Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 19] - [2023] WASC 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 19] [2023] WASC 114
CORAM:   SMITH J
HEARD:   31 MARCH 2023
DELIVERED          :   12 APRIL 2023
FILE NO/S:   CIV 3041 of 2010
(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 LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Revised Stern Schedule discovery by categories application - Each category considered - No new principle

Legislation:

Nil

Result:

Categories of discovery orders made

Category: B

Representation:

CIV 3041 of 2010

(Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)

Original Action

Counsel:

Plaintiff	:	No appearance
First Defendant	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Second Defendant	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
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	:	YPOL Lawyers
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	Mr A Hochroth & Mr D Delany
Second Plaintiff by Counterclaim	:	Mr A Hochroth & Mr D Delany
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Third Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Fourth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Fifth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Sixth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Seventh Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
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 & Mr D Farinha
Twelfth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	YPOL Lawyers
Second Plaintiff by Counterclaim	:	YPOL Lawyers
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 & Mr D Farinha
Second Defendant	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
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	:	YPOL Lawyers
Fourth Defendant	:	YPOL Lawyers
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 & Mr D Farinha
Second Defendant	:	No appearance
Third Defendant	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	Mr 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	:	YPOL Lawyers
Fifth Defendant	:	YPOL Lawyers
Sixth Defendant	:	Deutsch Miller
Seventh Defendant	:	Dentons Australia
Third Party	:	Allens

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	Mr A Hochroth & Mr D Delany
Second Plaintiff by Counterclaim	:	Mr A Hochroth & Mr D Delany
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Third Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Fourth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Fifth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Sixth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Seventh Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
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 & Mr D Farinha
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC, Mr S Murray & Mr D Farinha
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	YPOL Lawyers
Second Plaintiff by Counterclaim	:	YPOL Lawyers
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):

DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] [2022] WASC 432
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82

Table of Contents

1.0 Introduction - Revised Stern Schedule Application and the result

2.0 Delay in the resolution of the discovery by categories application

3.0 Other global issues raised by the HPPL parties

4.0 Categories of documents sought by Bianca and John

SMITH J:

1.0 Introduction - Revised Stern Schedule Application and the result

In reasons delivered on 29 July 2021, Le Miere J held that Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO) (referred to in these reasons as the HPPL parties) should give discovery to Bianca Hope Rinehart (Bianca) and John Langley Hancock (John) of documents relevant to specified issues or by categories of documents.[1]
[1] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268 [23]
The HPPL parties filed an appeal in 2021 against the order made on 29 July 2021 that they give discovery to Bianca and John on grounds the court did not have jurisdiction to order discovery between co‑defendants.
Although Bianca and John's Revised Stern Schedule contains 48 separate categories, prior to the hearing of the application Bianca and John had given notice that eight categories were not pressed.
As the HPPL parties point out, Bianca and John bear the burden of satisfying the court that the HPPL parties should provide discovery of each of the categories sought in the Revised Stern Schedule.
After having considered lengthy written submissions in respect of each category, and having heard oral submissions by counsel for Bianca and John, and senior counsel for the HPPL parties, I have found that 22 categories of the Revised Stern Schedule should be allowed either in whole, in part, or as modified.
In 4.0 of these reasons, I set out the reasons why I am of the opinion that discovery of these categories should be allowed. Although I have not referred to all of the lengthy and comprehensive arguments raised in respect of each category I have had regard to those matters. However, I have only referred to arguments in each category that I have considered to be material.
Given the close proximity of the upcoming commencement of the trial of the proceedings I have been mindful of limiting searches of responsive documents. I have also been mindful of the fact that the HPPL parties have not made any submission that the responsive documents sought by Bianca and John do not exist.
Although the HPPL parties have made a submission that if the categories set out in the Revised Stern Schedule are allowed compliance with orders of the court will require a lengthy period of time to locate responsive documents, I do not accept that will occur. Eight of the 24 categories that have been allowed are single documents. The remainder are targeted requests of what should be a relatively smaller number of specific documents. It is to be noted that other than category 10 where all of the responsive documents have already been ascertained, I have not allowed discovery of documents described as 'referring to' topics.

2.0 Delay in the resolution of the discovery by categories application

One of the grounds upon which the HPPL parties argue that there should be no discovery of any of the documents sought by Bianca and John in their Revised Stern Schedule is because Bianca and John have delayed in proceeding with their application for discovery by categories.
However, the delay in dealing with this application cannot be sheeted home entirely to the conduct of Bianca and John. The HPPL parties have by their conduct contributed to the delay, by initially lodging an appeal against the discovery order which subsequently failed, and later by their failed chamber summonses applications to dismiss the Revised Stern Schedule application on grounds of abuse of process, which also failed. But for the most recent applications by the HPPL parties to dismiss Bianca and John's discovery application, the court would have been in a position to deliver these reasons by at least the middle of March 2023.
In addition, it is notable that at no time have the HPPL parties pressed for an early hearing of Bianca and John's application.
Bianca and John served the Original Stern Schedule Discovery Categories application on 17 September 2021. The Original Stern Schedule sought discovery of documents in 76 categories. Bianca and John amended their categories when serving their reply to the HPPL parties' response on 8 December 2021, bringing the total number of categories to 77.
[Redacted].
The HPPL parties appeal against the decision of Le Miere J to make orders for discovery was unsuccessful. The discovery order by categories was affirmed on appeal on 2 August 2022.[2]
[2] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
[Redacted].
After the Court of Appeal delivered its decision in respect of the discovery appeal, together with the appeal against the strike out application, and an appeal by DFD Rhodes Pty Ltd (Rhodes) against an order staying part of their defence on 2 August 2022,[3] the proceedings were listed for directions on 16 August 2022. At the directions hearing enquiry was made of counsel for Bianca and John as to whether Bianca and John wish to press for a hearing of the application for discovery by categories. In response, counsel for Bianca and John indicated that if the HPPL parties intended to make an application for a stay of the proceedings, the application for discovery by categories could await the outcome of that application. However, if the HPPL parties did not wish to make a stay application, the application for discovery by categories should be listed for hearing.[4]
[3] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
[4] ts 2743.
At the same directions hearing senior counsel for the HPPL parties informed the court that Bianca and John's discovery by categories application should be dealt with after the Martin Arbitration was complete. At that time it was anticipated that the Martin Arbitration would be concluded in November 2022. Consequently, a submission was put by senior counsel for the HPPL parties that the discovery application should be timetabled for hearing after November 2022. Senior counsel also indicated that:
(a)the Stern schedules served in the court proceedings were the same as Stern schedules served in the Martin Arbitration;
(b)to the extent that documents had been disclosed in the arbitral proceedings that an arrangement was likely to be reached to make those documents available in the court proceedings.[5]
[5] ts 2743 ‑ 2744.

Senior Counsel also informed the court that it was his clients' present intention not to apply for a stay of the court proceedings.[6]
[6] ts 2746.
In response, counsel for John and Bianca informed the court that there was an overlap in the categories in the Stern schedules served in the court proceedings and in the arbitral proceedings, but the schedules were not identical.
Senior Counsel for the HPPL parties then made a submission that discovery in the court proceedings could be avoided by awaiting the outcome of an award in the Martin Arbitration, as it was anticipated that an award would be available early in 2023 which would then leave adequate time for discovery to be provided to Bianca and John.
After further discussion in respect of other issues unrelated to the discovery application, senior counsel informed the court that it was the HPPL parties' view that it was preferable for the discovery application be listed for hearing sometime in the New Year. However, counsel for Bianca and John informed the court it was their view it should be listed for hearing in November 2022.
Bianca and John's discovery application was subsequently listed for hearing in November 2022.
After the directions hearing on 16 August 2022, the HPPL parties made an application for a deferral or stay of the court proceedings when it became clear that an award in Martin Arbitration proceedings was unlikely to become available prior to the commencement of the trial of court proceedings in June 2023.
On 14 November 2022, Bianca and John's instructing solicitors wrote to the court seeking to vacate the hearing of the discovery application pending determination of the HPPL parties' application to defer or stay the trial of the proceedings.
The request to adjourn the discovery application hearing in November was not opposed and the hearing was vacated.
On 14 December 2022, the HPPL parties' application to stay or adjourn the trial of the proceedings pending the delivery of an award in the Martin Arbitration was dismissed.[7]
[7] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] [2022] WASC 432.
Following the making of orders made on 14 December 2022, Bianca and John provided a Revised Stern Schedule of Discovery Categories on 21 December 2022 and the Revised Stern Schedule application was listed for a special appointment on 1 and 2 March 2023.
The Revised Stern Schedule sought discovery of documents in 48 categories.
After Bianca and John had served their Revised Stern Schedule on the parties to the proceedings who are parties to the Martin Arbitration, in accordance with the orders made on 14 December 2022, the HPPL parties filed chamber summonses in the proceedings on 20 February 2023, seeking that the Revised Stern Schedule application be dismissed or, alternatively, stayed on the basis that it was an abuse of process.
The hearing of the HPPL parties' application was heard on 1, 2 and 7 March 2023. Following the delivery of reasons for decision on 7 March 2023,[8] orders were made on 7 March 2023 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. Following the delivery of reasons for decision on 27 March 2023,[9] an order was made to dismiss the HPPL parties' application.
[8] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72.
[9] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82.
The merits of Bianca and John's application for discovery by categories in the Revised Stern Schedule was then heard on 31 March 2023.

3.0 Other global issues raised by the HPPL parties

At the hearing on 31 March 2023, senior counsel for the HPPL parties made further submissions about the principles that apply to discovery. These principles were set out at some length in my reasons published on 27 March 2023 in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18], and do not need to be repeated. I have had regard to those principles when I have considered each of the proposed categories.
Senior counsel for the HPPL parties point out that Wright Prospecting Pty Ltd (WPPL) in its Plaintiffs Amended Reply to Further Amended Defence filed by the Third and Fourth Defendants [Bianca and John] (WPPL's Reply) does not contest many of the allegations that have been made by Bianca and John and it does not admit or joins issue on very specific parts of the case advanced by Bianca and John in their Defence.
Senior counsel made a submission that Bianca and John and the HPPL parties are in essence 'third parties' to the dispute between WPPL and Bianca and John and the limited nature of WPPL's Reply is such that the breadth of discovery sought by Bianca and John in their Revised Stern Schedule is not justified.
However, this point can have no consequence. The Court of Appeal recently made it clear in rejecting the HPPL parties' appeal against the order that they give discovery by categories to Bianca and John that it is irrelevant that the HPPL parties and Bianca and John are co‑defendants. Quinlan CJ and Beech JA rejected the contention that the court only has power to require a defendant to give discovery to a co‑defendant only where there is some right to be adjusted as between them.[10]
[10] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [284].
Senior counsel also made a submission that Bianca and John's case can be divided by two parts, the Acquisition Issue and the Debt Reconstruction Issue. The HPPL parties submit that to the extent that they could be found to have engaged with Bianca and John's claims, they only do so in respect of the Acquisition Issue which relates to events that occurred up to 1992 (and includes allegations that Lang breached his obligations by applying for the Hope Downs Tenements[11] in the name of Hancock Mining Ltd (HML)). For example, the HPPL parties plead in their defence to the WPPL claims that Lang's Life Governing Share did not permit Lang (prior to 1992) to breach his fiduciary duties by taking up tenements for HML as opposed to HPPL and then transferring those tenements to Hancock Resources Ltd (HRL).
[11] In these reasons, the Hope Downs Tenements is used as a generic term to refer not only to the tenements but also to the Hope Downs Exploration licences and the East Angelas Exploration licences.
The HPPL parties say they have not engaged with the Debt Reconstruction Issue raised by Bianca and John and they do not propose to do so. They contend for whose benefit were the tenements (Hope Downs Tenements) held after 1992 is irrelevant.
In support of this submission, senior counsel referred to my recent reasons delivered on 27 March 2023 in which I observed that 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 a breach of fiduciary duty by Lang which issues go to the 1988 Agreement.[12] However, my observations were not intended to be confined in the way construed by senior counsel for the HPPL parties. My observations were intended to be illustrative of the point that 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.
[12] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82 [49].
More importantly, the submission that events that occurred after 1992 will be irrelevant to the determination of who is the beneficial owner of the Hope Downs Tenements, was rejected by the Court of Appeal in their recent decision dismissing the HPPL parties' strike out appeal.[13]
[13] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
This point was made clear from the following findings and observations by Quinlan CJ and Beech JA in DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd:[14]
[14] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [224], [227] ‑ [232], [243] and [247]; [305] (Vaughan JA agreed).
HPPL submits that the fact that WPPL mentions the 1992 Transfer Deed, the 1995 Deed and the 1996 Deed in its particulars of trust under [53A] does not make relevant all of Bianca and John's allegations of wrongdoing in relation to the Debt Reconstruction transactions. HPPL submits that:
(a)whether, when HML acquired the tenements in 1989, it did so on trust for HPPL will depend on circumstances existing at, or before, that time.  The instruments referred to in the particulars come substantially later than that critical time.
(b)On the critical issue of the intended beneficial owner at the point of acquisition, the deeds are 'self‑serving', of dubious admissibility and of no evidentiary value.
(c)Thus, determining whether HML's acquisition of the tenements was on trust for HPPL does not require the court to determine a complex fraud trial that depends upon events allegedly happening years after the relevant time.
…
For each of the two following reasons, we are not persuaded that the primary judge erred in refusing HPPL's strike‑out application.
First, in support of its case that HML held the ELs on trust for HPPL, WPPL pleads that an inference to that effect is to be drawn from some or all of six matters. Three of those matters are provisions of the 1992 Transfer Deed, the 1995 Deed and the 1996 Deed. WPPL pleads the terms of those instruments to the following effect:
(a)the 1992 Transfer Deed included a term that HRL transferred bare legal title in the East Angelas ELs to HDL;
(b)the 1995 Deed included an acknowledgement by HFMF and HPPL that the transfer of the shares in HML from HPPL to HFMF was legally ineffective and that the issue of shares by HML to HFMF was at all times on trust for HPPL absolutely; and
(c)the 1996 Deed included:
(i)HRL's acknowledgement and declaration that it does not have, and never has had, any beneficial interest in the Hope Downs ELs and the East Angelas ELs; and
(ii)HDL's acknowledgment and declaration that, in consequence of the 1992 Transfer Deed, it holds, and has always held, the Hope Downs ELs and the East Angelas ELs on trust for HPPL.
Part of Bianca and John's response to that aspect of WPPL's case is to assert that the 1992 Transfer Deed, the 1995 Deed and the 1996 Deed were each a part of Gina's fraudulent and dishonest design pleaded elsewhere in their defence.
In those circumstances, Bianca and John's pleas as to the fraudulent and dishonest design are material to the resolution of an aspect of WPPL's claim. In essence, Bianca and John contend that the instruments, which comprise some of the matters on which WPPL relies to invite an inference that HML held the tenements on trust for HPPL, do not sustain that inference because there is a very different explanation for them. Thus, Bianca and John's pleas concerning matters after the initial acquisition of the tenements bear on the determination of the issues between the parties concerning the identification of those for whose benefit HML or HRL initially acquired the tenements.
We do not accept HPPL's submissions summarised at [224] above. No party has applied to strike out 6FASSOC [53A]. The fact that the deeds pleaded by WPPL come later in time than HML's acquisition is not determinative. It is open to a party to point to a range of matters in support of an inference about another party's state of mind at a given time, including matters subsequent to that given time. The proper inference to be drawn will require attention to all of the relevant facts and circumstances. In the context of an appeal against refusal of an application to strike out paragraphs of the defence, it is neither practically possible nor appropriate for this court to attempt to summarily determine the merits of paragraphs of a plea in the statement of claim. Nor is it appropriate for this court to seek to determine questions of admissibility, which are properly matters for trial.
Secondly, we do not accept that WPPL's personal claims all depend critically upon it establishing that the tenements were acquired for HPPL's benefit, or for WPPL's benefit, at the point of acquisition.
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At least on one view of their case, Bianca and John contend that, upon acquisition of the ELs in February 1989, HML held legal title to the tenements with full beneficial ownership, in the sense that no other person had any equitable beneficial interest.  At that stage, the Children had no equitable interest in the ELs - their interest was merely reflective of HFMF's ownership of the shares in HML. As we observed in relation to Bianca and John's defence in the Rhodes proceeding (see [44] to [46] above), holding a beneficial interest in the shares of a company does not give rise to an equitable beneficial interest in the assets of the company.  On this view of Bianca and John's case, their equitable interest in the ELs themselves, as distinct from in HFMF and HFMF's assets including its shares in HML, arose subsequently, after Lang's death, as a result of Gina's alleged misconduct.
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Consequently, in our view, Bianca and John's competing claim to an equitable interest in the tenements is material to determination of this part of WPPL's claim.  The court would not grant WPPL the relief that it seeks without considering the equitable interest claimed by Bianca and John.
In any event, even if the HPPL parties were to do as senior counsel has indicated in these proceedings and not engage at all in the case of Bianca and John in these proceedings in respect of any issue that arises after 1992, Bianca and John have been put to proof in respect of all of their defences by WPPL.
For these reasons, Bianca and John are entitled to make application for discovery of categories of documents in respect of the issues that they seek to prove in their Defence. They have made this application against the HPPL parties because the HPPL parties are parties in possession and control of documents within the categories that they seek, and not WPPL.

4.0 Categories of documents sought by Bianca and John

[Redacted].

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