Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] - [2023] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 17] [2023] WASC 72
CORAM:   SMITH J
HEARD:   1, 2 & 7 MARCH 2023
DELIVERED          :   7 MARCH 2023
PUBLISHED           :   10 MARCH 2023
FILE NO/S:   CIV 3041 of 2010
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 2617 of 2012
BETWEEN: WRIGHT PROSEPECTING PTY LTD ACN 008 677 021
Plaintiff
AND
HANCOCK PROSPECTING PTY LIMITED (ACN 008 676 417)
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: D.F.D RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors 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
HAMERSLEY WA PTY LTD
Third Party

Catchwords:

Practice and procedure - Prior order that co‑defendants give discovery to the defendants by categories - Application to dismiss or stay application for discovery by categories on the basis it is an abuse of process - Harman obligation

Practice and procedure - Construction and interpretation of previous court orders regarding discovery and inspection - Whether Harman obligation yields to previous discovery and inspection orders in the court proceedings - Whether orders are necessary to be made nunc pro tunc to allow defendants to use documents discovered in arbitration proceedings for the purposes of their application for discovery of categories of documents

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Order made nunc pro tunc to allow documents discovered in an arbitration to be used for the purposes of the preparation of the Revised Stern Schedule and the Revised Stern Schedule discovery application

Category: B

Representation:

CIV 3041 of 2010

Counsel:

Plaintiff	:	No appearance
First Defendant	:	Mr C Bova SC, Mr D Farinha & Mr S Murray
Second Defendant	:	Mr C Bova SC, Mr D Farinha & Mr S Murray
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Third Party	:	No appearance

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	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens

CIV 2617 of 2012

Counsel:

Plaintiff	:	No appearance
First Defendant	:	Mr C Bova SC, Mr D Farinha & Mr S Murray
Second Defendant	:	Mr C Bova SC, Mr D Farinha & Mr S Murray
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Third Party	:	No appearance

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	:	Deutsch Miller
Sixth Defendant	:	Dentons
Third Party	:	Allens

CIV 2737 of 2013

Counsel:

First Plaintiff	:	No appearance
Second Plaintiffs	:	No appearance
First Defendant	:	Mr C Bova SC, Mr D Farinha & Mr S Murray
Second Defendant	:	No appearance
Third Defendant	:	Mr C Bova SC, Mr D Farinha & Mr S Murray
Fourth Defendant	:	A Hochroth & Mr D Delany
Fifth Defendant	:	A Hochroth & Mr D Delany
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Third Party	:	No appearance

Solicitors:

First Plaintiff	:	Taylor & Taylor Lawyers Pty Ltd
Second Plaintiffs	:	Taylor & 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	:	Deutsch Miller
Seventh Defendant	:	Dentons
Third Party	:	Allens

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

Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287
Alcoa of Australia v Apache Energy Ltd [2014] WASCA 148
Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 254 ALR 198
City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271; (2014) 226 FCR 462
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Elfar (formerly EGS21) v Commonwealth of Australia [2022] FCA 1402
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWSC 567
Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Rogers v Wentworth (Unreported, NSWCA, BC8802033, 18 April 1988), 18
Transfield Philippines Inc v Pacific Hydro Ltd [2022] FCA 623
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268

Table of Contents

1.0 Summary

2.0 Background

3.0 Construction of the discovery orders made on 14 December 2022

3.1 The orders are in part consent orders

3.2 Principles ‑ Process of discovery ‑ Order 26 of the Rules of the Supreme Court 1971 (WA)

3.3 Disposition - The discovery orders authorise use by Bianca and John for discovery against the HPPL parties

4.0 Alternatively an order should be made nunc pro tunc to authorise Bianca and John to use the documents for the purpose of seeking discovery of Revised Stern Schedule categories of documents against the HPPL parties

5.0 Inspection of the Martin Arbitration documents by other parties to the proceedings

SMITH J:

1.0 Summary

Bianca and John seek discovery by HPPL and HDIO (the HPPL parties) of categories of documents set out in a Revised Stern Schedule served on the HPPL parties on 21 December 2022.
The HPPL parties seek that the application for discovery by categories pursuant to the Revised Stern Schedule be dismissed or, alternatively, stayed on the basis that it is an abuse of process on grounds that Bianca and John:
(a)have made use of documents in the Martin Arbitration in breach of the Harman obligation;
(b)the orders made on 14 December 2022 do not permit Bianca and John to use the documents for the purposes of the Revised Stern Schedule discovery application;
(c)have used privileged materials that were inadvertently disclosed to Bianca and John's lawyers; and
(d)the documents sought to be discovered in the Revised Stern Schedule discovery application are for an improper purpose, namely for use in the Martin Arbitration.
All confidential material that is relevant to the application in the proceedings, including the documents required to be served in support of Bianca and John's application including the Revised Stern Schedule, supporting affidavits and submissions have been served only on the parties to the Martin Arbitration who are parties to the proceedings and provided to the Court on a confidential basis. All of these documents until further order are the subject of confidentiality orders and a suppression made by the Court on 2 March 2023. Those confidentiality and suppression orders do not prohibit disclosure of the orders made in these proceedings or these reasons.
Other than Bianca and John and the HPPL parties, the other parties to the proceedings who are parties to the Martin Arbitration did not file or provide to the Court any submissions in respect of Bianca and John's Revised Stern Schedule application.
After hearing argument in respect of the grounds in [2(a) and (b)] of the HPPL parties' application to dismiss or stay the Revised Stern Schedule application, I informed the parties that I would rule on these points before dealing with the remainder of the issues raised in the HPPL parties' application.
For the reasons that follow, I am of the opinion that points raised in support of grounds [2(a) and (b)] are not made out.
Alternatively, in respect of the point raised in [2(b)], to avoid any doubt that the orders made on 14 December 2022 authorise the use of the documents discovered by Bianca and John in accordance with order 1 these orders should be varied nunc pro tunc to add an order to allow Bianca and John to use the Martin Arbitration documents for the purposes of the preparation of the Revised Stern Schedule and the Revised Stern Schedule discovery application.
For the reasons that are set out below, on 7 March 2023 I made the following order in the WPPL proceedings:[1]
1.The orders made on 14 December 2022 (in respect of discovery by the third and fourth defendants (Bianca and John) of documents in the Martin Arbitration, and the Revised Stern Schedule Categories setting out the categories of documents Bianca and John seek discovery from the first and second defendants (HPPL parties)) are varied nunc pro tunc by adding an additional order 11 as follows:
11.Subject to any further order in respect of the documents referred to in proposed classes 55G and 55J, Bianca and John may refer to any of the Martin Arbitration documents by description for the purposes of the preparation of the Revised Stern Schedule and the Revised Stern Schedule discovery application.
[1] An order in the same terms was also made in the Rhodes proceedings.

2.0 Background

In 2021, in each of the proceedings, Bianca and John sought an order for general discovery that the HPPL parties provide discovery in relation to all matters in question in the proceedings.
On 29 July 2021, Le Miere J delivered reasons for decision in which his Honour stated that he would order that the HPPL parties should give discovery to John and Bianca of documents relevant to specified issues or by categories.[2] His Honour's orders were affirmed on appeal on 2 August 2022.[3]
[2] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268.
[3] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
On 6 September 2021, orders were made that the parties were to exchange requests and reply discovery categories by way of a Stern Schedule. John and Bianca served their first Stern Schedule on 17 September 2021, and the HPPL parties served their response on 1 October 2021.
The hearing of the disputed categories was listed for hearing on 29 and 30 November 2021. These dates were vacated on 10 November 2021 for two reasons. First, Bianca and John were late in filing their reply to the HPPL parties' response. Second, there was a jurisdictional question raised in the discovery appeal to the Court of Appeal which if upheld would have had the result that the discovery by categories application would necessarily fall away.[4]
[4] ts 2668.
On 10 December 2021, Bianca and John served their reply to the Stern Schedule requests, and added a further category of documents, bringing the total number of categories sought to be discovered to 77.
Following the dismissal by the Court of Appeal of the discovery appeal on 2 August 2022, at a directions hearing on 15 September 2022, orders were proposed to list the Stern Schedule categories dispute for hearing on 30 November and 1 December 2022. At the directions hearing on 15 September 2022 senior counsel for the HPPL parties informed the Court that, if the HPPL parties made a stay application, it would be premature to have the discovery application heard at the same time because the discovery application may ultimately not be necessary. This submission was not accepted, and orders were made listing the Stern Discovery application for hearing on those dates in November and December 2022. However, the hearing dates were subsequently vacated on application by Bianca and John.
At a directions hearing on 25 November 2022, counsel for Bianca and John stated: (a) the preferable course would be for his clients to be ordered to discover the documents which it had received in the Martin Arbitration which are relevant to these proceedings; and (b) that way, those documents could be used and the remaining discovery requests will be narrowed because of the universe of documents that they already have is significant.[5] In response, senior counsel for the HPPL parties indicated this was a different type of application to the discovery application presently before the Court and that such an application raised some complexities as to the implied undertaking in the Martin Arbitration.
[5] ts 2976 ‑ 2977.
At a directions hearing on 14 December 2022, Bianca and John sought timetabling orders to serve a revised Stern Schedule and programming of the Stern Schedule categories dispute. At the hearing, senior counsel for the HPPL parties stated that (his clients) were prepared to agree to proposed orders 1, 2 and 4(a).
After some debate, the orders sought by Bianca and John were made by the Court, including orders 1, 2 and 4(a) in the form that they proposed.
Orders 1 to 9 of the discovery orders made on 14 December 2022 in the WPPL proceedings are as follows:[6]
[6] An order in the same terms was made in the Rhodes proceedings; these orders are referred to as the discovery orders made on this date to distinguish these orders from other orders made in the proceedings on the same date.
1.On or before 21 December 2022 the Third and Fourth Defendants (Bianca and John) are to give discovery on affidavit of all documents falling within the classes of discovery set out in Annexure A of the documents received by them pursuant to disclosure or produced to them in answer to subpoenas, as evidence or otherwise in the Martin Arbitration that they consider are relevant to the issues which arise from their defence in these proceedings (Martin Arbitration Documents).
2.Until agreement between the First and Second Defendants (HPPL Parties) and Bianca and John, or further order of the Court, Annexure A and the Martin Arbitration Documents are not to be provided for inspection to any of the parties to these proceedings who are not also parties to the Martin Arbitration.
3.On or before 21 December 2022, Bianca and John are to provide a revised Stern Schedule setting out the categories of documents of which they seek discovery from the HPPL Parties pursuant to order 6 of the orders of Le Miere J made on 6 September 2021 (Revised Stern Schedule Categories).
4.On or before 1 February 2023, the parties to these proceedings who are also parties to the Martin Arbitration are to confer with a view to reaching agreement on:
(a)The relevance and any objections to inspection of the Martin Arbitration Documents; and,
(b)The Revised Stern Schedule Categories.
5.Bianca and John are to file and serve written submissions in respect of the Revised Stern Schedule Categories and Martin Arbitration Documents by 8 February 2023.
6.On or before 15 February 2023, any of the other parties to these proceedings who are also parties to the Martin Arbitration are to file with the Court and serve on the parties:
(a)Their response to each of the Revised Stern Schedule Categories; and,
(b)Written submissions and any supporting evidence identifying:
(i)any objections to discovery and/or inspection of any of the Martin Arbitration Documents in these proceedings, and the basis for those objections;
(ii)any objections not captured by (i) above to the Revised Stern Schedule Categories.
7.On or before 22 February 2023, Bianca and John are to file with the Court and serve on the parties:
(a)A reply to any response to the Revised Stern Schedule Categories served pursuant to order 6 (a) above; and,
(b)Written submissions and any supporting evidence in reply to the submissions and evidence served pursuant to order 6 (b) above.
8.The other parties to the proceedings are to file and serve any submissions in respect of the application for discovery by 22 February 2023.
9.These proceedings are listed for a Special Appointment for hearing on 1 and 2 March 2023 at 10.00am to determine Bianca and John’s Revised Stern Schedule Categories and any other related case management orders concerning the Martin Arbitration Documents.
On 21 December 2022, Bianca and John served a Revised Stern Schedule, in clean and marked up versions against the Original Stern Schedule, and also served affidavits of Bianca and John verifying their discovery. Their affidavits contained Annexure A which was a list of 2,047 documents they had received in the Martin Arbitration, that they considered relevant to their defence in the proceedings, and included some documents they had discovered in the Martin Arbitration.
Bianca and John's Revised Stern Schedule contains 48 categories, eight of which are now not pressed. Of the 48 categories 34 are categories not in the Original Stern Schedule served on the HPPL parties in December 2021.
The Revised Stern categories seek documents that have not previously been sought in these proceedings, and seek documents that have not been discovered in the Martin Arbitration.

3.0 Construction of the discovery orders made on 14 December 2022

3.1 The orders are in part consent orders

Determining the legal effect of orders must begin with the terms of the orders themselves.[7]
[7] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185 [58].
The discovery orders made on 14 December 2022 can properly be characterised as in part consent orders, because despite a submission to the contrary by the HPPL parties it is clear that orders 1, 2 and 4(a) were agreed. Orders 3 and 4(b) were in dispute. The remaining orders are programming orders for the hearing and determination of the Revised Stern Schedule application.
The principles that apply to the construction of consent orders are much the same principles that apply when construing a contract.[8] A consent order must be construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties intention. In interpreting and construing a compromise agreement, the Court is not limited to the mere terms of it, it is entitled to go to the admissible surrounding circumstances.[9] The circumstances would include, among other things, the nature of the dispute and that in respect of which the dispute existed.[10]
[8] Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 [29] (Hodgson JA).
[9] Rogers v Wentworth (Unreported, NSWCA, BC8802033, 18 April 1988), 18 (Hope JA) (Samuels JA agreed); applied in Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWSC 567 [39] (Campbell J); Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 [29] (Hodgson JA).
[10] Rogers v Wentworth (Unreported, NSWCA, BC8802033, 18 April 1988), 6 ‑ 7 (Mahoney JA); applied in Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWSC 567 [140] (Campbell J); applied in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 [28] (Hodgson JA)

Where orders are not made by consent, including orders made for reasons given in the judgment, the Court can have regard to the judgment and to other surrounding circumstances, including the pleadings.[11]
[11] Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 [129] ‑ [130], [133] (Santow JA) (Tobias JA agreed); Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185 [58].
In this matter, no reasons for decision were given and the relevant surrounding circumstances are the Court is called upon to construe an interlocutory order for discovery and programming of the hearing of an application pursuant to an order of Le Miere J that required the HPPL parties to provide discovery to Bianca and John by specified issues or categories, which order had been the subject of a dismissed appeal.

3.2 Principles ‑ Process of discovery ‑ Order 26 of the Rules of the Supreme Court 1971 (WA)

The process whereby parties obtain access to each other's documents is governed by O 26 of the Rules of the Supreme Court 1971 (WA). Access is comprised of two stages. The first stage is for a party to provide discovery to another party by delivery of a list of documents verified by affidavit either without an order of the Court (O 26, r 1), or pursuant to an order of the Court (O 6, r 7).
Order 26, r 7(3) provides for discovery by an order of the Court as follows:
On an application, or at any time of its own motion in any proceedings, the Court, having regard to Order 1 rule 4B, may —
(a)order any or all of the parties to give discovery at that stage or at some specified future stage of the action;
(b)as to the documents to be discovered by any party —
(i)order that discovery be given of only those specified documents or specified classes of document;
(ii)order that discovery be given of only those documents that are directly relevant to any specified matter in question or to all matters in question;
(iii)order that discovery be given of all documents relating to any specified matter in question or to all matters in question;
(c)make orders as to which parties are to be given discovery by any specified party;
(d)order that any or all of the parties not give discovery at that stage of the action, or at all;
(e)order any or all parties to make, file and serve an affidavit verifying the party’s list of documents discovered.
The form, content and making of the list of documents requires compliance with the requirements of O 26, r 4.
Order 26, r 4 requires that if it is claimed that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege.
The second stage of providing the other party access to documents is to provide inspection to the other party which includes the right to require the party making discovery to supply a copy of the document in a form in which it is in writing or otherwise capable of being understood by visual means alone.
Pursuant to O 26, r 8 a party who has served a list of documents on any other party in compliance with r 1 or in compliance with an order under r 7 must allow the other party to inspect the documents mentioned in the list, other than any which he, she or it objects to produce, and must when serving the list on the other party also serve on him, her or it a notice stating a time within seven days after the service thereof at which the said documents may be inspected at the place specified in the notice.
Order 26, r 8 must necessarily yield to an order of the Court that is otherwise. In this matter, order 2 of the discovery orders made on 14 December 2022, provides that until further order the right of inspection of Annexure A (being the classes of discovery of the Martin Arbitration documents) and the Martin Arbitration documents themselves are restricted to the parties to the proceedings who are also parties to the Martin Arbitration. Consequently, until further order, only the HPPL parties and the parties to the proceedings who are also parties to the Martin Arbitration have a right of inspection of the documents listed in Bianca and John's affidavits.
Grounds to resist production of discovered documents include legal professional privilege, privilege against self‑incrimination and public interest immunity. These are rules of substantive law, the first two of which are absolute, unless waived by the person entitled to privilege.[12]
[12] Alcoa of Australia v Apache Energy Ltd [2014] WASCA 148 [45] (McLure P) (Buss & Newnes JJA agreed).
Pursuant to O 26, r 9, the Court may make an order imposing restrictions on production of documents. Once a party has inspected documents discovered by another party the inspection party has a right to a copy of the documents and a right to use those documents in the proceedings.
In Alcoa of Australia v Apache Energy Ltd, McLure P set out the rights and obligations that form the right of inspection of discoverable documents as follows:[13]
[13] Alcoa of Australia v Apache Energy Ltd [2014] WASCA 148 [57] (Buss & Newnes JJA agreed).
The following propositions are established by authority and are uncontroversial.
1.a party to an action has a prima facie entitlement to inspect discovered documents, save in cases where the party giving discovery has a positive substantive right to withhold a document from production;
2.the prima facie entitlement to inspect extends to discovered documents containing confidential and/or commercially sensitive information;
3.inspection of discovered documents by or on behalf of a party gives rise to a substantive legal obligation to use the discovered documents solely for the purpose of the action in which they were discovered. The obligation extends to all persons who deal with the discovered documents with knowledge that they were obtained by way of discovery. A breach of this substantive obligation is a contempt of court;
4.ordinarily, the implied undertaking sufficiently protects the party giving discovery;
5.the court has a discretion under O 26 r 9(1) to make an order for production or inspection and a power to impose restrictions and/or conditions on inspection;
6.the court may exercise its power to impose limitations, restrictions or conditions for the purpose of protecting the efficacy of the implied undertaking;
7.the implied undertaking may be insufficient protection in a variety of circumstances, including but not limited to, cases where discovered documents are relevant to a trade rivalry between the parties to the action; and
8.the exercise of the discretion in O 26 r 9(1) will be informed by the nature and scope of the proposed limitations, restrictions or conditions on the inspection of discovered documents.

3.3 Disposition - The discovery orders authorise use by Bianca and John for discovery against the HPPL parties

The discovery orders made on 14 December 2022 must be considered in the context of the earlier order made by Le Miere J on 12 August 2021.
In these proceedings, Bianca and John made an application in 2021, pursuant to O 26, r 7(3) for general discovery, which was not granted.
Instead, Le Miere J pursuant to O 26, r 7(3)(b)(i) made orders on 12 August 2021 and 13 August 2021 that the HPPL parties provide discovery for specified issues or specified classes of documents.[14] It is in respect of this order that orders 3 and 4 of the discovery orders made on 14 December 2022 are directed.
[14] The order made in the WPPL proceedings was made on 12 August 2021 and the order made in the Rhodes proceedings was made on 13 August 2021.
One of the relevant surrounding circumstances to the construction of the orders made on 14 December 2022 is that from the time the first Stern Schedule was served on 17 September 2021 the HPPL parties and Bianca and John have been in dispute about the content of the specified classes of discovery. In accordance with the proper practices of the Court, order 4(b) which was not made by consent required the parties to the proceedings who were also parties to the Martin Arbitration to confer with a view to reaching agreement on the categories. Order 4(a) which was made by consent required the parties to the proceedings who are parties to the Martin Arbitration to also confer with a view to reaching agreement on the relevance of any objections to inspection of the Martin Arbitration Documents.
The form of order 1 is clear and without ambiguity. Order 1 required Bianca and John to provide discovery on affidavit of all documents falling within the classes of discovery set out in Annexure A (of the order) of the Martin Arbitration documents they considered relevant to the issues which arise from their defence in the proceedings, by 21 December 2022. It appears there was no Annexure A annexed to the order, nor was an Annexure A prepared or provided to the HPPL parties prior to the HPPL parties consenting to order 1 being made. However, this is not material because Bianca and John in their affidavits discovered a list of all of the Martin Arbitration documents they considered relevant to the issues which arise from their defence in the proceedings.
The purpose of order 1 and order 2 is for Bianca and John to give notice to, and access to in the Court proceedings, the Martin Arbitration documents to the HPPL parties and any other party who is also a party to the Martin Arbitration of the Martin Arbitration documents that Bianca and John considered are relevant to the issues of their defence in the proceedings.
If Bianca and John had not obtained an order for discovery of the Martin Arbitration documents on 14 December 2022, Bianca and John would not have been permitted to rely upon the Martin Arbitration documents for any purpose in these proceedings, because the Martin Arbitration documents are the subject of a Harman obligation.
The effect of a Harman obligation was recently summarised by the Court of Appeal in Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd as follows:[15]
Where one party to litigation is compelled, by reason of a rule or 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 the documents or information for any purpose other than that for which they are given, unless they are received into evidence. This principle applies to a range of material, including discovered documents, answers to interrogatories and documents produced on subpoena.
Traditionally, the obligation not to disclose was described as an implied undertaking. However, properly understood it is an obligation of substantive law.
[15] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [69] ‑ [70]; applying Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96], [106] ‑ [108]; Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149 [25].
In Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd, in preparing a writ and statement of claim, the appellant's solicitors had inadvertently used documents that had been discovered or produced under subpoena in earlier proceedings. The use of the documents was found to be a breach of the substantive obligation in Harman.[16] The appellant applied for leave to be released from the obligation, including retrospectively, and the respondent applied to dismiss the primary proceedings as an abuse of process. The Court of Appeal granted the appellant leave to appeal against the decision of the Master rejecting the appellant's application, set aside the orders of the Master, and granted leave nunc pro tunc to the appellant and to its director releasing them from the obligation not to use the documents.
[16] See also Transfield Philippines Inc v Pacific Hydro Ltd [2022] FCA 623 and Elfar (formerly EGS21) v Commonwealth of Australia [2022] FCA 1402 where it was held that an application should be made for release of a party from the Harman undertaking prior to making an application to a Court for use of the documents that are subject to the undertaking in applications for preliminary discovery made prior to the institution of proceedings.
It is, however, not always necessary for a party who wishes to use documents subject to the Harman obligation in different proceedings to obtain an order releasing from the obligation prior to being able to use the documents. This is because, the Harman obligation will yield to discovery and production orders of a court.
An order for discovery in the form made by order 1 is of the kind of compulsive process recognised by Mason CJ in Esso Australia Resources Ltd v Plowman to which the implied obligation must yield.[17] Consequently, the effect of order 1 is as Bianca and John contend. Its effect is to displace the obligation that they would otherwise have to the court and the tribunal to obtain a release from the Harman undertaking to use these documents to provide discovery of the Martin Arbitration documents they consider to be relevant in these proceedings.
[17] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 33 (Mason CJ).
The effect of a discovery order and an order for production by a court is illustrated by the facts in Alcoa of Australia Ltd v Apache Energy Ltd.[18]
[18] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287.
In Alcoa of Australia Ltd v Apache Energy Ltd, the plaintiff sought orders for production of prosecution documents in Magistrates Court proceedings and also sought an order that the defendants file and serve an amended list of documents in which each of the documents to which the defendants objected to producing were described sufficiently to enable them to be identified.[19]
[19] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287.
The defendants had given discovery but objected to producing documents relevant to the proceeding in the Court which were documents that had been produced by the prosecution or by some of the defendants in Magistrate Court proceedings on grounds that the documents were subject to an implied undertaking that they were not to be used for any purpose other than in proceedings to which they were produced.
Le Miere J in Alcoa of Australia Ltd v Apache Energy Ltd found that the defendants were not entitled to resist production of the documents for inspection on grounds that they were not required or were unable to produce documents because of the implied undertaking or obligation as to discovery. His Honour summarised the authorities on this point as follows:[20]
Where one party to litigation is compelled 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: Hearne v Street (2008) 235 CLR 125 [96] (Hayne, Heydon, Crennan JJ). However 'the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection': Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 (Mason CJ) [33]. Documents subject to the implied obligation are discoverable in other legal proceedings: Geneva Finance Ltd (Receiver and Manager Appointed) v Boys [2001] WASC 348; Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436; Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 398; Griffiths & Beerens Pty Ltd v Duggan [2008] VSC 230; In the Matter of Clarecastle Pty Ltd (in liq) [2011] NSWSC 553.
[20] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [12].
Le Miere J observed that the authorities also establish that the implied obligation does not give rise to a privilege from producing documents.[21] His Honour then went on to consider whether he should exercise the discretion to order inspection of the documents subject to the implied obligation pursuant to O 26, r 9 and r 11. Importantly, his Honour observed that the implied obligation is not of itself a ground for resisting an order for production,[22] and then went on to find:[23]
The principal reason advanced by the defendants for resisting inspection is that they obtained the documents from the Department by the compulsory process of the Magistrates Court and thus are subject to the implied obligation. The primary rationale for the imposition of the implied obligation is the protection of privacy. Production of documents under compulsory court process is an invasion of the right of the individual to keep his own documents to himself. The purpose of the obligation has been to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party's documents. It is in general wrong that a party who is compelled by law to produce documents for the purpose of particular proceedings should be in peril of having those documents used by the other party for some purpose other than the purpose of the particular legal proceedings and, in particular, that they should be made available to third parties who might use them to the detriment of the party who has produced them on discovery. It has been said that the implied obligation is a matter of justice and fairness, to ensure that a person's privacy and confidentiality are not invaded more than is necessary for the purposes of justice: Taylor v Serious Fraud Squad [1999] 2 AC 177, 210.
[21] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [13]; applying Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 254 ALR 198 [47] ‑ [50].
[22] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [18].
[23] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [21].
His Honour then had regard to the fact that the prosecution had been informed of the application for inspection and had advised it did not object to the discovery of the documents in the proceedings.[24] His Honour made an order that the defendant should file and serve an amended list of documents in which each of the documents referred to as the documents produced by the prosecution in the Magistrates Court proceedings were described sufficiently to enable each to be identified.
[24] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [24].
During the course of hearing in this application to dismiss or stay the Revised Stern Schedule application, both parties referred to and relied upon the observations and findings made by Rares J in City of Swan v McGraw‑Hill Companies Inc.[25] In that matter, the question was whether the City of Swan was required to discover documents it had obtained during earlier proceedings in which it had acted as an applicant. The documents were documents that had been discovered by the respondent in the proceedings before Rares J, and were obtained from third parties on subpoena.
[25] City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271; (2014) 226 FCR 462.
Importantly, Rares J followed the reasoning given by Le Miere J in Alcoa of Australia Ltd v Apache Energy Ltd, and found that the documents obtained during the course of the previous proceedings were discoverable in the proceedings before him but because they were obtained from third parties under a compulsory process they were therefore held by the City subject to the implied undertaking not to disclose the contents or the information in them without the leave of the Court. In those circumstances, his Honour found that the third parties should be given an opportunity to advance whatever interest they may have in restricting the respondent's right of inspection of the documents.[26]
[26] City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271; (2014) 226 FCR 462 [10] ‑ [16].
In considering whether the Court should strike out Bianca and John's application for discovery by categories pursuant to their Revised Stern Schedule on grounds of an abuse of process, the Court is only dealing with the question whether Bianca and John's application against the HPPL parties is an abuse of process.

Other than order 2 which provides for inspection of the Martin Arbitration documents by the parties to the Martin Arbitration who are parties to these proceedings, the Court has not yet being called upon to make any orders for inspection of the documents by the other parties.
The only application for discovery presently before the Court that requires to be determined is whether the HPPL parties should discover any of the documents Bianca and John seek in their Revised Stern Schedule categories. Those categories seek the discovery of documents not discovered in the Martin Arbitration. However, the categories are drawn from references in the Martin Arbitration documents to other documents, that are or may be in existence.
The Court is not presently being called upon to considering whether any of the Martin Arbitration documents listed by Bianca and John in their affidavit of discovery pursuant to order 1, should be inspected by any party to the proceedings that is not a party to the Martin Arbitration. This is because until further order the parties to the proceedings who are not parties to the Martin Arbitration are not entitled to inspect Bianca and John's list of documents. In addition, until there is an order that that list or another list be served by Bianca and John on any of the non‑parties to the Martin Arbitration who are parties to the proceedings, those parties are not entitled to inspect those documents.
Turning specifically to the question whether the discovery orders authorise Bianca and John to use the Martin Arbitration documents for the purpose of identifying their Revised Stern Schedule categories, the HPPL parties argue that in the absence of obtaining a release from the Harman obligation by the Martin Arbitration, Bianca and John require the clear informed consent of the HPPL parties and the consent of the other parties to the arbitration and the consent of the persons who produced any documents under compulsion to the Martin Tribunal to use the documents beyond giving discovery by producing a list of documents on affidavit.
This submission, however, ignores the effect of order 2 of the discovery orders, which order is authorised by O 26, r 9. Order 2 of the discovery orders is an order providing for inspection (and restricting inspection by the non‑parties to the Martin Arbitration until further order) of the Martin Arbitration documents by the HPPL parties and any other party to the proceedings who are a party to the Martin Arbitration.
The effect of the order of inspection in order 2 must necessarily be that, subject to any claim of privilege in respect of specified documents, the HPPL parties and any other party to the proceedings who are a party to the Martin Arbitration, may not only inspect each of one of those documents in these proceedings but that right of inspection carries with it the right to deploy any of those documents against Bianca and John.
The corollary of the right of the Martin Arbitration parties to these proceedings to use the documents they have inspected, pursuant to order 2, against Bianca and John, must necessarily be that Bianca and John may use the Martin Arbitration documents they have discovered pursuant to order 1, against the HPPL parties in their application for discovery of categories of documents.
However, until further order, the effect of order 1 and order 2 is that the parties who are not parties to the Martin Arbitration have no right to inspect the Martin Arbitration documents listed by Bianca and John as relevant to the proceedings.
For these reasons, it is clear that the effect of orders 1 and 2 are to authorise Bianca and John to use the Martin Arbitration documents for the purposes of discovering those documents in these proceedings pursuant to the restrictions in order 2, and to use the Martin Arbitration documents in these proceedings for the purposes of the Revised Stern Schedule application.

If I am wrong in respect of the construction of the effect of order 2 of the discovery orders, and that Bianca and John are not entitled to use the Martin Arbitration documents for the purpose of their Revised Stern Schedule categories application against the HPPL parties because the HPPL parties' right of inspection and use of the documents pursuant to order 2 does not carry with it a right of use of those documents by Bianca and John against the HPPL parties, I am of the opinion that the orders made on 14 December 2022 should be varied.
The reasons why I am of the opinion these orders should be varied nunc pro tunc to allow Bianca and John to use the Martin Arbitration documents for the purposes of the Revised Stern Schedule application are first that I have not found that Bianca and John have deliberately abused the process of this Court by discovering in these proceedings the documents that have been produced in the Martin Arbitration. Bianca and John have been very careful to only provide their affidavits and list of the Martin Arbitration documents to the parties to the Martin Arbitration and have taken steps to ensure the confidentiality of those documents through conferral and the making of consent orders.
Second, had such an order been proposed by Bianca and John on 14 December 2022, the interests of justice would have lain in permitting them to use these documents for the purposes of preparation of the Revised Stern Schedule and the Revised Stern Schedule discovery application.
Third, it is common ground that matters pleaded by Bianca and John in their defences in both the WPPL and Rhodes proceedings are pleaded in the Martin Arbitration, notwithstanding there are additional matters pleaded by Bianca and John in the Martin Arbitration which are not pleaded in the proceedings in this Court. This has arisen because the counterclaims of Bianca and John in the proceedings were stayed and referred for hearing and determination in the Martin Arbitration, and the defences of Bianca and John in the proceedings in the Court are replicated in their counterclaim that was stayed and referred.
Consequently, it is not difficult for this Court to contemplate that a large number of the documents discovered in the Martin Arbitration that are relevant to their claim in the Martin Arbitration are likely to be relevant to the defences of Bianca and John in the Court proceedings.
Fourth, it is appropriate to make a nunc pro tunc order in circumstances where the Revised Stern Schedule application has been heard in camera, in the presence of only the HPPL parties and other parties to the Martin Arbitration, and not in the presence of the plaintiffs WPPL and Rhodes, or any other party to these proceedings who is not a party to the Martin Arbitration.

5.0 Inspection of the Martin Arbitration documents by other parties to the proceedings

Before the Court is called upon to make an order that a party to the proceedings who are not parties to the Martin Arbitration are entitled to inspect any of the Martin Arbitration documents, the court should first hear from all of the parties as to whether the Court should require that the persons who either discovered or produced by a compulsory process documents to the Martin Arbitration be given an opportunity to advance whatever interest they may have in restricting the other parties right of inspection of the documents.
It may be that if the parties to the proceedings agree that this is a proper course to take that only after that opportunity has been afforded to the persons who have produced documents to the Martin Arbitration under compulsion who are not parties to the proceedings that, subject to any objections to discovery or inspection if received, being upheld, the Court should only then consider making an order allowing the parties to the proceedings who are not parties to the Martin Arbitration inspection of the Martin Arbitration documents discovered by Bianca and John in accordance with order 1 of the orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SO
Associate to the Judge
9 MARCH 2023