order in a fluid pre-trial situation where the determination risks producing an advisory opinion.