Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 3]
[2025] WASC 432
•10 OCTOBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BRAZIRON CORPORATE SERVICES PTY LTD -v- ROAD RAIL AND MINE PRODUCTS PTY LTD [No 3] [2025] WASC 432
CORAM: STRK J
HEARD: 17 SEPTEMBER 2025
PUBLISHED : 10 OCTOBER 2025
FILE NO/S: CIV 1788 of 2020
MATTER: (Consolidated with CIV 1104 of 2021)
BETWEEN: BRAZIRON CORPORATE SERVICES PTY LTD
First Plaintiff
SAFETY BARRIERS (WA) PTY LTD
Second Plaintiff
AND
ROAD RAIL AND MINE PRODUCTS PTY LTD
First Defendant
CYNDIE WOOLCOCK
Second Defendant
JED PALMER
Third Defendant
WYLIE JAMES WOOLCOCK
Fourth Defendant
LATOYA MARIE PALMER
Fifth Defendant
Catchwords:
Practice and procedure - Discovery - Application for further and better discovery - Exercise of discretion - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 26
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| First Defendant | : | PG Donovan |
| Second Defendant | : | PG Donovan |
| Third Defendant | : | PG Donovan |
| Fourth Defendant | : | PG Donovan |
| Fifth Defendant | : | PG Donovan |
Solicitors:
| First Plaintiff | : | M6:8 Legal |
| Second Plaintiff | : | M6:8 Legal |
| First Defendant | : | MDS Legal |
| Second Defendant | : | MDS Legal |
| Third Defendant | : | MDS Legal |
| Fourth Defendant | : | MDS Legal |
| Fifth Defendant | : | MDS Legal |
Case(s) referred to in decision(s):
Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287
Alcoa of Australia v Apache Energy Ltd [2014] WASCA 148
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 254 ALR 198
Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 2] [2025] WASC 44
Buswell v Carles [No 2] [2013] WASC 54
Canterbury‑Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419
City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271; (2014) FCR 462
Esso Australia Resources Limited v Plowman [1995] HCA 19; (1995) 183 CLR 10
Hastwell v Kott Gunning [No 3] [2019] FCA 1641
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104
Home Office v Harman [1983] 1 AC 280; [1982] 1 All ER 532
Jones v Treasury Wine Estates Limited; In the matter of Treasury Wine Estates Limited (No 4) [2020] FCA 1131
Maek Pty Ltd v Ibrahim [2022] WASC 285
Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Perpetual Trustees Co Ltd v Burniston [2012] WASC 26
Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [No 5] [2021] WASC 377
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
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
STRK J:
Introduction
By letter filed on 13 August 2025, the defendants make two applications. First, the defendants seek orders compelling the plaintiffs in this consolidated proceeding to give discovery and inspection of the following classes of documents in respect to Supreme Court proceeding CIV 2395 of 2023:
(a)the pleadings filed by the parties in the proceeding; and
(b)any settlement agreement or deed of settlement reached by the parties in the proceeding.
Secondly, the defendants seek inspection of the documents identified in the schedule to the minute of proposed orders filed on 13 August 2025, which have been discovered by the plaintiffs in this consolidated proceeding and are documents over which the plaintiffs claim legal professional privilege. In summary, the defendants contend that any privilege has been waived by the plaintiffs as a result of specific pleas in the plaintiffs' statement of claim.
These reasons concern the first of the applications. The second will be referred to another judge (who is not the case manager and will not be the trial judge) to consider and determine.
In support of the first application the defendants read the affidavit of Camilla D'Angelo Radenti sworn on 13 August 2025 (a lawyer employed by MDS Legal, the defendants' legal representatives). Ms Radenti attached to her affidavit one document marked CDR‑1. The defendants also with leave read the affidavit of Ms Radenti sworn on 16 September 2025, to which she attached four documents marked CDR‑1 to CDR‑4; the affidavit of Talia Howe Strutt sworn on 17 September 2025 (a paralegal employed by MDS Legal), to which she attached one document marked THS‑1; and rely upon the written outline of submissions filed on 1 September 2025.[1]
[1] As to the grant of leave, see ts 313 (17 September 2025).
As to the first application, the plaintiffs did not object to the orders sought by the defendants but had not consented to those orders being made.[2] They did not wish to be heard in relation to the first application and their attendance at the special appointment was excused at their request.[3]
[2] Affidavit of CD Radenti sworn on 16 September 2025, CDR-2 (page 6), CDR-3 (page 8); ts 313 (17 September 2025).
[3] Order 3 of the orders made on 26 August 2025.
Background - the Anderson Proceeding
The defendants refer to the proceeding known as Supreme Court proceeding CIV 2395 of 2023 as the 'Anderson Proceeding', and to the classes of documents the subject of the first application (described at [1] of these reasons) as the 'Anderson Documents'. I adopt the same description in these reasons.
The defendants say that the Anderson Proceeding concerns a claim made by the plaintiffs against Catherine Elizabeth Anderson with respect to legal advice alleged to have been provided by her to the plaintiffs regarding a deed of sale dated 13 December 2017 (2017 Agreement) that forms the subject matter of this proceeding (that is, Supreme Court proceeding CIV 1788 of 2020 consolidated with CIV 1104 of 2021) (Consolidated Proceeding).[4]
[4] Defendants' outline of submissions filed on 1 September 2025, par 3.
Ms Radenti attached to her affidavit a copy of the writ of summons filed by the plaintiffs dated 6 December 2023 by which the Anderson Proceeding was commenced.[5] The Anderson Proceeding was commenced by Braziron Corporate Services Pty Ltd and Safety Barriers (WA) Pty Ltd as the first and second plaintiffs respectively, and Ms Anderson was named the defendant.[6] The indorsement of claim to the writ of summons records as follows:
[5] Affidavit of CD Radenti sworn on 13 August 2025, par 4, CDR-1.
[6] It is noted that in the Anderson Proceeding the named second plaintiff is Safety Barriers WA Pty Ltd whereas in the Consolidated Proceeding the named second plaintiff is Safety Barriers (WA) Pty Ltd (underline inserted for emphasis). In both proceedings the originating documents record the same ACN for the named second plaintiff, and the Court proceeds on the basis that the same entity is a plaintiff in both proceedings.
1.The first plaintiff's claim is for:
1.1damages for the defendant's failure to exercise due care and skill in breach of the retainer agreement made in about December 2017 between the first plaintiff and the defendant in connection with the defendant's preparation of and provision of advice in relation to an agreement for the purchase of issued shares in the second plaintiff by the first plaintiff from each of Cyndie Woolcock, Wylie Woolcock, Jed Palmer and Latoya Palmer made on about 13 December 2017;
1.2further and in the alternative to paragraph 1.1, damages for the defendant's negligence in acting for the first plaintiff in relation to the first plaintiffs purchase of issued shares in the second plaintiff from each of Cyndie Woolcock, Wylie Woolcock, Jed Palmer and Latoya Palmer on or about 13 December 2017;
1.3further and in the alternative to each of paragraphs 1.1 and 1.2, damages pursuant to section 236 of the Australian Consumer Law caused by the first plaintiffs reliance upon misleading or deceptive representations made by the defendant to the first plaintiff in December 2017 in contravention of section 18 of the Australian Consumer Law to the effect that the terms of the agreement for the sale of shares and termination prepared and reviewed by the defendant from about 1 December 2017 to 13 December 2017 would permit the first plaintiff to enforce the restraint of trade provisions contained therein against each of Cyndie Woolcock, Wylie Woolcock, Jed Palmer and Latoya Palmer;
1.4further or other relief;
1.5interest on all sums awarded in favour of the first plaintiff pursuant to s 32, Supreme Court Act 1935 (WA), and
1.6costs.
2.Further and in the alternative to paragraph 1, the second plaintiffs claim is for:
2.1damages for the defendant's failure to exercise due care and skill in breach of the retainer agreement made between the first and second plaintiffs and the defendant in about December 2017 between in connection with the defendant's preparation of, and advice provided to the first and second plaintiffs concerning an agreement for the purchase of issued shares in the second plaintiff by the first plaintiff company from each of Cyndie Woolcock, Wylie Woolcock, Jed Palmer and Latoya Palmer in December 2017;
2.2further and in the alternative to paragraph 2.1, damages for the defendant's negligence in connection with the drafting of and provision of advice in relation to the restraint of trade provisions contained in the agreement to effect the first plaintiffs purchase of issued shares in the second plaintiff from each of Cyndie Woolcock, Wylie Woolcock, Jed Palmer and Latoya Palmer on about 13 December 2017;
2.3further and in the alternative to each of paragraphs 2.1 and 2.2, damages pursuant to section 236 of the Australian Consumer Law caused by the reliance by the first plaintiff further and alternatively the second plaintiff upon misleading or deceptive representations made by the defendant to the second plaintiff in December 2017 in contravention of section 18 of the Australian Consumer Law to the effect that the terms of the agreement for sale of shares and termination prepared and reviewed by the defendant from about 1 December 2017 to 13 December 2017 would permit the second plaintiff to enforce restraint of trade provisions contained therein against each of Cyndie Woolcock, Wylie Woolcock, Jed Palmer and Latoya Palmer;
2.4further or other relief;
2.5interest on all sums awarded in favour of the first plaintiff pursuant to s 32, Supreme Court Act 1935 (WA); and
2.6costs.
Ms Radenti deposed that on 7 August 2025, the plaintiffs' lawyers, M6:8 Legal, sent an email to MDS Legal advising that the Anderson Proceeding had been the subject of a mediation and had since been discontinued.[7] In her first affidavit, she also deposed that:[8]
[7] Affidavit of CD Radenti sworn on 13 August 2025, par 6; affidavit of CD Radenti sworn on 16 September 2025, CDR-1.
[8] Affidavit of CD Radenti sworn on 13 August 2025, pars 5, 9, 7 and 8.
(a)in the Consolidated Proceeding, the state of mind of the plaintiffs has been pleaded into issue as a consequence of the plaintiffs' pleas:
(i)of a common intention at paragraph 19 of the statement of claim filed on 25 November 2024 (Statement of Claim); and
(ii)of misleading or deceptive conduct at paragraphs 48 to 56 of the Statement of Claim;
(b)it is her belief that the pleadings filed in the Anderson Proceeding and any settlement agreement and/or deed of settlement reached by the parties to that proceeding relate to the claims made by the plaintiffs against the defendants in the Consolidated Proceeding as:
(i)they are likely to contain admissions and statements of material facts that are inconsistent with the claims that have been made against the defendants in the Consolidated Proceeding; and
(ii)any moneys to be paid by Ms Anderson to the plaintiffs in the Anderson Proceeding will be relevant to any assessment of damages in the Consolidated Proceeding;
(c)she suspects it likely that agreement was reached between the parties to the Anderson Proceeding to bring about a resolution of that proceeding; and
(d)it is her belief that the pleadings filed in the Anderson Proceeding and any settlement agreement and/or deed of settlement reached by the parties to that proceeding are documents in the possession, custody or power of the plaintiffs.
Applicable principles governing the application
The first application made by the defendants for further discovery (that is, for discovery and inspection of the Anderson Documents) is made pursuant to the Rules of the Supreme Court 1971 (WA) O 26 r 6.[9]
[9] Defendants' minute of proposed orders filed on 13 August 2025, proposed order 1.
In the written outline of submissions filed on 1 September 2025 on behalf of the defendants, it was noted that there are three sources of power upon which a party may rely in seeking further discovery, namely the Rules of the Supreme Court O 26 r 6(1); the Rules of the Supreme Court O 26 r 7(3), and the inherent jurisdiction of the Court.[10]
[10] Defendants' outline of submissions filed on 1 September 2025, par 6.
The principles to be applied in the determination of the defendants' first application, and those which guide the Court in the exercise of the discretionary power to make discovery orders, are well established. In short, whether in the exercise of its inherent jurisdiction or pursuant to the rule, in order for an application to succeed:[11]
(a)the Court must have reasonable grounds for being fairly certain that the documents sought are (or were) in existence;
(b)the documents sought must be relevant; and
(c)the documents ought to have been disclosed.
[11] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [29] ‑ [32].
When considering relevance, matters in issue are determined by reference to pleadings, but regard must also be had to the conduct and admissions of the parties and the nature of the action.[12]
[12] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [5]; Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [No 5] [2021] WASC 377 [5].
As to the final point (the documents ought to have been disclosed), the Court will be satisfied that the documents ought to have been disclosed if there are reasonable grounds to believe that the documents were once in the possession, custody or power of the party against whom discovery is sought.[13]
[13] Perpetual Trustees Co Ltd v Burniston [32].
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:[14]
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.
[14] 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].
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.
Disposition
Does the Court have reasonable grounds for being fairly certain that the documents sought are (or were) in existence?
In the submissions filed in advance of the hearing, it was submitted on behalf of the defendants that the Court has reasonable grounds for being fairly certain that the documents comprising the Anderson Documents exist. In support of the same, it was noted on behalf of the defendants that the writ of summons had been issued in the Anderson Proceeding and on 7 August 2025, the plaintiffs' legal representatives had sent an email to MDS Legal (the defendants' legal representatives) advising that the Anderson Proceeding had been the subject of a mediation and had since been discontinued. Further, the defendants noted that the plaintiffs' lawyers had not denied the existence of the documents.[15] Further evidence was filed shortly before of the hearing of the application which took the question of existence beyond doubt.
[15] Defendants' outline of submissions filed on 1 September 2025, par 12, referring to the affidavit of CD Radenti sworn on 13 August 2025, pars 6 - 7.
As is noted above, reference to the 'Anderson Documents' is a reference to the pleadings filed by the parties in the Anderson Proceeding; and any settlement agreement or deed of settlement reached by the parties in that proceeding.
The pleadings
As to the existence of pleadings filed by the parties in the Anderson Proceeding, the Rules of the Supreme Court O 67B r 6(2) provides that unless the person's access to the information is restricted, any person is entitled to have access to the information listed in the Table held by the Court. Relevantly, in relation to an identified proceeding in the General Division (general jurisdiction), the Table includes (and therefore any person is entitled to have access to) the title of any filed document held in relation to it, and the date on which a filed document was filed.[16]
[16] Rules of the Supreme Court O 67B r 6(2) (Table Part A, items 4(e) and 4(f)).
The evidentiary lacuna in the defendants' application was addressed shortly before the hearing of the application by the second affidavit sworn by Ms Radenti. Having obtained and attached to her second affidavit a list of the documents filed in the Anderson Proceeding as at 16 September 2025, the question of whether there were reasonable grounds for being fairly certain that pleadings filed by the parties in the Anderson Proceeding are (or were) in existence, was taken beyond doubt.[17]
Any settlement agreement or deed of settlement
[17] Affidavit of CD Radenti sworn on 16 September 2025, par 6, CDR-4.
As to any settlement agreement or deed of settlement reached by the parties in the Anderson Proceeding, I note Ms Radenti's evidence (which had been emphasised in the submissions filed in advance of the hearing) that on 7 August 2025, the plaintiffs' lawyers, M6:8 Legal, sent an email to MDS Legal advising that the Anderson Proceeding had been the subject of a mediation and had since been discontinued.[18] It was also submitted that the plaintiffs' lawyers had not denied the existence of the documents.[19]
[18] Affidavit of CD Radenti sworn on 13 August 2025, par 6; affidavit of CD Radenti sworn on 16 September 2025, CDR-1.
[19] Defendants' outline of submissions filed on 1 September 2025, par 12.
Further evidence as to the existence of this class of documents was before the Court by Ms Radenti's second affidavit and Ms Strutt's affidavit. Ms Radenti attached to her second affidavit a letter from M6:8 Legal (sent on behalf of the plaintiffs) to MDS Legal (the defendants' representatives) dated 20 August 2025 which recorded as follows:[20]
Proposed Order 1 and Proposed Order 2(a) – Application for discovery of Anderson pleadings and deed
As previously advised, the plaintiffs do not oppose an order to produce the Anderson pleadings in the Anderson matter. However, our client does not consent to their production. Our client will take the same position in relation to the deed of settlement which, as you would expect, contains obligations of confidence. (emphasis added)
[20] Affidavit of CD Radenti sworn on 16 September 2025, CDR-2.
Ms Strutt attached to her affidavit an email chain as between M6:8 Legal and MDS Legal, in which Mabel Chua, principal of M6:8 Legal on 17 September 2025 confirmed that a deed of settlement exists.[21]
[21] Affidavit of TH Strutt sworn on 17 September 2025, THS-1.
In light of the evidence read, I am satisfied that there are reasonable grounds for being fairly certain that a deed of settlement reached by the parties in the Anderson Proceeding is in existence.
Are the documents sought relevant?
The defendants' position - relevance
As to the relevance of the Anderson Documents, the defendants say that the Anderson Proceeding concerns a claim made by the plaintiffs against Ms Anderson with respect to legal advice alleged to have been provided by her to the plaintiffs regarding the 2017 Agreement, that forms the subject matter of the Consolidated Proceeding.[22]
[22] Defendants' outline of submissions filed on 1 September 2025, par 3.
The defendants particularly refer to the further amended consolidated statement of claim dated 25 November 2024 filed in the Consolidated Proceeding, in which the plaintiffs plead that:
(a)there was a common intention by the plaintiffs and the second to fifth defendants that a restraint term would be contained within the 2017 Agreement that had a cascading effect as to time and a limitation as to geography and the 2017 Agreement should be rectified to insert clauses to reflect this common intention;[23] and
(b)the second to fifth defendants engaged in misleading or deceptive conduct that included being misled as to the validity and effectiveness of the restraints within the 2017 Agreement, and the plaintiffs acted in reliance upon those misleading representations by entering the 2017 Agreement.[24]
[23] Defendants' outline of submissions filed on 1 September 2025, par 13(a), referring to the plaintiffs' further amended consolidated statement of claim dated 25 November 2024, pars 17 - 21; ts 314 - 316 (17 September 2025).
[24] Defendants' outline of submissions filed on 1 September 2025, par 13(b), referring to the plaintiffs' further amended consolidated statement of claim dated 25 November 2024, pars 48 - 56.
The defendants also note that the plaintiffs have sought damages against the defendants, and submit that it is likely that any settlement with Ms Anderson that has entailed Ms Anderson paying to the plaintiffs moneys will need to be appropriately taken into account in calculating any damages awarded to the plaintiffs in the Consolidated Proceeding.
The pleadings
I turn to consider the matters in issue by reference to the pleadings. As at the hearing of the application, the pleadings in the Consolidated Proceeding were represented by the further amended consolidated statement of claim dated 25 November 2024, the defendants' further amended defence to the further amended consolidated statement of claim dated 4 March 2025, and the plaintiffs' further amended reply dated 1 April 2025.
Despite amendments to the pleadings, it remains the case that at the centre of the Consolidated Proceeding are several transactions, executed in July 2016 and in December 2017, which led to the acquisition in tranches of the shares in Safety Barriers (WA) Pty Ltd (the second plaintiff in the Consolidated Proceeding) by Braziron Corporate Services Pty Ltd (the first plaintiff in the Consolidated Proceeding) from Cyndie Woolcock, Jed Palmer, Wylie James Woolcock and LaToya Marie Palmer (the second to fifth defendants in the Consolidated Proceeding).[25]
[25] Further amended consolidated statement of claim dated 25 November 2024, pars 8 - 13; as discussed in Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 2] [2025] WASC 44 (which referred to and concerned an earlier version of the statement of claim).
It is not contentious that the second to fifth defendants in the Consolidated Proceeding were initially equal shareholders in Safety Barriers (WA) Pty Ltd before its sale to the first plaintiff.[26]
[26] Further amended consolidated statement of claim dated 25 November 2024, pars 4 - 7; defendants' further amended defence to further amended consolidated statement of claim dated 4 March 2025, pars 4 - 7; as discussed in Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 2] [9].
The plaintiffs plead that from about 30 August 2017, the parties commenced negotiations for the first plaintiff to become the sole shareholder of Safety Barriers (WA) Pty Ltd.[27] It is common ground that on 13 December 2017, the first plaintiff and the second to fifth defendants entered into an agreement for sale of shares and termination (that is, the 2017 Agreement).[28]
[27] Further amended consolidated statement of claim dated 25 November 2024, par 14.
[28] Further amended consolidated statement of claim dated 25 November 2024, par 15; defendants' further amended defence to further amended consolidated statement of claim dated 4 March 2025, par 14.
The plaintiffs seek a range of remedies in this action against the defendants, based on:
(a)by reference to the express and implied terms of the 2017 Agreement, alleged breaches of contract (including breach of a restraint clause);[29]
(b)alternatively, by reference to the 2017 Agreement rectified so as to reflect the common intention of the parties, alleged breaches of contract (including a breach of the restraint clause, as rectified);[30]
(c)alleged breaches of the contractual provisions not to use or disclose confidential information and breaches of the equitable duty of confidence by the second defendant, Ms Woolcock, in relation to the second plaintiff, Safety Barriers (WA) Pty Ltd;[31] and
(d)alleged misleading or deceptive conduct contrary to the Australian Consumer Law (set out in sch 2 of the Competition and Consumer Act 2010 (Cth)).[32]
[29] Further amended consolidated statement of claim dated 25 November 2024, pars 16.5, 24 - 27, 28, 29, 36, 40, 44 (breach of restraint clause); pars 18, 24 - 27, 28, 29, 37, 41, 45 (breach of restraint clause as implied).
[30] Further amended consolidated statement of claim dated 25 November 2024, pars 21, 24 - 27, 28, 29, 38, 42, 46.
[31] Further amended consolidated statement of claim dated 25 November 2024, pars 23.1, 23.2, 24 - 27, 34, 35 (breach of contractual duty of confidence); pars 30, 31, 32, 33 (breach of equitable duty of confidence).
[32] Further amended consolidated statement of claim dated 25 November 2024, pars 48 - 54, 55.
The position of the defendants' as to relevance (outlined below) particularly focusses upon the rectification and the misleading or deceptive conduct claims as pleaded. As to those claims, I note as follows.
Rectification claim
The plaintiffs plead that the 'Express Restraint' is found at cl 7.1(j) of the 2017 Agreement, which provides that until 12 December 2022 each of the second to fifth defendants would not provide services to, or be engaged or employed by, any company the business of which was carried on in Western Australia and which was substantially the same as and in competition with the business of Safety Barriers (WA) Pty Ltd.[33]
[33] Further amended consolidated statement of claim dated 25 November 2024, par 16.5.
As to the rectification claim, it is pleaded that the 2017 Agreement ought be rectified on the basis that the terms of the instrument fails to give effect to the common intention of the parties. That is, further and in the alternative to that part of the pleading which concerns the implication of a term if the express restraint is unenforceable, the plaintiffs plead that at all material times it was the common intention of the parties to the 2017 Agreement that the term of the agreement that each of the second to fifth defendants would not provide services to, or be engaged or employed by, any company the business of which was carried on in Western Australia and which was substantially the same as and in competition with the business of Safety Barriers (WA) Pty Ltd would be binding on the parties and should apply:
(a)to the whole of Western Australia; and
(b)for a period that is be legally enforceable such that if the duration of the restraint being until:
(i)12 December 2022 is voidable, invalid or unenforceable, it will instead last until 12 December 2021;
(ii)12 December 2021 is voidable, invalid or unenforceable, it will instead last until 12 December 2020;
(iii)12 December 2020 is voidable, invalid or unenforceable, it will instead last until 12 December 2019; and
(iv)12 December 2019 is voidable, invalid or unenforceable, it will instead last until 12 December 2018.[34]
[34] Further amended consolidated statement of claim dated 25 November 2024, par 19.
The pleading provides particulars from which the plaintiffs say the common intention may be inferred.[35]
[35] Further amended consolidated statement of claim dated 25 November 2024, par 19 (particulars of common intention).
The plaintiffs plead that by an oversight, common to both parties, the wording of the 'Express Restraint':
(a)omitted the matters pleaded in paragraph 19 (reproduced at [35] above); and
(b)stated the time restraint only in a manner that lasted until 12 December 2022.[36]
[36] Further amended consolidated statement of claim dated 25 November 2024, par 20.
The plaintiff plead that in the premises pleaded,[37] the 2017 Agreement should be rectified to:[38]
(a)insert into cl 7.1(j) between 'not' and 'for a period', the words 'throughout Western Australia'; and
(b)insert into cl 7.1(j) after '5 years from Completion' the words 'but if that duration is void 4 years from Completion, if that duration is void 3 years from Completion, if that duration is void 2 years from Completion, if that duration is void 1 year from Completion'.
Misleading or deceptive conduct claim
[37] By reference to the further amended consolidated statement of claim dated 25 November 2024, pars 8 - 20.
[38] Further amended consolidated statement of claim dated 25 November 2024, par 21.
As to the misleading or deceptive conduct claim pleaded against the second to fifth defendants pursuant to the Australian Consumer Law, the plaintiffs plead that by an email on 11 December 2017 and an email on 12 December 2017, the second defendant on behalf of the second to fifth defendants informed the plaintiffs, in effect, that the second to fifth defendants had obtained legal advice in relation to a draft of the 2017 Agreement.[39]
[39] Further amended consolidated statement of claim dated 25 November 2024, par 48.
The four representations which are said to underpin the misleading or deceptive conduct claim are pleaded at paragraph 49, where it is pleaded that on or about 12 December 2017, each of the second to fifth defendants represented to the first plaintiff, in effect, that in the event that the first plaintiff executed the draft agreement attached to that email:[40]
(a)the second to fifth defendants would not provide services to, or be engaged or employed by, any other company or entity, the business of which comprised or included as a principal undertaking, the same or substantially the same as that of Safety Barriers (WA) Pty Ltd for a period of five years from completion of the sale of the remaining shares in Safety Barriers (WA) Pty Ltd (Restraint Representation);
(b)the second to fifth defendants would ensure that he or she would not act as pleaded in subparagraph 49.1 (see (a) above) for a period of five years from completion of the sale of that defendant's remaining nine shares in Safety Barriers (WA) Pty Ltd (Assurance Representation);
(c)the Express Restraint covenant (described at [34] above) would, upon execution of the agreement between the parties, be valid and effective (Validity Representation); and
(d)that defendant had a reasonable basis for making the Validity Representation (Reasonable Basis Representation).
[40] Further amended consolidated statement of claim dated 25 November 2024, par 49.
As to particulars of the pleaded representations, the plaintiffs refer to the 11 and 12 December 2017 emails, and to conduct from which they say the representations can be inferred.[41]
[41] Further amended consolidated statement of claim dated 25 November 2024, par 19 (particulars of common intention).
It is pleaded that acting in reliance upon any and all of the representations pleaded and induced thereby, the first plaintiff entered into the 2017 Agreement; and proceeded to acquire each of the second to fifth defendants' remaining nine shares in Safety Barriers (WA) Pty Ltd in accordance with the terms of the 2017 Agreement, when it would not otherwise have done so.
The first plaintiff pleads that the Restraint Representation and Assurance Representation were misleading or deceptive, or alternatively likely to mislead or deceive, in that:[42]
(a)each of the second to fifth defendants did not intend to refrain from providing services to, or be engaged or employed by, any other company or entity, the business of which comprised or included as a principal undertaking, the same or substantially the same as that of Safety Barriers (WA) Pty Ltd for a period of five years from completion of the sale of that defendant's remaining nine shares in Safety Barriers (WA) Pty Ltd; and
(b)each of the second to fifth defendants did not intend to ensure that they would not act as pleaded in paragraph 49.2 (that is, that the second to fifth defendants would ensure that he or she would not act as pleaded in subparagraph 49.1 (see [40(a)] above) for a period of five years from completion of the sale of that defendant's remaining nine shares in Safety Barriers (WA) Pty Ltd).
[42] Further amended consolidated statement of claim dated 25 November 2024, par 52.
The pleading then provides detailed particulars of the matters from which it is said that the intention of each defendant might be inferred, which included that the second to fifth defendants obtained legal advice in respect of the draft agreement attached to the email of 11 December 2017.[43]
[43] Further amended consolidated statement of claim dated 25 November 2024, par 52 (particulars of intention).
Further and in the alternative, it is pleaded that the Restraint Representation and Assurance Representation were misleading or deceptive (alternatively likely to mislead or deceive) in that to the degree that the representations in those subparagraphs were representations as to future matters related to the conduct of each of the second to fifth defendants for the period of five years from 11 December 2017, the second to fifth defendants did not have a reasonable basis for making either representation.[44]
[44] Further amended consolidated statement of claim dated 25 November 2024, par 53.
Further, it is pleaded that the Validity Representation and the Reasonable Basis Representation were misleading or deceptive, in that each of the second to fifth defendants did not have reasonable grounds for making the Validity Representation and the Reasonable Basis Representation.[45]
[45] Further amended consolidated statement of claim dated 25 November 2024, par 54.
In the circumstances pleaded, the plaintiffs say that each of the second to fifth defendants contravened s 18 of the Australian Consumer Law, and the first plaintiff has suffered loss and damage by reason of that conduct.[46]
Determination
[46] Further amended consolidated statement of claim dated 25 November 2024, pars 55 - 56.
I am satisfied that when regard is had to the indorsement of claim to the writ of summons in the Anderson Proceeding, it is possible to infer from the nature of the Anderson Documents that they are relevant to the matters in issue in the Consolidated Proceeding (as defined by the pleadings summarised above).
As noted on behalf of the defendants, the state of mind of the plaintiffs (particularly the first plaintiff) has been put in issue by that part of the claim seeking rectification of the 2017 Agreement, and further the claim that first plaintiff acted in reliance upon the pleaded misleading representations by entering the 2017 Agreement.
By reference to the indorsement of claim, the pleadings in the Anderson Proceeding appear to concern Ms Anderson's preparation of and provision of advice in relation to the 2017 Agreement; Ms Anderson acting for the first plaintiff in relation to the first plaintiff's purchase of issued shares in Safety Barriers (WA) Pty Ltd from each of the second to fifth defendants on or about 13 December 2017; and representations made by Ms Anderson to the first plaintiff in December 2017 to the effect that the terms of the agreement for the sale of shares and termination prepared and reviewed by Ms Anderson from about 1 December 2017 to 13 December 2017 would permit the first plaintiff to enforce the restraint of trade provisions contained therein against each of the persons named as second to fifth defendants in this Consolidated Proceeding.
On balance, I am satisfied that the pleadings in the Anderson Proceeding are relevant in the sense described by counsel for the defendants, that is, that the documents relate to a matter in question as they go to the state of mind of the plaintiffs. While there is no evidence that moneys were paid by Ms Anderson to the plaintiffs, I also accept that the deed of settlement reached by the parties in the Anderson Proceeding is relevant in the sense described by counsel for the defendants. I also accept that discovery of the Anderson Documents to be necessary for fairly disposing of this Consolidated Proceeding.
Ought the documents sought have been disclosed?
The defendants further say that the Anderson Documents ought to have been disclosed. In support of the same the defendants referred to the orders made on 2 June 2022 that discovery of certain categories of documents be provided, which categories included, at paragraph 4 of Annexure A of the orders:[47]
All documents relating to any legal advice obtained by the First Plaintiff, Cyndie Woolcock, Jed Palmer, Wylie Woolcock or Latoya Palmer (or any of them) regarding the terms of the 2017 Agreement, including without limitation any advice regarding the drafting or effect of the restraint provisions in the 2017 Agreement.
[47] Defendants' outline of submissions filed on 1 September 2025, par 15.
The defendants submitted that the Anderson Documents fall within this category; and alternatively, if that submission is incorrect, that the documents should be discovered as they are relevant to the Consolidated Proceeding, and as they would be relatively easy to discover and produce (being no more than three or four documents in total).
Given the matters recorded in the indorsement of claim, I accept that the Anderson Documents (particularly the pleadings in the Anderson Proceeding) appear to fall within the category of documents reproduced at [52] above.
As the Anderson Proceeding was commenced by writ of summons dated 6 December 2023, I expect that the Anderson Documents were created after the orders for discovery in the Consolidated Proceeding were made on 2 June 2022. That said, in the circumstances, I accept that the Anderson Documents ought to have been discovered in light of the plaintiffs' continuing obligation to give discovery.
Issue of the Harman obligation (implied undertaking)
Where one party to litigation is compelled, by reason of a rule or specific order of the Court or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the Court, use the documents or information for any purpose other than that for which they are given, unless they are received into evidence.[48] This is an obligation of substantive law, which applies to a range of material,[49] frequently described as 'the Harman undertaking' or 'the Harman obligation'.[50]
[48] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [69].
[49] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [70], citing Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [106] ‑ [108]; Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149 [25].
[50] Referencing the House of Lords decision of Home Office v Harman [1983] 1 AC 280; [1982] 1 All ER 532.
As was noted on behalf of the defendants, the scope of the Harman obligation was described by the High Court (per Hayne, Heydon and Crennan JJ) in Hearne v Street at [96] in the following terms:[51]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. (footnotes omitted)
[51] Defendants' outline of submissions filed on 1 September 2025, footnote 13.
As was observed by Le Miere J in Buswell v Carles [No 2] [2013] WASC 54 at [12], Hayne, Heydon and Crennan JJ did not give an exhaustive list of the documents or information to which the obligation attaches; and further, that the general law protection provided by the 'implied undertaking' or obligation 'is often buttressed by protection from rules of court'.
Counsel for the defendants raised and addressed the question of whether the Harman obligation constrains the ability of the plaintiffs to provide and the defendants to gain access to the Anderson Documents.[52]
[52] Defendants' outline of submissions filed on 1 September 2025, pars 17 - 20; ts 321 - 325, 328 ‑ 329, 331 ‑ 335 (17 September 2025).
As to the impact of the Harman obligation in the context of the defendants' application for discovery of the Anderson Documents, the defendants' position is that first, the Harman obligation must yield to the requirements of curial process in other litigation, for example, discovery and inspection,[53] and as such, the Harman obligation is no impediment to the Court granting the defendants' application to require the plaintiffs to discover and produce the Anderson Documents.
[53] Defendants' outline of submissions filed on 1 September 2025, par 18, citing Esso Australia Resources Limited v Plowman [1995] HCA 19; (1995) 183 CLR 10, 33 as cited in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72 [46] ‑ [47] (Smith J).
As to this first point, counsel for the defendants referred to, among other things, the decision of Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17], where at [46] her Honour (after describing the effect of the Harman obligation) observed that it is not always necessary for a party who wishes to use documents subject to the Harman obligation in different proceedings to obtain an order releasing them from the obligation prior to being able to use the documents, because the Harman obligation will yield to discovery and production orders of the Court. That is, it was submitted that the effect of an order for discovery in the form promoted by the defendants would displace any obligation that the plaintiffs would otherwise have to the Court to obtain a release from the Harman undertaking to use the pleadings filed in the Anderson Proceeding so as to provide discovery in the Consolidated Proceeding.
Secondly, the defendants say that further and in any event, the Harman obligation does not preclude the Court from granting the defendants' application given that there is persuasive authority that the obligation does not apply to pleadings.[54] As to this second point, counsel for the defendants acknowledge as follows:[55]
That said, the defendants concede that there is some conflict regarding this issue between the authorities and there is some authority, including in the Supreme Court of Western Australia, that the Harman obligation does … apply to pleadings. Some of these authorities were reviewed by his Honour Justice Foster in Jones v Treasury Wine Estates Ltd (No 4) [2020] FCA 1131, including Eisa Ltd v Brady [2000] NSWSC 929 (Eisa) and Chandrasekaran v Western Sydney Local Area Health District [2019] NSWSC 1461. Foster J preferred at [71] the view of Henry J in Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 for reasons that, with respect, appear correct. It is noted that the decision of his Honour Justice Le Miere in Buswell v Carles (No 2) [2013] WASC 5, that found that the obligation extended to pleadings, relied in part on Eisa at [14] and, in any event, related to an application by a plaintiff that a defendant not be permitted to disclose the content of the statement of claim in a defamation action. (footnote omitted)
[54] Defendants' outline of submissions filed on 1 September 2025, par 19, citing Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 [35] (Brereton J); Canterbury‑Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 [121] ‑ [131] (Henry J); Jones v Treasury Wine Estates Limited; In the matter of Treasury Wine Estates Limited (No 4) [2020] FCA 1131 [63], [64], [71] (Foster J).
[55] Defendants' outline of submissions filed on 1 September 2025, par 20; which submission was corrected by counsel at ts 331 (17 September 2025). The reproduced passage reflects the correction. In addition to the authorities noted as having been reviewed by Foster J in Jones v Treasury Wine Estates Limited; In the matter of Treasury Wine Estates Limited (No 4), the defendants at footnote 16 also referred to Hastwell v Kott Gunning [No 3] [2019] FCA 1641 [202] (Jackson J).
The application is pressed in circumstances where the plaintiffs have not sought to resist an order for discovery by reference to the Harman obligation or otherwise, and there is no evidence that Ms Anderson is on notice of the application.
I accept that the authorities establish that the implied Harman obligation does not give rise to a privilege from producing documents;[56] and is not of itself a ground for resisting an order for production.[57] The effect of the Court now making an order for discovery in the form promoted by the defendants (if indeed the obligation extended to any of the Anderson Documents) would be to displace the obligation to the Court to obtain a release from the Harman obligation before using the documents so as to provide discovery in the Consolidated Proceeding. Having so concluded, and in circumstances where Ms Anderson appears not to be on notice of the defendants' application, it is not necessary nor appropriate to conclude whether the Harman obligation in fact applies to any of the Anderson Documents.
The exercise of discretion
Discovery
[56] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [13], applying Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 254 ALR 198 [47] ‑ [50], cited with approval in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [52].
[57] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [18], cited with approval in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [52].
A party does not have a strict entitlement to an order for discovery, the power to order discovery is discretionary. The request for further discovery was not made in circumstances where there had been any significant delay on the part of the defendants. It was only on 7 August 2025 that the plaintiffs' lawyers, M6:8 Legal, sent an email to MDS Legal thereby informing the defendants that the Anderson Proceeding had been the subject of a mediation and had since been discontinued.[58]
[58] Affidavit of CD Radenti sworn on 13 August 2025, par 6.
The discovery of the Anderson Documents would not appear likely to cause significant costs to be incurred on the part of the plaintiffs, nor inconvenience. The plaintiffs have not sought to be heard in respect of the first application. To the extent that cost and delay might be involved in the provision of discovery of the Anderson Documents, on the evidence read and submissions made, and in the absence of any complaint by the plaintiffs, I am satisfied that those costs and delay are proportionate to the forensic benefit likely to be derived from their discovery and inspection.
The ultimate test is whether the discovery is necessary for fairly disposing of the Consolidated Proceeding. I am satisfied that when regard is had to the pleadings, and with the benefit of Ms Radenti's evidence, that discovery of the Anderson Documents should be ordered.
For these reasons, the plaintiffs will be ordered to provide discovery on affidavit of the Anderson Documents within five business days of the making of orders.
Inspection
As to inspection of the Anderson Documents, the prima facie entitlement to inspect extends to discovered documents containing confidential and/or sensitive information. The Court however has a discretion under the Rules of the Supreme Court O 26 r 9(1) to make an order for production or inspection, and a power to impose restrictions and/or conditions on inspection.[59]
[59] Alcoa of Australia v Apache Energy Ltd [2014] WASCA 148 [57].
As noted above, there is no evidence that Ms Anderson is on notice of this application. It is at least arguable that the Harman obligation applies to the pleadings filed in the Anderson Proceeding. Furthermore, none of the Anderson Documents are documents that the defendants could access as of right pursuant to the Rules of the Supreme Court O 67B r 6, or otherwise. In the circumstances, Ms Anderson should be given the opportunity to advance whatever interest she may have in restricting the defendants' right of inspection of the documents.[60]
[60] City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271; (2014) FCR 462 [10] ‑ [16], cited in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [55].
It is appropriate in the circumstances that the defendants first personally serve upon Ms Anderson a copy of the defendants' application; the defendants' minute of proposed orders filed on 13 August 2025; Ms Radenti's affidavits sworn on 13 August 2025 and on 16 September 2025; Ms Strutt's affidavit sworn on 17 September 2025; the defendants' outline of submissions filed on 1 September 2025; the Court's orders; and these reasons for decision.
I will order that Ms Anderson have liberty to apply with respect to the defendants' inspection of the Anderson Documents. If no application is made by or on behalf of Ms Anderson within 14 days of service of the papers described above on her, the defendants may inspect the Anderson Documents. If an application is made by or on behalf of Ms Anderson, then the defendants shall not inspect the Anderson Documents until further order of the Court.
Orders and costs
For these reasons, I will make orders in the following terms:
1.Within five (5) business days of the date of these orders, the plaintiffs must provide discovery on affidavit of the following documents classes of documents in respect to Supreme Court proceeding CIV 2395 of 2023:
(a)the pleadings filed by the parties in the proceeding; and
(b)any settlement agreement or deed of settlement reached by the parties in those proceedings
(together the Anderson Documents).
2.The defendants must as soon as is practicable serve upon Catherine Elizabeth Anderson a true copy of:
(a)the defendants' application for further discovery made by letter filed on 13 August 2025;
(b)the defendants' minute of proposed orders filed on 13 August 2025;
(c)the affidavit of Camilla D'Angelo Radenti sworn on 13 August 2025;
(d)the affidavit of Camilla D'Angelo Radenti sworn on 16 September 2025;
(e)the affidavit of Talia Howe Strutt sworn on 17 September 2025;
(f)the defendants' outline of submissions filed on 1 September 2025;
(g)these orders; and
(h)the Court's reasons for decision delivered on 9 October 2025: Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 3] [2025] WASC 432.
3.Ms Anderson shall have liberty to apply in this Consolidated Proceeding with respect to inspection by the defendants of the Anderson Documents.
4.If no application is filed in the Consolidated Proceeding by or on behalf of Ms Anderson within 14 days of service on her in accordance with order 2 of these orders, the defendants may inspect the Anderson Documents.
5.If an application is made by or on behalf of Ms Anderson within 14 days of service on her in accordance with order 2 of these orders, then the defendants shall not inspect the Anderson Documents until further order of the Court.
As to costs, by the consent of the plaintiffs and the defendants, on 26 August 2025 the Court ordered that the costs of the first of the defendants' applications (the subject of these reasons) be in the cause.[61]
[61] Order 7 of the orders made on 26 August 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Associate to the Honourable Justice Strk
10 OCTOBER 2025
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