Sundance Resources Ltd v AustSino Resources Group Ltd - [2022] WASC 108

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SUNDANCE RESOURCES LTD -v- AUSTSINO RESOURCES GROUP LTD [2022] WASC 108
CORAM:   TOTTLE J
HEARD:   15 MARCH 2022
DELIVERED          :   31 MARCH 2022
FILE NO/S:   CIV 2043 of 2021
BETWEEN:   SUNDANCE RESOURCES LTD
Plaintiff
AND
AUSTSINO RESOURCES GROUP LTD
First Defendant
CHUN MING DING
Second Defendant

Catchwords:

Practice and procedure - Application for pre-action discovery - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 127
Property Law Act 1969 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 26A r 4

Result:

Plaintiffs' application for pre-action discovery allowed

Category: B

Representation:

Counsel:

Plaintiff	:	J Garas SC
First Defendant	:	G M Slattery
Second Defendant	:	G M Slattery

Solicitors:

Plaintiff	:	Clifford Chance
First Defendant	:	Squire Patton Boggs
Second Defendant	:	Squire Patton Boggs

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

BWS v ARV [No 2] [2021] WASCA 62
Jones v Great Western Railway Co (1931) 144 LT 194
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 (S)
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Pollock v Piggott [2017] WASCA 220
Roe v The State of Western Australia [2013] WASC 130
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Waller v Waller [2009] WASCA 61

TOTTLE J:

Introduction

This is an application for pre-action discovery.[1] The plaintiff (Sundance) considers it may have causes of action against the first defendant (AustSino) and one of its directors, the second defendant (Mr Ding) arising out of their involvement in a substantial resources project developed by Sundance in Africa. Sundance maintains that it has not been able to obtain sufficient information to make a decision as to whether to commence proceedings. On that basis Sundance seeks orders that the defendants discover the documents to which I refer later in these reasons.
[1] The application was commenced by an originating summons issued on 7 October 2021.
The defendants oppose the application on the ground that Sundance has not discharged the burden of showing that it may have the causes of action it has identified for the purposes of the application. Alternatively, the defendants argue that the categories of documents sought by Sundance are too broad.
For the reasons developed below orders for pre-action discovery should be made.

Evidence of the parties

Sundance has adduced documentary evidence extending to over 6,000 pages. The documents relied on by Sundance are annexed to three affidavits sworn by Mr Giulio Casello.[2] Mr Casello was the Chief Executive Officer and Managing Director of Sundance between November 2010 and July 2021 and is currently a non-executive director of Sundance. Mr Casello was closely involved in the project and in Sundance's dealings with the defendants.
[2] Affidavit of Giulio Casello, sworn on 6 October 2021; affidavit of Giulio Casello, sworn on 7 January 2022; affidavit of Giulio Casello, sworn on 10 March 2022.
The…

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: [2022] WASC 108
Decision Date

CaseChat Overview and Summary

Sundance Resources Ltd applied for an order that AustSino Resources Group Ltd and Chun Ming Ding disclose documents before Sundance commences proceedings. Sundance claims that AustSino breached obligations of confidence and fiduciary duties and induced a breach of contract by using Sundance's confidential information to develop a competing project. The defendants opposed the application on the grounds that Sundance had not demonstrated that it may have a cause of action against them and that the scope of the documents sought was too broad. The Court was satisfied that Sundance had established that it may have a cause of action against the defendants. The Court accepted that Sundance had provided more than mere suspicion or conjecture that its confidential information had been misused. The Court rejected the defendants' arguments that Sundance's claims should be considered in relation to each of the three components of the project. The Court held that the principles of proportionality did not weigh against granting the orders. The Court ordered that Sundance provide security for the defendants' costs in relation to the application and the orders for pre-action discovery.

Orders