Mineral Resources Ltd v Destec Pty Ltd - [2021] WASC 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MINERAL RESOURCES LTD -v- DESTEC PTY LTD [2021] WASC 216
CORAM:   HILL J
HEARD:   18 MAY 2021
DELIVERED          :   20 MAY 2021
PUBLISHED           :   1 JULY 2021
FILE NO/S:   CIV 1465 of 2020
BETWEEN:   MINERAL RESOURCES LTD
First Plaintiff
CRUSHING SERVICES INTERNATIONAL PTY LTD
Second Plaintiff
AND
DESTEC PTY LTD
First Defendant
STEPHEN LESLIE WYATT
Second Defendant

FILE NO/S: CIV 1466 of 2020
BETWEEN: CRUSHING SERVICES INTERNATIONAL PTY LTD
First Plaintiff
MINERAL RESOURCES LTD
Second Plaintiff
AND
STEPHEN LESLIE WYATT
Defendant

Catchwords:

Practice and procedure - Application for leave to use court documents filed in another proceeding in two applications in these proceedings - Substantive legal obligation not to disclose documents obtained in other proceedings for a collateral purpose - Whether special circumstances - Documents not specified - Application dismissed

Practice and procedure - Failure to confer as required by O 59 r 9 - Whether this impacted on application

Practice and procedure - Application for leave to recall decision and to reopen application - Orders not perfected - Application refused

Legislation:

Rules of the Supreme Court 1971 (WA), O 59 r 9

Result:

Application refused

Category: B

Representation:

CIV 1465 of 2020

Counsel:

First Plaintiff	:	Mr M L Bennett & Mr D Banda
Second Plaintiff	:	Mr M L Bennett & Mr D Banda
First Defendant	:	Mr J Garas SC
Second Defendant	:	Mr J Garas SC

Solicitors:

First Plaintiff	:	Bennett + Co
Second Plaintiff	:	Bennett + Co
First Defendant	:	Armeli & Molony Lawyers
Second Defendant	:	Armeli & Molony Lawyers

CIV 1466 of 2020

Counsel:

First Plaintiff	:	Mr M L Bennett & Mr D Banda
Second Plaintiff	:	Mr M L Bennett & Mr D Banda
Defendant	:	Mr J Garas SC

Solicitors:

First Plaintiff	:	Bennett + Co
Second Plaintiff	:	Bennett + Co
Defendant	:	Armeli & Molony Lawyers

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 4] [2016] WASC 74
Dalian Huarui Heavy Duty Industry International Company Ltd v Clyde & Co Australia (a Firm) [No 3] [2020] WASC 312
Destec Pty Ltd v Mineral Resources Ltd [2020] WASC 95
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
James v Salier [2021] NSWSC 293
Laen Pty Ltd v At The Heads Pty Ltd [2011] VSC 315
Liberty Funding Pty Ltd & Anor v Phoenix Capital Ltd (2005) 218 ALR 283
Mineral Resources Ltd v Wyatt [2021] WASC 185
Minister for Education v Bailey [2000] WASCA 377
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2020] WASC 357
Platinum Systems Resourcing Pty Ltd v NRW Holdings Ltd [No 3] [2013] WASC 402
Raphael v Core International Pty Ltd [2021] WASC 138
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5] [2020] WASC 470
Smith v NSW Bar Association (1992) 176 CLR 256

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.

Keep reading for free

Create a free CaseChat account to read Mineral Resources Ltd v Destec Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] WASC 216
Decision Date: 1 JULY 2021

CaseChat Overview and Summary

Mineral Resources Ltd sought leave to use documents from another proceeding in two applications in the current proceedings. Destec Pty Ltd opposed the application, arguing that the documents had not been specified, and that there were no special circumstances to release the implied undertaking not to disclose the documents for a collateral purpose. The court had to decide whether the implied undertaking not to disclose documents obtained in other proceedings for a collateral purpose could be released and whether there were special circumstances present. The court considered the legal principles governing the use of documents filed in court proceedings and the factors that should be considered in exercising the discretion whether to release a party from the implied undertaking or obligation. The court held that the obligation can only be released or modified by the court, and the power to do so is not freely exercised. It will only be exercised where there are special circumstances, which means that in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The court found that there were no special circumstances present in this case, as the documents had not been specified, and the applicant had failed to confer with the respondent as required by O 59 r 9. Therefore, the application for leave to use the documents was dismissed. The court also refused the application for leave to recall the decision and to reopen the application, as the orders had not been perfected. The court dismissed the application for leave to use the documents and refused the application for leave to recall the decision and to reopen the application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This court has stated on previous occasions that strict compliance with O 59 r 9(1) is not required where it is of no utility and will only lead to unnecessary costs being incurred.[13] However, where the requirement has been waived, in most instances there has been belated oral conferral and a memorandum has been filed as required by the Rules.[14][13] Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 [14].[14] See for example, Dalian Huarui Heavy Duty Industry International Company Ltd v Clyde & Co Australia (a Firm) [No 3] [2020] WASC 312 [20]; Destec Pty Ltd v Mineral Resources Ltd [2020] WASC 95 [7]. The relevant legal principles governing the use of documents filed in court proceedings were summarised by the High Court in Hearne v Street in the following terms:[15]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.[15] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96]. As was noted by the plurality, it is common to speak of the obligation as flowing from an 'implied undertaking'.[16][16] Hearne v Street [97]. The obligation can only be released or modified by the court. However, the power to do so is not freely exercised; it will only be exercised where there are special circumstances.[17][17] Hearne v Street [107]. In Liberty Funding Pty Ltd v Phoenix Capital Ltd, Branson, Sundberg and Allsop JJ discussed what was meant by special circumstances. They held that:[18]The notion of 'special circumstances' does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non‑litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.[18] Liberty Funding Pty Ltd & Anor v Phoenix Capital Ltd (2005) 218 ALR 283 [31]. All the circumstances of the case must be considered in exercising the discretion whether to release a party from the undertaking or obligation. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, Wilcox J said:[19]For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying and releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author of the document may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular, whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[19] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; (1992) 110 ALR 685, 693.