Newcrest Mining Ltd v Santos WA Northwest Pty Ltd - [2022] WASC 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   NEWCREST MINING LTD -v- SANTOS WA NORTHWEST PTY LTD [2022] WASC 315
CORAM:   TOTTLE J
HEARD:   8 SEPTEMBER 2022
DELIVERED          :   14 SEPTEMBER 2022
PUBLISHED           :   15 SEPTEMBER 2022
FILE NO/S:   CIV 1546 of 2022
BETWEEN:   NEWCREST MINING LTD
Plaintiff
AND
SANTOS WA NORTHWEST PTY LTD
First Defendant
SANTOS (BOL) PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Pleadings - Application for particulars alternatively to strike out paragraphs in amended statement of claim - Application of case management principles - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 20 r 13(6), O 20 r 19(3), O 67B r 5

Result:

Application successful in part

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S K Dharmananda SC & Ms C V Wren
First Defendant	:	Ms P Cahill SC
Second Defendant	:	Ms P Cahill SC

Solicitors:

Plaintiff	:	Gilbert + Tobin
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Corrs Chambers Westgarth

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

Cardaci v Cardaci [2018] WASC 100
Daniels v Daniels [2008] WASCA 230
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Metaxas v Legal Profession Complaints Committee [2020] WASCA 27
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Trackem Pty Ltd v Revenue Partners [2021] WASC 245
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

TOTTLE J:

Introduction

In this action disputes have arisen between the parties about two related matters: the adequacy of the pleading of the amended statement of claim, and whether the defendants should provide discovery before the pleading issues are resolved.
The parties' positions may be summarised as follows:
(a)The defendants contend certain paragraphs of the statement of claim are not relevant to any claim advanced by the plaintiff. They contend other paragraphs are ambiguous or are otherwise obscure in their meaning and effect and, unless particulars are provided, the impugned paragraphs should be struck out. The defendants seek orders to that effect by a minute of orders filed on 2 September 2022.[1] The defendants argue they should not be obliged to provide discovery until the pleading issues are resolved and that by pursuing its application for discovery, the plaintiff is, in effect, 'fishing' for support for a case it cannot presently make out.
(b)The plaintiff contends its claims are adequately pleaded. They support this contention by reference to, among other matters, the fact the defendants filed a defence to the statement of claim in its unamended form without having the alleged pleading deficiencies addressed either by particulars or by amendments. The plaintiff argues that to the extent to which its claims may be refined by further particulars, such particulars cannot be provided until the defendants have given discovery because the facts are solely within the defendants' knowledge. The plaintiff presses for an order that the defendants provide limited discovery.[2]
[1] Defendants' minute of proposed orders filed 2 September 2022.
[2] Plaintiff's minute of proposed orders for discovery filed 2 September 2022.
The subject matter of the dispute is a gas supply agreement under which the defendants were the suppliers and the plaintiff the purchaser.
I have held that the terms of the gas supply agreement are confidential and commercially sensitive. On 8 September 2022 I made an order under the Rules of the Supreme Court 1971 (WA) O 67B r 5 restricting access to documents filed in the court which disclosed certain provisions of the gas supply agreement. In addition, I made orders prohibiting the publication, on a temporary basis, of anything said at the hearing of the application on 8 September 2022 pending receipt of a transcript. My intention is that a version of the transcript redacted to prevent disclosure of confidential material will be made available to those who request it. To avoid undermining the operation of the confidentiality orders I will not describe the subject matter of the dispute and the issues raised by the competing arguments as fully as I would otherwise have done.
Under the terms of the gas supply agreement, if the plaintiff served a notice of a certain kind on the defendants, each defendant was required to exercise a contractual discretion. There is no dispute that the plaintiff served a notice of the relevant kind on 17 May 2016. In broad terms the plaintiff's case is that before exercising the discretion each defendant had to make an assessment as to whether to exercise the discretion and, for the purpose of that assessment, had to consider various matters.
Against that background, in broad terms, the issues are twofold. The first issue is one of contractual construction. It is whether, and if so in what manner, the exercise of the defendants' discretion was constrained. The second issue is whether the exercise of the discretion by each defendant conformed to the requirements of the agreement when properly construed.

Leave to bring the application to strike out or seek particulars not required

The plaintiff contends the defendants' application was brought out of time. It points to the requirement in the Rules of the Supreme Court that any application to strike out a part of a pleading be made within 21 days of its service.[3]
[3] Rules of the Supreme Court 1971 (WA) O 20 r 19(3)(a). A request for particulars must be made within 30 days of the service of the relevant pleading, see Rules of the Supreme Court 1971 (WA) O 20 r 13(6).
The statement of claim was filed on 1 July 2022 and the amended statement of claim was filed on 29 August 2022. The plaintiff contends that 'most of the pleadings that the defendants apply to strike out were in the original statement of claim and not in the amended statement of claim' and accordingly time within which to bring the application started running on 1 July 2022.[4] That contention does not, however, accord with O 20 r 19(3)(a) of the Rules of the Supreme Court which provides an application to strike out must be made within 21 days of the service of any pleading or amended pleading to which the application refers. The application refers to the amended statement of claim. On that basis the application is not out of time.
[4] Plaintiff's submissions opposing defendants' application for particulars and strike out application filed 7 September 2022 [5].
I would add that even if the application had been out of time, I would have given leave to the defendants to bring the application. I do not propose to review the relevant background at any length. It is sufficient to record the defendants' solicitors first articulated their concerns about the statement of claim on 11 July 2022.[5] Those concerns were the subject of a process of conferral that led ultimately to the service of the amended statement of claim.
[5] Affidavit of Arabella Zoe Tolé sworn 6 September 2022, 3 - 4: attachment 'AZT-1'.
The action was entered into the Commercial and Managed Cases (CMC) List at the defendants' request and over objection from the plaintiff on 5 August 2022. A strategic conference was held on 31 August 2022. At the strategic conference, the defendants' senior counsel outlined the defendants' concerns about the amended statement of claim.
It was reasonable for the defendants to have applied to have this action entered into the CMC List and to defer making any application in respect of the amended statement of claim until the strategic conference. In those circumstances, even if it was the case that the defendants were out of time, I would have granted leave to bring the application because, in the context of the proceedings to date, the delay is not significant.
At the strategic conference, directions were made for the parties to file and serve minutes of the interlocutory orders that had been foreshadowed by them and the competing applications were heard on 8 September 2022.

The applicable principles

The principles governing strike-out applications, including the caution with which the power to strike out a pleading is to be exercised, are well established. The principles were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4].[6] The Court of Appeal approved her Honour's summary of those principles in English v Vantage Holdings Group Pty Ltd.[7] I apply those principles without repeating them.
[6] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60].
[7] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56] (Murphy & Vaughan JJA).
It is unnecessary to engage in a disquisition on the role of particulars. In essence they are used to achieve the same fundamental objectives as pleadings.[8] Brief reference to some other principles is, however, helpful.
[8] See the discussion on the purpose of particulars in LexisNexis, Civil Procedure Western Australia [20.13].
In Jingellic Minerals NL v Abigroup Ltd,[9] Franklyn J observed that:[10]
There is authority for the proposition that when one party knows the facts and the other does not, an insufficiently particularised allegation may be made in a statement of claim and the plaintiff be permitted to obtain discovery of documents and answers to interrogatories before providing the necessary particulars.
[9] Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566.
[10] Jingellic Minerals NL v Abigroup Ltd (570) (Franklyn J), (575) (Walsh J).
In Fieldturf Inc v Balsam Pacific Pty Ltd,[11] Finkelstein J, when commenting on the function of pleadings, made observations that support the proposition referred to by Franklyn J in Jingellic Minerals NL v Abigroup Ltd:[12]
If an action is to be conducted with a minimum degree of fairness, and a modicum of efficiency, the parties must be allowed to go into court with some identification of the subject matter of their dispute. There should be some process by which the subject matter is specified and the range of the evidence at trial is kept within the limits of relevance. Moreover, to ensure that the system operates fairly, each party must disclose the facts that are within his knowledge and on which the case of the other depends. In our system an attempt is made to satisfy the need for efficiency and fairness by pleadings and discovery.
[11] Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809.
[12] Fieldturf Inc v Balsam Pacific Pty Ltd [2] (Finkelstein J).
As Archer J observed, however, in Trackem Pty Ltd v Revenue Partners,[13] that a party may obtain discovery before providing particulars when one party knows the facts and the other does not, does not mean that allegations may be pleaded without a proper factual foundation. What constitutes a proper foundation varies with the circumstances of the case.[14]
[13] Trackem Pty Ltd v Revenue Partners [2021] WASC 245 [35].
[14] Metaxas v Legal Profession Complaints Committee [2020] WASCA 27 [68] - [69] (Quinlan CJ & Pritchard JA).
It has been said on many occasions that the court discourages disputes relating to pleading issues and, that while the issues in an action must always be based on the pleadings, modern case management enables various procedural steps to be taken to ensure that by the time of trial there is no uncertainty as to precisely what is in issue.

Overarching observations

I approach the issues raised by the competing applications with the principles to which I have just referred in mind and with the ultimate object of achieving a just, efficient and expeditious determination of the substantive dispute in accordance with the principles set out in the Rules of the Supreme Court O 1 r 4B. From a case management perspective, the essential question is what approach is most likely to achieve that object.
As will be seen from what follows I consider that there are varying degrees of merit in some of the defendants' criticisms of the lack of precision with which the issues are identified in the amended statement of claim but overall, in my view, the nature of the plaintiff's case is clear. I accept the plaintiff is unable to be more precise in its articulation of the issues, or at least some of the issues, without the benefit of the limited initial discovery it seeks from the defendants. Contrary to the defendants' contentions the initial discovery sought by the plaintiff is not 'wide-ranging'. Rather it is limited in scope. Further, it appears to me that there is a proper factual foundation for the pleas that have been made and this is not a case of a plaintiff commencing proceedings without any case and hoping that 'something will turn' up on discovery.
Other than in respect of the two paragraphs which I propose to strike out I do not consider that ordering the plaintiff to provide particulars or striking out further paragraphs will advance the efficient management of this dispute or otherwise serve the interests of justice. Rather, I fear that it would lead to ongoing interlocutory skirmishing about the pleadings of the nature this court strives to avoid, and which inevitably would lead to disputes as to the precise extent of discovery.
If the plaintiff's pleaded case (in any respect) lacks the requisite degree of precision after the plaintiff has the benefit of discovery from the defendants, I will make orders for the plaintiff to file and serve a statement of issues identifying with specificity what its case is on any issues as to which there is residual uncertainty. The action will not be listed for trial until the issues are identified in a manner and a level of precision with which I am satisfied.

The impugned paragraphs

Paragraph 7

Paragraph 7 of the amended statement of claim pleads a certain construction of the provision of the gas supply agreement conferring the discretion on the defendants ('the critical provision'). The amended statement of claim does not contain an allegation of breach of the clause conferring discretion construed in the manner alleged in this paragraph. On that basis the defendants contend the relevance of the paragraph is unclear. They argue they do not know what case, if any, they are called upon to meet based on this paragraph.[15]
[15] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [7].
The plaintiff's senior counsel contended that the plea was relevant context for the other pleas made by the plaintiff as to the proper construction of the agreement and it should be allowed to stand.[16] I do not accept that submission. If the plea in par 7 was a plea of a fact contended to form part of the factual matrix or was a plea of an express term of the agreement, then it would be allowed to stand. By pleading the construction of the agreement in the manner pleaded in par 7, the plaintiff has pleaded a matter of law,[17] and its relevance is not apparent from the other paragraphs of the amended statement of claim.
[16] ts 60.
[17] O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319 (Mason J); Daniels v Daniels [2008] WASCA 230 [46] (Buss JA), [1] (Wheeler JA), [2] (Pullin JA); Cardaci v Cardaci [2018] WASC 100 [32] (Le Miere J).
Paragraph 7 pleads a construction of the critical provision that plays no further role in the plaintiff's pleaded case. In my view it should be struck out because it gives rise to a false issue.

Paragraph 8

Paragraph 8 pleads a further construction of the critical provision, further to or in the alternative to the plea in par 7. The gravamen of the plea in par 8 is an allegation that the defendants could not exercise the contractual discretion against the interests of the plaintiff unless they 'first [conducted] an assessment' and, on the basis of that assessment, made certain findings.
The defendants complain the plea is ambiguous because they do not know whether the plaintiff alleges the assessment must be commenced subsequent to, and specifically with reference to, a notice served by the plaintiff requiring them to exercise the discretion or whether the defendants may rely, in whole or in part, on an assessment conducted at any time so long as the assessment otherwise meets the requirements of the provision.[18]
[18] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [10].
The defendants contend they are entitled to particulars clarifying the plaintiff's case. Alternatively, they contend par 8 should be struck out.[19]
[19] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [11].
I do not accept the defendants' criticism of par 8. The nature of the case the defendants are required to meet is clear. The plaintiff alleges the defendants were required to undertake an assessment of relevant matters before exercising the discretion. However, if as the action approaches trial there is any uncertainty as to the precise issue raised by par 8 it can be resolved by the provision of a statement of issues by the plaintiff in the manner I have described above.

Paragraph 9.1

Paragraph 9 comprises two sub-paragraphs pleaded in the alternative.
Paragraph 9.1 alleges it was a term of the gas supply agreement that in making an assessment for the purpose of exercising the contractual discretion the defendants were required 'to act in good faith and reasonably'.
The defendants' complaint in respect of this paragraph is the same as that made in respect of par 7, namely that the pleading of this term is not followed up by an allegation of breach.[20]
[20] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [12].
I consider the defendants' criticism is valid. The pleading in par 9.1 gives rise to a false issue and it should be struck out on that basis.

Paragraph 9.2

Paragraph 9.2 pleads that the defendants were required to make a 'genuine assessment' before exercising the contractual discretion in question. Paragraph 24 alleges a breach of that term.
The defendants observe that par 9.2 does not plead the characteristics of a 'genuine' assessment and par 24 does not plead, by reference to the characteristics of a 'genuine' assessment, how the defendants failed to conduct a 'genuine' assessment.
The defendants contend it is unclear whether the plaintiff alleges the defendants exercised the contractual discretion without first conducting, or attempting to conduct, any assessment at all or after conducting an assessment which lacked the particular characteristics required to meet the requirements of a 'genuine' assessment.[21] They contend this ambiguity is compounded by the use of the phrase 'to the extent' as a preface to subsequent pleas that each defendant 'conducted an assessment' (in par 18 and par 22).[22]
[21] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [16].
[22] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [17].
In written submissions the plaintiff provided some further exposition of its case in reliance on par 9.2 as follows:[23]
8.Despite this, in the interests of expediency, the plaintiff provides the following particulars:
(a)The word 'genuine' is used in its ordinary meaning as defined in the Macquarie Dictionary (8th ed) as "1. Being truly such; real; authentic … 2. Properly so called …".
(b)The plaintiff cannot fairly be expected, in a factual vacuum, to particularise by theory or supposition a list of every specific characteristic of a genuine assessment. At a general level, a genuine assessment would involve a person or persons armed with knowledge and information as to the matters to be assessed, actually assessing [certain matters relevant to the exercise of the discretion].
[23] Plaintiff's responses and objections to defendants' application for further particulars of amended statement of claim filed 7 September 2022 [8].

In the course of oral submissions senior counsel for the plaintiff confirmed that by using the expression 'genuine assessment' the plaintiff was intending to draw upon administrative law principles that apply when a decision maker is required to have 'due regard' to a matter, that is, the decision maker is required to engage in an active intellectual process directed at the (relevant) information.[24]
[24] ts 55; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 [12] (Kiefel CJ, Gageler, Gordon & Stewart JJ).
I do not accept that the plea in par 9.2 lacks clarity or otherwise fails to inform the defendants of the case they are required to meet as to the manner in which the plaintiff contends the contractual discretion was conditioned. Once again, if as the action gets closer to trial, there is any residual uncertainty as to the nature of the plaintiff's case as to what constitutes a 'genuine' assessment this can be resolved by a statement of issues.
I will deal with the complaints made in respect of par 24 later in these reasons.

Paragraph 10

In par 10 of the amended statement of claim the plaintiff alleges that on its proper construction the critical provision required the defendants to undertake an assessment which was 'not limited to assessing' certain specified matters (par 10.1) and that the defendants 'must have regard to' other specified matters (par 10.2).
The defendants contend that it is unclear what is meant by 'not limited to assessing' and 'must have regard to' and posit possible alternative cases the plaintiff may be understood as advancing under this paragraph and, on the basis of those possibilities, contends the paragraph is embarrassing.[25]
[25] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [21] - [22].
The plaintiff has objected to the provision of further particulars of its pleading under par 10 but under cover of that objection has provided a further statement of the case it advances under the paragraph.[26] It is not possible to explain the nature of those particulars without disclosing confidential matters.
[26] Plaintiff's responses and objections to defendants' application for further particulars of amended statement of claim filed 7 September 2022 [10].
In my view, the allegations the plaintiff makes under par 10 are sufficiently clear to inform the defendants of the case they are required to meet. They are not embarrassing.

Paragraphs 18 and 22

Paragraph 18 of the amended statement of claim pleads 'to the extent that' the second defendant conducted an assessment for the purposes of exercising the contractual discretion the assessment was limited to the matters specified in par 10.1. Paragraph 22 is expressed in substantially the same terms as par 18 and makes a similar allegation in relation to the first defendant.
The defendants contend that par 18 and par 22 of the amended statement of claim are embarrassing because although each paragraph appears to plead a breach of the obligation pleaded in par 10.1 there does not appear to be a plea of breach of par 10.2 and thus, the defendants contend, 'the extent of the case of breach within these paragraphs is unclear and creates further confusion as to whether there is intended to be any difference of substance between par 10.1 and par 10.2'.[27]
[27] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [25], [27].
The defendants complain also that the use of the prefatory phrase 'to the extent that' creates uncertainty as to the case being advanced by the plaintiff. The plaintiff's case is that whatever processes were undertaken they were limited in the manner alleged, and I do not accept that the use of the phrase 'to the extent that' creates uncertainty that makes the pleas embarrassing.
I do not accept that the plaintiff's case under par 18 and par 22 is embarrassing. Paragraph 10.1 and par 10.2 are to be understood as pleading a composite obligation such that, in the particular (confidential) circumstances of this case, an allegation that the defendants limited their assessment to the matters specified in par 10.1 carries with it the allegation that they failed to have regard to matters specified in par 10.2.

Paragraph 23

Paragraph 23 pleads a breach of the term alleged in par 8 of the amended statement of claim on the basis that the defendants purported to exercise the contractual discretion without conducting an assessment which was not limited to the matters specified in par 10.1.
The defendants contend it is not clear whether the plaintiff is alleging a breach of both par 10.1 and par 10.2 or only par 10.1. The defendants contend also the ambiguity surrounding the meaning of 'limited to' and 'having regard to' in respect of par 10 infects par 23.[28] For the reasons given above par 10.1 and par 10.2 are to be understood as pleading a composite obligation and the case the defendants are required to meet is not uncertain in the manner they contend.

Paragraph 24

[28] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [25] - [26].

Paragraph 24 pleads that the defendants breached the term pleaded in par 9 by purporting to exercise the contractual discretion without first conducting a genuine assessment as they were required to do by the critical provision.
The essence of the defendants' complaint about the plea in this paragraph is that the plaintiff has not given any particulars as to how the defendants are alleged to have failed to have conducted a 'genuine' assessment.[29] The plaintiff has provided particulars which are to the effect that the failure to conduct a genuine assessment is to be inferred from the defendants' unwillingness to provide the plaintiff with 'documents evidencing, constituting or recording any assessment' made by each of the defendants.[30]
[29] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [15] - [16].
[30] Amended statement of claim filed 29 August 2022 [17], [21].
The plaintiff says that it has provided the best particulars that it is able to provide without the aid of discovery. It contends that it has a reasonable foundation for the plea that the defendants did not conduct a genuine assessment but presently does not know the extent to which the defendants made any assessment. The plaintiff says that the plea in par 24 is not inconsistent with the pleas in par 18 and par 22.[31]
[31] Plaintiff's responses and objections to defendants' application for further particulars of amended statement of claim filed 7 September 2022 [16].
The plaintiff contends that as the defendants alone are in possession of the relevant facts, they cannot give any further particulars at this stage.[32]
[32] Plaintiff's responses and objections to defendants' application for further particulars of amended statement of claim filed 7 September 2022 [17].
I consider there is some force in the defendants' complaint. That said, arguably the plaintiff's case that the defendants did not conduct a 'genuine' assessment can be sustained by its allegation that the defendants did not exercise the discretion without first conducting an assessment not limited to the matters specified in par 10.1 and without regard to the matters specified in par 10.2. Thus, this is not a case in which it could be said that the plaintiff does not have any case and so much was accepted by the defendants.[33] Moreover, it is undoubtedly the position that the defendants are the only ones who know what steps were taken by them before they exercised (or as the plaintiff contends purported to exercise) the contractual discretion. Given the caution with which the power to strike out pleadings should be exercised I will not strike out par 24 of the amended statement of claim. The plaintiff will be required to define its case under par 24 with precision when it has had the benefit of discovery from the defendants.

Paragraph 24A

[33] ts 61 - 62.

The defendants' attack on par 24A falls away because it was dependent on their complaints about par 23 and par 24 being upheld.

Paragraph 26

Paragraph 26 of the amended statement of claim pleads that the plaintiff has suffered loss and damage as a result of the breaches of the gas supply agreement it alleges were committed by the defendants.
The defendants complain about the sufficiency of the pleading as to the causal link between the alleged breaches and the alleged loss and damage.[34] The plaintiff has supplemented the particulars it has provided with a brief statement of the causal link in correspondence.[35] In my view the nature of the case the defendants are required to meet is tolerably clear. I accept that there is room for further precision in the manner in which the claim for loss is articulated but proper case management does not require the plaintiff's case to be refined by the provision of particulars at this stage.
[34] Defendants' submissions for request for particulars, alternatively strike out of amended statement of claim filed 6 September 2022 [29] - [30].
[35] Plaintiff's responses and objections to defendants' application for further particulars of amended statement of claim filed 7 September 2022 [18].

Discovery

The plaintiff's minute of orders contemplates a staged discovery process. For the purposes of these reasons it is only necessary to refer to the first stage of that process which is that there be discovery essentially as follows:[36]
(a)documents recording any assessment, consideration, or determination made by the first defendant prior to or on 21 June 2016 for the purpose of considering and responding to the plaintiff's notice dated 17 May 2016 pursuant to the gas supply agreement; and
(b)documents recording any assessment, consideration, or determination made by the second defendant prior to or on 3 June 2016 for the purpose of considering and responding to the plaintiff's notice dated 17 May 2016 pursuant to the gas supply agreement.
[36] Plaintiff's minute of proposed orders for discovery filed 2 September 2022 [1].
I consider that orders for discovery in the terms set out in the preceding paragraph should be made. I will hear from the parties as to issues as to timing, inspection and a confidentiality regime (if such regime is necessary and cannot be agreed between the parties) and the steps to be taken to complete the discovery process.

Conclusion

I will strike out par 7 and par 9.1 of the amended statement of claim but otherwise dismiss the defendants' application made by minute of 2 September 2022.
I will make an order for discovery as set out above.
I will hear the parties in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
15 SEPTEMBER 2022