Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd (Subject to a Deed of Company Arrangement) [No 2] - [2017] WASC 43

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LANCO RESOURCES AUSTRALIA PTY LTD -v- GRIFFIN ENERGY GROUP PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) [No 2] [2017] WASC 43

CORAM: KENNETH MARTIN J

HEARD: 10 FEBRUARY 2017

DELIVERED : 17 FEBRUARY 2017

FILE NO/S: CIV 1298 of 2015

BETWEEN: LANCO RESOURCES AUSTRALIA PTY LTD
First Plaintiff
LANCO INTERNATIONAL PTE LTD
Second Plaintiff
LANCO INFRATECH LTD
Third Plaintiff
AND
GRIFFIN ENERGY GROUP PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
First Defendant
CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
Second Defendant
BRIAN McMASTER
Third Defendant
CLIFFORD ROCKE
Fourth Defendant
SCOTT KERSHAW
Fifth Defendant
MARK MENTHA
Sixth Defendant
KORDAMENTHA PTY LTD
Seventh Defendant
(BY ORIGINAL ACTION)
GRIFFIN ENERGY GROUP PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
First Plaintiff by counterclaim
CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
Second Plaintiff by counterclaim
BRIAN McMASTER
Third Plaintiff by counterclaim
CLIFFORD ROCKE
Fourth Plaintiff by counterclaim
SCOTT KERSHAW
Fifth Plaintiff by counterclaim
MARK MENTHA
Sixth Plaintiff by counterclaim
KORDAMENTHA PTY LTD
Seventh Plaintiff by counterclaim
AND
LANCO RESOURCES AUSTRALIA PTY LTD
First Defendant by counterclaim
LANCO INFRATECH LTD
Second Defendant by counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Subpoena of document - Whether inspection of documents should be permitted

Legislation:

Nil

Result:

Rulings made on objections to inspection

Category: B

Representation:

Original Action

Counsel:

First Plaintiff                :     Dr A S Bell SC & Mr M Izzo
Second Plaintiff            :     Dr A S Bell SC & Mr M Izzo
Third Plaintiff              :     Dr A S Bell QC & Mr M Izzo
First Defendant            :     Dr R C A Higgins
Second Defendant        :     Dr R C A Higgins
Third Defendant           :     Mr M Elliott
Fourth Defendant         :     Dr R C A Higgins
Fifth Defendant            :     Dr R C A Higgins
Sixth Defendant           :     Mr M Elliott
Seventh Defendant       :     Mr M Elliott

Solicitors:

First Plaintiff                :     Allen & Overy
Second Plaintiff            :     Allen & Overy
Third Plaintiff              :     Allen & Overy
First Defendant            :     Ashurst Australia
Second Defendant        :     Ashurst Australia
Third Defendant           :     Colin Biggers & Paisley (Sydney)
Fourth Defendant         :     Ashurst Australia
Fifth Defendant            :     Ashurst Australia
Sixth Defendant           :     Colin Biggers & Paisley (Sydney)
Seventh Defendant       :     Colin Biggers & Paisley (Sydney)

Counterclaim

Counsel:

First Plaintiff by counterclaim       :       Dr R C A Higgins
Second Plaintiff by counterclaim    :       Dr R C A Higgins
Third Plaintiff by counterclaim     :       Mr M Elliott
Fourth Plaintiff by counterclaim    :       Dr R C A Higgins
Fifth Plaintiff by counterclaim      :       Dr R C A Higgins
Sixth Plaintiff by counterclaim      :       Mr M Elliott
Seventh Plaintiff by counterclaim :       Mr M Elliott
First Defendant by counterclaim    :       Dr A S Bell SC & Mr M Izzo
Second Defendant by counterclaim        :        Dr A S Bell SC & Mr M Izzo

Solicitors:

First Plaintiff by counterclaim       :       Ashurst Australia
Second Plaintiff by counterclaim    :       Ashurst Australia
Third Plaintiff by counterclaim     :       Colin Biggers & Paisley (Sydney)
Fourth Plaintiff by counterclaim    :       Ashurst Australia
Fifth Plaintiff by counterclaim      :       Ashurst Australia
Sixth Plaintiff by counterclaim      :       Colin Biggers & Paisley (Sydney)
Seventh Plaintiff by counterclaim :       Colin Biggers & Paisley (Sydney)
First Defendant by counterclaim    :       Allen & Overy
Second Defendant by counterclaim        :        Allen & Overy

Case(s) referred to in judgment(s):

Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640
Hughes v St Barbara Ltd [2011] WASCA 234
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Stanley v Layne Christensen Co [2004] WASCA 50

KENNETH MARTIN J: This civil action is listed for 19 days for the civil trial commencing on Tuesday, 7 March 2017. With that trial looming, a number of interlocutory issues arose for urgent determination across the course of a special appointment held before me on Friday, 10 February 2017 (ie, 15 working days before the commencement of the trial). These reasons essentially record outcomes with some summary reasons provided. They are essentially assembled to maintain a record of the agenda and determinations arising at that special appointment across a number of applications on both sides.

First matter: Baker McKenzie's waiver of legal professional privilege by Mr McMaster

The first matter of business concerns the issue of access to a list of documents provided to the court in answer to a document subpoena issued by the plaintiffs to Baker McKenzie (formerly Baker & McKenzie) (being the subpoena issued 30 November 2016). This issue is ongoing by further written submissions from the parties after the hearing and will be the subject of separate reasons.

Second matter

This application again by the plaintiffs was pursued under its chamber summons of 30 January 2017 (court document 127) in which the plaintiffs seek inspection and production in respect of certain documents which were authored by, or sent to or from, or were copied to representatives of UBS AG, Australia Branch (UBS) and/or Macquarie Capital Advisers Ltd (Macquarie).
In support of this application - which was opposed - the plaintiffs relied upon separate written submissions of 2 February 2017 (court document 135). Unlike the previous issue, there was no waiver argument on this application. The essence of the argument again appeared to be over the scope of the retainer for UBS and Macquarie - with the essential argument being that legal advice had been received by certain Griffin asset holding entities, namely The Griffin Coal Mining Company Pty Ltd (GCMC) and Carpenter Mine Management Pty Ltd (CMM) (the Griffin asset holding entitles). They, it was said, had procured the legal advice from the financial advisers. The Griffin defendants' assertions of legal professional privilege over all that advice seen articulated in schedule A of the chamber summons as regards the many listed documents, was said to be misplaced - since none of the defendants were within the scope of being privy to the advice.
At the hearing of the application, I essentially rejected this challenge on the basis that by my assessment, it was at least likely that a common interest privilege would have extended to cover the position of all Griffin defendants. However, I was not satisfied that the articulation of legal professional privilege, seen in the right hand column as regards all listed documents - particularly where there was no hint from that column of any legal adviser being involved in the procuring or receipt of this advice. For instance, see listed document 388 (GEG.100.025.1997) - a claim for privilege. As expressed, some instances of this claim for privilege were likely to be inadequate. They therefore needed to be reviewed by the defendants under a proper articulation of the privilege claim. It might, for instance, be one thing to infer that a general assertion of privilege in respect of advice from lawyers may deliver a prima facie basis to support an articulation of advice privilege in broad terms. As regards the advice of financial advisers however, the same prima facie position could not normally subsist, at least without further explication towards why that privilege was likely to subsist for instance, over the instructions to obtain, or an assessment of, financial advice ultimately obtained.
This matter was effectively resolved at the hearing on the basis the defendants by close of business on Wednesday, 15 February, would provide further elaborations concerning their assertions of legal professional privilege as regards the documents found in the list which is schedule A to the chamber summons (across some 55 pages).
In terms of the material relied upon for this application, Brian Keith McMaster's witness statement of 17 August 2016, particularly at par 48 was referred to by the plaintiffs. The plaintiffs also relied upon an affidavit of Sarah Marie Blackman of 30 January 2017, a New South Wales based solicitor and senior associate at the plaintiffs' lawyers, Allen & Overy. As regards the retainer of these investment bankers, see particularly page 23 of Ms Blackman's affidavit and the letter of engagement of 10 August 2010 sent to 'the Griffin Coal Mining Company Pty Ltd (Administrators Appointed) care of KordaMentha'. Also relied upon for this application was the second affidavit of Timothy Oliver West of 8 February 2017 and the affidavit of Jonathan Patrick Newby of 8 February 2017, relied upon by the third, sixth and seventh defendants.
As noted this application was resolved at the hearing on my extempore determination.

Third matter

The third issue was the application of the Griffin parties (first, second, fourth and fifth defendants) upon their chamber summons of 21 December 2016, seeking orders for discovery of particular documents pursuant to O 26 r 7(3), but resisted by the plaintiffs.
The documents sought on this application by reference to the terms of the chamber summons of the Griffin parties, were these:
(a)the following Documents … referred to in the Annual Financial Report for the year ended 31 March 2014 (Annual Report) of Lanco Resources Australia Pty Ltd (a copy of which is attachment BEW‑1 [sic] to the affidavit of Benjamin James Willesee dated 21 December 2016:
(i)'the valuation performed by an independent, professionally‑qualified specialist valuation firm' referred to in note 28(ii) on page 27 of the (Annual) Report;
(ii)'management's estimates of future operating and capital costs' as referred to in note 28(ii) on page 27 of the Report;
(iii)'analysists' price forecasts for benchmark Newcastle Thermal Coal as at 31 March 2014' as referred to in note 28(ii) on page 27 of the (Annual) Report; and
(b)any and all valuation reports concerning Griffin Coal or its mining leases prepared since December 2010.
Arguments then proceeded upon the basis the documents as identified under (a)(iii) above, namely the analysist's price forecasts for benchmark Newcastle Thermal Coal were accepted as being documents the plaintiffs should provide.
As would appear from the terms of the chapeau to par (a) of the chamber summons an affidavit of Benjamin James Willesee, sworn 21 December 2016, was relied upon by the Griffin party defendants for this application.
The plaintiffs also relied upon a late affidavit of David Jenaway, a senior associate at Allen & Overy based in Perth, who appended to his affidavit a copy of the expert report which the Griffin party defendants have commissioned for the purposes of the trial, from a Mr Jeffrey Lewis Hall of Sumner Hall Associates Pty Ltd of 18 November 2016.
During the course of arguments Dr Bell SC for the plaintiffs in resisting the application referred to an extract from another expert report for trial provided on behalf of one of the defendants' experts. Under the heading 'Hindsight' in particular referring to par 32 of that report, reads:
In defining Market Value, IVS states that:
The estimated Market Value is time-specific as of a given date. Because markets and market conditions may change, the estimated value may be incorrect or inappropriate at another time. The valuation amount will reflect the actual market state and circumstances as of the effective valuation date, not as of either a past or future date.
Dr Bell SC pointed out that as a part of the regime of their discovery, the plaintiffs had disclosed a retrospective expert valuation report, referred to variously as the Lonergan Valuation or the LEA 2013 Valuation of the Griffin assets. This report, albeit prepared well after 2010, was a retrospectively focused valuation, directed at 4 December 2010.
The plaintiff proceeded on the basis that any further retrospective valuations focussed at December 2010 would also need to be disclosed to the defendants.
Apart from these concessions, however, the application for further valuation material by this application was firmly resisted - on the basis that it was not temporally relevant and, more particularly, that the requests were very late requests by the defendants for what was only extra discovery (not further and better discovery) as regards so‑called damages issues at trial. The oppressive nature of such late requests was heavily relied upon by the plaintiffs in resisting any extra discovery orders at this time, three weeks before the trial, as a matter of fairness and appropriate case management.
Further, in circumstances where only direct discovery had been ordered, this request was frequently dismissed by the plaintiffs as being in the character of seeking peripheral documents, well outside direct relevance parameters. In other words the 'lines of enquiry' type documents now sought by the defendants were never directly relevant and outside agreed parameters.
On this application the applicant Griffin party defendants relied upon their written submissions of 3 February 2017, particularly under pars 4 through 14 - however the balance of those written submissions dealt with the further chamber summons of the Griffin party defendants of 23 January 2017 which I later deal with discretely later in these reasons.
The written submissions of the plaintiffs in resisting the application were only filed on 9 February 2017 - see particularly pars 1.1(a) and 2 through to 2.19 (noting the interrelationship under pars 3.1 to 3.3 concerning a Lonergan Edwards subpoena - a correlative issue associated with this application, albeit arising through the response provided by Lonergan Edwards to the document subpoena the Griffin party defendants caused to be issued to that entity - which has been answered).
In a general sense the genre of documents pursued here by the Griffin defendants is said to concern the plaintiffs' claim for statutory compensation for breach of s 82 of the Trade Practices Act (Cth) and correlative expert evidence valuation issues arising out of an exercise in attempting to find a December 2010 'true value' of the acquired Griffin assets at the settlement upon this Collie Coalfields acquisition transaction - particularly in light of some potentially retrospective data considerations arising in an undertaking of that 'true value' exercise, to the extent permissible by reference to considerations as discussed by the High Court in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640. That is a decision I have discussed in my first instance reasons in Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, delivered 30 June 2010, commencing at page 253, in particular see my observations starting at [878]. See as well the observations on damages assessment by the Court of Appeal on the appeal in that decision, Hughes v St Barbara Ltd [2011] WASCA 234 (Martin CJ, Pullin & Murphy JJA), by the Chief Justice at [10], by Murphy JA at [135] and by Pullin JA commencing at [69], particularly at [75], [76], [113], [115], [117] and [118].
Since it bears upon the present decision, I should also note separately at this point that the Griffin party defendants on 22 December 2016 issued a document subpoena to Lonergan Edwards & Associates Ltd (LEA) seeking documents under two categories. The first category is not challenged. The second category is in dispute.
For convenience, I set out the terms of that subpoena, noting that it is addressed to LEA by definition. Reference is made to an LEA 2013 Report, defined as the report prepared by LEA dated 20 December 2013 and addressed to Mr Andrew Stals of Allen & Overy with the subject heading: 'Valuation of Griffin Coal Mining Operations as at 14 December 2010'.
The first category subpoena request to LEA (which is not objected to), refers to the LEA 2013 Report - being the report Dr Bell SC referred to as being the plaintiffs' commissioned retrospective 2013 valuation, temporally focussed at December 2010 for the acquired Griffin Coal assets. Category 1 in the subpoena, which is no longer controversial, is in terms:
Any document (including correspondence whether by email or otherwise) containing, evidence in, discussing or directly concerning:
(a)the LEA 2013 Report;
(b)requests or instructions to prepare the LEA 2013 Report;
(c)information provided to LEA, obtained by LEA or relied upon by LEA in preparing the LEA 2013 Report including, but not limited to, the information identified in Appendix B of the LEA 2013 Report;
(d)correspondence between LEA and Allen & Overy directly concerning the LEA 2013 Report or its preparation;
(e)correspondence between LEA and Lanco Resources Australia Pty Ltd (including its officers, employees, agents and representatives) directly concerning the LEA 2013 Report or its preparation;
(f)discussions with Allen & Overy and/or Lanco Resources Australia Pty Ltd (including its officers, employees, agents and representatives) about the LEA 2013 Report;
The residually contentious aspect of the LEA subpoena as issued by the Griffin defendants seeks:
2.Any document (including correspondence whether by email or otherwise) after 20 December 2013 containing, evidencing, discussing or directly concerning valuation of any of the property or assets that were the subject of the LEA 2013 Report.
Subject to any legal professional privilege objection issues relating to production, my view is that the defendants should have access as well to the category 2 documents produced in answer to this subpoena by LEA.
That LEA subpoena access decision bears pragmatically upon the conclusions I reach as regards the contentious documents under the Griffin defendants' December 2016 chamber summons. I say, however, that my conclusion allowing the defendants access to the category 2 LEA documents now produced in answer by LEA to that subpoena, says nothing at all about the ultimate admissibility of such documents or their relevance at the trial, as regards the complex valuation issues in this trial, about which I am yet to rule. Allowing access to category 2 documents produced in answer to this subpoena, essentially rests upon a body of well established case authority in this State: see Stanley v Layne Christensen Co [2004] WASCA 50; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 and the broad access principles governing subpoenaed documents before trial as were outlined in Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] - [21].
From a pragmatic perspective, which the LEA subpoena answered, it is not contended to have been an abuse of process in terms of its issue or scope, there is no basis in principle to constrain the right to inspect. Also pragmatically, the assembly work for producing these documents as now provided in answer to this subpoena is done and has all been performed by LEA. Hence, more production work towards assembling those documents would impact against the plaintiffs' limited preparation time for the trial in the last working days before this trial commences.
Conversely, further pragmatic considerations against the plaintiffs having to answer at this time requests for extra documents, being documents not previously sought, or documents not within the parameters of what might reasonably be expected to have been provided in response to the direct relevance categories of documents settled upon as between the parties - is a key negative factor as regards the defendants' late application seeking discovery from the plaintiffs of documents sought under the defendants' December 2016 chamber summons.

Returning then to the defendants' 21 December 2016 chamber summons, it is apparent that the Griffin defendants do hold an annual report of Lanco Resources Australia Pty Ltd for the financial year ended 31 March 2014. The question is whether any further underlining information that was used to prepare that financial report, as is identified under pars 1(a)(i) and 1(a)(ii) of the 21 December 2016 chamber summons should now be ordered as extra discovery going to damages issues - in circumstances where that annual report only came to light relatively recently, after being filed with ASIC in August 2016. This is all, I repeat, in the context of compensation and damages issues arising at the trial, if the plaintiffs succeed upon their substantive misleading and deceptive conduct claims.
Without rendering at this time any final ruling concerning admissibility of that annual report at trial, I would order a production of the valuation that is identified and sought under Item 1(a)(i), given, pragmatically speaking, the limited extent of work required for the plaintiffs to produce that one document quickly between now and the trial. What the defendants' experts might legitimately be able to make of that valuation carried out years after December 2010, remains a matter to be seen in due course. It may be that the objections as to its relevance as are foreshadowed by the plaintiffs through senior counsel are, in the end, to be assessed as overwhelming - but that is a matter to be resolved at trial.
At this point, I am essentially taking the pragmatic view that the document might possibly assist the defendants' experts, as regards providing some insight into the plaintiffs' operations of the acquired Griffin assets and so, their values at relevant times. That is a provisional view only, but is sufficient at this point to say that this one document should be produced.
Aside from that, however, the balance of the breadth of the request under subparagraph (b) of the defendants' chamber summons is unnecessarily oppressive at this point - as regards the plaintiffs now retrieving a lot of potentially irrelevant financial information (unless there are more valuations of the retrospective kind directed at December 2010).
Likewise, the plaintiffs' management's estimates, sought under Item 1(a)(ii) of the chamber summons, on my assessment, are not even arguably directly relevant. They would only be pursuing an oppressive line of enquiry at a very late stage. This should also be refused.
In refusing the category 1(b) documents I do correlatively note, however, the defendants will have access to the category 2 documents provided by LEA in response to the document subpoena I have earlier referred to.

Fourth matter: the LEA documents produced on subpoena

This is the associated issue in relation to the document subpoena issued by the defendants to Lonergan Edwards & Associates Ltd (LEA) on 22 December 2016. I have discussed and resolved this within the framework of dealing with the third matter above. On my assessment subject to any legal professional privilege issues, the defendants should be entitled to see the documents which are provided by LEA on answer to this subpoena under category 2. Category 1 of that subpoena being accepted as a request in respect of documents the defendants are legitimately entitled to see.

Fifth matter

The last issue is the defendants' chamber summons of 23 January 2017. This seeks access to a broader category of documents pursuant to O 26 and in the inherent jurisdiction of the court.
The Griffin defendants rely in this application on a second affidavit of Mr Willesee sworn 23 January 2017. The range of the documents sought and the verifications by way of affidavits concerning documents no longer in the possession of the plaintiffs is too extensive to set out. I will append it to these reasons as Schedule A.
Let me say at the outset that, as regards categories 2, 3, 4 and 5 of that chamber summons, I am at the end, not left satisfied that the Griffin defendants have made out a sufficient basis in order to obtain any further documents, or to obtain an exercise of the court's powers to require any of the plaintiffs' witnesses to swear specific affidavits upon the lost, destroyed or missing document issues which they identify as presently of great forensic concern.
I note for the purposes of the record that category 6 of the chamber summons is at the end no longer pursued by the defendants after a receipt of an affidavit from the plaintiffs attaching correspondence of 9 February 2017.
But I will refuse further requests for documents or affidavits on this chamber summons, essentially on a twofold basis:
(a)they come extremely late during an intensive preparation period before a very long civil trial - where there are less than 15 working days before trial; and
(b)in conjunction with that consideration of unfairness in terms of an oppressive burden being unnecessarily placed upon the plaintiffs shortly before the trial in a large action, I am also of the view that an insufficient basis in the defendants' material has been provided - as regards their expressed concerns over an absence of discovered emails, or further documents around assertions by the plaintiffs concerning hard drive crashes, or an inability to access emails by former employees after their departures, or the lack of a back-up in the Lanco computer data system following a crash of a hard drive.
The defendants maintain their expressed non‑satisfaction at this point in regards to written explanations provided by the plaintiffs on these issues in subsequent correspondence - both prior to and then after issue of the defendants' chamber summons on 23 January 2017.
But I am simply not left satisfied that the conclusiveness, as regards the plaintiffs' verified discovery list arising out of the plaintiffs' affidavit verifying all aspects of that list of documents, has been in any way disturbed or undermined.
The prima facie position concerning the integrity of the discovery responses provided by the plaintiffs is found under a four volume affidavit of Trina Lakhmani of 29 November 2016, particularly at vol 4, page 530 - concerning the explanations provided under pt 2B of the verified list as regards all plaintiff documents once possessed, but now no longer in the possession, custody or power of the plaintiffs, as is explained under pt 2A of that list at page 529 of Ms Lakhmani's verified list of documents.
For their part on this application, the plaintiffs rely upon the affidavit of Suzannah Bahen‑Wright of 9 February 2017, another lawyer employed by Allen & Overy in Western Australia, assisting Messrs Jenaway and Blackman in the day‑to‑day conduct of the matter.
I was not satisfied the Griffin defendants in this aspect of its application have done enough to lay any sufficient platform for the present application - by reference to invoking an incident over statements earlier made but then found to be incorrect, concerning the role of accountants Ernst &Young for the plaintiffs in not 'just' providing taxation advice as had formerly been asserted (wrongly) at one time by the plaintiffs. That mistake was acknowledged and corrected in due course.
The defendants' challenge was the subject of a communication handed up by Dr Bell SC by reference to an Allen & Overy attached letter of 24 January 2017 to Mr Adrian Chai, a partner of Ashurst Australia based in Perth, concerning the extent of the Ernst &Young role and providing the correction to what had previously been said about the limited role of Ernst & Young's engagement with the plaintiffs.
As regards the documents under category 1 of the chamber summons, almost all were, on my notation, most fairly accepted by Dr Higgins for the Griffin defendants (save for category 1(b)), as being requests for extra documents (ie, not further and better discovery or directly relevant documents that could have been legitimately expected to be provided earlier under the agreed categories settled upon).
I refuse the application for discovery in respect of sub‑category 1(a) and all sub-requests under (i) to LEA (ii) to Xenith Consulting Pty Ltd regarding a mine plan of December 2013, and to Harradynamics Pty Ltd concerning an infrastructure report of October 2010. Essentially, I reject those applications upon a basis that they are sought far too late and it would now be prejudicial to the plaintiffs' limited trial preparation time, on my assessment, for them to be required to be located.
I also reach that conclusion in light of the pragmatic knowledge that LEA and Xenith Consulting Pty Ltd and Harradynamics Pty Ltd have now all answered document subpoenas issued by the defendants by a provision of documents to the court and to which they will have access (subject to privilege issues).
I have already mentioned the answer of LEA, as regards dealing with the December 2017 chamber summons. I note Harradynamics has provided two envelopes of materials in response to the request under that subpoena issued by the Griffin defendants and that Xenith Consulting Pty Ltd has similarly responded, providing an envelope of documents.
Xenith Consulting Pty Ltd has objected to some produced documents being inspected. Subject to resolution of any objection or privilege issues, I am of the view that, given the breadth of the entitlement to documents on subpoenas to third parties, as discussed in longstanding authority in this court, the defendants should be given the opportunity to inspect those documents, as now produced.
However, I would not make orders for discovery under par 1(a) of the 23 January 2013 chamber summons as an unnecessary burden is placed on the plaintiffs at this time.
Next, as regards document 1(b), I would also not allow this request. It refers to par 135 of a witness statement of Mr Lagadapati Madhusudhan Rao of 3 June 2016 to which I was taken, without objection, concerning the Jon Barber reports which Mr Rao mentions in his witness statement as having been drawn to his attention by a Mr Prasad. I am not persuaded there is any legitimate basis to infer that a wide range of 'reaction' documents as are requested, exist - sufficient to undermine the conclusiveness of the verified list of documents which the plaintiffs have provided.
Category 1(c) concerns documents discussing, evidencing or directly concerning a request from the Office of State Revenue of February 2016 regarding the revised life of mine plan and instructions given to the plaintiffs' lawyers, Allen & Overy, by the first plaintiff, resulting in the response of 4 March 2016. It is not contended these documents should have been produced earlier. Hence, the nature of the request which was the subject of this application was effectively for extra discovery. I am also not persuaded that documents the subject of this request are sufficiently directly relevant or that it would be fair, at this time, to the plaintiff to require them to be provided. This request is also refused.
Category 1(d) concerns an ICICI bank information memorandum and a truncated request for the final version of the document. During the course of arguments, Dr Higgins made it clear that, essentially, the discovered document as provided, was a draft. The defendants were, at essence, concerned to see the final version of the document, if there was one. That is a relatively reasonable request at this stage. I would order a provision of that one final version of that document. Given the nature of the draft, this looks to be a situation where the assumption as to there being a final version in existence is a reasonable one. The defendants should provide a copy of the final version or, if not, at least an affidavit explaining why there is no final version. But requests for more documents in this sub-category going beyond that one final version document, is too wide and is refused, ie, concerning documents 'discussing, evidencing or concerning' the final version.
Category 1(e) sees the defendants' probe for documents around a teleconference held with investment analysts by the third plaintiff on or about 22 December 2010, discussing the acquisition of GCMC. In the course of argument about this, I was referred to attachment BJW-15 (pages 198 - 200) to Mr Willesee's second affidavit. By my assessment, however, this request for documents is only in the nature of a line of enquiry. This is a fishing type request and falls outside the parameters of directly relevant documents. I refuse the request under category 1(e).
I should note that during the course of arguments and somewhat late in the day, as regards categories 2, 4 and 5, the submitted issue concerning the absent Lanco electronic documents, Dr Higgins, counsel for the Griffin defendants, offered to provide an expert affidavit, if it would assist the defendants' position concerning a likelihood of large international organisations, like the Lanco Group, being likely to have back-up systems for retrieving emails and the like, particularly in a wake of say, hard drive crashes encountered from time to time. But it is not necessary to burden the defendants with a provision of such material. I will proceed on the assumed basis that there is a likelihood of back‑up IT arrangements in place in large organisations to deal with IT issues, particularly unforeseen hard drive crashes or the like. Nevertheless, even making that generalised assumption, it still would not be sufficient here, to disturb what is said in the verified affidavit of documents as provided by the plaintiffs under Ms Lakhmani's affidavit of 29 November 2016, where she says in particular at page 530:
In addition, Mr Rao's system experienced a hard drive crash in 2015, with lost data unable to be recovered.
and further:
The plaintiffs had no archival server that stored emails before January 2015. The plaintiffs had no policy of retention of old emails until December 2014.
Less than three weeks before this trial begins, I am not prepared to sanction a wholly collateral excursion of some magnitude in relation to IT related issues concerning the Lanco parties, effectively by way of a challenge to what has been verified by Ms Lakhmani. The scale of such an exercise, particularly at this time, is simply oppressive to trial preparations and is proportionally unwarranted, from a broad overall case management and, indeed, fairness perspective to the plaintiffs.
Those are my conclusions save for issue one which is addressed in subsequent reasons.

Schedule A
LET ALL PARTIES concerned attend before a Judge in Chambers on 10 February 2017 at not before 10:30 o'clock in the forenoon on the hearing of an application on the part of the first, second, fourth and fifth defendants (plaintiffs by counterclaim) seeking orders that:
1.Pursuant to Order 26 Rule 7, by no later than 3 days following the making of these orders, the plaintiffs give discovery of all documents that discuss, evidence or directly concern:
(a)the commissioning of, including instructions to prepare, and discussions (including correspondence) about the:
(i)Lonergan Edwards & Associates Limited valuation report dated 20 December 2013, being LAN.008.001.0076;
(ii)Xenlth Consulting Pty Ltd mine plan dated December 2013, being LAN.008.001.0337; and
(iii)Harradynamics Pty Ltd infrastructure report bearing the date of October 2010, being LAN.008.001.0338;

(b)the plaintiffs first learning about the Jon Barber Reports, being the reports referred to in paragraph [135] of the witness statement of Lagadapati Madhusudhan Rao, and the Plaintiffs' subsequent discussions, consideration and analysis of those reports;
(c)the request from the Office of State Revenue dated 3 February 2016, regarding any revised life of mine plan, being LAN.008.001.2211, and the instruction(s) from the first plaintiff to Allen & Overy that resulted in the response dated 4 March 2016, being LAN.008.001.2214;
(d)the preparation of the ICICI Bank Information Memorandum, being LAN.002.006.4809, and the final version of that document; and
(e)the teleconference with investment analysts held by the third plaintiff on or about 22 December 2010 during which the acquisition of the Griffin Coal Mining Company Pty Ltd was discussed.

2.Pursuant to the Court's inherent powers, alternatively, Order 26 Rule 6, by no later than 3 days following the making of these orders the plaintiffs are to file and serve an affidavit of Mr Manoj Kumar Agarwal explaining what has become of the notebook, day book or journal that he kept in and about 2010.
3.Pursuant to the Court's inherent powers, alternatively, Order 26 Rule 6, by no later than 3 days following the making of these orders, the plaintiffs are to file and serve an affidavit of Mr Lagadapati Madhusudhan Rao stating:
(a)the plaintiffs' knowledge, and to the extent it is different, Mr Rao's personal knowledge, of:
(i)the 'error' identified in paragraph 25(c) of the affidavit of Abhlshek Anand sworn on or around 5 March 2016 in these proceedings; and
(ii)the 'error' referred to on page 530 of the affidavit of Trina Lakhmani Verifying List of Documents sworn 29 November 2016 in these proceedings,

including, without limitation, precisely when the 'error' occurred, how the 'error' was discovered and by whom, the nature and extent of the 'error' to whom was the 'error' reported, and the steps taken by the plaintiffs (or any of their officers, employees agents, consultants or) to address, resolve, overcome, remedy or otherwise deal with the 'error';
(b)the plaintiffs' knowledge, and to the extent it is different, Mr Rao's personal knowledge of the 'hard drive crash' experienced by 'Mr Rao's system' as referred to on page 530 of the affidavit of Trina Lakhmani Verifying List of Documents sworn 29 November 2016 in these proceeding including (without limitation):
(i)precisely when the 'hard drive crash' occurred;
(ii)the discovery of the 'hard drive crash';
(iii)the nature and extent of the 'hard drive crash'; and
(iv)the steps taken by the plaintiffs (or any of their officers, employees agents, or consultants) to address, resolve, overcome, remedy or otherwise deal with the 'hard drive crash';

(c)whether and to what extent the plaintiffs utilised archival servers, backup servers, backup tapes or other storage devices with respect to their email system in the period from 2010 to 2015; and
(d)what steps the plaintiffs took, if any, to secure documents on their email systems relevant or potentially relevant to the plaintiffs' claims in these proceedings once the commencement of these proceedings was contemplated and during the preparation of the plaintiffs' writ of summons indorsed with statement of claim dated 4 March 2015.

4.Pursuant to the Court's inherent powers, alternatively, Order 26 Rule 7(3), by no later than 3 days following the making of these orders the plaintiffs give discovery of all Documents (as that term is used in Order 26 Rule 1A) that discuss, evidence or directly concern:
(a)the 'error' identified in paragraph 25(c) of the affidavit of Abhishek Anand sworn in or around 5 March 2016 in these proceedings;
(b)the 'error' referred to on page 530 of the affidavit of Trina Lakhmani Verifying List of Documents sworn 29 November 2016 in these proceedings, including, without limitation:
(i)precisely when the 'error' occurred;
(ii)how the 'error' was discovered and by whom;
(iii)the nature and extent of the 'error';
(iv)to whom was the 'error' reported; and
(v)the steps taken by the plaintiffs (or any of their officers, employees agents or consultants) to address, resolve, overcome, remedy or otherwise deal with the 'error';

(a)the decision to migrate the plaintiffs email service from the Mithi Open Source Platform to the Zimbra Platform, including, without limitation, and plans or procedures that were put in place in order to effect the migration;

(b)the 'hard drive crash' experienced by 'Mr Rao's system' as referred to on page 530 of the affidavit of Trina Lakhmani Verifying List of Documents sworn 29 November 2016 in these proceedings including (without limitation):
(i)precisely when the 'hard drive crash' occurred;
(ii)the discovery of the 'hard drive crash';
(iii)the nature and extent of the 'hard drive crash'; and
(iv)the steps taken by the plaintiffs (or any of their officers, employees agents or consultants) to address, resolve, overcome, remedy or otherwise deal with the 'hard drive crash'; and

(c)the plaintiffs Information Technology policies regarding the return of computers when employees of the plaintiffs leave their employ and the process of managing the hard discs on those computers.

5.Pursuant to the Court's inherent powers, alternatively, Order 26 Rules 9 and 10, by no later than 3 days following the making of these orders the plaintiffs give the defendants:
(a)copies of or access to the 'email servers' and 'back‑up drives' referred to in paragraphs 25(b) and 26 respectively of the affidavit of Abhishek Anand sworn in or around 5 March 2016 in these proceedings;
(b)copies of or access to the 'email servers' referred to on page 530 of the affidavit of Trina Lakhmani Verifying List of Documents sworn 29 November 2015 in these proceedings; and
(c)copies of or access to 'Mr Rao's system' as referred to on page 530 of the affidavit of Trina Lakhmani Verifying List of Documents sworn 29 November 2015 in these proceedings, for the purposes of the defendants verifying and satisfying themselves about the matters deposed to.

6.Pursuant to the Court's inherent powers, alternatively, Order 26 Rule 6, by no later than 3 days following the making of these orders the plaintiffs are to file and serve an affidavit explaining what steps have been taken to locate the annexures to the acquisition statement (being [LAN.008.001.2619)) provided to the Commissioner of State Revenue under cover of the letter from Allen & Overy dated 14 February 2011 (being [LAN.008.001.2616]).
7.The plaintiffs pay the costs of the first, second, fourth and fifth defendants in relation to this application.