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
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; (1992) 110 ALR 685
Wentworth v Wentworth [1999] NSWSC 638
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382

HILL J:

On 4 May 2021, the defendants filed a minute of proposed orders seeking leave to use court documents filed by the plaintiffs in civil action CIV 1093 of 2021 at the hearing of two applications in these proceedings. The two applications in the consolidated proceedings are first, an application by the defendants to set aside subpoenas issued by the court at the request of the plaintiffs to Rio Tinto Ltd and OPS Screening & Crushing Equipment Pty Ltd, which was listed for hearing on 21 March 2021, and second, an application by the plaintiffs for inspection dated 29 April 2021, which is listed for hearing before me on 1 July 2021.
The application is opposed by the plaintiffs. On 5 May 2021, directions were made programming the application through to a hearing on 18 May 2021.
In support of their application, the defendants read the affidavit of Morne Van Zyl filed 5 May 2021 in support of their application to set aside the subpoenas. They also relied on their submissions filed 5 May 2021 in support of that application. In opposition to the application, the plaintiffs read the affidavit of Jessica Sara Chapman filed 14 May 2021.
At the hearing on 18 May 2021, senior counsel for the defendants sought leave to refer to and rely on the affidavits which had been filed by the plaintiffs in CIV 1093 of 2021. I dismissed the oral application for the following reasons. First, in order for the defendants to rely on or refer to the court documents in CIV 1093 of 2021, it was necessary for an order of the court to have been made to allow this to happen, which had not occurred. Second, notice had not been given to the plaintiffs that this order was sought. As a consequence, the plaintiffs had not prepared for the application on the basis that these documents were to be referred to in detail. If the application was allowed, the plaintiffs contended it would be necessary for them to seek an adjournment of the hearing. Adjourning the hearing at this late stage was not in the interests of justice or consistent with modern case flow management.[1] Third, reliance on these documents was not required to determine the application. The defendants' submissions as to the commonality of the parties and the overlap between CIV 1093 of 2021 and the applications in these proceedings could be made without reference to these documents. For that reason, I did not consider that the defendants were prejudiced by the refusal of the application.
[1] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14.
At the conclusion of the hearing, I reserved my decision. Given that the documents were sought to be used in relation to the application to set aside the subpoenas which was listed for hearing before Acting Registrar Hosking on 21 May 2021, on 20 May 2021, I conveyed to the parties that I had determined that the defendants' application should be refused and that I would subsequently deliver reasons for my decision.
Subsequently, on 24 May 2021, the defendants sought leave to file short submissions to refer to the transcript of the directions hearing held on 5 May 2021, which were said to be relevant to my ruling and the reasons for decision to be published.[2] On that basis, I granted leave to the parties to file short submissions, limited to three pages in length.
[2] Email from defendants' solicitors dated 24 May 2021.
In their supplementary submissions filed 26 May 2021, the defendants sought leave to recall the decision and to reopen their application.[3] This application was also opposed by the plaintiffs.
[3] Defendants' supplementary submissions [18].
I note in passing that the defendants' submissions do not comply with the requirements of O 69 of the Rules of the Supreme Court 1971 (WA) (the Rules). I am not prepared, without evidence, to attribute the motive for this that the plaintiff contends. However, I reiterate that it is important that all parties comply with the Rules and the orders of the court. Notwithstanding this non-compliance, I have had regard to the defendants' submissions in their entirety in determining this application.
These are my reasons for decision for refusing the application by the defendants to re-open their application and for my original decision.

The consolidated proceedings

On 2 April 2020, the first plaintiff commenced civil proceedings CIV 1465 of 2020 against the first defendant. On the same date, the plaintiffs commenced civil proceedings CIV 1466 of 2020 against the second defendant.
In CIV 1465 of 2020, the first plaintiff pleads that it entered into two agreements with the first defendant: a general services agreement for the provision of consultancy services on or about 17 April 2015; and a separate general services agreement for the provision of engineering and modelling services on or about 16 March 2017. The first plaintiff alleges that in breach of these agreements, the first defendant has failed to return all of the first plaintiff's documents then in its possession. By way of relief, the first plaintiff seeks delivery up of any documents which are the property of the first plaintiff, an injunction to restrain the first defendant from using or disclosing any information in the documents, as well as damages.
In CIV 1466 of 2020, the plaintiffs plead that on 26 June 2006, the second plaintiff and the second defendant entered into an executive services agreement. This agreement was terminated in about February 2015, following which the second defendant provided consulting services to the plaintiffs under a general services agreement. The plaintiffs plead that the second defendant has breached his employment agreement and the general services agreement by retaining intellectual property and confidential information of the plaintiffs. By way of relief, the plaintiffs seek delivery up of any documents which are the property of the plaintiffs, an injunction to restrain the second defendant from using or disclosing any information in the documents, as well as damages.
In broad terms, the alleged intellectual property and confidential information in both proceedings concern the design, manufacture and use of fixed and mobile crushing, screening and processing plants.
Shortly after the proceedings were commenced, orders were made for entry of both proceedings in the commercial and managed cases list.
On 8 December 2020, I ordered that these proceedings be consolidated. Consolidated pleadings were filed in March and April 2021.
On 31 March 2021, at the request of the plaintiffs' solicitors, the court issued two subpoenas. The first, to OPS Screen & Crushing Equipment Pty Ltd, sought the production of documents in relation to the supply of equipment or crushing components to the defendants from 1 January 2020. The second, to Rio Tinto Limited, sought the production of documents related to the supply or proposals to supply crushing plants or services by the defendants to Rio Tinto from 1 January 2020.
On 12 April 2021, the defendant's solicitors filed an application to set aside these subpoenas. Programming orders were made by Acting Registrar Hosking on 14 April 2021 and 22 April 2021 programming this application to a special appointment which was heard on 21 May 2021.
On 29 April 2021, the plaintiffs filed an application pursuant to O 28 r 2(2) or alternatively O 52 r 2(2) of the Rules for inspection of certain crushing plants constructed by the defendants. An affidavit of Nicholas James Rohr was filed in support of the application on the same date. Consent orders were made on 30 April 2021 programming this application through to a special appointment.
On 5 May 2021, the consolidated proceedings were listed for directions. On 4 May 2021, the defendants and the plaintiffs filed separate minutes of the orders each sought to be made at the hearing. By their minute of proposed orders, the defendants sought an order that:
The parties have leave to use the documents filed in CIV 1093 of 2021 in this consolidated proceeding, including for purposes of the defendants' applications dated 12 April 2021 pursuant to O 36B r 8A RSC and the defendants' objection to the plaintiffs' application dated 29 April 2021 for inspection pursuant to O28 and O52.
The plaintiffs opposed this order being made and proposed that directions be made to program the argument to a special appointment. The proposed programming orders included an order that the defendants 'file and serve any affidavits and submissions in support of their application'.
At the hearing before me on 5 May 2021, counsel for the plaintiffs indicated that there had been some conferral by email but that the plaintiffs were 'in the dark' as to what documents the defendants sought to use and the basis for this.[4] He noted that there were a number of affidavits that had been filed in CIV 1093 of 2021 which were bulky and contained a number of annexures. Counsel for the plaintiff contended that without identification of the material that was the subject of the application, there had been no proper conferral.[5]
[4] ts (5 May 2021) 2.
[5] ts (5 May 2021) 3.
Prior to the orders being made by the court, senior counsel for the defendants raised a matter in respect of the proposed order that the defendants file any affidavits in support of the application. The following exchange with the court then took place:[6]
GARAS MR: There is a considerable amount of material already on the court record in these matters. In the usual way, I was intending to simply supply or file submissions which make reference to the affidavit material across the matters, obviously, on the basis that that material is before the court and the court must have regard to that material in determining whether or not to modify the undertaking that not being a breach of the undertaking itself.
HILL J: Yes, yes.
GARAS, MR: But I just want to make clear that that's my position so that if there's any resistance to that I know of that now rather than filing further material unnecessarily.
HILL J: Well, I think it's necessary that any submissions specifically identify the material that's going to be relied upon. Certainly, it's important that it be ‑ that that be done and, secondly, that there be no breach ‑ as you acknowledge, no breach of the undertaking in relation to that.
[6] ts (5 May 2021) 11.
Shortly after this exchange, counsel for the plaintiffs reiterated that the defendants needed to identify the documents that were the subject of the application.[7]
[7] ts (5 May 2021) 12.

CIV 1093 of 2021

On 18 February 2021, the plaintiffs commenced civil action CIV 1093 of 2021 against the defendants, as well as two other companies, seeking orders for pre-action discovery. Specifically, the application seeks discovery of 'documents recording or evidencing the designs, drawings and modules of' the Destec crushing plant.[8]
[8] Affidavit of Morne Van Zyl filed 5 May 2021 [21(c)].
The letters which preceded the commencement of these proceedings were in evidence before me.[9] The correspondence from the plaintiffs:
(a)refers to the second defendant's employment agreement, as well as the general services consulting agreement and the general services engineering agreement between the first plaintiff and the first defendant;
(b)seeks production of documents in relation to the issue of whether the crushing plant that was observed leaving the first defendant's premises was created using the confidential information of the plaintiffs and infringed their intellectual property.
[9] Affidavit of Morne Van Zyl filed 5 May 2021 'MVZ-5'.
The letter from the plaintiffs dated 10 February 2021 states that the plaintiffs:[10]
are entitled to evaluate whether they have claims for infringement of their intellectual property, breach of confidence and breach of the GSAs and if so the parties against whom such claims may be made.
[10] Affidavit of Morne Van Zyl filed 5 May 2021 'MVZ-5' p 44.
The response from the defendants' solicitors dated 16 February 2021 denied there was a valid basis upon which the plaintiffs were entitled to production of the requested documents and stated that any application would be opposed by the defendants.[11] Different solicitors and counsel have been engaged by the defendants to defend these proceedings.
[11] Affidavit of Morne Van Zyl filed 5 May 2021 'MVZ-5' p 48 - 49.
The correspondence between the solicitors was the only evidence that the defendants adduced in the Consolidated Proceedings in relation to these proceedings.

Obligation of conferral in O 59 r 9 of the Rules

The plaintiffs opposed the application on a number of grounds, including that there had been no oral conferral as required by O 59 r 9 of the Rules.
Order 59 r 9 of the Rules is in the following terms:
(1)No order shall be made on an application in chambers unless the application was filed with a memorandum stating ‑
(a)that the parties have conferred to try to resolve the matters giving rise to the application; and
(b)the matters that remain in issue between the parties.
(2)The Court may waive the operation of subrule (1) in a case of urgency or for other good reason.
The obligation of conferral is explained in [4.3.2] of the Consolidated Practice Directions. [4.3.2] makes it clear that conferral requires the parties to exchange views for the purpose of trying to resolve the matter in issue, that an exchange of correspondence is inadequate and that the obligation is not complied with unless and until there has been oral conferral in respect of the substantive issues either by telephone or at a meeting. The Consolidated Practice Directions also make it clear that a party is required to file an O 59 r 9 memorandum at the time of making the application. This is in the form of either a Form 108 (where there has been conferral) or a Form 109 (where a waiver is sought from the obligations of conferral). Where a waiver is sought, an order for waiver must be sought in the application and 'a memorandum in terms of Form 109 must be filed that states briefly the facts relied upon to support waiver'.[12]
[12] Consolidated Practice Directions [4.3.2].
If there is no conferral, in the absence of an order waiving the requirement, the application will fail.
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].

Legal principles

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.
These remarks have been cited with approval on numerous occasions in this State, including by the Court of Appeal in Minister for Education v Bailey.[20]
[20] Minister for Education v Bailey [2000] WASCA 377 [23].
The assessment of special circumstances is undertaken in relation to the specific documents in respect of which the release is sought.[21]
[21] James v Salier [2021] NSWSC 293 [21].
Where the purpose of the release from the obligation is for use in another proceeding, commonality between the proceedings may be a sufficient factor to warrant the exercise of the dispensing power.[22]
[22] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 224 (Willcox J).
In Laen Pty Ltd v At The Heads Pty Ltd, Davies J said:[23]
The mere fact of commonality of subject matter may be sufficient to establish that the party has a legitimate forensic purpose for the use of the material in the second proceeding, but the test is not commonality of subject matter. Generally, use in a subsequent proceeding would not be an improper use of material previously obtained subject to an implied undertaking, unless that material was obtained in the first proceeding for an ulterior purpose.
[23] Laen Pty Ltd v At The Heads Pty Ltd [2011] VSC 315 [10]; cited with approval by Le Miere J in Platinum Systems Resourcing Pty Ltd v NRW Holdings Ltd [No 3] [2013] WASC 402 [16].
The obligation ceases to apply in certain circumstances. In Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5], Le Miere J summarised the conflicting authorities in the United Kingdom and Australia in relation to when the obligation ceases to apply.[24] He concluded that:[25]
First, the Harman obligation ceases to apply to documents which have been read or referred to in open court in a way that discloses their contents. Secondly, the obligation ceases to apply to a document filed or referred to in court as a result of which the public is entitled to access the document. Thirdly, the obligation ceases to apply to documents which have entered the public domain by being accessible to the public. Fourthly, whilst it is not been determined authoritatively in this jurisdiction, the better view is that the obligation ceases to apply to a document once it has been received in evidence and marked as an exhibit or read out, in whole or in part, in open court.
[24] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5] [2020] WASC 470 [18] - [33].
[25] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5] [34].
I respectfully agree that this conclusion summarises the position.

Disposition

Turning first to the issue of conferral, it was conceded by senior counsel for the defendants that there had not been adequate conferral as required by O 59 r 9 of the Rules. The original minute of directions did not seek the waiver of this requirement. In the amended minute of proposed directions filed on the day of the hearing, the defendants sought an order for the waiver of conferral 'for urgency and/or for other good reason, namely, examining and preventing the abuse of the Court's process'. However, no memorandum was filed in the form of Form 109 setting out the facts on which waiver was sought.
In oral submissions, senior counsel for the defendants submitted that conferral should be waived for two reasons: first, urgency; and second, to prevent an abuse of the court's processes. In respect of urgency, senior counsel noted that the application to set aside the subpoena was listed for 21 May 2021. This matter was first foreshadowed by the defendants' solicitors on 4 May 2021, a day prior to the directions hearing, and the solicitors for the plaintiffs were not available to confer prior to 5 May 2021. Senior counsel also contended that there was a good reason to waive the obligation of conferral because if the court's processes 'are being abused, it's appropriate for the court to give consideration to that'.[26]
[26] ts (18 May 2021) 39.
In this case, I accept that some conferral occurred between the plaintiffs and defendants in writing. However, without oral conferral, the defendants have not complied with [4.3.2] of the Consolidated Practice Directions. In addition, the defendants have not filed a Form 109 setting out the facts on which the defendants sought the requirement to be waived.
I do not consider that the matters that were relied upon by senior counsel for the defendants provided a sufficient basis on which the court should waive the requirement for conferral. While I accept that there was some urgency in raising the matter at the directions hearing on 5 May 2021, given the impending hearing on 21 May 2021, this application was not heard on 5 May 2021. On that date, it was programmed through to a hearing on 18 May 2021. While conferral should occur prior to the making of an application in accordance with the Rules, conferral can and should continue until the date of the hearing to attempt to narrow the issues in dispute. There was sufficient time between 5 May 2021 and the hearing on 18 May 2021 for oral conferral to occur. Had this occurred, it is likely, consistent with my earlier decision in a related matter,[27] that I would have been prepared to waive the obligation for conferral.
[27] Destec Pty Ltd v Mineral Resources Ltd.
Notwithstanding the failure to comply with the obligations in O 59 r 9 of the Rules, it is appropriate to consider the issues raised at the hearing to determine whether the lack of conferral has resulted in or contributed to a wasted application.
It was not in dispute that the defendants are bound by the substantive obligation not to use the documents they have obtained in CIV 1093 of 2021 for any purpose other than those proceedings and must not use these documents or the information contained in them in the consolidated proceedings unless given leave to do so by this court.
There was significant debate at the hearing before me as to whether the defendants were entitled to refer to and rely on the contents of the documents the subject of the application at the hearing of this matter. Had this application been brought in CIV 1093 of 2021, that, of course, would not have been an issue. In that case, the documents form part of the court file and, subject to appropriate notice of the documents to be relied upon as part of the application, the court can have regard to them.
However, where the application is brought in the proceedings in which leave is sought to use the documents, in my view, different considerations apply. This is because if a party annexes the documents to an affidavit in support of the application and then relies on the affidavit, it is arguable that first, the use of the documents in this way is itself a breach of the implied undertaking and second, if this occurs, the documents may no longer be the subject of the implied undertaking. In my view, what is required in these circumstances is for the applicant to file an affidavit that explains how the documents came into the possession of the relevant party, contains a brief summary of what the relevant parts of the evidence is sought to be relied upon (without breaching the implied undertaking) and why this evidence cannot be obtained from a different source. This is consistent with the process that has been adopted in other matters.[28]
[28] See by way of example, Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5]; Laen Pty Ltd v At The Heads Pty Ltd; Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2020] WASC 357; Raphael v Core International Pty Ltd [2021] WASC 138 [14]; James v Salier.
Senior counsel for the defendants submitted that there were six special circumstances that enlivened the exercise of the court's discretion to grant the relief sought. First, statements by the plaintiffs to the court in the pre-action discovery proceedings 'on oath and by way of submission' bear directly on an issue to be determined on the two applications in these proceedings, namely whether these applications are an abuse of process. Second, there is a commonality of parties and subject matter between the proceedings. Third, the documents are not confidential or commercially sensitive and the plaintiffs will suffer no prejudice or loss from their disclosure. Fourth, it is necessary in the public interest to protect the defendants against abuse of the court's processes. Fifth, the documents were created for the purposes of commencing and pursuing the application for pre-action discovery and, as a result, were expected to enter the public domain. Sixth, the plaintiff's opposition to the application was to gain a forensic or tactical advantage.
In considering whether the defendants should be released from the substantive obligation, it is clear from the authorities, which I have summarised above, that the court is required to consider the specific documents that are the subject of the application and the position in relation to each of these documents. It is possible that different considerations will apply to different documents.
In this case, the defendants did not set out what specific documents were sought to be used, either in their minute of proposed directions, the amended minute of proposed directions or in their submissions. The submissions simply state that 'They will also refer to the documents filed in CIV 1093 of 2021.'[29] Further, the defendants' submissions do not address the specific considerations that apply to each of these documents and whether they are the same or different for each of these documents.
[29] Defendants' submissions filed 7 May 2021 [3].
As was noted at the initial directions hearing, the primary objection of the plaintiffs' counsel in relation to the lack of conferral was the failure by the defendants to identify the documents which were the subject of the application and what parts were sought to be relied on. At the initial hearing, it was made clear to the defendants that it was necessary for them to do this prior the hearing of the application.
In my view, it is necessary for an application for leave to use documents filed in another proceeding to specifically identify the documents that are the subject of the application. It is not sufficient to seek a general release, as was sought in the amended minute of proposed orders. Nor is it sufficient for the identification of the documents to occur at the hearing (as was done in this matter). In my view, it must be done in the application, or at a minimum, in the submissions that are filed in support of the application. This enables the other party and the court to consider each of the documents sought, in light of the factors that are relevant to a determination of this application, as summarised above at [38].
While I accept that there is a connection between the application for pre‑action discovery and the two applications in these proceedings, as well as a commonality of some of the parties, without specification of the documents that are the subject of the application, it is not possible to evaluate what relevance these documents have to a determination of the applications in the consolidated proceedings, apart from at a very general level, and why this evidence cannot be obtained except from use of the documents and how important these documents are to the determination of these applications, if at all. If the primary matter that the defendants wish to rely on from these documents is the alleged abuse of process or inconsistency in the position adopted by the plaintiffs in bringing multiple applications in relation to the same equipment, that submission can be made without reference to the documents that have been filed in CIV 1093 of 2021.
I consider that had oral conferral happened, as is required by the Rules, it is likely that senior counsel for the defendants would have identified the specific documents that were the subject of the application. If, after the identification of the documents, the plaintiffs continued to oppose the application, it is possible there would have been a different outcome both as to the orders made by the court and the costs of the application. For this reason, I consider that the lack of conferral has had a direct impact on the application. Accordingly, I consider that the application should be dismissed because of inadequate conferral.
A question was raised on the application as to whether the defendants should have brought this application in CIV 1093 of 2021. I note that in most cases where the application is brought in proceedings in which the documents are sought to be used, this is because the other proceedings have been finalised.[30] While I accept it may have been more appropriate to bring the application in CIV 1093 of 2021, as it would not have raised an issue as to whether there had already been a breach of the implied undertaking by the making of the application and the documents could have been referred to and relied upon by the defendants, I do not consider that this, of itself, is a reason to dismiss the application.
[30] See for example Laen Pty Ltd v At the Heads Pty Ltd; Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd; Raphael v Core International Pty Ltd [14] - [15].

Supplementary submissions

On 26 May 2021, the defendants filed supplementary submissions pursuant to the leave which I granted on 24 May 2021.
In their supplementary submissions, the defendants sought orders for the decision conveyed to the parties on 20 May 2021 to be recalled and for the defendants to have leave to reopen their application. They also sought to confine their application, in the event that leave was granted to reopen, to the affidavits of Mr Rohr filed 18 February 2021 and 23 April 2021 as well as the plaintiffs' written submissions dated 23 April 2021.
The basis for the application to reopen was that at the hearing on 18 May 2021, the parties and the court did not have access to the transcript of the directions hearing on 5 May 2021. This was received subsequently. The defendants relied on the express statements by senior counsel for the defendants at the hearing on 5 May 2021 that:
(a)the defendants intended to refer to the affidavit material filed in CIV 1093 of 2021 at the hearing of their application;
(b)if there was any objection to this proposal, the plaintiffs needed to make their position clear.
The defendants say that counsel for the plaintiff did not object to the proposed course of action and only objected to this approach at the hearing on 18 May 2021.
It is not in doubt that before orders have been entered, the court retains the discretion to reopen an application. However, the power is exercised with caution given the public interest in the finality of litigation.[31] The power will only be exercised if there is a matter calling for review. Where there is an avenue for appeal, the court may be more reluctant to exercise the power.[32]
[31] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 4] [2016] WASC 74 [11].
[32] Smith v NSW Bar Association (1992) 176 CLR 256, 265 (Brennan, Dawson, Toohey & Gaudron JJ.
Examples of where the court has denied the power to reopen an application were summarised by Santow J in Wentworth v Wentworth as follows:[33]
[33] Wentworth v Wentworth [1999] NSWSC 638 [15].
(i)Where the ground was that the Court misconstrued a section of legislation this was said to be 'an attempt to re-argue the substantial question decided in the appeal after hearing full argument from counsel for the parties'.
(ii)Where the grounds are an allegation of bias against the Court or allegations of mistaken findings of fact, the proper procedure is to seek special leave to appeal from the High Court.
(iii)Where what is occurring is in truth the re-agitation of arguments already considered by the Court; as was said by Mason CJ in Autodesk (at 302):
'It must be emphasised that the jurisdiction [to review or re-hear an issue] is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put'.
(iv)Where the parties have been sufficiently heard on the impugned issue.
(v)Where even if there be the possibility of some misapprehension on the Court's part as to the facts or relevant law, this misapprehension can be attributed solely to the neglect or default of the party seeking the re-hearing; for 'the purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases'. (citations omitted)
In my view, the defendants' application to reopen should be refused. The defendants are correct that neither the parties nor the court had a copy of the transcript of the directions hearing on 5 May 2021 at the hearing of this application. However, even if the transcript had been available, I do not consider this would have altered the outcome of the application. This is for two reasons. First, the defendants' characterisation of the plaintiffs' position is not correct. The plaintiffs' submissions specifically state that, in their view, the defendants' application should be refused, amongst other grounds, on the basis that:[34]
the defendants have failed to identify which documents filed by the plaintiffs should be subject of its order[.]
[34] Plaintiffs' submissions filed 14 May 2021 [1.6], [23], [24].
This is consistent with the position expressed by counsel for the plaintiffs on 5 May 2021.
Second, the foreshadowed intention of the defendants did not relieve them of the obligation to specifically identify the documents which were the subject of the application and what documents they intended to refer to at the hearing. Both the court and counsel for the plaintiffs made this clear to the defendants at the directions hearing on 5 May 2021. This was not done prior to the oral submissions of senior counsel during the course of the hearing.[35] As explained in my brief oral reasons for decision in dismissing the oral application for leave to refer to and rely on the court documents in CIV 1093 of 2021, it was too late to seek this order at the hearing (without having previously notified the court and the plaintiffs of which documents were the subject of the application or which documents were going to be relied upon) and it was not necessary for the determination of the application.[36]
[35] ts (18 May 2021) 3 - 4.
[36] ts (18 May 2021) 25 ‑ 26.
I note, for the sake of completeness, that the affidavit of Mr Rohr filed 18 February 2021 in CIV 1093 of 2021 is no longer the subject of the implied undertaking as it was read and relied upon by the plaintiffs in their opposition to a similar application made in those proceedings.[37]
[37] Mineral Resources Ltd v Wyatt [2021] WASC 185 [2]. Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5] [34].

Conclusion

For these reasons, I dismiss the defendants' application to reopen the application and dismiss the application for leave to use the documents filed in CIV 1093 of 2021 that are subject to implied undertakings.
The defendants should pay the plaintiffs' costs of the application to be assessed if not agreed.
In their minute of proposed orders filed 2 June 2021, the plaintiffs have sought that the defendants pay their costs on an indemnity basis. I have not heard the parties in relation to this order and will do so prior to making any final order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HW
Research Associate to the Honourable Justice Hill
1 JULY 2021