North Kalgurli Mines Pty Ltd v GRD Minproc Ltd - [2002] WASC 275

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NORTH KALGURLI MINES PTY LTD & ORS -v- GRD MINPROC LTD [2002] WASC 275

CORAM: HASLUCK J

HEARD: 12 NOVEMBER 2002

DELIVERED : 12 NOVEMBER 2002

FILE NO/S: CIV 2564 of 2001

BETWEEN: NORTH KALGURLI MINES PTY LTD (ACN 008 747 886)
HOMESTAKE GOLD OF AUSTRALIA LTD (ACN 008 143 137)
NORKAL PTY LTD (ACN 008 940 743)
NORMANDY GRPL PTY LTD formerly GOLD RESOURCES PTY LTD (ACN 008 976 958)
KALGOORLIE LAKE VIEW PTY LTD (ACN 004 990 274)
Plaintiffs
AND
GRD MINPROC LTD (ACN 008 992 694)
Defendant

Catchwords:

Practice and procedure - Discovery - Application for discovery of documents in related proceedings - Application for discovery of insurance documents - Extension of time granted for filing defence - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 10

Rules of the Supreme Court 1971, O 26 r 6, O 26 r 7, O 26A

Trade Practices Act, s 52

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiffs: Mr J A Thompson
Defendant: Mr S K Dharmananda

Solicitors:

Plaintiffs: Mullins Handcock
Defendant: Corrs Chambers Westgarth

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

Geneva Finance Ltd, (Receiver and Manager Appointed) v Boys [2001] WASC 348
Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 237
Minister for Education v Bailey (2000) 23 WAR 149
Mulley v Manifold (1959) 103 CLR 341
Springfield Nominees Pty Ltd v Bridgelands Securities (1992) 38 FCR 217

Case(s) also cited:

Australian Dairy Corporation v Murray Goulburn Co-Op Ltd [1990] VR 355
Commonwealth of Australia v Temwood Holdings Pty Ltd (2001) 25 WAR 31
Commonwealth v Northern Land Council (1993) 176 CLR 604
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Lonrho Exports Ltd v Export Credit Guarantee Department [1999] Ch 158
North Kalgurli Mines Ltd & Ors v FEE Minerals Australia Pty Ltd [2000] WASC 218
Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd (2002) ATPR (Digest) 46-220
Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178

HASLUCK J: The defendant, GRD Minproc Ltd, has applied for certain orders by chamber summons dated 6 November 2002.

The Orders Sought

The orders sought are expressed in these terms:
"1.Paragraph 1 of the case management directions before Acting Registrar Rayney be amended to state that the defendant file and serve a defence to the plaintiffs' statement of claim on or before 29 November 2002.
2.Pursuant to Order 26 rule 7, the plaintiffs provide further and better discovery and inspection of documents requested by the defendant within seven days, in particular:
(a)all documents in the plaintiffs' possession, custody or power relating to the plaintiffs' claim against FFE Minerals Australia Pty Ltd in consolidated actions CIV 2129 of 1998 and CIV 2068 of 2001 ("Consolidated Actions") including…

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.

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Details

Case: [2002] WASC 275
Decision Date

CaseChat Overview and Summary

The case of North Kalgurli Mines Pty Ltd v GRD Minproc Ltd involved a dispute between two mining companies, North Kalgurli Mines and GRD Minproc. The matter was before the Supreme Court of Western Australia. The primary issue for the court was the disclosure of discovered documents, specifically whether the plaintiff should be obliged to provide further discovery of documents that were relevant to both the present and another proceeding. The case raised questions about the special rules concerning the disclosure of discovered documents and the principles outlined in the decision of Mead Corporation v Carbonless Papers (Australia) Pty Ltd.

The court had to determine whether the plaintiff was entitled to protection against any use of the documents outside the current proceedings and whether there were any special features in the case that would allow for a modification or release of the implied undertaking not to use the documents otherwise than in the proceedings. Various factors were considered, including 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 might sustain. Additionally, the court had to assess the likely contribution of the document to achieving justice in the second proceedings.

After reviewing the principles and circumstances of the case, the court concluded that there were special features that warranted a departure from the usual rule. The court found that the documents in question were relevant to both proceedings and that there was a power available under Order 26 Rule 7 to make an order for further discovery. The court was not persuaded that the appropriate relief was under Order 26 Rule 6 for more particular discovery, as the circumstances of the case warranted a different approach. Ultimately, the court determined that the affidavit of discovery provided was not sufficient and ordered further disclosure of the documents.

The court ordered that the plaintiff provide the further discovery of the documents in question, taking into account the special circumstances of the case. The court's decision highlighted the importance of considering the unique aspects of each case when determining whether to modify or release the implied undertaking concerning the disclosure of discovered documents. The court's ruling in this case provided guidance for future cases involving similar issues of document disclosure and the exercise of judicial discretion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is important to understand that there are special rules concerning the disclosure of discovered documents. The principles in that regard are summarised in Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 237. The point is made between pars 37 and 45 of the Mead decision that those who disclose documents are entitled to the court's protection against any use of the documents otherwise than in the action in which they are disclosed, for discovery is essentially an invasion of a private right to keep one's documents to oneself. The jurisdiction to restrain publication is based not so much on property or on contract as on the duty to be of good faith. The Court has the power to release a party from the implied undertaking not to make use of any documents discovered otherwise than in the proceedings to which they relate. It is apparent from a review of the decided case bearing upon this issue, including the decision of the Full Court in this State in Minister for Education v Bailey (2000) 23 WAR 149, that the release from the implied undertaking can be given if there is a special feature of the case which affords a reason for modifying or releasing the undertaking. The matter then becomes one of the proper exercise of the Court's discretion. Various factors bear upon the discretion, including 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 may sustain. I note also, as I review the factors to be taken into account, the matter referred to in Springfield Nominees Pty Ltd v Bridgelands Securities (1992) 38 FCR 217, namely that one is entitled to have regard to the likely contribution of the document to achieving justice in the second proceedings. In Geneva Finance Ltd, (Receiver and Manager Appointed) v Boys [2001] WASC 348, McLure J was of the view that the undertaking concerning discovery does not prevent compulsory disclosure. The undertaking restricts the disclosure of documents, not the listing of documents. Let me now return to the circumstances of the present case, bearing in mind the principles I have just described. I will turn firstly to the Court documents. It appears from the chronology that the pleadings in the present case have not closed. There is, therefore, some force in the contention that the plaintiffs should not be obliged to provide the further discovery which is sought. However, I consider that there are some special features in the circumstances of the present case which weigh against such an argument. It is apparent from the background I have described that the Court documents relate to an incident which is common to both proceedings. I consider that in these special circumstances there is a power available to me in O 26 r 7 to make an order of the kind sought. It was said by the plaintiffs that what is being sought is in the nature of more particular discovery and therefore the appropriate avenue of relief is O 26 r 6. Ultimately I am not persuaded to that view having regard to the special features of the case I have mentioned. I am in a position to compare the two statements of claim and to draw certain conclusions as to whether the affidavit of discovery that has been provided is sufficient. I am of the view that it is not sufficient.