Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14]
[2021] WASC 268
•29 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 14] [2021] WASC 268
CORAM: LE MIERE J
HEARD: 28 JULY 2021
DELIVERED : 29 JULY 2021
FILE NO/S: CIV 3041 of 2010
MATTER: (Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY AS TRUSTEE IN BANKRUPTCY OF LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL AS EXECUTORS OF DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendant by Counterclaim
HAMERSLEY WA PTY LTD
Third Party
(BY COUNTERCLAIM)
FILE NO/S: CIV 2617 of 2012
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party
FILE NO/S: CIV 2737 of 2013
BETWEEN: DFD RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY AS TRUSTEE IN BANKRUPTCY OF LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL AS EXECUTORS OF THE ESTATE OF DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendant by Counterclaim
HAMERSLEY WA PTY LTD
Third Party
(BY COUNTERCLAIM)
Catchwords:
Practice and procedure – Discovery – Discovery by categories or issues ordered
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Discovery by categories or issues ordered
Category: B
Representation:
CIV 3041 of 2010
Counsel:
| Plaintiff | : | Ms K Stern SC & Ms L Coleman |
| First Defendant | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colquohoun |
| Second Defendant | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colquohoun |
| Third Defendant | : | Mr C Withers SC, Mr A Hochroth |
| Fourth Defendant | : | Mr C Withers SC, Mr A Hochroth |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | Ms A Barwick |
| Third Party | : | Ms C Wren |
Solicitors:
| Plaintiff | : | Clayton Utz |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | Corrs Chambers Westgarth |
| Third Defendant | : | Yeldham Price O'Brien Lusk |
| Fourth Defendant | : | Yeldham Price O'Brien Lusk |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | Dentons |
| Third Party | : | Allens |
Counterclaim
Counsel:
| First Plaintiff by Counterclaim | : | Mr C Withers SC, Mr A Hochroth |
| Second Plaintiff by Counterclaim | : | Mr C Withers SC, Mr A Hochroth |
| First Defendant by Counterclaim | : | No appearance |
| Second Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Third Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Fourth Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Fifth Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Sixth Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & MrC Colqhoun |
| Seventh Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Eighth Defendant by Counterclaim | : | No appearance |
| Ninth Defendant by Counterclaim | : | No appearance |
| Tenth Defendant by Counterclaim | : | Mr J Dalzell & Ms A Barwick |
| Eleventh Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Twelfth Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Thirteenth Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colqhoun |
| Fourteenth Defendant by Counterclaim | : | No appearance |
| Fifteenth Defendant by Counterclaim | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colquhoun |
| Sixteenth Defendant by Counterclaim | : | Ms K Stern SC & Ms L Coleman |
| Seventeenth Defendant by Counterclaim | : | Mr J Stoljar SC, Ms L Hulmes & Mr S Taylor |
| Eighteenth Defendant by Counterclaim | : | Mr J Stoljar SC, Ms L Hulmes & Mr S Taylor |
Solicitors:
| First Plaintiff by Counterclaim | : | Yeldham Price O'Brien Lusk |
| Second Plaintiff by Counterclaim | : | Yeldham Price O'Brien Lusk |
| First Defendant by Counterclaim | : | No appearance |
| Second Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Third Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Fourth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Fifth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Sixth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Seventh Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Eighth Defendant by Counterclaim | : | No appearance |
| Ninth Defendant by Counterclaim | : | No appearance |
| Tenth Defendant by Counterclaim | : | Dentons |
| Eleventh Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Twelfth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Thirteenth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Fourteenth Defendant by Counterclaim | : | No appearance |
| Fifteenth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Sixteenth Defendant by Counterclaim | : | Clayton Utz |
| Seventeenth Defendant by Counterclaim | : | Taylor and Taylor Lawyers Pty Ltd |
| Eighteenth Defendant by Counterclaim | : | Taylor and Taylor Lawyers Pty Ltd |
CIV 2617 of 2012
Counsel:
| Plaintiff | : | Ms K Stern SC & Ms L Coleman |
| First Defendant | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colquhoun |
| Second Defendant | : | Mr N Hutley SC, Mr C Bova, Mr J Hutton & Mr C Colqhoun |
| Third Defendant | : | Mr C Withers SC, Mr A Hochroth |
| Fourth Defendant | : | Mr C Withers SC, Mr A Hochroth |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | Ms A Barwick |
| Third Party | : | Ms C Wren |
Solicitors:
| Plaintiff | : | Clayton Utz |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | Corrs Chambers Westgarth |
| Third Defendant | : | Yeldham Price O'Brien Lusk |
| Fourth Defendant | : | Yeldham Price O'Brien Lusk |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | Dentons |
| Third Party | : | Allens |
CIV 2737 of 2013
Counsel:
| First Plaintiff | : | Mr J Stoljar SC, Ms L Hulmes & Mr S Taylor |
| Second Plaintiffs | : | Mr J Stoljar SC, Ms L Hulmes & Mr S Taylor |
| First Defendant | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colquhoun |
| Second Defendant | : | Ms K Stern SC & Ms L Coleman |
| Third Defendant | : | Mr N Hutley SC, Mr C Bova SC, Mr J Hutton & Mr C Colquhoun |
| Fourth Defendant | : | Mr C Withers SC, Mr A Hochroth |
| Fifth Defendant | : | Mr C Withers SC, Mr A Hochroth |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | Ms A Barwick |
| Third Party | : | Ms C Wren |
Solicitors:
| First Plaintiff | : | Taylor And Taylor Lawyers Pty Ltd |
| Second Plaintiffs | : | Taylor And Taylor Lawyers Pty Ltd |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | Clayton Utz |
| Third Defendant | : | Corrs Chambers Westgarth |
| Fourth Defendant | : | Yeldham Price O'Brien Lusk |
| Fifth Defendant | : | Yeldham Price O'Brien Lusk |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | Dentons |
| Third Party | : | Allens |
Cases referred to in decision:
Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [2016] WASC 322
Manatee v McQuilling [1999] 1 Lloyd's Law Reports 876
Roe v Western Australia [2013] WASC 130
Shaw v Smith [1887] 18 QBD 193
Singh v Friedman [2013] WASC 78
Spargos Mining NL v Fuller (Unreported, WASC, Library No 930273, 19 May 1993)
LE MIERE J:
(This judgment was delivered extemporaneously on 29 July 2021 and has been edited from the transcript.)
Summary
In each of these proceedings Bianca and John seek an order that HPPL and HDIO provide discovery in relation to all matters in question in the proceedings. The applications are opposed by HPPL and HDIO.
For the reasons which follow I will order that HPPL and HDIO are to give discovery of documents relevant to specified issues or discovery by categories of documents and direct the parties to confer in relation to the form of the order.
Brief history of the applications
In their written submissions of 8 April 2021 Bianca and John submitted that the court should order the HPPL parties to give general discovery in these proceedings and that that could be achieved by requiring the HPPL parties to comply with the court's orders of 15 December 2020 which required all parties to give further discovery on affidavit by 12 March 2021. Bianca and John submitted in the alternative, that should the court not be satisfied that the 15 December 2020 discovery orders required the HPPL parties to give the discovery now sought, the court should in its discretion order the HPPL parties to now give discovery in relation to all matters in question in the proceedings.
Bianca and John did not press that the HPPL parties failed to comply with the orders of 15 December 2020. Accordingly, it is unnecessary to pursue that matter further. The applications are to be treated as applications for orders as to discovery under O 26 r 7 of the Rules of the Supreme Court.
Bianca and John submit that in determining whether orders for discovery should be made, the test is whether the discovery is necessary for disposing of the proceedings. They submit that orders that the HPPL parties provide general discovery is necessary for the just disposition of the dispute between the HPPL parties and Bianca and John and between Bianca and John and WPPL and the Rhodes parties respectively.
The HPPL parties have in their possession custody or power, documents which are relevant to the matters in issue in the proceedings, including documents relevant to the different facts pleaded by the HPPL parties and Bianca and John, as well as the different facts pleaded by John and Bianca on the one hand and WPPL and the Rhodes parties on the other hand.
The applications were opposed by the HPPL parties on a number of grounds.
Failure to request discovery and confer
The HPPL parties submit that the applications should be dismissed because O 26 r 7(1) provides that an application for an order under that rule may only be made by a party whose request under r 1 for discovery has not been satisfied, and Bianca and John did not make a request under r 1.
The court has power to dispense with that requirement. It is appropriate to dispense with the requirement in this case. The HPPL parties have been on notice for some time that Bianca and John request that they give general discovery. It would be contrary to proper case management to dismiss the application and to leave Bianca and John to make formal requests before the applications can proceed. That would cause unnecessary delay.
Secondly, the HPPL parties submit that Bianca and John have failed to comply with the requirement under O 59 r 9 that the parties confer to try to resolve the matters giving rise to the application before making an interlocutory application. I am not satisfied that Bianca and John have failed to comply with the rule. The applications were filed on 26 March 2021 together with memorandums stating that the parties had conferred to try to resolve the matters giving rise to the application, and that all the matters the subject of the application remained in dispute.
In any event, I would waive the operation of the rule for good reason. The good reason is that the applications raise a substantial issue, 60 days commencing in April 2022 have been reserved for the trial of the proceedings, and it is in the interests of efficient case management to hear and determine the applications 'without delay. Indeed, it is for that reason that I delivered ex tempore reasons rather than further reserving to consider the applications and deliver written reasons.
The power to make the order
The HPPL parties submit that O 26 r 7 does not empower the court to make an order that the HPPL parties give discovery to Bianca and John. The HPPL parties accept that discovery can be obtained by a defendant from a co‑defendant, but submit that it is only where issues exist between co‑defendants on the pleadings that discovery between those co‑defendants is available. Senior counsel for the HPPL parties, Mr Bova SC, referred to a decision to that effect of Master Adams in Spargos Mining NL v Fuller.[1]
[1] Spargos Mining NL v Fuller (Unreported, WASC, Library No 930273, 19 May 1993).
Counsel for John and Bianca, Mr Hochroth, submitted that the court has power to order a defendant to give discovery to a co‑defendant without the additional limitation of the documents relating to a matter in question arising directly between those parties. Mr Hochroth relied upon the decision of Rix J in the Commercial Court of the Queen's Bench Division of the High Court of England and Wales in Manatee v McQuilling.[2] Alternately, Mr Hochroth submitted that the applications by Bianca and John are against parties between whom there is some right to be adjusted in the proceedings and on the authority of Shaw v Smith,[3] the court has power to order discovery.
[2] Manatee v McQuilling [1999] 1 Lloyd's Law Reports 876.
[3] Shaw v Smith [1887] 18 QBD 193.
I find that on the proper construction of O 26 r 7(3)(b)(ii) and (iii), the court has power to make an order that a defendant give discovery to a co‑defendant of all matters in question in the proceedings, and not only those matters in issue between the co‑defendants on the pleadings. That is the natural and ordinary meaning of the words of the rule in the context of O 27 r 7. Further, that interpretation of the rule furthers the purpose of discovery to resolve the fair and just determination of all matters in contention between the parties.
Alternatively, the applications are against parties between whom there is some right to be adjusted in the proceedings, and the court may order the HPPL parties to give discovery to Bianca and John in relation to all matters in question in the proceedings, not merely in relation to issues between Bianca and John and the HPPL parties on the pleadings.
Discovery by categories or issues
Mr Bova submitted that if the court orders the HPPL parties to give discovery to Bianca and John, discovery should be given by categories of documents. Orders for general discovery are not routinely made in major litigation involving large numbers of documents. The rationale for limiting the scope of discovery and the competing interests in that regard is discussed in Singh v Friedman,[4] Roe v Western Australia,[5] and Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd.[6]
[4] Singh v Friedman [2013] WASC 78.
[5] Roe v Western Australia [2013] WASC 130.
[6] Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [2016] WASC 322.
These are complex proceedings involving multiple issues. I am satisfied by the evidence of Mr Wilks, a solicitor for the HPPL parties, that the number of documents potentially relevant to the matters in question in the proceedings is very large. Mr Wilks has sworn an affidavit in which he provides an outline of the steps that the solicitors for the HPPL parties would take if the court made an order for general discovery, and has provided an estimate of the time it would take to provide discovery, and the costs involved.
Mr Wilks states that the majority of issues raised in the defences of Bianca and John concern conduct between 1986 and 1997, but the laches defence raised by the Rhodes parties put in issue the knowledge of Bianca and John up to 31 October 2014. For the purposes of his estimates, Mr Wilks instructed those assisting him to consider searches for documents in two time periods. Scenario A is for the period 1 January 1986 to 1 January 2000 to capture documents concerning the majority of issues raised in the defences of Bianca and John. Scenario B is the period 1 January 1986 to 31 October 2014 to capture documents which concern all the issues raised in the defences of Bianca and John.
Counsel for Bianca and John, Mr Hochroth, said that his clients would not press for documents under scenario B. Mr Wilks estimates that it would take between 31 to 50 weeks to produce a finalised set of documents for production under scenario A, and the costs would be between $1,852,385 and $2,963,816.
Mr Hochroth cross‑examined Mr Wilks about the assumptions on which Mr Wilks made his estimates.
Mr Hochroth submits that Mr Wilks' estimates are not reliable. Furthermore, Bianca and John rely upon the evidence of Mr Price, the solicitor for Bianca and John in these proceedings. Mr Price has critically examined the estimates of Mr Wilks and the assumptions on which they are based. Mr Price estimates that the process of giving effect to an order for general discovery would take about eight to 12 weeks.
I am unable to make any determinative evaluation of the competing estimates and opinions. However, I am satisfied that if the HPPL parties are required to give general discovery, it is likely to take more than three months. There is a real prospect that if the HPPL parties gave general discovery, there will be disputes about the adequacy of the discovery. It is likely or at least there is a real prospect that the discovery process would not be completed before Christmas 2021 and at a very substantial cost. There is a real prospect that the trial may not be able to commence in April 2022.
It is appropriate that discovery be given by categories or by giving discovery of documents relevant to specified issues.
Oppression
The HPPL parties submit in effect, that it would be oppressive to order general discovery, having regard to the scale and scope of general discovery and that there are no issues raised directly on the pleadings between the HPPL parties and Bianca and John. I have taken those matters, and in particular the scale and scope of discovery and its likely cost, into account in determining that the appropriate order for discovery, is discovery by categories of documents or in relation to specified issues.
Costs
The court has power to order Bianca and John to pay the anticipated costs of the HPPL parties giving discovery but it is not appropriate to do so. The HPPL parties are not strangers to the matter and whilst there are not on the pleadings, issues between them and Bianca and John, there are real disputes between them which are likely to be agitated at the trial.
Order
The parties have not provided any draft orders or protocols for the HPPL parties to give discovery by categories or in relation to issues. It is not the function of the court to draft discovery orders or protocols for the parties.
I will order that the parties confer about the issues in relation to which the HPPL parties should give discovery, or the categories of documents of which they should give discovery.
The conferral should be completed within a specified time and if the parties are unable to agree on the discovery process, each should file a minute of the orders they propose and I will further list the matter to determine the discovery process and order.
I now direct Bianca and John, after consulting with the HPPL parties, to file a minute of orders to give effect to these reasons by tomorrow Friday, 30 July 2021. The orders should provide for the time by which the parties are to confer in relation to the issues, in relation to which – or the categories of documents of which, the HPPL parties should give discovery and when the parties are to file an agreed discovery order or failing that, each file the order they propose.
If agreement is not reached on that minute to give effect to these reasons, then, Bianca and John and the HPPL parties should each file a minute of proposed orders by Monday, 2 August.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Honourable Justice Le Miere
6 AUGUST 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD (14) (S)
CORAM: LE MIERE J
HEARD: 6 SEPTEMBER 2021
DELIVERED : 8 SEPTEMBER 2021
FILE NO/S: CIV 3041 of 2010
MATTER: (Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY AS TRUSTEE IN BANKRUPTCY OF LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL AS EXECUTORS OF DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendant by Counterclaim
HAMERSLEY WA PTY LTD
Third Party
(BY COUNTERCLAIM)
FILE NO/S: CIV 2617 of 2012
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party
FILE NO/S: CIV 2737 of 2013
BETWEEN: DFD RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY AS TRUSTEE IN BANKRUPTCY OF LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL AS EXECUTORS OF THE ESTATE OF DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendant by Counterclaim
HAMERSLEY WA PTY LTD
Third Party
(BY COUNTERCLAIM)
Catchwords:
Practice and procedure – Judgments and orders – Correction – Slip rule
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Correction allowed in part
Category: B
Representation:
CIV 3041 of 2010
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | Mr C Bova SC, Mr C Colquhoun & Ms A Campbell |
| Second Defendant | : | Mr C Bova SC, Mr C Colquhoun & Ms A Campbell |
| Third Defendant | : | Mr A Hochroth |
| Fourth Defendant | : | Mr A Hochroth |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Third Party | : | Ms C Wren |
Solicitors:
| Plaintiff | : | No appearance |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | Corrs Chambers Westgarth |
| Third Defendant | : | Yeldham Price O'Brien Lusk |
| Fourth Defendant | : | Yeldham Price O'Brien Lusk |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Third Party | : | Allens |
Counterclaim
Counsel:
| First Plaintiff by Counterclaim | : | Mr A Hochroth |
| Second Plaintiff by Counterclaim | : | Mr A Hochroth |
| First Defendant by Counterclaim | : | No appearance |
| Second Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Third Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Fourth Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Fifth Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Sixth Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Seventh Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Eighth Defendant by Counterclaim | : | No appearance |
| Ninth Defendant by Counterclaim | : | No appearance |
| Tenth Defendant by Counterclaim | : | No appearance |
| Eleventh Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Twelfth Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Thirteenth Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Fourteenth Defendant by Counterclaim | : | No appearance |
| Fifteenth Defendant by Counterclaim | : | Mr C Bova SC, Mr C Colquhoun |
| Sixteenth Defendant by Counterclaim | : | No appearance |
| Seventeenth Defendant by Counterclaim | : | Mr S Taylor |
| Eighteenth Defendant by Counterclaim | : | Mr S Taylor |
Solicitors:
| First Plaintiff by Counterclaim | : | Yeldham Price O'Brien Lusk |
| Second Plaintiff by Counterclaim | : | Yeldham Price O'Brien Lusk |
| First Defendant by Counterclaim | : | No appearance |
| Second Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Third Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Fourth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Fifth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Sixth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Seventh Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Eighth Defendant by Counterclaim | : | No appearance |
| Ninth Defendant by Counterclaim | : | No appearance |
| Tenth Defendant by Counterclaim | : | No appearance |
| Eleventh Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Twelfth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Thirteenth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Fourteenth Defendant by Counterclaim | : | No appearance |
| Fifteenth Defendant by Counterclaim | : | Corrs Chambers Westgarth |
| Sixteenth Defendant by Counterclaim | : | No appearance |
| Seventeenth Defendant by Counterclaim | : | Taylor and Taylor Lawyers Pty Ltd |
| Eighteenth Defendant by Counterclaim | : | Taylor and Taylor Lawyers Pty Ltd |
CIV 2617 of 2012
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Second Defendant | : | Mr C Bova SC, Mr C Colqhoun & Ms A Campbell |
| Third Defendant | : | Mr A Hochroth |
| Fourth Defendant | : | Mr A Hochroth |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Third Party | : | Ms C Wren |
Solicitors:
| Plaintiff | : | No appearance |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | Corrs Chambers Westgarth |
| Third Defendant | : | Yeldham Price O'Brien Lusk |
| Fourth Defendant | : | Yeldham Price O'Brien Lusk |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Third Party | : | Allens |
CIV 2737 of 2013
Counsel:
| First Plaintiff | : | Mr S Taylor |
| Second Plaintiffs | : | Mr S Taylor |
| First Defendant | : | Mr C Bova SC, Mr C Colquhoun & Ms A Campbell |
| Second Defendant | : | No appearance |
| Third Defendant | : | Mr C Bova SC, Mr C Colquhoun & Ms A Campbell |
| Fourth Defendant | : | Mr A Hochroth |
| Fifth Defendant | : | Mr A Hochroth |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
| Third Party | : | Ms C Wren |
Solicitors:
| First Plaintiff | : | Taylor & Taylor Lawyers Pty Ltd |
| Second Plaintiffs | : | Taylor & Taylor Lawyers Pty Ltd |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | No appearance |
| Third Defendant | : | Corrs Chambers Westgarth |
| Fourth Defendant | : | Yeldham Price O'Brien Lusk |
| Fifth Defendant | : | Yeldham Price O'Brien Lusk |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
| Third Party | : | Allens |
Cases referred to in decision:
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268
LE MIERE J:
Summary
The first and second defendants in the WPPL proceedings (CIV 3041 of 2010 and CIV 2617 of 2012) who are the first and third defendants in the Rhodes proceeding (CIV 2737 of 2013) – Hancock Prospecting Pty Ltd and Hope Downs Iron Ore Pty Ltd, who I will collectively refer to as the HPPL parties – have applied for an order that the orders made on 13 August 2021 in the WPPL proceedings and on 12 August 2021 in the Rhodes proceeding (the August 2021 discovery orders) be corrected pursuant to O 21 r 10 of the Rules of the Supreme Court 1971 (WA) (RSC) or alternatively the inherent jurisdiction of the court.
For the reasons which follow, the August 2021 discovery orders will be corrected by removing the references to the orders being consent orders, correcting a formatting error and correcting typographical errors in referring to the date of 3 September 2021 but not otherwise.
The August 2021 discovery orders
The August 2021 discovery orders were made to give effect to my judgment delivered extemporaneously on 29 July 2021[7] on the application of the third and fourth defendants in the WPPL proceedings who are the fourth and fifth defendants in the Rhodes proceeding and who I will refer to as Bianca and John, that the HPPL parties provide discovery in relation to all matters in question in the proceedings.
[7] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268 is the version edited from the transcript and subsequently published.
The extracted orders in the WPPL proceedings are as follows:
CONSENT ORDER – JUSTICE LE MIERE – DATE: 13 August 2021
PURSUANT TO ORDER 43 RULE 16 AND BY CONSENT IT IS ORDERED THAT:
1.The First and Third Defendants (HPPL/HDIO) give discovery to the Fourth and Fifth Defendants (John and Bianca) of
2.(a) specified classes of documents; or
(b) documents in relation to specified issues,
to be determined by the Court.
3.HPPL/HDIO on the one hand and John and Bianca on the other are to confer in relation to discovery in accordance with order 1 above as follows:
(a)on or before 13 August 2021, John and Bianca are to:
(ii)serve on HPPL/HDIO classes of documents or issues in relation to which they propose discovery be given in accordance with order 1 above; and
(iii)identify any protocol it is proposed will apply to the giving of discovery in accordance with order 1 above;
(a)on or before 20 August 2021, HPPL/HDIO are to respond to the classes of documents or issues in relation to which John and Bianca propose discovery be given in accordance with order 1 above; and
(b)during the period 20 August 2021 to 27 August 2021, John and Bianca and HPPL/HDIO are to confer in relation to the discovery to be given in accordance with order 1 above,
(the Conferral).
4.In the event that John and Bianca and HPPL/HDIO reach agreement as a result of the Conferral, they are to file a minute of proposed consent orders by 30 August 2021.
5.In the event that agreement is not reached through the Conferral, on or before 3?September?2021, John and Bianca and HPPL/HDIO are each to file a minute of orders they propose, together with brief written submissions and any affidavit evidence or other material on which they intend to rely.
6.The proceeding is listed before Le Miere J on 6 September 2021 at 10am for determination of the discovery process and orders, such listing to be vacated in the event that a minute of proposed consent orders is filed in accordance with order 2 above, or the parties otherwise advise that the listing is no longer required.
The extracted orders in the Rhodes proceeding are:
CONSENT ORDER – JUSTICE LE MIERE – DATE: 12 August 2021
PURSUANT TO ORDER 43 RULE 16 AND BY CONSENT IT IS ORDERED THAT:
1.The First and Third Defendants (HPPL/HDIO) give discovery to the Fourth and Fifth Defendants (John and Bianca) of
(a)specified classes of documents; or
(b)documents in relation to specified issues,
to be determined by the Court.
2.HPPL/HDIO on the one hand and John and Bianca on the other are to confer in relation to discovery in accordance with order 1 above as follows:
(a)on or before 13 August 2021, John and Bianca are to:
(i)serve on HPPL/HDIO classes of documents or issues in relation to which they propose discovery be given in accordance with order 1 above; and
(ii)identify any protocol it is proposed will apply to the giving of discovery in accordance with order 1 above;
(b)on or before 20 August 2021, HPPL/HDIO are to respond to the classes of documents or issues in relation to which John and Bianca propose discovery be given in accordance with order 1 above; and
(c)during the period 20 August 2021 to 27 August 2021, John and Bianca and HPPL/HDIO are to confer in relation to the discovery to be given in accordance with order 1 above, (the Conferral).
3.In the event that John and Bianca and HPPL/HDIO reach agreement as a result of the Conferral, they are to file a minute of proposed consent orders by 30 August 2021.
4.In the event that agreement is not reached through the Conferral, on or before 3 September 2021, John and Bianca and HPPL/HDIO are each to file a minute of orders they propose, together with brief written submissions and any affidavit evidence or other material on which they intend to rely.
5.The proceeding is listed before Le Miere J on 6 September 2021 at 10am for determination of the discovery process and orders, such listing to be vacated in the event that a minute of proposed consent orders is filed in accordance with order 2 above, or the parties otherwise advise that the listing is no longer required.
The HPPL parties submit that the orders should be corrected by:
(a)substituting the words 'ORDERS OF THE HONOURABLE JUSTICE LE MIERE' for 'Consent Order' in the heading of the order;
(b)deleting the words 'PURSUANT TO ORDER 43 RULE 16 AND BY CONSENT' in the first line of the orders;
(c)deleting orders 1 and 2 of the orders in the WPPL proceeding and order 1 in the Rhodes proceeding; and
(d)deleting the words 'in accordance with order 1 above as follows in order 3 in the WPPL proceedings and order 2 in the Rhodes proceeding.
Bianca and John agree that the orders should be corrected to remove the words 'CONSENT ORDER' in the heading and the words 'PURSUANT TO ORDER 43 RULE 16 AND BY CONSENT' in the first line of the orders, but oppose the balance of the orders sought on the grounds that the court does not have power to make the correction orders and in any event the proposed corrections do not reflect the decision of the court in its reasons for decision.
Power to correct order
The general rule is that once an order has been extracted it may only be varied by an appeal to the Court of Appeal. There are two relevant exceptions – the slip rule and the inherent jurisdiction or power of the court to prevent an injustice.
RSC O 21 r 10, which embodies the slip rule, provides that clerical mistakes in orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court without an appeal.
In Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4],[8] the Court of Appeal stated:
The cases in this and other comparable jurisdictions where similar rules of court exist establish a number of general principles which govern the application of the slip rule. First, the slip or omission which is said to have given rise to the error must be properly characterised as inadvertent or accidental – the product of oversight rather than afterthought. Second, the 'error' said to arise from the accidental slip or omission must be such that its correction does not require the exercise of an independent discretion nor is it a matter upon which a real difference of opinion might exist [28]. (citations omitted)
[8] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253.
The slip rule reflects the inherent jurisdiction of a court at any time to correct an error in an order arising from a slip or accidental omission. If an order of the court turns out to be incorrect as a result of a mistake made by a judge or court officer, the court has an inherent jurisdiction, quite apart from the slip rule, to rectify the order to avoid injustice.[9]
[9] Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 524; Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 407.
Unfortunately, the August 2021 discovery orders contain errors or mistakes. The first mistake is that they are entitled 'Consent Order'. The orders were not made by consent. They were made after a contested hearing. The second mistake is that the orders are described to have been made pursuant to O 43 r 16 by consent. They were not made pursuant to O 43 r 16. The parties did not file a written consent to the making of orders in those terms. The third mistake in the orders in the WPPL proceedings is a formatting error in numbering sub‑paragraphs (a) and (b) of order 1 as order 2. The third error in order 5 in the WPPL orders is that the date '3 September 2021' appears as '3?September?2021'. The fourth error is that in the Rhodes proceeding the date '3 September 2021' in order 4 appears as '3 September 2021'.
Those parts of the orders are obviously errors. The errors in relation to formatting and dates might be described as clerical errors. The mistakes to record the orders as consent orders and as having been made pursuant to O 43 r 16 are no less obviously errors. They were made in copying or writing out the order. I am unable to explain how those mistakes occurred but they are undoubtedly mistakes and the orders were made in error.
The HPPL parties submit that the terms of orders 1 and 2 in the Rhodes proceeding and orders 1, 2 and 3 in the WPPL proceedings are also in error. They submit that the order should reflect paragraph 27 of the order which states:
I will order that the parties confer about the issues in relation to which the HPPL parties should give discovery, or the categories of documents of which they should give discovery.
The August 2021 discovery orders as extracted do not give effect to that paragraph of the judgment done.
On delivering the judgment I directed the parties to file an agreed or competing minutes to give effect to the judgment. I decided that the minute of Bianca and John filed on 10 August 2021 with minor alterations best gave effect to the judgment.
In hindsight, the corrections proposed by the HPPL to the August 2021 discovery orders might be more efficient from a case management point of view whilst being consistent with the judgment to which they give effect. However, that is an afterthought. Paragraph 1 of the orders was made intentionally for the purpose of giving effect to the decision embodied in the judgment. In that sense the terms of the orders are not an error or mistake.
Discretion
It is appropriate that, in the exercise of the court's discretion, the order should be corrected pursuant to the slip rule or in the exercise of the court's inherent jurisdiction to correct the formatting and clerical errors including deleting the references to the orders by consent orders but not otherwise.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Honourable Justice Le Miere
7 SEPTEMBER 2021
7
6
2