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Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd

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Case Copied 25 May 2023 58 min read

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [2023] WASCA 94
CORAM:   VAUGHAN JA
HEARD:   25 MAY 2023
DELIVERED          :   25 MAY 2023
PUBLISHED           :   2 JUNE 2023
FILE NO/S:   CACV 32 of 2023
BETWEEN:   HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
DFD RHODES PTY LTD
First Respondent
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Respondents
WRIGHT PROSPECTING PTY LTD
Third Respondent
BIANCA HOPE RINEHART
Fourth Respondent
JOHN LANGLEY HANCOCK
Fifth Respondent
HOPE RINEHART WELKER
Sixth Respondent
GINIA HOPE FRANCIS RINEHART
Seventh Respondent
HAMERSLEY WA PTY LTD
Eighth Respondent

FILE NO/S: CACV 33 of 2023
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
BIANCA HOPE RINEHART
Second Respondent
JOHN LANGLEY HANCOCK
Third Respondent
HOPE RINEHART WELKER
Fourth Respondent
GINIA HOPE FRANCIS RINEHART
Fifth Respondent
HAMERSLEY WA PTY LTD
Sixth Respondent

FILE NO/S: CACV 43 of 2023
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
DFD RHODES PTY LTD
First Respondent
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Respondents
WRIGHT PROSPECTING PTY LTD
Third Respondent
BIANCA HOPE RINEHART
Fourth Respondent
JOHN LANGLEY HANCOCK
Fifth Respondent
HOPE RINEHART WELKER
Sixth Respondent
GINIA HOPE FRANCIS RINEHART
Seventh Respondent
HAMERSLEY WA PTY LTD
Eighth Respondent

FILE NO/S: CACV 44 of 2023
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
BIANCA HOPE RINEHART
Second Respondent
JOHN LANGLEY HANCOCK
Third Respondent
HOPE RINEHART WELKER
Fourth Respondent
GINIA HOPE FRANCIS RINEHART
Fifth Respondent
HAMERSLEY WA PTY LTD
Sixth Respondent

FILE NO/S: CACV 45 of 2023
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
BIANCA HOPE RINEHART
Second Respondent
JOHN LANGLEY HANCOCK
Third Respondent
HOPE RINEHART WELKER
Fourth Respondent
GINIA HOPE FRANCIS RINEHART
Fifth Respondent
HAMERSLEY WA PTY LTD
Sixth Respondent

FILE NO/S: CACV 46 of 2023
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
WRIGHT PROSPECTING PTY LTD
First Respondent
BIANCA HOPE RINEHART
Second Respondent
JOHN LANGLEY HANCOCK
Third Respondent
HOPE RINEHART WELKER
Fourth Respondent
GINIA HOPE FRANCIS RINEHART
Fifth Respondent
HAMERSLEY WA PTY LTD
Sixth Respondent

FILE NO/S: CACV 47 of 2023
BETWEEN: HANCOCK PROSPECTING PTY LTD
First Appellant
HOPE DOWNS IRON ORE PTY LTD
Second Appellant
AND
DFD RHODES PTY LTD
First Respondent
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Respondents

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: [2023] WASCA 94
Decision Date

CaseChat Overview and Summary

Hancock Prospecting Pty Ltd and Hope Downs Iron Ore Pty Ltd (collectively referred to as the HPPL parties) appealed against discovery orders made by the primary judge, Smith J, in the Supreme Court of Western Australia. The discovery orders required the HPPL parties to give discovery of certain categories of documents to the respondents in the primary proceedings. The respondents were various companies and individuals associated with the deceased Donovan Frances Duncan Rhodes. The appeal was heard by Vaughan JA in the Court of Appeal of the Supreme Court of Western Australia. The appeal concerned the discovery orders made on 14 April 2023 and the extension of the time for compliance with those orders on 10 May 2023. The HPPL parties sought to stay the discovery orders pending the determination of the appeal. They also sought an order precluding inspection of the discovered documents pending the determination of the appeal.

The appeal against the discovery orders was listed for hearing on 14 June 2023, less than three weeks after the hearing of the stay application. The primary proceedings were scheduled to commence trial before the primary judge on 10 July 2023. The HPPL parties claimed that if the appeal was successful, they would be prejudiced because they would have already been required to give discovery in accordance with the discovery orders. Bianca and John, two of the respondents in the primary proceedings, opposed the stay application. They submitted that the balance of convenience favoured the refusal of a stay. They also proffered an undertaking to return or destroy the lists of documents that the HPPL parties were required to provide pursuant to the discovery orders and not to make any further use of the lists in the event that the appeals were allowed.

Vaughan JA concluded that the appeal had reasonable prospects of success in relation to grounds 1-4. However, he was not satisfied that the appeal had reasonable prospects of success in relation to grounds 5 and 6. The court was not required to consider the merits of the appeal in the context of the stay application. Vaughan JA found that the stay was not necessary to preserve the subject matter or integrity of the appeal. He also found that the balance of convenience favoured the refusal of a stay. The risk that the right of appeal would be rendered nugatory if a stay was not granted was limited. In addition, the balance of convenience favoured the refusal of a stay because of the potential impact on the parties' preparation for the trial of the primary proceedings and the potential impact on the orderly conduct of the trial. The court was not persuaded that it should make an order precluding inspection of the documents to be discovered pending the determination of the appeal. It was preferable to make an order relieving the HPPL parties from any immediate obligation to give inspection of the documents discovered and making it clear that any such inspection would require a positive prior judicial determination. The court made orders relieving the HPPL parties from any obligation to give inspection of the documents discovered pending the determination of the appeal. The court also accepted the undertaking proffered on behalf of Bianca and John.

Orders