HAMPTON -v- BHP BILLITON MINERALS PTY LTD [2012] WASC 133

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 133
Case No:	CIV:2292/2011	Heard:	ON THE PAPERS
Coram:	EDELMAN J	Delivered:	24/04/12
No of pages:	13	Judgment Part:	1 of 1
Result:	Discovery ordered in relation to category (4) only
Category:	B
PDF Version

Parties:	NEVILLE CHARLES HAMPTON NANCY EDITH LUMSDEN BHP BILLITON MINERALS PTY LTD MITSUI-ITOCHU IRON PTY LTD ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD
Catchwords:	Procedure Further and better discovery Formal application by chamber summons not required Proper approach to take where it is alleged that a search for documents has not been conducted No evidence for a conclusion in relation to three categories that there are reasonable grounds for being fairly certain that the documents sought are in existence Three categories of document not relevant, and discovery not proportionate, to pleaded issues and matters which might arise at trial Final category of documents is discoverable Damages Principles of assessment for an award of 'mesne profits' Whether the use to which an alleged owner might have put the property is a sufficiently relevant to require discovery of documents in this category
Legislation:	Rules of the Supreme Court 1971 (WA), O 26 r 6, r 7
Case References:	Attorney-General of New South Wales v World Best Holdings Limited [2005] NSWCA 261; (2005) 63 NSWLR 557 Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 Butler v Egg & Egg Pulp Marketing Board [1966] HCA 38; (1966) 114 CLR 185 Delaney v Staples [1992] 1 All ER 944 Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7 Finesky Holdings Pty Ltd v Minister for Transport (WA) [2002] WASCA 206; (2002) 26 WAR 368 Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1179 Siagian v Sanel Pty Ltd (1994) 122 ALR 333

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HAMPTON -v- BHP BILLITON MINERALS PTY LTD [2012] WASC 133 CORAM : EDELMAN J HEARD : ON THE PAPERS DELIVERED : 24 APRIL 2012 FILE NO/S : CIV 2292 of 2011 BETWEEN : NEVILLE CHARLES HAMPTON

First Plaintiff

NANCY EDITH LUMSDEN

Second Plaintiff

AND

BHP BILLITON MINERALS PTY LTD

First Defendant

MITSUI-ITOCHU IRON PTY LTD

Second Defendant

ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD

Third Defendant

Catchwords:

Procedure - Further and better discovery - Formal application by chamber summons not required - Proper approach to take where it is alleged that a search for documents has not been conducted - No evidence for a conclusion in relation to three categories that there are reasonable grounds for being fairly certain that the documents sought are in existence - Three categories of document not

(Page 2)

relevant, and discovery not proportionate, to pleaded issues and matters which might…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WASC 133
Decision Date: 24 APRIL 2012

CaseChat Overview and Summary

In the case of Hampton v BHP Billiton Minerals Pty Ltd, the court dealt with an application for further and better discovery of documents. The plaintiff, Hampton, sought additional documents from the defendant, BHP Billiton Minerals Pty Ltd, claiming that the defendant had not conducted a thorough search for the documents. The case was heard in the Supreme Court of New South Wales. The primary dispute centred around the adequacy of the defendant's search for documents and the relevance of certain categories of documents to the issues at hand.

The legal issues the court had to address included whether the defendant had properly searched for documents and whether certain categories of documents were discoverable. The plaintiff argued that the defendant had failed to search for documents in three specific categories and that these documents were relevant to the case. The defendant, on the other hand, contended that the search was adequate and that the documents were not necessary for the trial. The court needed to determine the proper approach to take when allegations of an inadequate search for documents are made and whether the documents in question were relevant and proportionate to the issues pleaded.

The court found that there was no evidence to support the conclusion that the documents in the three categories were in existence, and therefore, there were no reasonable grounds for being fairly certain that the documents sought were in existence. Furthermore, the court held that these three categories of documents were not relevant or proportionate to the pleaded issues and matters which might arise at trial. Consequently, the court ruled that discovery was not ordered in relation to these categories. However, the court did order discovery in relation to the fourth category of documents, as it found that these documents were relevant and proportionate to the issues at hand. The court also addressed the principles of assessment for an award of mesne profits, concluding that the use to which an alleged owner might have put the property was not a relevant factor for the discovery of documents in this category.

The final orders of the court were that discovery was ordered in relation to category (4) only, with no further discovery ordered for the other categories.

Orders

Orders of the court

Discovery ordered in relation to category (4) only

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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