Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HANCOCK PROSPECTING PTY LTD -v- WRIGHT PROSPECTING PTY LTD  [2019] WASCA 141

CORAM:   QUINLAN CJ

VAUGHAN JA

HEARD:   27 AUGUST 2019

DELIVERED          :   9 SEPTEMBER 2019

FILE NO/S:   CACV 88 of 2019

BETWEEN:   HANCOCK PROSPECTING PTY LTD

First Appellant

HOPE DOWNS IRON ORE PTY LTD

Second Appellant

HANCOCK MINERALS PTY LTD

Third Appellant

TADEUSZ JOZEF WATROBA

Fourth Appellant

WESTRAINT RESOURCES PTY LTD

Fifth Appellant

HMHT INVESTMENTS PTY LTD

Sixth Appellant

ROY HILL IRON ORE PTY LTD

Seventh Appellant

MULGA DOWNS IRON ORE PTY LTD

Eighth 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

GEORGINA HOPE RINEHART

Sixth Respondent

THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD

Seventh Respondent

150 INVESTMENTS PTY LIMITED

Eighth Respondent

MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK

Ninth Respondent

MULGA DOWNS INVESTMENTS PTY LTD

Tenth Respondent

DFD RHODES PTY LTD

Eleventh 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

Twelfth Respondents

HAMERSLEY WA PTY LTD

Thirteenth Respondent

FILE NO/S:   CACV 89 of 2019

BETWEEN:   HANCOCK PROSPECTING PTY LTD

First Appellant

HOPE DOWNS IRON ORE PTY LIMITED

Second Appellant

HANCOCK MINERALS PTY LIMITED

Third Appellant

TADEUSZ JOZEF WATROBA

Fourth Appellant

WESTRAINT RESOURCES PTY LIMITED

Fifth Appellant

HMHT INVESTMENTS PTY LTD

Sixth Appellant

ROY HILL IRON ORE PTY LIMITED

Seventh Appellant

MULGA DOWNS IRON ORE PTY LIMITED

Eighth 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

GEORGINA HOPE RINEHART

Eighth Respondent

THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD

Ninth Respondent

150 INVESTMENTS PTY LIMITED

Tenth Respondent

MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK

Eleventh Respondent

MULGA DOWNS INVESTMENTS PTY LTD

Twelfth Respondent

HAMERSLEY WA PTY LTD

Thirteenth Respondent

FILE NO/S:   CACV 90 of 2019

BETWEEN:   GINIA HOPE FRANCIS RINEHART

Appellant

AND

DFD RHODES PTY LIMITED

First Respondent

HANCOCK PROSPECTING PTY LIMITED

Second Respondent

HOPE DOWNS IRON ORE PTY LIMITED

Third Respondent

HANCOCK MINERALS PTY LIMITED

Fourth Respondent

TADEUSZ JOZEF WATROBA

Fifth Respondent

WESTRAINT RESOURCES PTY LIMITED

Sixth Respondent

HMHT INVESTMENTS PTY LIMITED

Seventh Respondent

ROY HILL IRON ORE PTY LIMITED

Eighth Respondent

MULGA DOWNS IRON ORE PTY LTD

Ninth 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

Tenth Respondents

WRIGHT PROSPECTING PTY LIMITED

Eleventh Respondent

BIANCA HOPE RINEHART

Twelfth Respondent

JOHN LANGLEY HANCOCK

Thirteenth Respondent

HOPE RINEHART WELKER

Fourteenth Respondent

GEORGINA HOPE…

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Details
Case
[2019] WASCA 141
Decision Date

CaseChat Overview and Summary

Hancock Prospecting Pty Ltd and others filed an application for an interim stay of case management directions in a proceeding involving Wright Prospecting Pty Ltd and others. The dispute involved concurrent arbitration proceedings, and the application for the interim stay turned on the specific facts of the case. The primary judge, Beech-Jones J, considered the application in the Federal Court of Australia.

The court was required to decide whether the interim stay should be granted and, if so, under what conditions. The appellants argued that the preservation of confidentiality was critical pending the substantive appeals. The court considered that, while the discovery orders in paragraphs 5 to 7 of the case management directions should still be enforced, the appellants' concerns about confidentiality could be accommodated by imposing appropriate conditions on inspection of the documents. Specifically, Bianca and John may inspect the documents first but not take copies, and any party may apply to the primary judge for an order to prevent inspection of one or more documents by non-arbitral parties.

The court rejected the submission that prejudice was suffered merely by the existence of confidential documents being known to non-arbitral parties. The primary concern was the handling of the documents themselves and the information they contained, which could be addressed through the terms of the inspection orders. The court concluded that the appellants could apply to prevent inspection of documents relating specifically to Bianca's and John's proprietary claim to the Hope Downs and East Angelas tenements, but not all documents subject to discovery. Pending determination of the application for restriction of access, inspection was not to be provided to Wright Prospecting Pty Ltd or the Rhodes parties.

The court's decision balanced the need for confidentiality with the enforcement of the case management directions. It allowed for the preservation of confidentiality through specific conditions on inspection, while still enforcing the discovery orders as directed by the primary judge. The appellants were permitted to inspect documents first but not take copies, and any party could apply to the primary judge to prevent inspection of certain documents by non-arbitral parties, based on the preservation of confidentiality consistent with the appellants' case on the substantive appeals.

Orders

Orders of the court

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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

Similar reasoning informed our approach to the discovery orders in pars 5 to 7 of the case management directions. With the discovery orders there was, however, no need to provide for any further confidentiality restrictions (noting that there are already confidentiality orders as to par 5). The discovery orders will only result in the further exchange of lists and expert reports. Loss of confidentiality will only occur on inspection. In oral submissions senior counsel for the HPPL parties sought to contend that prejudice was suffered by reason of non‑arbitral parties becoming aware of the existence of confidential documents even by description. We reject that submission. The interest sought to be preserved is not affected by listing a description of any alleged confidential document; the true concern is what happens to the documents themselves and the information revealed in them. That may be accommodated through the orders made for inspection of the documents produced and the terms on which the inspection may take place.[40][40] Cf Apache Northwest Pty Ltd v Western Power Corporation (1998) 72 ALJR 1136 [23]. We considered that, so far as the discovery orders in pars 5 to 7 were the subject of the interim stay, there should still be discovery consistent with that ordered by the learned primary judge. However, the appellants' concern as to preservation of confidentiality pending the Substantive Appeals could be accommodated by appropriate conditions as to inspection. Effectively the appellants, Bianca and John may inspect first but not take copies. Any of those inspecting parties may then make application to the learned primary judge for an order to prevent inspection of one or more documents by non-arbitral parties. Pending determination of the application inspection is not to be provided to WPPL or the Rhodes parties. The intention - consistent with the basis grounding the interim stay - is that such an application to restrict access be based on preservation of the asserted confidentiality consistent with the appellants' case as advanced on the Substantive Appeals. It would not be consistent with the basis on which the interim stay was granted for the appellants to apply to prevent inspection of all of the documents the subject of discovery pursuant to pars 5 to 7. Prima facie only those documents relating to Bianca's and John's proprietary claim to the Hope Downs and East Angelas tenements should be the subject of application to the learned primary judge.