Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] - [2023] WASC 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 18] [2023] WASC 82
CORAM:   SMITH J
HEARD:   7 MARCH 2023
DELIVERED          :   27 MARCH 2023
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
HAMERSLEY WA PTY LTD
Third Party
(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 Defendants by Counterclaim
(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 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
(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 LIMITED
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 Defendants by Counterclaim
(BY COUNTERCLAIM)

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

Practice and procedure - Discovery - Allegation discovery of documents sought for use in arbitration proceedings or to circumvent discovery rulings made in arbitration proceedings not made out

Practice and procedure - Discovery principles considered - Court not confined to test of direct relevance

Practice and procedure - Allegation that party seeking discovery of documents by categories misused privileged materials inadvertently disclosed not made out

Legislation:

Rules of the Supreme Court 1971 (WA), O 26

Result:

Application to dismiss or stay co‑defendants' Revised Stern Schedule application for discovery dismissed

Category: B

Representation:

CIV 3041 of 2010

Original Action

Counsel:

Plaintiff	:	No appearance
First Defendant	:	Mr C Bova SC & Mr S Murray
Second Defendant	:	Mr C Bova SC & Mr S Murray
Third Defendant	:	Mr A Hochroth
Fourth Defendant	:	Mr A Hochroth
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

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 S Murray
Third Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fifth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Seventh Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
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 S Murray
Twelfth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
Second Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
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	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
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 & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

CIV 2617 of 2012

Counsel:

Plaintiff	:	No appearance
First Defendant	:	Mr C Bova SC & Mr S Murray
Second Defendant	:	Mr C Bova SC & Mr S Murray
Third Defendant	:	Mr A Hochroth
Fourth Defendant	:	Mr A Hochroth
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 2737 of 2013

Original Action

Counsel:

First Plaintiff	:	No appearance
Second Plaintiffs	:	No appearance
First Defendant	:	Mr C Bova SC & Mr S Murray
Second Defendant	:	No appearance
Third Defendant	:	Mr C Bova SC & Mr S Murray
Fourth Defendant	:	Mr A Hochroth
Fifth Defendant	:	Mr A Hochroth
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 Australia
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 S Murray
Third Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fifth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Seventh Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
Second Plaintiff by Counterclaim	:	Yeldham Price O'Brien Lusk
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
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	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	No appearance
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 & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

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

Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] [2021] WASC 237
Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Cove House Illiquid Investments Dac v Ya Global Investments LP [2018] WASC 349
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Donaldson v Nolan [2015] WASC 194
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217
Maek Pty Ltd v Ibrahim [2022] WASC 285
Perpetual Trustees Co Ltd v Burniston [2012] WASC 26
Roe v The State of Western Australia [2013] WASC 130
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93
Singh v Friedman [2013] WASC 78
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2022] WASC 72
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

Table of Contents

1.0 Summary – Application by the HPPL parties to dismiss or stay the Revised Stern Schedule application on grounds the documents are sought for an improper purpose

2.0 Whether Bianca and John seek discovery of the documents for the purposes of use in the Martin Arbitration

2.1 Whether an inference can be drawn from an inadvertent reference to documents being relevant to key factual issues in the Martin Arbitration?

2.2 Whether an improper purpose can be implied from Bianca and John's submissions in chief set out in the Revised Stern Schedule

2.3 Whether Bianca and John seek by the Revised Stern Schedule discovery application to circumvent rulings made by the Tribunal in the Martin Arbitration?

2.4 Whether the categories of documents sought in the Revised Stern Schedule would be more likely to have forensic benefit in the Martin Arbitration or in challenging an award of the Martin Arbitration than in the proceedings?

2.5 Whether in the absence of any undertaking made by Bianca and John not to use any documents discovered as a result of the Revised Stern Schedule discovery application in the Martin Arbitration or to challenge an award made by the Martin Arbitration it is open to infer that Bianca and John intend to use the documents for that purpose?

3.0 Whether categories 55J and 55G have been formulated by the misuse of inadvertently privileged materials

4.0 Disposition of the HPPL parties' chamber summonses to dismiss or stay Bianca and John's discovery application

SMITH J:

1.0 Summary – Application by the HPPL parties to dismiss or stay the Revised Stern Schedule application on grounds the documents are sought for an improper purpose

On 1 and 2 March 2023, the Court heard part of an application made by the HPPL parties to dismiss or stay Bianca and John's discovery application on grounds of abuse of process. The application was heard in camera, and only in the presence of parties to the proceedings who are parties to the Martin Arbitration. At the conclusion of the hearing on 2 March 2023, I informed the parties that I would rule upon the first part of the application before hearing argument on the remaining part of the application to dismiss or stay.
On 7 March 2023, I made orders in respect of the first part of the HPPL parties' application. In reasons for decision published on 10 March 2023 it was found that Bianca and John were entitled to use documents discovered in the Martin Arbitration for the purposes of the Revised Stern Schedule discovery application.[1]
[1] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72.
These reasons dispose of the second part of the HPPL parties' application to dismiss or stay Bianca and John's Revised Stern Schedule application.
The HPPL parties claim John and Bianca have abused the processes of the court:
(a)by seeking discovery of documents for an improper purpose, namely for use in the Martin Arbitration; and
(b)by using privileged materials that were inadvertently disclosed to Bianca and John's lawyers.
For the reasons set out below:
(a)I am not satisfied that Bianca and John seek discovery of categories of documents in the Revised Stern Schedule for the purposes of use in the Martin Arbitration;
(b)I am not satisfied that inadvertently disclosed privileged materials were used by John and Bianca's lawyers to seek discovery of documents answering the description in proposed Categories 55G and 55J; and
(c)I am of the opinion that the HPPL parties' application should be dismissed.

2.0 Whether Bianca and John seek discovery of the documents for the purposes of use in the Martin Arbitration

The HPPL parties claim that it can be inferred from five circumstances that the Revised Stern Schedule discovery application was brought for an improper purpose.

2.1 Whether an inference can be drawn from an inadvertent reference to documents being relevant to key factual issues in the Martin Arbitration?

[Redacted].
[Redacted].
Clearly, the references in proposed Category 73A to issues in the Martin Arbitration are a slip.
The fact that these slips were made either as a circumstance in itself, or when regard is had to all of the other circumstances relied upon by the HPPL parties, is not compelling, nor sufficient, to draw an inference that the purpose of John and Bianca's application is to use any documents discovered as a result of the Revised Stern Schedule discovery application, in the Martin Arbitration.

2.2 Whether an improper purpose can be implied from Bianca and John's submissions in chief set out in the Revised Stern Schedule

The HPPL parties contend the second circumstance that raises an improper purpose is that none of the submissions in chief made by Bianca and John in respect of relevance justify the relevant categories by reference to WPPL's reply to Bianca and John's defence.
[Redacted]. This submission is misconceived. Whether the HFMF Trust was established, and when it was established and on what basis is squarely in issue in these proceedings. This issue is raised in par 297 of Bianca and John's defence and in par 297 of its Reply to Bianca and John's defence WPPL pleads that the HFMF Trust did not exist.
The HPPL parties also make the same submission in respect of proposed Categories 2D and 5A. However, this submission does not assist because by 20 February 2023, the HPPL parties were on notice that Bianca and John do not press proposed Categories 2D and 5A.

For these reasons, this submission fails.

2.3 Whether Bianca and John seek by the Revised Stern Schedule discovery application to circumvent rulings made by the Tribunal in the Martin Arbitration?

The third circumstance the HPPL parties raise is an argument that it is an abuse of process to seek discovery of categories of documents that have been the subject of failed requests in the Tribunal. Notwithstanding the Tribunal rulings were interlocutory, the HPPL parties claim such a collateral attack is an impermissible abuse of process, and should not be permitted.
[Redacted].
[Redacted].
[Redacted].
[Redacted].
[Redacted].
The HPPL parties argue that because Bianca and John and the HPPL parties have engaged in extensive and lengthy discovery disputes which have been the subject of procedural orders and the delivery of written reasons by the Tribunal in the Martin Arbitration, in circumstances where the test of direct relevance was applied by the Tribunal, this test should be applied by this Court.
Contrary to the submissions made by the HPPL parties, the well‑established principles that apply in respect of collateral attacks,[2] cannot be said to be properly raised by what is sought by Bianca and John in their Revised Stern Schedule.
[2] Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536, 541 ‑ 542 (Lord Diplock) Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93 [8] ‑ [20] (Buss JA); applied Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119 [28] (Murphy & Mitchell JJA).
Bianca and John's Revised Stern Schedule application cannot be properly characterised as re-litigation of a failed application in earlier proceedings. This is because Bianca and John are not prohibited from running parallel claims in different proceedings, in circumstances where their defences in the Court proceedings are not against the HPPL parties but against WPPL and Rhodes.[3] In addition, the principles that are to be applied by the Court in determining whether any of the documents sought by Bianca and John should be discovered are different to the narrow test of direct relevance applied by the Tribunal.
[3] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77.
The service of the Revised Stern Schedule on the HPPL application follows orders made by Le Miere J in the proceedings in 2021 that the HPPL parties provide discovery to Bianca and John of specified classes of documents or documents in relation to specified issues.
The applications made by Bianca and John for general discovery against the HPPL parties in the proceedings in 2021, were treated by Le Miere J as applications for orders for discovery under O 26 r 7 of the Rules of the Supreme Court 1971 (WA).[4] After hearing the parties, his Honour made orders in the proceedings in August 2021 requiring the HPPL parties to give discovery to Bianca and John of specified classes of documents or documents in relation to specified issues, to be determined by the Court.
[4] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268 [4].
In making the orders, his Honour acted pursuant to the power conferred by O 26 r 7(3)(b)(i), to order the HPPL parties to provide discovery to Bianca and John. Order 26 r 7(3)(b)(i) provides:
(3)On an application, or at any time of its own motion in any proceedings, the Court, having regard to Order 1 rule 4B, may
(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 documents;
…
Order 26 r 7(3)(b) sub para (i) is to be distinguished from the power conferred by sub para (ii) which provides power to 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, and sub para (iii) which provides a power to order discovery be given of all documents relating to any specified matter in question or to all matters in question.
It is clear from words conferring power in O 26 r 7(3)(b)(i) that an order for discovery of specified documents or specified classes of documents is not conditioned by any test of direct relevance, which test expressly conditions the power in O 26 r 7(3)(b)(ii).
In support of their contentions, the HPPL parties argue that the test that applies for further and better discovery in this Court is different to the test that is applicable to an application for orders for discovery where no discovery has been previously provided, where the usual order in commercial proceedings in the Court is that only documents that are directly relevant to an issue are required to be discovered. This distinction cannot be drawn. Each application for a discovery is to be considered by the principles set out in [34] to [46] below.
This submission fails to take account of the effect of O 26 r 7(1). Applications for orders as to discovery pursuant to O 26 r 7(1) may be made at any time by a party whose request under r 1 has not been satisfied, whether or not the party has complied with the request.
Order 26 r 7(3)(b) is often applied in applications for further and better discovery, rather than for applications for discovery where there has been no order as to discovery by a respondent. This is because it is generally accepted that initially parties to proceedings will give discovery without order pursuant to O 26 r 1, and it is usually only where there is a dispute as to whether discovery is adequate or not that applications for further and better discovery are made either pursuant to O 26 r 6 or O 26 r 7.
In Cove House Illiquid Investments Dac v Ya Global Investments LP, I stated in the context of an application for further and better discovery under O 26 r 6 (which powers are subject to the same legal test as the test for a discovery order under O 26 r 7[5]):[6]
Whilst in more recent times orders requiring discovery are usually restricted to discovery of documents that are directly relevant to an issue, it remains open to parties to an action to make an application to the court for an order for discovery of specific classes or categories of documents that directly or indirectly enable the party seeking discovery to advance his or her case or damage the case of his or her adversary.
[5] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [27] ‑ [29].
[6] Cove House Illiquid Investments Dac v Ya Global Investments LP [2018] WASC 349 [27].
Notwithstanding the observation I made in Cove House, the absence of an order made by the Court, pursuant to O 26 r 7(3)(b)(ii), that discovery be given of only those documents that are directly relevant to any specified matter in question or to all matters in question, the test applied by this court for discovery is not only different to, it is wider than the test of direct relevance applied by the Tribunal.
In Perpetual Trustees Co Ltd v Burniston, Edelman J explained that the powers of discovery in O 26 r 7(3)(b) contain the widest powers.[7]
[7] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [23].
In Perpetual Trustees Co Ltd v Burniston, Edelman J found that there are three requirements that need to be satisfied in an application for discovery:[8]
(a)the court has reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence;
(b)those documents sought are relevant; and
(c)those documents ought to have been disclosed.
[8] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [29].
Relevant documents are documents that would either advance a party's case or damage his or her opponent's case, or lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case.[9]
[9] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [30].
In Singh v Friedman, Allanson J observed:[10]
Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered.
[10] Singh v Friedman [2013] WASC 78 [4].
This point was explained by Master Newnes in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd, who said:[11]
In determining whether to make an order for further discovery, the Court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273. The Court must be able to infer from the nature of the document in question that it is relevant; it will not speculate as to its relevance. Relevance may either appear from the nature of the document or its contents, and if the latter then there must be a prima facie case as to the contents before an order for further discovery will be made: Astra-National Productions Ltd v Neo Art Productions Ltd [1928] WN 218 at 219. Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant: see Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904 at 915 and the discussion in PDM Australia Pty Ltd v Kellogg Overseas Corporation & Ors, unreported; SCt of WA; Library No 6646; 26 March 1987 at [5 ‑ 14].
In determining whether a document relates to a matter in question, and, therefore, whether it ought to have been discovered, the test is that set out in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (supra) as follows:
'It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may ‑ not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words "either directly or indirectly" because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.'
The matters in issue are to be determined by reference to the pleadings: Mulley v Manifold (1959) 103 CLR 341 per Menzies J at 345. But regard must also be had to the conduct and admissions of the parties and the nature of the action: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178 at 186.
It is also important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery: Kent Coal Concessions Ltd v Duguid (supra) at 910. Moreover, amendments to the Rules in more recent times, including the introduction of O 1 r 4B and O 26 r 7, emphasise the need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery.
[11] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] ‑ [6].
The task of considering whether to make an order for discovery is a balancing exercise. Justice Allanson articulated this point in Singh as follows:[12]
The discretion is to be exercised having regard to the timely and cost effective disposal of litigation: Corporate Systems Publishing Pty Ltd v Lingard [No 3] [2008] WASC 1 [7]; Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [6]. On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice: Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 321. Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation': Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, 128. The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings: Science Research Council v Nasse [1979] UKHL 9; [1980] AC 1028, 1065.
[12] Singh v Friedman [2013] WASC 78 [3].
The principles in Singh were adopted by Martin CJ in Roe v The State of Western Australia who went on to observe:[13]
Put shortly, it is now established that general discovery is no longer regarded as a right. Rather, the extent of the obligation to give discovery and the entitlement to discovery will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court 1971 (WA) and in particular the principles enunciated in O 1 r 4A and r 4B. Those principles include and expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties.
In the context of discovery, this means that when issues arise with respect to the breadth of the discovery to be ordered, the ambit of discovery will be determined taking into account the cost and delay associated with the provision of discovery over a broader ambit, as compared to the forensic benefit likely to be derived from the provision of discovery over that broader ambit. Unless the cost and delay involved in the provision of that discovery is proportionate to the forensic benefit likely to be derived from a broader ambit of discovery, and to the value and importance or complexity of the subject matter of the proceedings, a narrower ambit of discovery will be ordered.
The only proposition I would add to the principles enunciated in the defendant's written submissions is the proposition that at least in cases such as this, when general discovery has not been sought or ordered, adjectival or indirect relevance of itself will no longer determine whether or not a document will be ordered to be discovered, and in particular the approach to general discovery enunciated in cases like Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 will no longer guide the court in relation to issues with respect to informal discovery.
Rather, those issues will be determined by the balancing of the likely forensic benefit to be obtained against the risk of cost and delay in the manner that I have described, viewed in the context of the value, importance and complexity of the subject matter of the proceedings. In that context, the forensic significance of the issue in respect of which discovery is sought and the relevance of the documents sought to that issue, in a qualitative sense, will be pertinent to the proper disposition of any application for discovery.
[13] Roe v The State of Western Australia [2013] WASC 130 [10] ‑ [13].
The approach of Martin CJ in Roe does not, however, exclude the application of the expansive 'line of inquiry' test of relevance in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co[14] when considering an application for discovery in respect of categories of documents.
[14] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55.
However, satisfaction of the low threshold of relevance in the Peruvian Guano sense will not necessarily justify an exercise of discretion to order discovery. A claim to a broader ambit of discovery must be justified by whether the cost and delay involved in the wider ambit is proportionate to the forensic benefit likely to be derived from the wider ambit, in the context of the value, importance and complexity of the subject matters of the litigation.[15]
[15] Donaldson v Nolan [2015] WASC 194 [39] (Beech J). (Order 26, rule 7).
In exercising its discretion whether to order discovery in large commercial cases the Court will take into account pragmatic considerations of reasonable proportionality in relation to inhibiting unduly oppressive discovery burdens, where the task can be both enormous and confronting.[16] However, in such cases relevance is not the only factor that the Court should consider.
[16] Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] [2021] WASC 237 [13] (Kenneth Martin J).
The established principles were recently reiterated by Quinlan CJ in a case where a plaintiff had made an application for discovery of five categories of documents, which following a text search review of documents had generated an estimated 60,000 documents.[17] Although the outcome of that application is immaterial to this application before the Court, his Honour pointed out in Maek Pty Ltd v Ibrahim that the authorities establish the following principles for determining applications for discovery, including discovery by categories are as follows:[18]
[17] Maek Pty Ltd v Ibrahim [2022] WASC 285.
[18] Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [27].
The contemporary principles in relation to discovery are now well‑established. They include:
1.A party does not have a strict entitlement to an order for discovery.
2.The power to order discovery is discretionary.
3.The discretion is to be exercised having regard to the timely and cost effective disposal of litigation.
4.On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.
5.Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'.
6.The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings.
7.Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered.
…
…
As the Court of Appeal recently concluded, the Court's power to order discovery under O 26 r 7 of the Supreme Court Rules, extends to any party to the action, whether or not those parties have joined issue in relation to the particular matter the subject of the application for discovery. As the Court recognised, however, that broad power is hedged with considerable discretion, to be exercised in light of the principles I have set out above.
The references made by Quinlan CJ to the recent Court of Appeal reasons in the last passage above of his Honour's remarks in Maek Pty Ltd v Ibrahim is to the reasons given for dismissing the appeal against the orders made by Le Miere J in these proceedings requiring the HPPL parties to give discovery to Bianca and John of documents relevant to specified issues or by categories.[19]
[19] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [281] ‑ [297] (Quinlan CJ & Beech JA).
Consequently, as the cases make clear, the ultimate test is whether the discovery that is sought by a party is necessary for fairly disposing of the proceedings, and the power to order discovery is to be exercised having regard to the case management principles in O 1 r 4A and r 4B.
It must necessarily follow that:
(a)where the Court is required to apply a different and broader test than that applied by the Tribunal, and
(b)in circumstances where in the Martin Arbitration the contest in respect of the overlapping issues in the Martin Arbitration is between the HPPL parties and Bianca and John, and in the Court proceedings the contest is between Bianca and John and WPPL and Rhodes;
as a matter of principle, leaving aside production of documents over which privilege is claimed, no issue of collateral attack on rulings made by the Tribunal can arise that could amount to an abuse of process.

However, the practical effect of the HPPL parties' defences and Bianca and John's defences are that a considerable number of factual disputes are likely to arise in the Court proceedings that will result in a contest as to those facts between them. This is because they are the parties who are in a position to adduce evidence about the relevant factual circumstances.
Although Bianca and John and the HPPL parties are co-defendants to WPPL claims, and even though they are not joined against each other in the pleadings, as counsel for Bianca and John point out many of the factual issues raised by Bianca and John in their defences will be fought out between Bianca and John and the HPPL parties. This is because of the very detailed factual issues pleaded by the HPPL parties and Bianca and John include allegations of breach of fiduciary duty by Lang, factual issues about Gina contending and Lang disputing that Lang had misused use the power of the Governor's Share, and the circumstances relating to the transfer of the shares and the placing of mining assets in HFMF rather than in HPPL, which issues go to the 1998 agreement.[20]
[20] ts 50 -51 and 53.
However, even when it is accepted that there will be factual contests between Bianca and John and the HPPL parties, in circumstances where the Court is bound to make its own findings of fact in parallel proceedings, and where a different and broader test for discovery of categories of documents is to be applied by the Court, it cannot be found that seeking to obtain categories of documents which have been the subject of failed requests in the Martin Arbitration proceedings constitutes an abuse of process.
First, it is not an abuse of process for Bianca and John to seek discovery of documents or categories of documents which were the subject of refused requests to the Tribunal in the Martin Arbitration.
Second, it cannot be an abuse of process for Bianca and John to seek discovery of documents which the HPPL parties claim that are the subject of rulings made by Martin Arbitration that are either in part or wholly privileged from production. It is a fundamental principle that discovery of privilege documents in a list does not entitle a party who is served with a copy of that list to inspect any documents or parts of documents over which a proper claim of privilege is made.
Subject to the rules of privilege, there is a public interest in having available all evidence relevant to the issues in litigation.[21]
[21] Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, 128 (Brennan J).
Relevantly, O 26 r 4(2) of the Rules of the Supreme Court provides that '[i]f 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'. When a party gives discovery, on oath, the affidavit of discovery is an admission, on oath of such matters, including a claim that a document or part of a document is privileged from production. In Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2], Murphy JA pointed out:[22]
The purpose of verification of a list of documents is to ensure that the court is provided with a reliable list of documents. The responsibility of providing a reliable list of documents is a heavy one: Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 [21].
The swearing of an affidavit of discovery is a solemn occasion, and for a purpose which requires careful deliberation, both by the client giving discovery and its solicitors. Lander J in Brookfield v Yevad Products Pty Ltd [2004] FCA 1164 said:
The integrity of the discovery process must be maintained. The discovery process in many ways depends upon the honesty of the parties and their legal advisers.
It is essential for the administration of justice that the parties' legal advisers properly instruct their clients as to their responsibilities in the discovery process. The parties must be instructed on the issues in the litigation, including the issues raised by their opponents' pleadings. They must be instructed as to what documents are relevant for the purposes of discovery. They must be encouraged to open up their documents for assessment by their own legal advisers. If the parties are not mindful of the heavy responsibility that lies upon them, including the responsibility to discover and provide production of documents which might be destructive of their own case, then it is likely that the parties might fail to discover those documents [368] ‑ [369].
Generally, and subject to limited exceptions, a party's affidavit of discovery is 'conclusive', as against the other party, including on the question of whether the party giving discovery has or has had in its possession, custody or power any relevant documents other than those discovered: Mulley & Marney v Manifold [1959] HCA 23; (1959) 103 CLR 341. With respect to the party giving discovery, the affidavit of discovery is an admission, on oath, of such matters.
The admission operates, in my view, as, or in the nature of, a formal admission for the purposes of the litigation.
[22] Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217 [25] - [28].
If Bianca and John are successful in whole or in part in respect of their Revised Stern Schedule discovery application, the HPPL parties will be required to comply with their obligations to verify on affidavit a reliable list of documents (including properly identifying each communication the subject of a claim for privilege as required by O 26 r 4(2). If any claims of privilege made by the HPPL parties are claims which have been upheld by the Tribunal in the Martin Arbitration, and if Bianca and John seek in the Court proceedings to challenge the HPPL parties claims of privilege, it would be open to the HPPL parties to then put an argument to this Court that this Court should not entertain Bianca and John's challenge to HPPL's claims. However, in the course of considering the Revised Stern Schedule application, it is not appropriate for the Court to indicate whether such an argument would be accepted other than to note that such an argument would be unlikely to be found to be entirely without merit.
Importantly, if the HPPL parties are ordered to provide a list of discoverable documents on affidavit, and that list when verified identifies by description documents over which the HPPL parties claim privilege on grounds that the documents or parts of the documents contain legal professional privilege, the affidavit may have utility in the Court proceedings. This is because, as counsel for Bianca and John point out, Bianca and John may wish to deploy the affidavit to prove that legal advice was advice given on a particular date in relation to a particular subject matter.[23]

[23] See for example Bianca and John's reply to response to request for proposed class No 10 of the Revised Stern Schedule.

The HPPL parties argue that insofar as the documents sought by Bianca and John are relevant to the overlapping issues in these proceedings and the Martin Arbitration, it is obvious that those documents would be more likely to have forensic benefit in the Martin Arbitration.
In the face of the contention by the HPPL parties that many of the categories of documents sought by Bianca and John in the Revised Stern Schedule were the subject of either identical or substantially the same requests rejected in the Martin Arbitration on grounds of lack of relevance, the submission that the proposed categories of documents, if discovered in the Court proceedings, would have forensic benefit in the Martin Arbitration can have no proper foundation.
In any event, and more importantly, the Court is not in a position to make any assessment of the critical issues in the Martin Arbitration. Nor would it be appropriate for this Court to speculate about those matters, including any likely challenges to any award made in the Martin Arbitration.
For these reasons, the arguments put by the HPPL parties in respect of this issue have no merit.

[Redacted].
[Redacted].
In an affidavit sworn by Mr Price on 28 February 2023, Mr Price states that:
(a)Bianca and John do not seek to use the documents sought by this discovery application in the Martin Arbitration;
(b)[Redacted].
(c)[Redacted].
Given that the hearing of the substantive submissions in respect of the Revised Stern Schedule application will not be heard prior to 31 March 2023 which is after the Tribunal in the Martin Arbitration is expected to have reserved, even if Bianca and John were to change their position and seek to reopen their case in the Martin Arbitration to tender documents that would be a matter for the Tribunal to consider, and not the Court.
In any event, counsel for Bianca and John informed the Court that in respect of any documents discovered as a result of the application presently before the Court, [Redacted].
Any documents ordered to be discovered by the HPPL parties as a result of the Revised Stern Schedule discovery application would be subject to the Harman obligation. To use any of those documents in the Martin Arbitration would require Bianca and John to seek a release from that obligation, and to seek leave of the Tribunal in the Martin Arbitration to reopen to tender documents after the close of the evidence. Whether such an application would be successful, as I have stated above, is a matter for the Tribunal, and is not a proper basis to argue that the Revised Stern Schedule discovery application has been made for an improper purpose.
[Redacted].
Again, these submissions are speculative. In any event, whether Bianca and John could make such applications are not matters for the Court to speculate on when considering Bianca and John's application for discovery, and are not matters that raises a proper basis to claim an abuse of process.

3.0 Whether categories 55J and 55G have been formulated by the misuse of inadvertently privileged materials

[Redacted].
[Redacted].
[Redacted].
[Redacted].
[Redacted].
[Redacted].
[Redacted].
On 30 January 2023, Bianca and John's solicitors sent a letter to the HPPL parties' solicitors providing amended proposed Categories 55G and 55J to be included in a replacement Revised Stern Schedule, and made a request that the HPPL parties' solicitors destroy the document provided on 21 December 2021.
[Redacted].
[Redacted].
[Redacted].
[Redacted].
[Redacted].
The starting point of the resolution of this point are the observations made by the plurality in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (when considering the principles that apply when a court is called upon to consider whether orders should be made for the return of inadvertently disclosed privileged materials) that:[24]
[No] narrow view is likely to be taken of the ability of a party, or the party’s lawyers, to put any knowledge gained to one side. That must be so in the conduct of complex litigation unless the documents assume particular importance.
[24] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [49] (French CJ, Kiefel, Bell, Gageler & Keane JJ).
[Redacted].
[Redacted].
[Redacted].
Bianca and John plead in their defence to the WPPL proceedings (prior to the meeting on 11 May 1995) there were proceedings in this Court between HPPL and Hancock Resources Ltd (HRL) in 1993, and in the same year HPPL and Gina filed a counterclaim seeking a declaration that certain of the Hope Downs Tenements were held by HRL on constructive trust for HPPL.[25] After pleading particular matters, Bianca and John plead that the compromise of the Constructive Trust Claim was not formalised until the 1996 deed.[26]
[25] Amended defence filed 16 July 2021, pars 361 to 364.
[26] Amended defence filed 16 July 2021, par 386.
[Redacted].
[Redacted].
[Redacted].
In any event, even if I was to uphold the HPPL parties' arguments in respect of Categories 55G and 55J, I would order that these categories be disallowed, but I would not find that the entire Revised Stern Schedule application should be disallowed.
Whether proposed discovery documents encompassed by Categories 55G and 55J should be allowed is a matter that is to be the subject of further submissions.

4.0 Disposition of the HPPL parties' chamber summonses to dismiss or stay Bianca and John's discovery application

For the reasons that I have given, the HPPL parties' chamber summonses dated 20 February 2023, seeking orders that Bianca and John's discovery by categories sought in the Revised Stern Schedule application be dismissed or alternatively stayed on grounds of an abuse of process, should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
27 MARCH 2023