Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 20] - [2023] WASC 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 20] [2023] WASC 124
CORAM:   SMITH J
HEARD:   1 MARCH 2023
DELIVERED          :   19 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 executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
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 executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Application for pre-trial ruling on admissibility - Case management principles considered - Whether utility in making a pre‑trial ruling

Evidence - Admissibility of settlement deeds - Whether admissibility should be considered in isolation to the basis of the tender of the deeds - When regard is had to the complexities raised by the pleadings in CIV 3041 of 2010 (Consolidated with CIV 2617 of 2012) (CIV 3041 of 2010) no advance ruling should be given

Practice and procedure - Oral application by third and fourth defendants in CIV 3041 of 2010 to strike out pars 53C(aa) and 78 of the first and second defendants' defence to the plaintiff's claim in CIV 3041 of 2010 - No new principle considered

Legislation:

Rules of the Supreme Court 1971 (WA) O 1, r 4A, r 4B

Result:

Application for pre-trial ruling on admissibility of evidence dismissed
Application to strike out dismissed

Category: B

Representation:

CIV 3041 of 2010

Original Action

Counsel:

Plaintiff	:	Ms K Stern SC, Ms J Taylor SC & Ms L Coleman
First Defendant	:	Mr N Hutley SC & Mr J Kennedy
Second Defendant	:	Mr N Hutley SC & Mr J Kennedy
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren

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 N Hutley SC & Mr J Kennedy
Third Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Fourth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Fifth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Sixth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Seventh Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	Ms K Lindeman
Eleventh Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Twelfth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Thirteenth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Sixteenth Defendant by Counterclaim	:	Ms K Stern SC, Ms J Taylor SC & Ms L Coleman
Seventeenth Defendant by Counterclaim	:	Mr S Taylor
Eighteenth Defendants by Counterclaim	:	Mr S Taylor

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	:	Ms K Stern SC, Ms J Taylor SC & Ms L Coleman
First Defendant	:	Mr N Hutley SC & Mr J Kennedy
Second Defendant	:	Mr N Hutley SC & Mr J Kennedy
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren

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	:	Mr S Taylor
Second Plaintiffs	:	Mr S Taylor
First Defendant	:	Mr N Hutley SC & Mr J Kennedy
Second Defendant	:	Ms K Stern SC, Ms J Taylor SC & Ms L Coleman
Third Defendant	:	Mr N Hutley SC & Mr J Kennedy
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	Mr A Hochroth & Mr D Delany
Sixth Defendant	:	No appearance
Seventh Defendant	:	Ms K Lindeman
Third Party	:	Ms C Wren

Solicitors:

First Plaintiff	:	Taylor & Taylor Lawyers Pty Ltd
Second Plaintiffs	:	Taylor & Taylor Lawyers Pty Ltd
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	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 N Hutley SC & Mr J Kennedy
Third Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Fourth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Fifth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Sixth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Seventh Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	Ms K Lindeman
Eleventh Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Twelfth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Thirteenth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr N Hutley SC & Mr J Kennedy
Sixteenth Defendant by Counterclaim	:	Ms K Stern SC, Ms J Taylor SC & Ms L Coleman
Seventeenth Defendant by Counterclaim	:	Mr S Taylor
Eighteenth Defendants by Counterclaim	:	Mr S Taylor

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

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

Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCA 324
Caraher v Lloyd (1905) 2 CLR 480
Davaria v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Evans v Bartlam [1937] AC 473
Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2012) 127 ALD 288
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S)
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 338; (2000) 49 NSWLR 338
Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 236
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
MPB v LGK [2020] EWHC 90
MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia) [1999] HCA 51; (1999) 198 CLR 494
Reserve Capital v Seascapes Supermarket WA Pty Ltd [2022] WASC 56
Skymist Holdings Ltd v Grandlane Developments Ltd [2018] EWHC 3504 (TCC)
TKWJ v The Queen (2002) 212 CLR 124
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] [2022] WASC 432
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 9] [2018] WASC 122

Table of Contents

1.0 Introduction – Application for advance ruling as to admissibility of the deeds and a strike out application

1.1 The HPPL parties' application for an advance ruling

1.2 Bianca and John's application to strike out the pleas in par 53C(aa) and par 78 of the HPPL parties' Amended Defence

2.0 Legal principles

2.1 Strike out

2.2 Admissibility of evidence

3.0 The relevant issues raised by the parties in the application for a preliminary ruling on the admissibility of the deeds and the strike out application

3.1 The HPPL parties' overview of the deeds

3.2 Power to rule on the admissibility of evidence prior to trial

3.3 The issues raised in the pleadings and whether the deeds can be enforced against WPPL ‑ should a preliminary ruling be made?

3.3.1 Whether there is incoherence in the HPPL parties' pleas in par 53C(aa) and par 78 of their Amended Defence

3.3.2 Can the deeds be enforced against WPPL?

3.3.3 Is it arguable that the HPPL parties are by their pleas in par 53C(aa) and par 78 seeking to approbate and reprobate?

4.0 Disposition of the applications for an advance ruling as to admissibility of the deeds and strike out of par 53C(aa) and par 78 of the HPPL parties' Amended Defence

SMITH J:

1.0 Introduction – Application for advance ruling as to admissibility of the deeds and a strike out application

1.1 The HPPL parties' application for an advance ruling

On 8 February 2023, Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO) (the HPPL parties) made an application by chamber summons in the Wright Prospecting Pty Ltd (WPPL) proceedings and in the DFD Rhodes Pty Ltd (Rhodes) proceedings for orders that:
There be an advanced ruling that the following documents are admissible in CIV 3041 of 2010 (consolidated with CIV 2617 of 2012) and CIV 2737 of 2013:
a.Confidential Deed of Obligation and Release dated 1 April 2005 (Annexure DGA-1 to the Affidavit of David Gordon Anthony dated 8 February 2023);
b.Hope Downs Deed dated 7 August 2006 (Annexure DGA-2 to the Affidavit of David Gordon Anthony dated 8 February 2023); and
c.April 2007 Deed dated 13 April 2007 (Annexure DGA-3 to the Affidavit of David Gordon Anthony dated 8 February 2023).
Although the application for an advanced ruling is on its face an application for a ruling as to admissibility, the application necessarily involves a consideration as to whether a ruling should be made not only as to admissibility but also as to whether the deeds can or should be tendered into evidence in the proceedings.
The reason why admissibility of the deeds should not be considered in isolation to the basis of the tender of the deeds is because although evidence may be admissible, admissible evidence may not for a number of reasons be admitted into evidence at trial. The relevant legal principles that apply in respect of this point are set out in 2.2 of these reasons.
Although the HPPL parties have stated on many occasions during the course of hearing of prior applications that their intention in the trial of the proceedings is that they intend to deploy the deeds against Bianca Hope Reinhart (Bianca) and John Langley Hancock (John) (which position they continued to maintain in written submissions filed on 8 February 2023, in support of the application for an advance ruling) the HPPL parties have recently changed their position.
This change of position became clear at the hearing of the application on 1 March 2023, and followed the filing by the HPPL parties, in the WPPL proceedings, the HPPL parties' Amended Defence to Sixth Further Amended Substituted Statement of Claim dated 24 February 2023 (HPPL parties' Amended Defence). For the first time the HPPL parties plead the deeds in answer to WPPL's alternative pleas in pars 53C and 78 (of what was WPPL's Sixth Further Amended Substituted Statement of Claim which pleas are now replicated, without amendment, in WPPL's Seventh Further Amended Substituted Statement of Claim dated 1 March 2023 (Seventh Statement of Claim)).
In par 53C, WPPL claims a proprietary interest in the Hope Downs Exploration Licences and East Angelas Exploration Licences by pleading that if the court finds as Bianca and John claim the Exploration Licences were held by Hancock Mining Ltd (HML) but not as an asset of, or on trust for HPPL, or on trust for the Partnership (Hanwright) then HML held them on trust for itself and WPPL in equal shares (which plea forms part of the dispute referred to by the parties as the Acquisition Issue).
In answer to WPPL's par 53C, in par 53C(aa) the HPPL parties:
(aa)say, as against the Plaintiff only, that any claim that HML or HRL did not hold any of the Hope Downs ELs or East Angelas ELs on trust for HPPL is contrary to releases and acknowledgments, cannot be maintained against the First and Second Defendants and cannot be upheld by the Court as binding on the First and Second Defendants.
Particulars
i.Confidential Deed of Obligation and Release dated 1 April 2005 executed by the First Defendant, Third and Fourth Defendants, HFMF and others.
ii.Agreement known as the Hope Downs Deed dated 7 August 2006 executed by the First Defendant, Third Defendant, HFMF, HRL and others.
iii.Agreement known as the April 2007 HD Deed dated 13 April 2007 executed by the First Defendant, Third and Fourth Defendants, HFMF, HRL and others.
iv.Such a claim by the Third and Fourth Defendants (Bianca and John) has been stayed pursuant to section 8(1) of the Commercial Arbitration Act 2012 (WA) by order of this Court on 21 December 2018.

In par 78 of its Seventh Statement of Claim, WPPL pleads if as Bianca and John allege that entry into the 1995 Deed was undertaken pursuant to a fraudulent, dishonest design perpetrated by HPPL, together with Georgina Hope Rinehart (Gina) on or about 9 March 1993 until transferred to HPPL on or about 26 July 1996, the East Angelas Exploration Licences were an asset or interest of WPPL as to 50% and as to the balance were an asset of the person or persons who were beneficially entitled to them by reason of them having been acquired originally by HML for itself and WPPL in equal shares and were held by Hope Downs Ltd (HDL) on trust for WPPL or that person or those persons (which plea forms part of the dispute in the proceedings referred to as the Debt Reconstruction Issue).
In answer to WPPL's par 78, in par 78 the HPPL parties:
(a)say, as against the Plaintiff only, that any claim that entry into the 1955 Deed was undertaken pursuant to a fraudulent and dishonest design perpetrated by HPPL together with G.H Rinehart, from on or about 9 March 1993 until transferred to HPPL on or about 26 July 1996, is contrary to releases and acknowledgements, cannot be maintained against the First and Second Defendants and cannot be upheld by Court as binding on the First and Second Defendants; and
(b)otherwise deny the paragraph.
Particulars
The particulars to subparagraph 53C(aa) are repeated.
Although chamber summonses were filed in both the WPPL proceedings and the Rhodes proceedings, senior counsel for the HPPL parties on 1 March 2023 informed the court that although the HPPL parties only plead the deeds against WPPL in the WPPL proceedings, applications were made in both proceedings because of orders that the evidence in each proceedings be evidence in the other.[1]

1.2 Bianca and John's application to strike out the pleas in par 53C(aa) and par 78 of the HPPL parties' Amended Defence

[1] ts 3054; referring to orders made in the proceedings on 14 December 2021.

At the hearing of the application for a preliminary ruling, counsel for Bianca and John made an oral application to strike out par 53C(aa) and par 78 of the HPPL parties' Amended Defence. Although the application to strike out was opposed by the HPPL parties, the HPPL parties did not oppose the hearing of the oral application to strike out at the same time as the application for a preliminary ruling.
WPPL also did not oppose the hearing of Bianca and John's application. However, at that time WPPL was not in a position to advise the court whether it intended to make its own application to strike out the HPPL parties' pleas as they had only introduced these pleas four days prior to the hearing.
Subsequent to the hearing of the application to strike out, WPPL informed the court that it did not intend to make any application to strike out par 53C(aa) and par 78 of the HPPL parties' Amended Defence.[2]
[2] ts 3112.
Having read the parties written submissions and the HPPL parties' amended pleas in their Amended Defence prior to the hearing it was clear that Bianca and John's strike out application should be heard together with the application for the preliminary ruling on the admissibility of the deeds because the arguments and grounds put in respect of each of the applications raised common issues.
The grounds of Bianca and John's application to strike out were put in oral submissions as follows:
(a)the pleas do not disclose a reasonable defence to any fact in issue between Bianca and John and WPPL, or between HPPL and WPPL;
(b)to allow the pleas and admit the deeds would give rise to procedural unfairness to Bianca and John because the validity and the enforceability of the deeds are subject to challenge in the Martin Arbitration on grounds that Bianca and John say that these deeds were entered into as a result of unconscionable conduct, duress and other forms of vitiating conduct;
(c)to allow the pleas and admit the deeds would give rise to an abuse of process of the court on grounds that the HPPL parties seek to tender the deeds as instruments at law which have effect so as to prohibit Bianca and John from advancing their defences, in circumstances where the HPPL parties have been unsuccessful in the attempts to do so in prior applications in the curial proceedings and subsequent appeals against the dismissal of their applications;[3]and
(d)by these pleas the HPPL parties are seeking to approbate and reprobate, which if allowed would also give rise to an abuse of process of the court.
[3] The HPPL parties unsuccessfully applied to stay the defences of Bianca and John in 2018 and failed to obtain an interlocutory injunction pursuant to s 25(9) of the Supreme Court Act 1935 (WA) and s 17J of the Commercial Arbitration Act 2012 (WA) prohibiting them from running their defences; Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77. In addition, the HPPL parties were unsuccessful in seeking to strike out the non‑responsive pleas of Bianca and John's defence; DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
After these grounds were put, senior counsel for the HPPL parties made it very clear to the court that by the pleas in par 53C(aa) and par 78 of the HPPL parties' Amended Defence they do not seek to deploy the deeds against Bianca and John and withdrew all of their written submissions filed in support of the application for a preliminary ruling to the effect that by reason of these pleas they would be able to deploy the deeds against Bianca and John.[4]
[4] ts 3054 ‑ 3055, 3066 and 3079.
Counsel for Bianca and John then informed the court that having heard what senior counsel for the HPPL parties was now putting as the basis of how the HPPL parties intend to deploy the deeds at trial, in particular that the tender of deeds would not bind Bianca and John:[5]
(a)it would not be necessary for either Bianca and John to go into evidence as to why any of the deeds are liable to be set aside, or are void, or are not enforceable; and
(b)although Bianca and John pressed their application to strike out the HPPL parties' pleas, they did not now take any position as to whether or not an advance ruling should, or should not be made to determine the admissibility of the deeds in the proceedings.
[5] ts 3095 ‑ 3096.

2.0 Legal principles

2.1 Strike out

The principles relevant to a strike out application were summarised in Vantage Holdings Group Pty Ltd v Donnelly [No 4] and need not be repeated in full.[6] The principles that are particularly relevant to this application to strike out are as follows:[7]
[6] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60]; approved in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56].
[7] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (footnotes omitted).
(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
…
(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
…

2.2 Admissibility of evidence

Admissibility questions usually arise and are determined at the point of tender. However, evidence can be tendered on a provisional basis to be determined at a later point in a trial or during the course of making findings in reasons for decision. Often one piece of evidence may only be relevant to an issue if it is taken together with some further piece or other pieces of evidence. Consequently, admission of the first piece of evidence is usually only admitted conditionally, and its unconditional admission is only determined in light of the other evidence.
At common law evidence is admissible if it is relevant. If evidence, including documentary evidence prima facie establishes what the tenderer says it does, either as a fact or a legal consequence, the evidence can be tendered. However, even if evidence passes the test of relevance, it may be excluded if it has no probative value, if it results in procedural unfairness, or for some other reason such as application of the doctrine of approbation and reprobation.
As the learned author of Cross on Evidence points out, it is not the case that evidence is irrelevant because it may later be qualified, contradicted, withdrawn, construed innocently or disbelieved. In assessing questions of relevance in relation to admissibility, the proposed evidence is to be taken at the highest level it can reasonably be put from the tendering party's point of view. It is not for the judge at the time of tender to speculate about possible constructions and outcomes which may befall evidence which is adverse to the interests of the tendering party.[8]
[8] JD Heydon AC, Cross on Evidence (LexisNexis August 2022 [1490]).
Where the relevance of a document depends upon the construction of the legal consequences or effect of the document, such as a deed, it may be appropriate to accept conditional admission of the document and reserve on the question whether the document should be unconditionally admitted in light of findings made about the legal consequences or effect of the document and/or any other issues which properly arise which go to whether the document should be admitted.

3.0 The relevant issues raised by the parties in the application for a preliminary ruling on the admissibility of the deeds and the strike out application

3.1 The HPPL parties' overview of the deeds

The HPPL parties claim that each of the deeds are directly relevant as evidence proving that the allegations made by Bianca and John which allegations have been contingently adopted by WPPL (in par 53C and par 78 of its Seventh Amended Statement of Claim) cannot be maintained.
On or about 1 April 2005, John, Bianca, their sisters, HPPL, The Hancock Family Memorial Foundation Ltd (HFMF) and others executed the Deed of Obligation and Release.[9] By this deed John thereby released HPPL and the other parties from all obligations and liabilities to him, abandoned any claims against them, and covenanted not to bring or make any other claim or proceeding against them connected with or incidental to the subject matter of the deed (cl 2, cl 3(a) ‑ (d)). That subject matter included the '[s]erious and substantial differences' that had arisen between John and the Hancock Group (recital C). Those differences included allegations made by John that Gina breached duties as trustee of an alleged trust for her children by divesting HRL of valuable assets. John also acknowledged that this deed could be pleaded in bar against any such claim or proceeding (cl 3(d)).
[9] Affidavit of David Gordon Anthony affirmed 8 February 2023, Annexure DGA-1, 17 ‑ 42.
On or about 7 August 2006, Bianca, her sisters, HRL, HFMF, HPPL and others executed the Hope Downs Deed.[10] The parties acknowledged in cl 4, that the 'Hope Downs Tenements' (defined in cl 1.1 to include the East Angelas Exploration Licences) had been 'at all times beneficially owned by only HPPL and or HDIO' and were then 50% beneficially and legally owned by HDIO. Each party released and discharged each of the other parties from any 'Claims', irrevocably covenanted not to take any proceedings against any other parties in respect of the Claims, and withdrew and abandoned all allegations in respect of, or arising out of, proceedings in which John was seeking to be joined (cl 6(a) ‑ (c)). The word 'Claims' was defined to include any claim in John's 2004 Unsigned Affidavit (cl 1.1(d)). Each party to the deed also undertook not to assist anything that could have an adverse impact on the Hancock Group's rights under financing arrangements or to challenge the right of any member of the Hancock Group to any of the Hancock Group Interests (cl 7(a) ‑ (b)).
[10] Affidavit of David Gordon Anthony affirmed 8 February 2023, Annexure DGA-2, 43 ‑ 68.
On or about 13 April 2007, John, Bianca, their sisters, HFMF, HPPL and others executed the April 2007 HD Deed.[11] By this Deed, John became a party to the Hope Downs Deed as if he had executed it on or before 30 August 2006 (cl 1). He and the other parties jointly and severally ratified and confirmed the Hope Downs Deed as amended (cl 3), again including the releases and covenants outlined above.

3.2 Power to rule on the admissibility of evidence prior to trial

[11] Affidavit of David Gordon Anthony affirmed 8 February 2023, Annexure DGA-3, 69 – 85.

WPPL argues that an advance ruling of the kind sought by the HPPL parties is a departure from the course that is overwhelmingly adopted by the court with respect to evidence rulings in civil and criminal proceedings. As WPPL points out, in TKWJ v The Queen, McHugh J observed:[12]
The general rule is that a trial judge decides on the admissibility of evidence when it is tendered in the course of the trial.
[12] TKWJ v The Queen (2002) 212 CLR 124 [87].
WPPL says that if after opening submissions there is residual uncertainty as to whether not the deeds are properly admissible in the curial proceedings, the appropriate course is for the court to then make a provisional ruling on admissibility. For the reasons that follow there is considerable force in this submission.
The HPPL parties' application for an early ruling on the admissibility of the deeds has its genesis in the observations made by Beech and Vaughan JJA in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020 Supplementary Stay Appeal). In this appeal their Honours observed it would be open to the parties to seek a pre‑trial ruling as to whether the Hope Downs Deed could be relied upon. This observation was made in the context where the HPPL parties were contending that there was a risk of issue estoppels arising from a determination in the curial proceedings being made an advance of the hearing of the Martin Arbitration. Their Honours found that if this was to occur the risk of issue estoppels would then be imminent.[13]
[13] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 (S) [177].
However, circumstances have changed since the hearing of the 2020 Supplementary Stay Appeal in July 2020. The Martin Arbitration has completed hearing evidence and submissions, and has recently reserved the delivery of an award.
In reasons for decision delivered on 14 December 2022, I accepted the submission made by WPPL and Rhodes that there is now no realistic possibility of issue estoppels arising from a judgment in the curial proceedings binding the arbitral parties in the Martin Arbitration for two reasons. First, the Martin Arbitration will be bound to make an award based only on the evidence already adduced and the submissions that are presented to it in March 2023, and second, and in any event, the overwhelming likelihood is that a judgment in the curial proceedings will be delivered long after an award is delivered in the Martin Arbitration.[14]
[14] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] [2022] WASC 432 [104] ‑ [106].
Senior counsel for the HPPL parties put a submission at the hearing of the application for a preliminary ruling that no issue estoppels will be determined by any decision made by the court in the curial proceedings, and whether there is an issue estoppel or not will be determined by some other 'venue' should such an issue ever arise.[15] What senior counsel intended to convey by this remark was not entirely clear.
[15] ts 3079.
It is to be noted that Bianca and John do not concede that no issue estoppel could arise. They point out that the Court of Appeal has said in the 2020 Supplementary Stay Appeal whether or not an issue estoppel could arise between co‑defendants is a difficult and complicated question in respect of which there is very little authority.[16]
[16] ts 3077; referring to Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77(S) [169].
It is to be observed that Beech and Vaughan JJA made it clear in their judgment in the 2020 Supplementary Stay Appeal that an issue estoppel can only arise after the court proceedings are determined, and if the curial proceedings are determined before the arbitral proceedings.[17] However, their Honours' finding on this point was made in the context that the HPPL parties had indicated they intended to tender the deeds in answer to, and to defeat Bianca and John's defences to WPPL's claims. In particular, to defeat a claim by Bianca and John that the Hope Downs Tenements were acquired for Gina's children's benefit.[18]
[17] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77(S) [156].
[18] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77(S) [44] ‑ [46].
Whilst WPPL does not positively contend that the court has no power to give an advance ruling as to the admissibility of evidence, it says it is incumbent upon the HPPL parties to identify the source of the power to make an early ruling on the admissibility of the deeds, and WPPL says the HPPL parties have not done so.
In the context of whether the discretion under s 192A of the Evidence Act 1995 (Cth) which expressly permits advance rulings to be given on the admissibility of evidence should be exercised, in respect of which there is no statutory equivalent in the Western Australian State jurisdiction, Gleeson J observed in Australian Securities and Investments Commission v Whitebox Trading Pty Ltd:[19]
Whether the Court should make an advance ruling is 'a discretionary case management decision': NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [40]; Beslic v MLC Ltd [2015] NSWSC 908 ('Beslic') at [33]. In this Court, that directs attention to the overarching purpose identified in Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'), namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The authorities indicate that 'some good reason should be advanced in order that the court exercise jurisdiction under s 192A': Beslic at [33], quoting Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 at [13]. It may, for example, be appropriate to give an advance ruling 'if all matters relevant to the issue have been or can then be ascertained and if it is clear that a ruling will inevitably be required': TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [42] (Gaudron J). Further, the giving of a ruling, or the making of a finding, under s 192A may be appropriate where 'a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now': ACCC v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; (2009) 259 ALR 541 at [12].
In some cases, trial preparation may be assisted by an evidentiary ruling in advance of the trial, so as to justify departure from the procedure in the ordinary case of dealing with objections at or shortly before the hearing: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288 at [25].
[19] Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCA 324 [21] ‑ [23].

In response, the HPPL parties say they rely upon the case management powers conferred upon the court in O 1, r 4A and r 4B to make an early ruling on the admissibility of the deeds. These rules enable the court to take its own positive steps to require parties to conduct litigation with proper expedition to achieve the overriding objectives of the just determination of cases in an efficient manner and by the use of resources of the court and the parties which are proportionate to the subject matter of the dispute.
As a superior court, the court has inherent power to efficiently and effectively manage its proceedings. These principles were summarised by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd as follows:[20]
The court is possessed of an inherent jurisdiction to exercise powers which are necessary to enable it to act effectively within its jurisdiction: Connolly v Director of Public Prosecutions [1964] AC 1254 at 1301, per Lord Devlin.
The purpose of the implied jurisdiction is to allow the court to make such orders so as to enable it to uphold, protect and fulfil the judicial function by ensuring that justice is administered according to law and in an effective manner: John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476, per McHugh JA.
The inherent jurisdiction of the court includes an untrammelled power of regulating its own proceedings: Abse v Smith [1986] 1 QB 536 at 555, per May LJ.
It is proper to exercise the power not only where it is strictly necessary to do so, but also to secure or promote convenience, expedition and efficiency in the administration of justice: O'Toole v Scott [1965] AC 939 at 959, per Lord Pearson.
[20] Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 338; (2000) 49 NSWLR 338 [10] ‑ [13].
Consequently, O 1, r 4A and r 4B together with the inherent jurisdiction of the court to regulate its own proceedings to promote convenience, expedition and efficiency in the administration of justice enables the court to give directions to ensure that the trial of a matter proceeds quickly and as efficiently as possible.
An early ruling as to the admissibility of evidence in civil proceedings may in some cases enliven these case management principles conferred by O 1, r 4A and r 4B and the inherent jurisdiction of the court, but to do so there must be some utility in such a ruling which is consistent with, and promotes, case management principles.

For example, there is often utility in making rulings about the admissibility of expert evidence prior to trial as such rulings will inevitably affect the content of issues raised at trial, and whether particular witnesses can give admissible evidence, which rulings are likely to affect the forensic decisions made by the parties at trial or in their preparation for trial.[21]
[21] For example, in Reserve Capital v Seascapes Supermarket WA Pty Ltd [2022] WASC 56 it was found in a pre‑trial ruling that reports authored by a business broker were inadmissible on grounds that the author had not demonstrated he had any specialised knowledge, skill or training to provide expert business valuation evidence. In addition, rulings were also made that part of an expert report prepared by a chartered accountant who had specific experience in the financial aspects of the business of independent supermarkets was inadmissible on grounds that the author had not demonstrated he had any specialised knowledge, skill or training to provide expert business valuation evidence, and parts of his reports otherwise did not meet the pre‑conditions for admissibility of expert opinion evidence on grounds that the assumptions of primary facts which the opinions were based had not been identified.
However, as WPPL points out in their submissions, Kenny J observed in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs, a court may refuse to make such a ruling where it cannot, in advance of trial, determine whether the evidence is inadmissible as irrelevant because the position may be nuanced and an advance ruling may result in error and consequent unfairness.[22]
[22] Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2012) 127 ALD 288 [23] ‑ [29], [41].
Likewise, in Davaria v 7-Eleven Stores Pty Ltd (No 9), Middleton J refused to make an advance ruling where the objection was on the grounds of relevance, being 'a concept that relates to the interrelationship of all the material that is before the Court – without the benefit, even, of all the evidence that may be adduced in the proceedings'.[23]

3.3 The issues raised in the pleadings and whether the deeds can be enforced against WPPL ‑ should a preliminary ruling be made?

[23] Davaria v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473 [5].

The short answer to this question is no.
The HPPL parties submit that the basis of the tender of the deeds and the pleas in par 53C(aa) and par 78 of the HPPL parties' Amended Defence is to avoid, and answer, the consequences pleaded by WPPL in par 53C and par 78 of the Seventh Amended Statement of Claim.[24]
[24] ts 3055.
There are a number of issues of some complexity that are likely to arise in the trial which will bear upon whether the deeds should be accepted into evidence as against WPPL to avoid and answer the consequences pleaded by WPPL in par 53C and par 78 of their Seventh Amended Statement of Claim.
It will only be at the conclusion of opening submissions and by regard to any further amendments to the pleadings including WPPL's reply to the HPPL parties' par 53C(aa) and par 78, and also perhaps by regard to the evidence sought to be relied upon by all parties, that the court will be in a properly informed position to make a ruling as to the admissibility of the deeds, whether on a provisional or final basis.
Only then will the court be properly apprised of the way in which the parties put their respective cases and of the full factual context within which the issues arise. As WPPL submits, the just determination of the question of admissibility depends upon the court having the best possible understanding of all parties' cases, including a comprehensive understanding of the HPPL parties pleaded reliance upon the deeds, and the nature of the case advanced by the plaintiffs and all defendants at trial, and the evidence to be relied upon in support of those cases. This course necessitates that the determination of admissibility of the deeds be made in the usual course, namely at trial.
It is apparent from the submissions made by WPPL and Bianca and John that some of the arguments that are likely to be raised at trial are as follows.

3.3.1 Whether there is incoherence in the HPPL parties' pleas in par 53C(aa) and par 78 of their Amended Defence

3.3.1.1 WPPL's pleas

Although there is some overlap in the substantive issues raised by Bianca and John and the HPPL parties at least in respect of the Acquisition Issue, the defences of Bianca and John to the claims made by WPPL and Rhodes in the curial proceedings do not 'join issue' with the HPPL parties' defences to the claims made by WPPL and Rhodes.
At the hearing of the application for a preliminary ruling senior counsel for the HPPL parties made a submission that the resolution of the dispute between Bianca and John and WPPL does not affect the dispute between the HPPL parties and WPPL, and pointed out that as WPPL is a party to both disputes in the curial proceedings, it will be bound by the findings made in respect of Bianca and John's defences and the HPPL parties' defences.[25]
[25] ts 3058.
The HPPL parties argue that the consequences of WPPL's pleas are to visit upon the HPPL parties the consequence of the determination of the dispute solely between Bianca and John and WPPL, through the orders sought by WPPL in the WPPL proceedings.
Senior counsel for the HPPL parties also made a submission that the tender of the deeds will prevent an outcome of the dispute between Bianca and John and WPPL that is favourable to Bianca and John.[26] This submission, however, appears to be a submission which is contrary to the repeated submission made by senior counsel on behalf of the HPPL parties that the HPPL parties do not intend to deploy the deeds against Bianca and John.
[26] ts 3055.
The HPPL parties contend that WPPL's pleas in their par 53C and par 78 contingently adopt Bianca and John's case, in respect of the Acquisition Issue and the Debt Reconstruction Issue and then visit that case against the HPPL parties by seeking a binding determination against the HPPL parties in WPPL's favour based upon the outcome of disputes which the HPPL parties are not a party to.[27] The HPPL parties say they answer these consequences by their recent amended pleas in response by deployment of the Hope Downs Deed which has the legal effect of wholly releasing at law the assertions made by Bianca and John in their defences, which deed is a legal instrument that has not been set aside and, until set aside is effective.[28]
[27] ts 3059 and 3063 ‑ 3064.
[28] ts 3055.
WPPL and Bianca and John argue the HPPL parties misconstrue WPPL's pleas in par 53C of WPPL's Seventh Amended Statement of Claim.
WPPL says it does not contingently adopt John and Bianca's case in par 53C. Rather, in par 53C, it says it advances a claim which it relies upon if the court were to accept John and Bianca's case. WPPL's primary proprietary claims to the tenements are that the relevant Exploration Licences were held by HML as an asset of and/or on trust for the Hanwright Partnership (as pleaded in par 53AA), or on trust for HPPL who in turn held them as an asset or interest of, or on trust for, the Hanwright Partnership (pars 53A and 53B); or that HDIO holds its interest in the Hope Downs Mining Lease and other tenements in respect of the land formerly subject to the East Angelas Exploration Licences and the East Angelas Reserves on trust as trustee for WPPL (pleaded in par 121.3). WPPL says it is no part of its claim that John and Bianca are right when they contend to the contrary.
WPPL argues that its alternative claim in par 53C is advanced against the prospect that the court may, contrary to WPPL's claim, find that the Exploration Licences were held by HML, but not as an asset of, or on trust for, HPPL who in turn held them on trust for the Hanwright Partnership, or for the Hanwright Partnership.
WPPL and Bianca and John's characterisation of WPPL's claim in par 53C appears to be correct, and is consistent with Quinlan CJ and Beech JA's summary of WPPL's claim in the appeal by the HPPL parties against the primary judge's refusal to strike out certain matters pleaded in the defences of Bianca and John. In their reasons, their Honours succinctly summarised WPPL's claim as follows:[29]
[29] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [22] ‑ [30].
WPPL's claims in WPPL proceedings
WPPL and HPPL carried on business as a partnership exploring and prospecting for minerals, investing in property and other assets, mining for minerals and receiving royalties (the Partnership).
WPPL claims that the opportunity to explore and prospect for minerals and acquire tenements in the Hope Downs and East Angelas areas was a Partnership asset. Two other companies in the Hancock group, Hancock Mining Ltd (HML) and Hancock Resources Ltd (HRL), acquired exploration licences (ELs) over the Hope Downs and East Angelas areas. These are respectively called the Hope Downs ELs and the East Angelas ELs. The shares in HML and HRL (which were held by Hancock Family Memorial Foundation Ltd (HFMF)) were held on trust for HPPL, and HML and HRL held their interests in the ELs on trust for HPPL. The ELs were transferred from HRL to HPPL, via Hope Downs Ltd (HDL), another company in the Hancock Group, and then from HPPL to HDIO by a series of transactions.
The claims made by WPPL differ as between the areas covered by the Hope Downs ELs and the East Angelas ELs, respectively.
In relation to the areas covered by the Hope Downs ELs, WPPL claims it is entitled to a number of personal remedies, including damages, equitable compensation and an account of profits. In that regard, WPPL's claims arise from an agreement between WPPL and HPPL in 1987 (1987 Agreement), pursuant to which WPPL relinquished its interest in the Hope Downs area on the terms set out in the 1987 Agreement.
In relation to the areas covered by the East Angelas ELs, WPPL claims that the Partnership interest in East Angelas gives rise to a number of alternative proprietary and personal claims by WPPL against HPPL and HDIO.
WPPL's primary claim is that HDIO holds its interest in the tenements in respect of the areas covered by the East Angelas ELs as an asset of, or on trust for, the Partnership.
WPPL advances an alternative claim at 6FASSOC [53C], substantially previously pleaded in WPPL's fifth further amended substituted statement of claim (5FASSOC), that if HML did not hold the East Angelas ELs on trust for HPPL or as assets, interests, or property of, or on trust for, the Partnership, then it held them on trust for itself and for WPPL in equal shares. That plea addresses the factual allegation by Bianca and John that HML took the East Angelas tenements in furtherance of a commercial purpose, which they describe as the income protection purpose, which was to quarantine the entities that are entitled to the royalty income from entities undertaking development within the Hancock Group. WPPL's alternative case is that it should be inferred that HPPL and HML intended that WPPL should retain or obtain an interest in the tenements.
It is said that HDIO is obliged to account to WPPL with respect to royalties received by HDIO from Hamersley WA Pty Ltd (Hamersley) under the Hope Downs Joint Venture, an unincorporated joint venture between members of the Hancock Group and others.
As an alternative to its claims to interests in the tenements and royalties, WPPL claims damages for breach of contract and equitable compensation for breach of fiduciary duties.

3.3.1.2 The HPPL parties' pleas

As senior counsel for WPPL points out it is not entirely clear how the pleas made by the HPPL parties in par 53C(aa) and the deeds can be construed as an answer to WPPL's claims.[30]
[30] ts 3086 - 3087.
The first point is that what is not clear is whether the HPPL parties are contending that the court might make a finding as between WPPL and Bianca and John that the tenements were not held on trust for HPPL, but at the same time, make an entirely contradictory finding to the effect that the tenements cannot be contended to be held other than on trust for HPPL. These findings, WPPL submits, will be two directly inconsistent findings in the proceedings. In particular, although the HPPL parties claim that they are deploying the deeds as against WPPL only, it is not clear whether the HPPL parties will contend that it is open for the court to find in favour of Bianca and John on their defence to WPPL's claim.
This is because the HPPL parties appear to contend on the one hand that the effect of the deeds is that the court cannot find in favour of WPPL as to their 50% claim to the Exploration Licences, when the court would have to first find that HML did not hold the Exploration Licences on trust for HPPL. However, on the other hand, it appears on the plea in par 53C(aa) that the HPPL parties could put a submission at trial that for par 53C of WPPL's claim to operate the court would first have to find that HML did not hold the Exploration Licences on trust for HPPL or on trust for the Hanwright Partnership (WPPL and HPPL).
The second point is that the scope of the HPPL parties' plea in their par 53C(aa) is such that it is not clear whether the HPPL parties intend to encompass in their plea a form of issue estoppel by their plea that they cannot be bound.
In respect of either of these points, WPPL claims it may be arguable that the deeds would not assist the HPPL parties in their claim that HML and HRL held the Exploration Licences on trust for HPPL. This is because WPPL's plea in par 53C plea [or in par 78] does not make a claim that Bianca and John are entitled to 50% of the Exploration Licence. Nor does WPPL in its Seventh Statement of Claim seek any declaration in that Bianca and John have any interest in any Exploration Licences, reserves or tenements.
The third point is that it may be open on the HPPL parties' plea in par 53C(aa) to argue that the court should not make an antecedent finding that HML or HRL did not hold any of the Exploration Licences on trust for HPPL (as WPPL pleads) and that the deeds can be tended to preclude the making of such a finding by the court.[31]

3.3.2 Can the deeds be enforced against WPPL?

[31] ts 3087.

Senior counsel for WPPL submits that it remains unclear as to how the deeds can be deployed against WPPL or HML, when neither are a party to the deeds.
The HPPL parties claim that the deeds are binding as releases as against not only Bianca and John but also 'the world'. Consequently, they claim that it is immaterial that WPPL [or HML] are not a party to any of the deeds. In support of this contention the HPPL parties refer to Caraher v Lloyd,[32] and MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia),[33] as establishing the principle that a release in a settlement in a deed has the effect of an extinguishment of any liability of the person to whom the release is given which extinguishment operates against strangers to the deed.
[32] Caraher v Lloyd (1905) 2 CLR 480.
[33] MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia) [1999] HCA 51; (1999) 198 CLR 494.
However, it is not clear whether the decision of the High Court in Caraher v Lloyd and MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia) could be found to establish this point as a general principle applicable to settlement deeds releasing 'claims'.
Both Caraher v Lloyd and MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia) concerned the redemption of proprietary interests and beneficial interests in property. Senior counsel for WPPL point out that these decisions say nothing about releasing 'claims' in a deed of release.
Caraher v Lloyd did not concern a deed of settlement that had operative effect as a settlement of claims. In that case a contingent remainder of a fee as tenant in common was released by deed to the tenant for life. The High Court found effect of the deed was to enlarge the tenant for life's estate and as such the contingent remainder was extinguished.
MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia) also did not concern the effect of releases of claims in a settlement deed of the type of the deeds sought to be deployed by the HPPL parties in these proceedings. MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia) concerned the stamp duty implications of cancellation and redemption of units by a trustee upon the request of the unit holders and payment from the trust funds amounts calculated as a proportion of value. The question was whether the redemption of units was evidence of, or a record of, the surrender or renunciation within the meaning of the definition of 'transfer' of a beneficial interest or potential beneficial interest, or in relation to, property under s 71 of the Stamp Duties Act 1923 (SA). A question arose in that matter whether the redemptions made under the trust deed were properly classified as 'surrenders' within the meaning of the definition of 'transfer'. In respect of this issue, the High Court found:[34]
Reference was made in argument to the use of the terms 'surrender' and 'release' as terms of grant in old system conveyancing. 'Release' was a proper term to employ to convey a remainder or reversion to the person in possession, or for a conveyance between joint tenants (46) (even though neither joint tenant had possession to the exclusion of the other (47)). The releasee being already in possession, no livery of seisin was required (48). The 'practical effect' of a release by the reversioner or remainderman to the life tenant in possession was 'to enlarge the estate of the tenant for life' (49). On the other hand, the term 'surrender' was appropriate where an estate for life or a term of years was assured to the holder of the reversion to the intent that it merge or 'drown' in the latter (50). Hence, the statement (51):
'A surrender was the opposite of a release: in a release the greater future estate was abandoned to and enlarged the smaller particular estate; in a surrender the smaller particular estate was given up to and merged in the greater future estate.'
These terms and the notions they expressed were adopted, by analogy, to conveyances which had as their subject matter equitable rather than legal interests (52). Where, as in the case of the Trust Deed, the subject matter is interests in a fund rather than in land, the analogy must be imperfect because possession in the sense used in old system conveyancing is not to be found. It also may be that, with respect to dealings in equitable interests, the distinction drawn between a surrender and a release is not necessarily observed and that 'surrender' may be used to identify what technically is a 'release'.
However, there remains the essential characteristic of the enlargement of one interest by absorption or 'drowning' of the other. This is of particular significance where the statutory context is directed to transfers and conveyances and, in particular, to the passing of value without reciprocal consideration. In the present case, contrary to the view taken in the Full Court, the effect of the redemptions was not the receipt or acquisition by the remaining Unit Holder of any 'beneficial interest' held by the Unit Holders who had obtained the redemption of their respective units.
[34] MSP Nominees Pty Ltd v Commissioner of Stamps (South Australia) [1999] HCA 51; (1999) 198 CLR 494 [31] ‑ [33].

Whether either of these decisions can properly have any application to the deeds pleaded by the HPPL parties which concern releases of claims by Bianca and John and others, cannot be conclusively determined in the absence of further argument by regard to all relevant case law, including the application of the established principles that apply to the construction of commercial contracts.
Pursuant to cl 6 of the Hope Downs Deed, releases were given by each party in their own right and in any representative capacity to each of the other parties from any 'Claims' 'now and in the future'. Each party irrevocably covenanted not to take any proceedings against any of the other parties to the Deed in relation to any matter arising in any jurisdiction, in respect of the 'Claims'.
WPPL points out that one construction of the scope and effect of the releases in the deeds may be when the definition of 'Claims' in cl 1.1(a) of the Hope Downs Deed[35] is read into the operative release clause in cl 6 of the Hope Downs Deed is that the releases are confined to a release of claims concerning a remedies, but not as releases given to release any underlying proprietary interest or any beneficial interest in property. Whether such a construction should be accepted by the court, if pressed by WPPL, is a matter to be determined at trial

3.3.3 Is it arguable that the HPPL parties are by their pleas in par 53C(aa) and par 78 seeking to approbate and reprobate?

[35] Affidavit David Gordon Anthony affirmed 8 February 2023, Annexure DGA-2, 44 ‑ 45

The HPPL parties argue that it is open to them to deploy the deeds against WPPL, but it is not open to WPPL to deploy the deeds against the HPPL parties.
The HPPL parties claim that the assertions made by WPPL in par 53C which are assertions made by Bianca and John, have been wholly released at law under the Hope Downs Deed, which is an instrument which has not been set aside and, until set aside, operates according to its tenor.[36]
[36] ts 3055.
However, Bianca and John challenge the validity of the deeds in the Martin Arbitration and say that in addition to the deeds being voidable, that the deeds themselves are void.
WPPL takes a neutral stance as to the validity or otherwise of the deeds, and this court's ability on that basis to receive the deeds into evidence prior to the completion of the Martin Arbitration.
The HPPL parties properly point out that if WPPL seeks to deploy the deeds they would then be claiming under or through one of the parties to the deeds, which claim would have to be referred to arbitration.[37] However, the HPPL parties claim they are not so constrained by seeking to deploy the deeds against WPPL who is not a party to the deeds.
[37] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77 [327] (Quinlan CJ).
When questioned at some length about why it is open to the HPPL parties to deploy the deeds against WPPL without those pleas being stayed and referred to arbitration, senior counsel for the HPPL parties stated in response that his clients are not precluded:[38]
[F]rom raising issues which, if they were issues against a party to the deed, would be under the deed and therefore arbitral. Thus, for example, John and Bianca are able to plead all the issues which they have pleaded against WPPL, and the court has determined, 'You cannot get a stay because it is pleaded solely against WPPL.'
[38] ts 3067 ‑ 3068.
It is noted, however, that Bianca and John have not pleaded any of the deeds in their defences against WPPL.
Bianca and John's defences have survived applications by the HPPL parties to stay, strike out, or prohibit by injunctive relief Bianca and John from proceeding with their defences, and the HPPL parties have been successful in staying and referring Bianca and John's counterclaims and parts of Rhodes' reply to arbitration. As counsel for Bianca and John point out, on the basis of the stance taken by the HPPL parties in past applications, if the HPPL parties now intend to deploy the deeds against WPPL, this action may be capable of forming a basis of objection to the tender of the deeds on grounds of the doctrine of approbation and reprobation.
Counsel for Bianca and John point out that they claim in the Martin Arbitration that the deeds are void. This was a matter that they pleaded in their counterclaims and had sought declarations in the curial proceedings that the deeds and the arbitration agreements were void. Their counterclaims were stayed and referred to arbitration by Le Miere J in 2018 on the application of the HPPL parties, and others, including Gina.[39]
[39] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407.
Bianca and John point out part of the grounds upon which they opposed the stay of their defence and counterclaims in 2018 was that HPPL and Gina should not be permitted to rely upon the Hope Downs Deed.
In advance of the hearing of the HPPL parties' application for a stay in May 2018, Gina and a company with which she is associated (150 Investments Pty Ltd) submitted that Bianca and John should not be permitted to raise any issues of undue influence, duress, fraudulent concealment or any other matter that went to the alleged voidness or voidability of any of the deeds identified in the counterclaim.[40] Le Miere J accepted that submission on the basis that the Full Court of the Federal Court had determined that these were matters which had been referred to arbitration.[41]
[40] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 9] [2018] WASC 122 [1].
[41] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 9] [2018] WASC 122 [45]; see also Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10] [2018] WASC 407 in which it was found that Bianca and John should be permitted to maintain their defences in these proceedings. The HPPL parties failed in their appeal against this decision; Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77.
Bianca and John argue that the HPPL parties' conduct by seeking to tender the deeds into evidence by raising the deeds in their pleas in par 53C(aa) and par 78, in circumstances where it has been found by the court that the deeds and any question in relation to the deeds can only be enforced in arbitration, is to approbate and reprobate, which should not be countenanced by this court.
The doctrine of approbation and reprobation was explained by McLure JA in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission as follows:[42]
[42] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 [108] ‑ [118], applied in Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 236 [83] (McMurdo J, Fraser JA & Atkinson J agreed).
The doctrine of approbation and reprobation was initially part of Scottish law. Its English equivalent was the doctrine of equitable election between estates: Lissenden v CAV Bosch Ltd [1940] AC 412; Douglas‑Menzies v Umphelby [1908] AC 224; Elder's Trustee and Executor Co Ltd v Commonwealth Homes and Investment Co Ltd (1941) 65 CLR 603 at 617 - 618. The notion of approbation and reprobation is used interchangeably in the case law with election, waiver and estoppel. As a result, it is difficult to confidently identify from the cases the material elements of any independent doctrine of approbation and reprobation.
There is authority in Australian law for an independent doctrine of approbation and reprobation: Commonwealth v Verwayen (1990) 170 CLR 394, 421 - 422 (Brennan J); Fried v National Australia Bank Ltd [2000] FCA 910. The doctrine is summarised in Halsbury's Laws of Australia, Vol 190 [190-35] as follows:
'A person may not "approbate and reprobate", meaning that a person, having a choice between two inconsistent courses of conduct and having chosen one, is treated as having made an election from which he or she cannot resile once he or she has taken some benefit from the chosen course.'
In Halsbury's Laws of England, Vol 60 [962] the authors state:
'Thus a claimant, having two inconsistent claims, who elects to abandon one and pursue the other may not, in general, afterwards choose to return to the former claim and sue on it; but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show an intention to abandon one of them.'
Some examples may illustrate. Douglas‑Menzies v Umphelby is an example of equitable election. By two testamentary instruments called respectively a British will and an Australian will, a testator made a complete disposal of his estate. The testator's widow successfully challenged the British will but sought to claim the beneficial dispositions in her favour in the Australian will. The Privy Council held that the two instruments formed one will containing a coherent scheme of intention and that the widow, having elected to defeat the will in part, could not then claim under it and thus took no interest under the Australian will.
In Express Newspapers plc v News (UK) Ltd [1990] 3 All ER 376 the plaintiff instituted proceedings against the defendant for infringement of the plaintiff's copyright in the text of an exclusive interview. The defendant served a defence and counterclaim which was the exact mirror image of the plaintiff's claim, alleging the plaintiff had, subsequent to instituting proceedings, infringed the defendant's copyright in the text of an exclusive interview with another person. The plaintiff obtained summary judgment on its claim on the basis that copyright subsisted in the whole of the plaintiff's article. The defendant then applied for summary judgment on its counterclaim. The plaintiff said it had an arguable defence to the counterclaim (which would have been equally applicable to the plaintiff's claim). The court held that the defendant was entitled to summary judgment, applying the principle that a person may not approbate and reprobate and adopt two inconsistent attitudes towards another person but must elect between those attitudes and, having elected to adopt one stance, it could not thereafter be permitted to go back and adopt an inconsistent stance. Summary judgment being a final judgment, this decision may be supportable on the alternative ground of issue estoppel.
In Verschures Creameries Ltd v Hull and Netherlands Steamship Co Ltd [1921] 2 KB 608 the plaintiffs were precluded from bringing an action against the defendants for negligence and breach of duty as carriers. The plaintiffs had delivered goods to the carriers to be forwarded to a customer in another city. Before the goods had been delivered, the plaintiffs instructed the carriers not to deliver them to the customer but the goods were nevertheless delivered. The plaintiffs thereafter invoiced the goods to the customer and sued him and recovered judgment for the price of goods sold and delivered. The court held that in suing the customer for the contract price, the plaintiffs had adopted the act of the carriers and having sued the customer to judgment could not then elect to treat the delivery as unauthorised and sue the carrier. That case is better classified as an election between inconsistent rights, the plaintiffs having elected to ratify the unauthorised conduct of its carrier.
A Victorian case decided on the doctrine of approbation and reprobation is Bienvenu v Royal Society for Protection of Animals [1967] VR 656. The plaintiff, purporting to be a contributory of the defendant association, commenced proceedings against it. On the basis that the association's by‑laws were valid, the plaintiffs obtained interlocutory orders, including an order for costs which were subsequently paid. Subsequently, the plaintiff issued a writ claiming a declaration that the same by‑laws on which he had earlier relied were invalid as being beyond power. Starke J held that although the association's by‑laws were invalid, the plaintiff was not entitled to succeed because having relied on the validity of, and thereby approbated, the by‑laws in the earlier action and having been paid costs by the association, the plaintiff could not in the current action rely on the invalidity of, and thereby reprobate, the by‑laws. The doctrine of issue estoppel did not apply because the decisions were interlocutory.
…
Most of the above cases involved preventing a person from relying on a state of affairs which had formed the basis for a judgment or order …
The authorities support the contention that there is an independent doctrine of approbation and reprobation which falls outside the four categories of election to which I have referred. On any view, the independent doctrine requires that there be a choice between two inconsistent courses of conduct or claims.
The principles of approbation and reprobation were subsequently summarised as comprising three principles by the High Court of Justice in the United Kingdom in Skymist Holdings Ltd v Grandlane Developments Ltd[43] which principles are consistent with the observations of McLure JA in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission. When these principles are considered together with the observations of McLure JA the preconditions for the application of the doctrine appear to be as follows:
(1)The approbating party must have elected, that is made his or her choice clearly and unequivocal, by an approbating act or conduct. This has the practical advantage of enabling a proper comparison to be made with the latter allegedly reprobating act, to see if the latter is truly inconsistent with the former.
(2)The party in question must have gained or taken some benefit from the approbation.[44]
(3)The reprobating act or conduct must be clearly inconsistent with the earlier approbating act or conduct.
[43] Skymist Holdings Ltd v Grandlane Developments Ltd [2018] EWHC 3504 (TCC) [61] (Waksman J).
[44] In the United Kingdom there is debate as to whether the approbating party must have gained a benefit or whether to do so is usual but not necessary; see Skymist Holdings Ltd v Grandlane Developments Ltd [2018] EWHC 3504 (TCC) [61] (Waksman J) and MPB v LGK [2020] EWHC 90 [58] (Veronique Buehrlen QC).
A judgment can be said to constitute a benefit to the successful party who, having accepted that benefit, cannot then challenge its validity.[45]
[45] Evans v Bartlam[1937] AC 473, 483 (Lord Russell of Killowen).
Bianca and John say that the position now adopted by the HPPL parties is directly contrary to the findings made in various decisions of the court that the issues concerning the validity of the deeds should not be determined in the curial proceedings. Having elected to require that the counterclaims be stayed and all issues concerning the validity of the deeds be determined in arbitration and not in the curial proceedings, Bianca and John argue the HPPL parties have elected not to deploy the deeds in the curial proceedings, and they should be held to that election.
However, until the HPPL parties seek to tender the deeds and the arguments in support and against the tender are properly considered, no proper assessment can be made by the court as to whether by that tender the application of the doctrine of approbation and reprobation can be properly invoked against the HPPL parties so as to prohibit them from tendering the deeds into evidence in the trial.

4.0 Disposition of the applications for an advance ruling as to admissibility of the deeds and strike out of par 53C(aa) and par 78 of the HPPL parties' Amended Defence

For the reasons set out above, I am not persuaded that the court should make an advance ruling as to whether the deeds are admissible in the curial proceedings.
The reasons why I am not persuaded include the fact that WPPL has yet to file its reply to par 53C(aa) and par 78 of the HPPL parties' Amended Defence, and it has been foreshadowed by other parties that they intend to amend their defences, including Bianca and John. In addition, the parties are yet to finalise their opening submissions.
Importantly, as set out above the arguments raised by the parties going to admissibility and whether the deeds should accepted into evidence are complex and should not be decided prior to hearing the parties' openings and perhaps until relevant evidence is adduced about the factual issues which arise in respect of the Acquisition Issue and the Debt Reconstruction Issue.
It may also only be appropriate to accept conditional tender of the deeds, and reserve the issue of their admissibility and acceptance into evidence to be dealt with in the course of delivering the reasons for judgment at the conclusion of the trial. Whether that course of action should or should not be adopted is a matter that should not be determined prior to trial.
In addition, the HPPL parties have not put forward any convincing reason as to why there would be utility in an advance ruling. In particular, no reason has been advanced which goes to whether the trial should proceed in a particular way if an advance ruling is made, or is likely to proceed if an advance ruling is not made. Nor have the HPPL parties raised or identified any prejudice arising from leaving the determination of the admissibility and tender of the deeds into evidence until trial.
As WPPL points out, this is not a case where a considerable amount of time, effort or money might be saved if the admissibility of the deeds were to be determined in advance of the trial, and the HPPL parties do not contend otherwise.
Nor am I satisfied that par 53C(aa) and par 78 of the HPPL parties' Amended Defence should be struck out.
This is first because although Bianca and John and WPPL have put arguments that the HPPL parties' pleas should fail, it cannot be said, with the high level of certainty necessary to strike out a pleading, that this part of the HPPL parties' case is legally unsustainable. That being so, nor can it be said with the requisite degree of certainty that these strands of the HPPL parties' case are doomed to fail.
Second, in light of the concession made by the HPPL parties that by these pleas they do not seek to deploy the deeds against Bianca and John in their defence to WPPL's claim, I am not persuaded on the arguments presently put to the court that the pleas or the admission into evidence of the deeds would give rise to any procedural unfairness to Bianca and John.
Third, as to the point raised by Bianca and John that the HPPL parties are by these pleas seeking to approbate and reprobate, in the absence of comprehensive argument about the application of the principles that apply to approbation and reprobation in light of the procedural history of the conduct of the HPPL parties in the proceedings, this point is not sufficient to justify striking out the pleas, but if this point is sought to be pressed at trial it may constitute a proper basis as to why the deeds should not be accepted into evidence in the trial of the curial proceedings.
For these reasons, the HPPL parties' application in its chamber summonses filed on 8 February 2023 for an advanced ruling on the admissibility of the deeds should be dismissed. For these reasons also, Bianca and John's oral application to strike out par 53C(aa) and par 78 of the HPPL parties' Amended Defence should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SO
Associate to the Judge

19 APRIL 2023

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 20] [2023] WASC 124 (S)
CORAM:   SMITH J
HEARD:   ON THE PAPERS
DELIVERED          :   30 AUGUST 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

[54] Submissions on Costs of Hope Downs Deed Application filed 19 May 2023 par 10.
[55] First and Second Defendant's Minute of Proposed Orders filed 19 May 2023.

In the alternative, the HPPL parties say that if a special costs order is to be granted against them, notwithstanding their submissions advanced, it should follow that the same order should then be made to any costs paid by Bianca and John consequent upon the dismissal of their strike out application.

Disposition

Pursuant to orders 3 and 4 of the orders made on 10 May 2023, the matter of costs is to be determined on the papers.
Having considered the written submissions filed on behalf of Bianca and John, WPPL and the HPPL parties, for the reasons that follow, I am of the opinion that:
(a)Bianca and John should be entitled to their costs of defending the application brought by chamber summonses, but not a special costs order;
(b)there should be a special costs order for WPPL in relation to the application brought by the chamber summonses;
(c)no costs order is warranted for the oral strike out application; and
(d)the HPPL parties should be required to pay the costs of WPPL and Bianca and John as provided for in (a) and (b) above.

Principles that apply when considering making orders for costs

The discretion to order costs under s 37 of the Supreme Court Act 1935 (WA) and O 66 r 1 of the Rules of the Supreme Court 1971 (WA) is very wide.[56] The court's discretion must be exercised judicially, so as to achieve what is fair and just as between the parties according to the circumstances of the particular case.[57]
[56] Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516 [39] (Steytler P).
[57] Frigger v Lean [2012] WASCA 66 [53] (Allanson J) (Newnes & Murphy JJA agreed); Latoudis v Casey (1990) 170 CLR 534, 558.
The usual rule as to costs is that costs are to follow the event, that is, the successful to an action is entitled to recover their costs.
The principle that costs normally follow the event will not necessarily be applied where a party, although generally successful in the matter has, by the introduction of some issue or issues on which they failed, increased the costs of the proceedings. In this event, pursuant to O 66 r 1(3), the court may order the successful party to pay the costs of the issues on which they failed. Consequently, O 66 r 1(3) only applies where the failed issue has increased costs.
An 'issue' in O 66 r 1(3) does not mean a precise issue in the technical pleading sense, but means any disputed question of fact or law. A court's discretion to render an award of costs by undertaking an assessment conducted by reference to trial issues won or lost, should only be exercised in the clearest of cases.[58]
[58] KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359 [8] (Nichols J); applied Citic Ltd v Mineralogy Pty Ltd [No 7] [2021] WASC 371 [25] (Kenneth Martin J).
An exercise of the court's discretion as to costs by some evaluation conducted towards issues 'won or lost' may be more appropriate where discrete and severable issues can be readily identified and upon which the otherwise generally successful party can be seen to have failed especially where the determination of such issues is discerned to have added to the cost of the proceedings in a significant way.[59]
[59] Citic Ltd v Mineralogy Pty Ltd [No 7] [2021] WASC 371 [30] (Kenneth Martin J); applying Amaca v Hannell [2007] WASCA 158 (S) [7] (Martin CJ, Steytler P & McLure JA).
It is to be expected that a generally successful party will fail on some issues.[60] In a case in which the generally successful party has failed on only a minor issue, which did not materially add to the costs of the conduct of the proceedings, it would not ordinarily be appropriate to depart from the general rule, unless the conduct of the generally successful party in relation to that issue had been unreasonable. In the event of unreasonableness, different considerations may apply.[61]

Principles that apply when considering making special costs orders

[60] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) [179] (Beech J).

[61] Amaca v Hannell [2007] WASCA 158 (S) [7] (Martin CJ, Steytler P & McLure JA); Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48] ‑ [52] (Murphy, Mitchell & Pritchard JJA).

The consideration of special costs orders requires a two-stage process which a court must be satisfied before issuing such an order.
Relevantly, Vandongen J, in Bolt v Bolt,[62] applying the reasons of the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2],[63] summarised the principles to be applied when considering whether to make a special cost order pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022:[64]
[62] Bolt v Bolt [2023] WASC 162 (S).
[63] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S).
[64] Bolt v Bolt [2023] WASC 162 (S) [10] - [13].
Where a special costs order is sought, the court is required to consider two questions, namely:
(a)Are the maximum amounts allowable under the relevant items in the applicable costs determination inadequate in the sense that there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amounts?
(b)Does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity, or importance of the matter?
If the answer to both of those questions is 'yes', then the court may do all or any of the things referred to in s 141(3)(a) - (d) of the Uniform Act [Legal Profession Uniform Law Application Act 2022 (WA)]. In this case the plaintiff submits that the court should exercise the power provided for in s 141(3)(c) by removing the limits that are fixed under item 10(a) of the Costs Determination, namely, costs relating to proceedings in chambers.
The issues that arise when a court is required to consider whether it has formed the opinion that is referred to in s 141(3) of the Uniform Act should be dealt with based on impression, rather than by conducting a detailed and precise evaluation. This means that it will not ordinarily be necessary for the court to determine what amount should be allowed on taxation, but only whether there is a fairly arguable case that a greater amount should be allowed than is otherwise allowable under the relevant costs determination. The mere fact that a party incurred greater costs than those that are allowable will not, of itself, suffice.
It does not necessarily follow that a party who is a beneficiary of an order made under s 141(3) of the Uniform Act will recover costs in an amount that exceeds the amount allowable under the relevant determination. This is because if a special costs order is made it will then be up to the taxing officer to 'consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required'.

Should Bianca and John be required to pay the HPPL parties' costs?

The HPPL parties argue that Bianca and John should not be entitled to their costs of opposing the HPPL parties' application for an advanced ruling on the admissibility of the deeds on the grounds that its application and Bianca and John's strike out application were founded on substantially the same arguments. As such they argue that to award Bianca and John costs concerned with the same matters as were ultimately dismissed in their strike out application would be inconsistent with the general rule of costs following the event.
This argument by the HPPL parties however ignores the substantial overlap in the submissions made by Bianca and John in successfully opposing the application for an advanced ruling and the strike out application.
Bianca and John point out in their written submissions in support of costs in their favour that the oral strike out application was brought by way of defence to the HPPL parties' application and that this reflected a late change of position by the HPPL parties. As such, the oral application could not be said to have been brought unreasonably. Bianca and John maintain that the costs of the strike out application are not severable from the costs of the HPPL parties' failed application.
Further, Bianca and John were required to prepare and file their written submissions and affidavit material in opposition to the HPPL parties' application prior to the HPPL parties amending their defence in the WPPL proceedings which raised the issue of the deeds as against WPPL for the first time, and in turn gave rise to the strike out application.
In addition, there is no evidence that Bianca and John's oral strike out application added to the parties necessary preparatory work to deal with the HPPL parties' application.
For these reasons, Bianca and John should not be required to pay the HPPL parties' costs. For these reasons also, I am not satisfied that the HPPL parties have put forward a cogent reason as to why Bianca and John should not be entitled to their costs of opposing the HPPL parties' application for an advanced ruling as to the admissibility of the deeds. Consequently, Bianca and John should be entitled to their costs of and incidental to their preparation of defending the HPPL parties' application.

Are the maximum amounts allowable under the 2022 Scale inadequate?

First I am required to reach a view about whether the amounts allowable under the 2022 Scale are inadequate in the sense that there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amounts?
The proper approach, on taxation, to the determination of allowances for items set out in a costs determination were stated by Asprey J in W & A Gilbey v W & A Gilbey Ltd v Continental Liqueurs Pty Ltd:[65]
… a taxing officer in a party and party taxation should allow a successful litigant, in whose favour an order for costs has been made, a just and reasonable amount in respect of each item claimed in such litigant's bill of costs where such item was, in fact, incurred on behalf of the litigant by his solicitor in respect of some step or matter in the litigation which either (1) was necessarily taken or performed for the attainment of justice or the maintaining or defending of the litigant's rights in the circumstances of the particular case, or, (2) although not necessarily taken or performed for such purposes, would reasonably have been taken or performed for any of those purposes by a solicitor acting at the time when it was taken or performed without extravagance in conformity with the then situation of the case and not in conflict with the statutes and rules, the practice of the court, and the usages of the legal profession appertaining to such a case.
[65] W & A Gilbey v W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, 534. This passage was subsequently referred to by Vandongen J, in Bolt v Bolt [2023] WASC 162 (S) [31] and is reproduced in M Gething et al, Civil Procedure: Western Australia [66.11.2].
Commonly, an application for a special costs order is accompanied by an affidavit annexing a bill of costs.
In Atwell v Roberts,[66] the Court of Appeal said that where a party makes an application for a special costs order the affidavit filed in support of the application 'should annex a draft bill of costs that specifies the amounts proposed to be claimed under each discrete sub-item and the total amount proposed to be claimed.'[67] Nevertheless, despite the omission of a draft bill of costs to the affidavit in support of a special costs order in that case, the court was satisfied based on evidence of the number of hours apparently worked and the maximum hourly rates permitted under the relevant scales that the total amount that the respondents' legal representatives charged was highly likely to have exceeded the total amount allowable under the relevant scales.
[66] Atwell v Roberts [2013] WASCA 37 (S).
[67] Atwell v Roberts [2013] WASCA 37 (S) [23]; Bolt v Bolt [2023] WASC 162 (S) [18] (Vandongen J).
Whilst the failure to produce a bill of costs in Atwell v Roberts was not fatal to an application for a special costs order, it has also been observed that in some cases no evidence will be required at all.[68] Martin CJ, in Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq)[69] in referring to questions arising under the now repealed s 280(2) of the Legal Professional Act 2008 (WA), the identical provision to s 141(3) of the Legal Profession Uniform Law Application Act, stated that:[70]
… the questions arising under the section are addressed as matters of impression rather than science or mathematical precision. In some cases it will be necessary to adduce evidence to enable the formation of the requisite opinion. However, in other cases, a court might be able to form the necessary opinion from its knowledge of the case and its circumstances. Moreover, it must be remembered that when an order is sought removing limits on costs fixed in an applicable determination pursuant to s 280(2)(c), the order made will do no more than that. Accordingly, the court considering the application for such an order need go no further than determine whether there is a fairly arguable case for the allowance of costs at an amount greater than the amount allowable under the relevant determination - it is for the taxing officer to consider the necessity for the work that was done and the reasonableness of the remuneration claimed. (footnotes omitted) (emphasis added)
[68] Pilbara Iron Company (Services) Pty Ltd v Chevron (TAPL) Pty Ltd [2020] WASC 296 (S) [15] (Archer J).
[69] Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S).
[70] Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S) [5].
Whilst WPPL did not attach a draft bill of costs with the affidavit of Mr Jenkins on which they rely, Mr Jenkins deposed that the actual costs incurred by WPPL were approximately $130,000 which substantially exceeded the amount of $20,790 permitted by item 10(a)(i) of Table B of the 2022 Scale.
In Mr Jenkins affidavit he also deposed evidence of WPPL's preparation for and the circumstances surrounding the chamber summons hearing on 1 March 2023. This included that WPPL prepared and filed written submissions in response to the chamber summons on 22 February 2023. Subsequently, in response to the filing of the HPPL parties' Amended Defence on 24 February 2023, WPPL was required to consider:[71]
(a)the matters raised by the new and amended pleadings;
(b)how those pleadings affected WPPL's position in relation to the HPPL Parties' chamber summonses; and
(c)whether, in light of the chamber summonses, any responsive application should be brought by WPPL.
[71] Affidavit of Gareth John Jenkins sworn 17 May 2023 par 10.
WPPL say that the response to the HPPL parties' Amended Defence was required to be completed expeditiously (over five days inclusive of a weekend) in order to ensure WPPL was prepared for the hearing of the HPPL parties' chamber summons on 1 March 2023. In preparation for this hearing, both WPPL and the HPPL parties briefed two senior counsel to appear.[72]
[72] Plaintiff's Submissions on Costs of the First and Second Defendants' Application for an Advanced Ruling on Admissibility filed on 19 May 2023 par 8(d).
Given that the actual costs incurred by WPPL submitted to the court in the affidavit of Mr Jenkins substantially exceed the amount permitted under the 2022 Scale, and based on my own knowledge of the case and its circumstances, I am of the opinion that WPPL has made out there is a fairly arguable case that the amounts allowable under the relevant determinations are inadequate.
Bianca and John have not filed any affidavit material which addresses the extent of, or the costs of the work, required to respond to the HPPL parties' applications. Responsive to the HPPL parties' chamber summonses, counsel for Bianca and John filed an outline of written submission comprising seven pages accompanied by a confidential three page affidavit.[73]
[73] See Submissions of Bianca Rinehart and John Hancock filed 24 February 2023 and Confidential Affidavit of Timothy Randolph Price sworn 22 February 2023.
Bianca and John's submission on costs for the HPPL parties' chamber summons set out some of the complexity of preparing their application. However, relevantly to the first stage of determining inadequacy, Bianca and John have not quantified on affidavit the actual costs that were incurred, or the extent of the work required to prepare for the hearing on 1 March 2023. Importantly, prior to the substantive hearing of the application for a ruling of the deeds, Bianca and John only filed a brief outline of submissions and very short affidavit.
I am therefore not satisfied that Bianca and John have provided sufficient evidence to support a finding that the amounts allowable in respect of their defence to the HPPL parties' chamber summonses under the 2022 Scale are inadequate. Consequently, Bianca and John's application for a special costs order must fail.

Does the inadequacy of the costs allowable to WPPL under the 2022 Scale arise because of the unusual difficulty, complexity or importance of the matter?

The next question which I must address is whether for WPPL the inadequacy of the costs which might be allowed under the 2022 Scale arises because of the unusual difficulty, complexity or importance of the application.
After the chamber summonses brought by the HPPL parties were filed on 8 February 2023, and after written submissions and affidavit material were filed by the parties, the HPPL parties amended their defence which pleadings were served on the other parties on the evening on Friday, 24 February 2023.
As can be seen from my reasons for dismissing the HPPL parties' application, their amendment to their defence constituted a change of position of the HPPL parties in that the HPPL parties introduced a plea to deploy the deeds in answer to WPPL's alternative pleas in pars 53C and 78 (of what was WPPL's Sixth Further Amended Substituted Statement of Claim dated 15 February 2021 which pleas are now replicated, without amendment, in WPPL's Seventh Further Amended Substituted Statement of Claim dated 1 March 2023).[74]
[74] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 20] [2023] WASC 124 [5].
This late change of position a few days prior to the hearing of the application for a preliminary ruling on the deeds required WPPL to expeditiously consider how the matters raised in the HPPL parties' defence affected its pleaded claims in pars 53C and 78.
Consequently, I accept WPPL's claim that this necessitated further detailed consideration of a range of complex legal issues and factual matters arising out of an already complex set of pleadings.
I also accept the significance of the matters the subject of the amended defence were of considerable importance to WPPL's claim in that the HPPL parties sought for the first time to deploy the deeds against WPPL to defeat WPPL's claimed entitlement to its interest in 50% of the East Angelas exploration licences.[75]
[75] See pars 53C and 78 of WPPL's Sixth Further Amended Substituted Statement of Claim filed 15 February 2023.
In light of the complexity of the matters raised by the HPPL parties' chamber summons and the potential significant consequences of the application on WPPL's case, my overall impression is that the perceived inadequacy of costs allowable for WPPL is causatively attributable to the complexity and importance of the matter.
Accordingly, I am of the view that it is fairly arguable that the bill WPPL will present to a taxing officer in relation to the application may properly be taxed at an amount that is greater than the maximum allowable under the 2022 Scale, and that this is because of the complexity and importance of the application. This does not mean that the taxing officer must allow a greater amount than the limits in the 2022 Scale. It remains for the taxing officer to 'consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required'.[76]

Disposition - should costs be ordered for the oral strike out application?

[76] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] cited in Bolt v Bolt [2023] WASC 162 (S) [13] (Vandongen J).

It is clear that the oral strike out application did not add meaningfully to the length of the hearing (which took less than a day), and that the arguments overlapped with and were relevant to the HPPL parties' application for an advanced ruling on the deeds.[77]
[77] Submissions of the Third and Fourth Defendants on costs of Advanced Ruling Application filed 19 May 2023 par 7.
I accept Bianca and John's submission that their oral strike out application heard on 1 March 2023 would not have been brought but for the HPPL parties' chamber summons. Consequently, by way of defence to the HPPL parties' application the strike out application could not be said to have been brought unreasonably. Whilst the HPPL parties were successful in having the oral strike out application dismissed, making an order which adheres to the general rule that costs follow the event is not warranted for this application.
This is because Bianca and John's application did not add to the length of the hearing on 1 March 2023 as the grounds argued for the strike out application were substantially the same as the submissions made in defence of the chamber summons application.[78] For this reason, I am of the opinion that there should be no costs order made for the oral strike out application.
[78] See Submissions on Costs of Hope Downs Deed Application filed 19 May 2023 par 5.

Conclusion

For these reasons, and pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022, I am of the opinion that the following orders should be made to the effect of:
(a)The HPPL parties pay Bianca and John's costs of, and incidental to the HPPL parties' chamber summons dated 8 February 2023, to be assessed if not agreed.
(b)The HPPL parties pay WPPL's costs of the HPPL parties' chamber summons dated 8 February 2023, to be assessed if not agreed. Any such taxation of costs is to be undertaken:
(i)without reference to the limits provided for in Table B at clause 18 of the Legal Practitioners (Supreme and District Courts) (Contentious Business) Determination 2022 (2022 Scale);
(ii)without reference to the maximum hourly and daily rates provided for solicitors (Senior, Junior and Restricted), Clerks and Paralegals, Counsel and Senior Counsel in Table A at clause 16 of the 2022 Scale); and
(iii)including reasonable allowances for work undertaken by multiple Counsel and Senior Counsel.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SO
Associate to the Judge

30 AUGUST 2023