Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 21] - [2023] WASC 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 21] [2023] WASC 169
CORAM:   SMITH J
HEARD:   10 MAY 2023
DELIVERED          :   23 MAY 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 Counter
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 - Documents obtained during arbitration proceedings - Harman obligation of confidentiality of documents obtained pursuant to a compulsory process - Whether leave should be granted to allow co‑defendants to use documents obtained during arbitration proceedings for the purposes of the conduct of their defences in the curial proceedings

Practice and procedure - Whether the co‑defendants require release from the Harman obligation from the arbitral tribunal or whether a release is unnecessary because the co‑defendants' Harman obligation owed to the arbitral tribunal has entirely yielded by existing discovery and inspection orders made by the court in the curial proceedings

Arbitration - Section 5 Commercial Arbitration Act 2012 (WA) - Whether the court has jurisdiction to grant leave to the co‑defendants to use documents obtained in arbitral proceedings - Whether to make an order granting leave is to 'intervene' in a matter governed by the Act - Orders sought are not orders that intervene in the arbitral process - Orders sought go to the use of documents in proceedings between persons who have not entered into or are not otherwise bound by arbitration agreements

Arbitration - Sections 27E and 27F Commercial Arbitration Act - Whether disclosure of confidential documents in relation to an arbitration pursuant to s 27F(5) displaces the Harman obligation considered but not decided

Arbitration - The fact that documents are disclosed in a private arbitral process cannot give rise to an absolute prohibition on the use of the documents in curial proceedings

Practice and procedure - Exercise of the discretion to grant leave to use documents disclosed in an arbitral process - Public interest in the proper administration of justice requires that the co‑defendants be granted leave to use the documents for the purpose of the conduct of their defences

Legislation:

Commercial Arbitration Act 2012 (WA)

Result:

Orders made granting leave to co‑defendants to use documents disclosed in an arbitral process for the purpose of the conduct of their defences

Category: B

Representation:

CIV 3041 of 2010

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

Original Action

Counsel:

Plaintiff	:	Ms J Taylor SC & Ms C McKay
First Defendant	:	Mr C Bova SC & Mr S Murray
Second Defendant	:	Mr C Bova SC & Mr S Murray
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Third Party	:	Ms C Wren
Interested Party	:	Mr A Shearer & Mr H Cooper

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
Interested Party	:	Gilbert+Tobin

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	Mr A Hochroth & Mr D Delany
Second Plaintiff by Counterclaim	:	Mr A Hochroth & Mr D Delany
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Third Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fifth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Seventh Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Twelfth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixteenth Defendant by Counterclaim	:	Ms J Taylor SC & Ms C McKay
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 J Taylor SC & Ms C McKay
First Defendant	:	Mr C Bova SC & Mr S Murray
Second Defendant	:	Mr C Bova SC & Mr S Murray
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Third Party	:	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 C Bova SC & Mr S Murray
Second Defendant	:	Ms J Taylor SC & Ms C McKay
Third Defendant	:	Mr C Bova SC & Mr S Murray
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	Mr A Hochroth & Mr D Delany
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Third Party	:	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 C Bova SC & Mr S Murray
Third Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fifth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Seventh Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Twelfth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Thirteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Fourteenth Defendant by Counter	:	No appearance
Fifteenth Defendant by Counterclaim	:	Mr C Bova SC & Mr S Murray
Sixteenth Defendant by Counterclaim	:	Ms J Taylor SC & Ms C McKay
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 Counter	:	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

Cases referred to in decision:

Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287
Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 3) [2008] FCA 976
Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504
BCI Finances Pty Ltd (in liq) v Commissioner of Taxation [2015] FCA 679
Bondelmonte v Bondelmonte (2017) 57 Fam LR 567
Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery) [2015] VSC 352
Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 398
Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204
Commissioner of Taxation v Rawson Finances Pty Ltd [2015] FCA 628
Davies v Eli Lilly & Co [1987] 1 WLR 428
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Elfar (formerly EGS21) v Commonwealth of Australia [2022] FCA 1402
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2009) 235 CLR 125
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576
In the matter of Metal Storm Ltd (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306
Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2008] FCA 554
Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315
Maek v Ibrahim [2022] WASC 285
Mango Boulevard Pty Ltd v Whitton [2018] FCA 399
McCabe v British American Tobacco Australia Services Ltd [No 3] [2002] VSC 150
Mineral Resources Ltd v Wyatt [2021] WASC 185
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436
Platinum Systems Resourcing Pty Ltd v NRW Holdings Ltd [No 3] [2013] WASC 402
Playcorp Ltd v Tyco Industries Inc [2000] VSC 440
Rinehart v Hancock [2019] HCA 13; (2019) 267 CLR 514
Sino Iron Pty Ltd v Palmer [2014] QSC 259
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 19] [2023] WASC 114

Table of Contents

1.0 Summary - the applications for use of documents discovered by Bianca and John and the result

2.0 Background - Bianca and John's application for discovery and use of documents discovered in the Martin Arbitration in the curial proceedings

3.0 The plaintiffs' submissions that are relevant to the disposition of Bianca and John's application

4.0 The objections to use of the Annexure A documents by Bianca and John

5.0 Disposition - Bianca and John's application to use the Annexure A documents

5.1 Whether Bianca and John require a release from the Harman obligation owed to the Martin Arbitration Tribunal to use the Martin Arbitration documents discovered by them in the curial proceedings?

5.2 Commercial Arbitration Act 2012 (WA)

5.2.1 The effect of s 5 of the Commercial Arbitration Act - Whether the court has power to make the orders sought by Bianca and John

5.2.2 Is disclosure of the Martin Arbitration documents authorised by s 27F(5) of the Commercial Arbitration Act?

5.3 Should the court exercise its discretion to grant leave to Bianca and John to use the confidential Martin Arbitration documents for the purposes of their defences?

5.3.1 The source of the Annexure A documents discovered by Bianca and John

5.3.2 The HPPL parties and Gina's objections to the use of the documents by Bianca and John

5.3.3 Relevant principles

5.3.4 Disposition ‑ It is in the interests of justice that leave be granted

SMITH J:

1.0 Summary - the applications for use of documents discovered by Bianca and John and the result

Bianca Hope Rinehart (Bianca) and John Langley Hancock (John) make application by chamber summonses dated 24 April 2023 and 11 May 2023,[1] to use the documents referred to in Annexure A of their discovery affidavits dated 21 December 2022 and 22 December 2022 for any purpose connected with the conduct of their defence in the proceedings.
[1] Bianca and John filed their chamber summons in the Rhodes proceedings on 24 April 2023, and in the WPPL proceedings on 11 May 2023.
For the reasons that follow, I am satisfied that leave should be granted to allow Bianca and John to use the documents referred to in Annexure A, for the purpose of the conduct of their defences. However, I am not satisfied that I should make the orders in the form sought by Bianca and John in their chamber summonses to authorise the use of the documents 'for any purpose connected with' the conduct of their defence. This is because there is no material before the court to justify the making of broad orders in these terms.
Granting leave to use the documents for the purpose of the conduct of their defences will authorise Bianca and John to use the documents for the purposes of trial preparation, including using those documents to prepare a draft of any amendments to their defences, brief counsel, and to use and to seek to tender any of those documents at the main trial. Whether tender of any particular document will be successful will be subject to the usual rules that apply to the admissibility of documents and relevance in any curial proceedings, and if raised, the rules of privilege. It should also be noted that granting leave to Bianca and John for this purpose should not prohibit any party or the interested non‑party Georgina Hope Rinehart (Gina) from seeking an appropriate confidential regime over any particular documents that are sought to be used or tendered in the main trial.

2.0 Background - Bianca and John's application for discovery and use of documents discovered in the Martin Arbitration in the curial proceedings

In 2021, Bianca and John made applications for general discovery against Hancock Prospecting Pty Ltd (HPPL) and Hope Downs Iron Ore Pty Ltd (HDIO) (the HPPL parties) in the Wright Prospecting Pty Ltd (WPPL) proceedings and the DFD Rhodes Pty Ltd (Rhodes) proceedings.
On 12 August 2021, Le Miere J made orders in the Rhodes proceedings, and corresponding orders on 13 August 2021 in the WPPL proceedings, requiring the HPPL parties to give discovery to Bianca and John of specified classes of documents or documents in relation to specified issues, to be determined by the court. His Honour also made orders requiring conferral, and if following conferral agreement was not reached, Bianca and John and the HPPL parties were required to file a minute of the orders that they proposed together with submissions and any affidavit evidence on which they intended to rely.
On 1 October 2021, in compliance with the orders made by Le Miere J, Bianca and John and the HPPL parties each filed submissions and orders they each sought in the form of a Stern Schedule.
Of relevance to the present application before the court, two categories sought by Bianca and John in the Stern Schedule filed on 1 October 2021 were Categories 75 and 76.
Category 75 was as follows:
PROPOSED CLASS NO. 75
All documents referred to in the tender lists of the GHR Parties and/or the HPPL Parties in the Martin Arbitration relevant to the issues arising on the Defence.
In the HPPL parties' response, among a number of objections to discovery of documents in this category, which are not relevant to the application presently before the court, the HPPL parties stated:
Should John and Bianca wish to use any document the subject of this category in these proceedings, the appropriate course is to approach the Arbitrators in the Martin Arbitration to apply to be released from the Harman undertaking.
Category 76 was as follows:
PROPOSED CLASS NO. 76
All documents that may be disclosed in the Martin Arbitration relevant to the issues arising on the Defence.
In the HPPL parties' response, among a number of objections to discovery of documents in this category, they repeated their response to Category 75.
On 10 December 2021, Bianca and John filed a redacted copy of their Stern Schedule reply in which they stated in response to the Harman obligation[2] point raised by the HPPL parties:
[T]he proposal by the HPPL Parties that John and Bianca should take up time and incur costs to make an application to the tribunal in the Martin Arbitration to allow the use of these documents in these proceedings is both unnecessary and inappropriate. That proposal would be productive of further disputation and an unreasonable burden when it is plainly within the reasonable power of the HPPL Parties to discover the same documents in these proceedings.
[2] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Following the dismissal by the Court of Appeal of the discovery appeals on 2 August 2022,[3] at a directions hearing on 15 September 2022, orders were made in the WPPL proceedings and corresponding orders in the Rhodes proceedings providing for the HPPL parties to make an application for the stay of the proceedings or, in the alternative, an application for an adjournment of the main trial, together with programming orders and listing the deferral application for hearing on 24 and 25 November 2022.
[3] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97.
At the directions hearing on 15 September 2022, senior counsel for the HPPL parties informed the court that, if the HPPL parties made a stay application, it would be premature to have Bianca and John's Stern Schedule discovery application heard at the same time because the discovery application may ultimately not be necessary. This submission was not accepted, and orders were made in the WPPL proceedings and corresponding orders in the Rhodes proceedings listing the Stern Schedule discovery application for hearing on 30 November and 1 December 2022. However, the hearing dates were subsequently vacated on application by Bianca and John.
At a directions hearing on 25 November 2022, counsel for Bianca and John stated:
(a)the preferable course would be for his clients to be ordered to discover the documents which it had received in the Martin Arbitration which are relevant to these proceedings; and
(b)that way, those documents could be used and the remaining discovery requests will be narrowed because of the universe of documents that they already have is significant.[4]
[4] ts 2976 ‑ 2977.
Senior counsel for the HPPL parties at that time indicated in response to this submission that Bianca and John were contemplating a different type of application to the discovery application presently before the court and that such an application raised some complexities as to the implied undertaking in the Martin Arbitration.[5] By this observation, it was clear that senior counsel was referring to the Harman obligation.
[5] ts 2977.
However, it is apparent from the actions of the HPPL parties after the directions hearing on 25 November 2022 that they acted inconsistently with the position they had taken that Bianca and John could not use any of the documents that had been discovered in the Martin Arbitration that were relevant to issues raised in the curial proceedings without first seeking a release from the Martin Arbitration Tribunal.
At a directions hearing on 14 December 2022, after the court delivered reasons dismissing the HPPL parties' application for a stay or deferral of the main trial, Bianca and John sought timetabling orders to serve a Revised Stern Schedule and programming of the Stern Schedule categories dispute. At this hearing, senior counsel for the HPPL parties stated that (his clients) were prepared to agree to proposed orders 1, 2 and 4(a).
After some debate about the remaining orders sought by Bianca and John but not proposed orders 1, 2 and 4(a), the orders sought by Bianca and John were made by the court, in the form that they proposed, which were as follows:[6]
1.On or before 21 December 2022 the Third and Fourth Defendants (Bianca and John) are to give discovery on affidavit of all documents falling within the classes of discovery set out in Annexure A of the documents received by them pursuant to disclosure or produced to them in answer to subpoenas, as evidence or otherwise in the Martin Arbitration that they consider are relevant to the issues which arise from their defence in these proceedings (Martin Arbitration Documents).
2.Until agreement between the First and Second Defendants (HPPL Parties) and Bianca and John, or further order of the Court, Annexure A and the Martin Arbitration Documents are not to be provided for inspection to any of the parties to these proceedings who are not also parties to the Martin Arbitration.
3.On or before 21 December 2022, Bianca and John are to provide a revised Stern Schedule setting out the categories of documents of which they seek discovery from the HPPL Parties pursuant to order 6 of the orders of Le Miere J made on 6 September 2021 (Revised Stern Schedule Categories).
4.On or before 1 February 2023, the parties to these proceedings who are also parties to the Martin Arbitration are to confer with a view to reaching agreement on:
(a)The relevance and any objections to inspection of the Martin Arbitration Documents; and,
(b)The Revised Stern Schedule Categories.
[6] A corresponding order was made in the Rhodes proceedings.
Before those orders were made, I enquired of counsel for Bianca and John whether the list of documents in Annexure A had been provided to the parties to the Martin Arbitration. In response, counsel stated that out of an abundance of caution they had not because they did not wish to be accused of breaching the implied undertaking by making use of the documents for the purposes of the court proceedings.[7]
[7] ts 2989.
Senior counsel for the HPPL parties then informed the court that in principle his clients did not have any issue with orders 1, 2 and 4(a). Importantly, for the purposes of the applications presently before the court, senior counsel then went on to state:[8]
As I understand the intent of those orders, it is intended that the (indistinct) Bianca parties will be hitting discovery pursuant to this order and their general discovery obligations in the proceedings of documents that they have received or otherwise they have in their possession during the Martin arbitration process and that the idea behind order 2 and order 4A is that the confidentiality of those documents is protected in a way that ensures that it is not lost through the provision of the documents to parties to these proceedings. And with respect, that's a sensible approach and we're prepared to agree to 1, 2 and 4A.
Insofar as the remainder of the orders are concerned and any revised Stern Schedule process, in our respectful submission, it's unnecessary in circumstances where the universe of relevant documents to the issues in the Martin arbitration have been disclosed in the Martin arbitration. And those issues, as your Honour well knows, are much broader than the issues before this court. But there is an overlap. And so to the extent that there are documents that fall within the claimant's general discovery obligations, they will be borne out in the exercise contemplated by order 1 and the general discovery obligations.
[8] ts 2992 (my emphasis).
It was clear from these remarks that the HPPL parties consented to the discovery by Bianca and John of any documents they had themselves discovered or had received as a result of voluntary or compulsory discovery processes in the Martin Arbitration, but that in the absence of agreement between the parties to the proceedings who were also parties to the Martin Arbitration, the other parties to the proceedings were not entitled to inspect the Martin Arbitration documents.
It was also very clear from these remarks that the HPPL parties consented to Bianca and John making use of the Martin Arbitration documents in the curial proceedings for the purposes of identifying the documents that they considered relevant to the issues raised in their defences.
There was then submissions about the remaining orders sought by Bianca and John. Before making the orders, I enquired of senior counsel for the HPPL parties about the likely content of the objections to be made to Bianca and John's foreshadowed Revised Stern Schedule. In particular, I enquired using the vernacular whether there was likely to be any 'holus-bolus' objection to discovery (by Bianca and John) on the basis that the documents had been discovered on a confidential basis in the Martin Arbitration.[9] In response, senior counsel said, 'provided that satisfactory confidentiality orders are made, the answer is no'.[10]
[9] ts 2997.
[10] ts 2998.
On 21 December 2022, Bianca and John served on the parties to the curial proceedings who are also parties to the Martin Arbitration their affidavits of discovery in which they each annexed a list titled Annexure A, containing a list of 2,047 documents received in the Martin Arbitration including documents they had discovered in the Martin Arbitration. On the same day they served their Revised Stern Schedule on the arbitral parties who are parties to the curial proceedings in accordance with order 3 of the orders made on 14 December 2022.
It is clear that Bianca and John made use of the documents contained in Annexure A when preparing the Revised Stern Schedule, as many of the categories sought were drafted by reference to the existence of documents referred to in documents received in the Martin Arbitration.
In a confidential affidavit by the solicitor on record for Bianca and John, Timothy Randolph Price, sworn on 24 April 2023, he deposes:
(a)in preparing the Revised Stern Schedule, he did not include in the schedule those documents that were listed in Annexure A;
(b)because he understood the question of the discoverability of the Annexure A to have already been resolved it was unnecessary to include the documents listed in Annexure A separately as categories they sought discovery of in the Revised Stern Schedule; and
(c)as a result of the discovery orders (made on 14 December 2022), that Bianca and John would be able to use the Annexure A documents in the conduct of their defences in the WPPL proceedings and the Rhodes proceedings.[11]
[11] Confidential affidavit of Timothy Randolph Price sworn on 24 April 2023, par 23.
However, it is apparent that Mr Price was mistaken in forming the assumption that the use of the Annexure A documents in proceedings by Bianca and John had been resolved.
Following the service of the Revised Stern Schedule by Bianca and John in late December 2022, it appears the HPPL parties changed their intention not to make a global objection to Bianca and John's discovery by categories application.
On 20 February 2023, the HPPL parties filed chamber summonses in the WPPL proceedings and in the Rhodes proceedings seeking that the Revised Stern Schedule be dismissed or alternatively stayed, on the basis that it was an abuse of process.
The basis of the application made by the HPPL parties was that it is an abuse of process on grounds that Bianca and John:
(a)have made use of documents in the Martin Arbitration in breach of the Harman obligation;
(b)the orders made on 14 December 2022 do not permit Bianca and John to use the documents for the purposes of the Revised Stern Schedule discovery application;
(c)have used privileged materials that were inadvertently disclosed to Bianca and John's lawyers; and
(d)the documents sought to be discovered in the Revised Stern Schedule discovery application are for an improper purpose, namely for use in the Martin Arbitration.
After hearing argument on 1 and 2 March 2023 in closed court proceedings in respect of the grounds in [2(a) and (b)] (of the HPPL parties' application to dismiss or stay the Revised Stern Schedule application), I informed the parties that I would rule on these points before dealing with the remainder of the issues raised in the HPPL parties' application.
On 7 March 2023, immediately prior to hearing argument in respect of grounds [2(c) and (d)] in closed court proceedings, I informed the parties that the points raised by the HPPL parties in support of grounds [2(a) and (b)] had not been made out. To clarify the orders made on 14 December 2022, orders were made nunc pro tunc in the WPPL proceedings and corresponding orders in the Rhodes proceedings to add an order to allow Bianca and John to use the Martin Arbitration documents for the purposes of the preparation of the Revised Stern Schedule and the Revised Stern Schedule discovery application. I delivered reasons for decision for making these orders on 10 March 2023.[12]
[12] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72 (referred to in these reasons as Interlocutory Decision 17).
In the reasons delivered on 10 March 2023, I made the following findings that are relevant to the disposition of this application:[13]
[13] Interlocutory Decision 17 [42] ‑ [43], [46] ‑ [47], [60] ‑ [65] (footnotes omitted).
The purpose of order 1 and order 2 is for Bianca and John to give notice to, and access to in the Court proceedings, the Martin Arbitration documents to the HPPL parties and any other party who is also a party to the Martin Arbitration of the Martin Arbitration documents that Bianca and John considered are relevant to the issues of their defence in the proceedings.
If Bianca and John had not obtained an order for discovery of the Martin Arbitration documents on 14 December 2022, Bianca and John would not have been permitted to rely upon the Martin Arbitration documents for any purpose in these proceedings, because the Martin Arbitration documents are the subject of a Harman obligation.
…
It is, however, not always necessary for a party who wishes to use documents subject to the Harman obligation in different proceedings to obtain an order releasing from the obligation prior to being able to use the documents. This is because, the Harman obligation will yield to discovery and production orders of a court.
An order for discovery in the form made by order 1 is of the kind of compulsive process recognised by Mason CJ in Esso Australia Resources Ltd v Plowman to which the implied obligation must yield. Consequently, the effect of order 1 is as Bianca and John contend. Its effect is to displace the obligation that they would otherwise have to the court and the tribunal to obtain a release from the Harman undertaking to use these documents to provide discovery of the Martin Arbitration documents they consider to be relevant in these proceedings.
...
Turning specifically to the question whether the discovery orders authorise Bianca and John to use the Martin Arbitration documents for the purpose of identifying their Revised Stern Schedule categories, the HPPL parties argue that in the absence of obtaining a release from the Harman obligation by the Martin Arbitration, Bianca and John require the clear informed consent of the HPPL parties and the consent of the other parties to the arbitration and the consent of the persons who produced any documents under compulsion to the Martin Tribunal to use the documents beyond giving discovery by producing a list of documents on affidavit.
This submission, however, ignores the effect of order 2 of the discovery orders, which order is authorised by O 26, r 9. Order 2 of the discovery orders is an order providing for inspection (and restricting inspection by the non‑parties to the Martin Arbitration until further order) of the Martin Arbitration documents by the HPPL parties and any other party to the proceedings who are a party to the Martin Arbitration.
The effect of the order of inspection in order 2 must necessarily be that, subject to any claim of privilege in respect of specified documents, the HPPL parties and any other party to the proceedings who are a party to the Martin Arbitration, may not only inspect each of one of those documents in these proceedings but that right of inspection carries with it the right to deploy any of those documents against Bianca and John.
The corollary of the right of the Martin Arbitration parties to these proceedings to use the documents they have inspected, pursuant to order 2, against Bianca and John, must necessarily be that Bianca and John may use the Martin Arbitration documents they have discovered pursuant to order 1, against the HPPL parties in their application for discovery of categories of documents.
However, until further order, the effect of order 1 and order 2 is that the parties who are not parties to the Martin Arbitration have no right to inspect the Martin Arbitration documents listed by Bianca and John as relevant to the proceedings.
For these reasons, it is clear that the effect of orders 1 and 2 are to authorise Bianca and John to use the Martin Arbitration documents for the purposes of discovering those documents in these proceedings pursuant to the restrictions in order 2, and to use the Martin Arbitration documents in these proceedings for the purposes of the Revised Stern Schedule application.
I then went on to find in the alternative, that if I was wrong in respect of the construction of the effect of order 2 of the discovery orders, the orders made on 14 December 2022 should be varied nunc pro tunc to allow Bianca and John to use the Martin Arbitration documents for the purposes of the Revised Stern Schedule application.
On 7 March 2023, I heard submissions in respect of grounds [2(c) and (d)].
On 24 March 2023, I made orders in the WPPL proceedings and corresponding orders in the Rhodes proceedings to the effect of requiring that Gina and three other interested parties (Herbert Smith Freehills, Butcher Paull & Caulder, and Alan Camp who had produced documents to the Martin Arbitration under subpoena) be served with a copy of the orders. These orders were in effect an invitation for each of them to appear at a directions hearing on 27 March 2023, and be heard as to whether they wished to object to the production of the documents discovered by Bianca and John in their Annexure A.

On 27 March 2023, the only non‑interested party who appeared and notified they wished to be heard was Gina.
On 27 March 2023, I delivered reasons in which I found that grounds [2(c) and (d)] had not been made out, and I made orders in the WPPL proceedings and a corresponding order in the Rhodes proceedings dismissing the HPPL parties' application to dismiss or stay the discovery by categories application on the basis it was an abuse of process.[14]
[14] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82 (referred to in these reasons as Interlocutory Decision 18).
On 27 March 2023, I also made orders in the WPPL proceedings and corresponding orders in the Rhodes proceedings and subsequently varied those orders on 29 March 2023, which required Bianca and John to serve on the interested parties their discovery affidavits and requiring the plaintiffs and any other party by 29 March 2022, to notify all parties, and the interested parties, whether they wished to inspect any of the Annexure A documents.
I also made programming orders on 27 March 2023 for the hearing of objections to be heard at a special appointment on 10 May 2023.
Bianca and John's Revised Stern Schedule contained 48 separate categories. However, prior to the hearing of the application Bianca and John had given notice that eight categories were not pressed.
On 31 March 2023, I heard Bianca and John's Revised Stern Schedule discovery by categories application in closed court.
At the conclusion of the closed court hearing on 31 March 2023, the court was opened to allow the plaintiffs and other parties to the proceedings, and counsel for Gina to be heard about discovery by Ginia and Hope in the curial proceedings.
After submissions were made in respect of those matters, Bianca and John sought orders that they prepare a further amended defence making use of the documents which they have been ordered to discover in these proceedings in their Annexure A. The orders sought were not made but instead the matter was listed for further directions on 12 April 2023. The reason why no orders were made or considered at that hearing is because I was of the opinion that in accordance with my reasons given in Interlocutory Decision 17, that the use of the Annexure A documents by Bianca and John should be restricted to the discovery by categories application until the interested parties in the Martin Arbitration documents had had an opportunity to be heard.[15]
[15] ts 3147 ‑ 3148.
On 12 April 2023, I delivered reasons for finding that 22 categories of the Revised Stern Schedule should be allowed either in whole, in part, or as modified, and made orders in the WPPL proceedings and a corresponding order in the Rhodes proceedings, requiring the HPPL parties to discover particular categories of documents.[16]
[16] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 19] [2023] WASC 114 (referred to in these reasons as Interlocutory Decision 19).
On 12 April 2023, Bianca and John sought orders to prepare but not file or serve until further order any revised pleading which they intend to seek leave to file, making use of the documents referred to in Annexure A. The orders sought were opposed by Gina and the HPPL parties.
After hearing argument, those orders were not made but instead programming orders were made in the WPPL proceedings and corresponding orders in the Rhodes proceedings to require Bianca and John to file and serve affidavit evidence and submissions in support of an application to prepare a revised pleading making use of the documents referred to in Annexure A. These orders were varied on 14 April 2023 to allow Bianca and John to make an application for a direction that they may use the documents referred to in Annexure A for any purpose connected with their defence in these proceedings. At that directions hearing Bianca and John's application for general use of the Annexure A documents was listed for hearing on 10 May 2023.
At the hearing on 12 April 2023, orders were also made (by consent of the plaintiffs and the HPPL parties (but not Bianca and John) in the WPPL proceedings and corresponding orders in the Rhodes proceedings) requiring Bianca and John to make available for inspection to the parties in the WPPL proceedings and the Rhodes proceedings, subject to certain confidentiality requirements the documents discovered by them in their Annexure A for the purposes of:
(a)the plaintiffs' to identify which if any, of the Annexure A documents that they may seek to add to the tender lists for final hearing and otherwise use for the final hearing; and
(b)to confer with the parties with an intention to reaching agreement on the use of the nominated Annexure A documents, and any conditions or restrictions on such use, before the hearing listed for 10 May 2023;
(c)to copy or use any of the Annexure A documents only for the purposes of complying with (a) and (b).
These orders required the plaintiffs to identify the documents they may seek to add to the tender list for final hearing and otherwise use for the final hearing by 28 April 2023. In addition, orders were made that until further order, the Annexure A documents were to remain confidential and were not to be disclosed or published to anyone other than the parties, their legal representatives and specified in-house counsel of WPPL.
On 26 April 2023, WPPL filed an affidavit sworn by a solicitor on record for WPPL, Gareth John Jenkins. In his affidavit, Mr Jenkins deposed that:
(a)on 28 March 2003, Bianca and John's solicitors provided the parties to the proceedings with copies of Annexure A;[17]
[17] Affidavit of Gareth John Jenkins sworn 26 April 2023, par 20.
(b)on 29 March 2023, he caused a letter to be sent to all parties in the curial proceedings and the interested parties notifying them that WPPL requested inspection of all of the documents in Annexure A, and on the same day solicitors for Rhodes made a similar notification by letter to the parties in the curial proceedings and the interested parties;[18]
[18] Affidavit of Gareth John Jenkins sworn 26 April 2023, par 24.
(c)on 14 April 2023, his firm's technology services team downloaded the Annexure A discovery documents (comprising what appeared to be 2,038 documents. After completing the de‑duplication process the number was reduced to 1,715 documents, and further reduced to 1,709 documents when six documents the subject of claims for privilege by Gina were removed and deleted;[19]
[19] Affidavit of Gareth John Jenkins sworn 26 April 2023, pars 28 ‑ 30 and 31 ‑ 43.
(d)he and three other members of the WPPL team have inspected 1229 of the Annexure A discovery documents, which was about 67% of the total pages of the documents;[20]
(e)as a result of his inspection and information provided to him by the members of the WPPL team he formed the view that based on his background and experience, knowledge of the case since his involvement began in 2012, his understanding of the issues in dispute and his knowledge of the existing evidence proposed to be tendered by WPPL, that some of the documents inspected are directly relevant to issues in the case (including issues arising on the pleadings between as between WPPL and the HPPL parties) and may be necessary for WPPL to tender in the proceedings. It is likely there will be other documents that are directly relevant or may be necessary to be available for use in the WPPL proceedings to do justice between the parties in the remaining 480 documents that had yet to be inspected;[21]
(f)as consequence, based on the fact that WPPL has not had time as at the due date for WPPL's responsive filings in the application to complete the review of the complete Annexure A discovery documents, pleadings are still being amended, submissions yet to be filed by the parties, and the tender bundle nominations are yet to be completed, he was not able to finally determine which documents from the Annexure A discovery WPPL may wish to tender and which documents can be definitively ruled out for tender. For these reasons, he could not finally nominate documents from the Annexure A discovery documents for tender in the proceedings;[22] and
(g)whilst the consent orders are limited to nominations for tender and use of those tendered documents, WPPL would wish to use all of the documents discovered by Bianca and John generally in the conduct of its claims in the proceedings, including for the purposes of:[23]
(i)updating counsel's trial briefs with relevant documents for use generally in the proceedings;
(ii)considering and responding to amended pleadings, and in particular, preparing WPPL's reply to amended defences;
(iii)considering and responding to the defendants' cases put at trial;
(iv)preparing cross‑examination of witnesses including experts and deciding what documents should be put to those witnesses and then being at liberty to do so; and
(v)(potentially) briefing experts with the documents.
[20] Affidavit of Gareth John Jenkins sworn 26 April 2023, par 33.
[21] Affidavit of Gareth John Jenkins sworn 26 April 2023, pars 36 ‑ 37.
[22] Affidavit of Gareth John Jenkins sworn 26 April 2023, par 38.
[23] Affidavit of Gareth John Jenkins sworn 26 April 2023, par 39.
Prior to the commencement of the hearing on 10 May 2023, the HPPL parties proposed orders to extend time for the plaintiffs to comply with their obligations to 30 June 2023 to identify and notify the documents that they intended to tender or use, and to confer with the parties with an intention to reaching agreement on the use by 5 July 2023. The proposed orders also sought to provide for a process for the other parties to object to the plaintiffs' intention to tender or otherwise use any documents at the final hearing by giving notice of an objection or a request that conditions or restrictions be imposed on the use of documents within 12 hours, and a process for resolution of those objections by either further agreement or determination by the court. The proposed orders also sought orders to clarify the plaintiffs' legal representatives who were permitted to, consider and advise as to potential tender and other use to be made of, and to brief experts with the Annexure A documents. The only party to the proceedings who objected to the making of these orders proposed by the HPPL parties were Bianca and John.
The reason for their objection was not that the plaintiffs should not be able to tender or otherwise use any of the Annexure A documents in the WPPL proceedings and the Rhodes proceedings, but that prior orders of the court listed any objections to the plaintiffs' tender or use of the documents to be heard and determined by the court on 10 May 2023.
After hearing submissions as to the orders sought by the HPPL parties, orders were made in the WPPL proceedings and the Rhodes proceedings as sought by the HPPL parties and as consented to by the plaintiffs, with one modification that if after 30 June 2023 the plaintiffs identify any further Annexure A documents for tender or other use at the final hearing, they were to notify the other parties and the interested non‑party (Gina) of the intention to tender or otherwise use the document at the final hearing. As a result of this modification, Gina is also conferred with a right to object to the tender of documents by the plaintiffs or to request conditions or restrictions on the use of the documents.
Of importance for the disposition of this application after Bianca and John complied with the order made on 12 April 2023, all of the parties to the proceedings have had access to, and the right to inspect and copy all of the Martin Arbitration documents for the purposes of identifying documents that they wish to tender or otherwise use in the final hearing.
More importantly, since the making of the orders on 10 May 2023, the plaintiffs have the right to use the Annexure A documents for a number of purposes including seeking advice from counsel and to brief experts.

3.0 The plaintiffs' submissions that are relevant to the disposition of Bianca and John's application

In written submissions filed by WPPL on 26 April 2023, its position is that aside from documents objected to on grounds of privilege (save for claims of privilege by Gina over the Sceales and Transcript Files[24]), WPPL should be entitled to inspect, and use for any purpose in the proceedings, all of the documents discovered by Bianca and John. WPPL submits that the Harman undertaking provides no reason to limit WPPL's use of documents discovered in the proceedings pursuant to a compulsive discovery order. Rhodes makes a similar submission.
[24] These claims are not dealt with in these reasons for decision.
WPPL also points out that the objecting parties will be protected by WPPL's own Harman undertaking in the proceedings only to use the documents discovered to WPPL in the proceedings for the purposes of the proceedings.

4.0 The objections to use of the Annexure A documents by Bianca and John

The only interested non‑party to the curial proceedings who has objected to the use by Bianca and John of any of the Annexure A confidential documents to conduct their defences, is Gina.
In written submissions dated 2 May 2023, Gina states her objection on grounds that the Annexure A documents are possessed by Bianca and John subject to an implied undertaking preventing the use in the proceedings, in accordance with the principles in Harman v Secretary of State for the Home Department.[25] On this basis, it is put that the court cannot, or alternatively should not, make orders purporting to release Bianca and John from that undertaking. Gina also adopts the submissions of the HPPL parties in opposition to the application.
[25] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Gina, however, has not objected to the plaintiffs having a right to inspect or to use the Annexure A documents which are subject to the confidentiality regime by the orders made on 12 April 2023 and 10 May 2023.
The only party to the proceedings, who are parties to the Martin Arbitration, who have objected to the use by Bianca and John of any of the Annexure A confidential documents for any purpose to conduct their defences are the HPPL parties.
The HPPL parties claim that Bianca and John's application to use the documents for the purposes of their defences in the WPPL proceedings and the Rhodes proceedings, including making an application to amend their defences, should be dismissed for the following reasons:
(a)the Martin Arbitration documents continue to be confidential documents produced under compulsion in other proceedings subject to Harman obligations;
(b)to permit Bianca and John to use them for all purposes in the proceedings without obtaining any release as required by the Martin Arbitration Tribunal would be to intervene in a matter governed by the Commercial Arbitration Act 2012 (WA), contrary to s 5 of that Act; and
(c)in any event, the court would not exercise any power to permit general use in favour of Bianca and John absent proper evidence that they have been unable to obtain release from the tribunal and that permission is justified in accordance with the authorities.

5.0 Disposition - Bianca and John's application to use the Annexure A documents

5.1 Whether Bianca and John require a release from the Harman obligation owed to the Martin Arbitration Tribunal to use the Martin Arbitration documents discovered by them in the curial proceedings?

HPPL and Gina submit that the orders should not be made because they characterise the orders as seeking a release of the Harman undertaking, and, they submit, Bianca and John should seek a release from the arbitral tribunal. Bianca and John say that is the wrong prism through which to view this application. It is not an application for a release of the Harman undertaking, and they are not seeking a release of the Harman obligation from this court by this application.
Bianca and John point out that the Harman undertaking yields to contrary curial orders. Bianca and John have been ordered, by consent, to discover the documents the subject of this application.
Bianca and John argue that the authorities make clear that an application may properly be made to a court for use of documents in a proceeding that have been discovered following an order for discovery, to which the Harman obligation applies without any release having been granted by the court or tribunal to whom the obligation is owed.
The HPPL parties and Gina disagree. They argue that Bianca and John cannot use the Annexure A documents in the curial proceedings without first obtaining a release from the tribunal in the Martin Arbitration.
There are at least nine cases where one court has made orders (or contemplated the making of orders) as to discovery/permitting the use of documents otherwise the subject of the Harman undertaking even though the Harman obligation was owed to another court or tribunal. Those cases are Holpitt Pty Ltd v Varimu Pty Ltd;[26] McCabe v British American Tobacco Australia Services Ltd [No 3];[27] Patrick v Capital Finance Pty Ltd (No 4);[28] Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd;[29] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 3);[30] Clifford v Vegas Enterprises Pty Ltd;[31] Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery);[32] Bondelmonte v Bondelmonte;[33] and Interlocutory Decision 17.
[26] Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576.
[27] McCabe v British American Tobacco Australia Services Ltd [No 3] [2002] VSC 150.
[28] Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436.
[29] Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2008] FCA 554.
[30] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 3) [2008] FCA 976.
[31] Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204.
[32] Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery) [2015] VSC 352.
[33] Bondelmonte v Bondelmonte (2017) 57 Fam LR 567.
Bianca and John also point out that it is true as the HPPL parties submit in their written submissions that there are several cases where a court has held that an application for leave to use a document subject to a Harman obligation should properly be taken out in the proceedings in which the implied undertaking to the court was given: Holpitt Pty Ltd v Varimu Pty Ltd;[34] Commissioner of Taxation v Rawson Finances Pty Ltd;[35] and BCI Finances Pty Ltd (in liq) v Commissioner of Taxation;[36] also Transfield Philippines Inc v Pacific Hydro Ltd;[37] Otter Gold Mines Ltd v McDonald;[38] and Playcorp Ltd v Tyco Industries Inc;[39] McCabe v British American Tobacco.[40]
[34] Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, 577.
[35] Commissioner of Taxation v Rawson Finances Pty Ltd [2015] FCA 628.
[36] BCI Finances Pty Ltd (in liq) v Commissioner of Taxation [2015] FCA 679.
[37] Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175.
[38] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467.
[39] Playcorp Ltd v Tyco Industries Inc [2000] VSC 440.
[40] McCabe v British American Tobacco Australia Services Ltd [No 3] [2002] VSC 150.
However, none of these cases establish a principle that an application to release or to obtain orders to use a document or document subject to a Harman obligation cannot be made to a court that is not the court in which the implied undertaking was given.
Holpitt Pty Ltd v Varimu Pty Ltd was decided in 1991, which was before Mason CJ decided in Esso Australia Resources Ltd v Plowman in 1995 that the implied obligation yields to an order for discovery.[41] In any event, although Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd held the application for leave to use the documents in other proceedings before the court should have been taken out in the proceedings in which the implied undertaking to the court was given, his Honour did grant a release.[42]
[41] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10.
[42] In Playcorp Ltd v Tyco Industries Inc [2000] VSC 440 the observation that an application for a release of the obligation should be taken out in the proceedings in which the obligation was given and at this point made in Holpitt Pty Ltd v Varimu Pty Ltd was simply referred to.

In Commissioner of Taxation v Rawson Finances Pty Ltd, the application was made in the proceeding to which the undertaking was impliedly given, so no issue arose about what was the appropriate forum. In any event, Flick J applied the reasoning in Transfield Philippines Inc v Pacific Hydro Ltd,[43] that the most appropriate forum to make such an application is the forum that is in the best possible position to determine such application was the proceeding in which the undertaken was impliedly given.[44] Flick J did not find that an application could only be made in the forum in which the undertaking was given.
[43] Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175; a similar observation was made in McCabe v British American Tobacco Australia Services Ltd [No 3] [2002] VSC 150.
[44] Commissioner of Taxation v Rawson Finances Pty Ltd [2015] FCA 628 [7]; applied by Jagot J in BCI Finances Pty Ltd (in liq) v Commissioner of Taxation [2015] FCA 679 [45]. It is to be noted that in that case the issue was whether the proper court to hear the application for release from the implied undertaking was an Israeli court rather than the Federal Court which had issued a letter of request under the Foreign Evidence Act 1994 (Cth). Her Honour found that the obligation was owed to the Federal Court, and that there were special circumstances requiring a release from the implied obligation.
The issue in Otter Gold Mines v McDonald was whether the Administrative Appeals Tribunal had power to release a party to the proceedings from the implied undertaking owed to the tribunal in proposed proceedings in the Federal Court.[45] Sundberg J found the power to release from the implied undertaking was incidental to the power to require documents to be produced to the tribunal, and the tribunal's refusal to decide the application for a release was an improper exercise of power in that it took into account an irrelevant consideration.[46] Although his Honour referred to Holpitt Pty Ltd v Varimu Pty Ltd, the application before his Honour was an application for judicial review. Having found error, his Honour remitted the matter to the tribunal for further consideration of the application. No consideration in that case was given to the effect of an order of a court in curial proceedings such as discovery or inspection.
[45] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467.
[46] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467, 473.
In their written and oral submissions both Bianca and John and the HPPL parties refer to the decision of Rangiah J in Elfar (formerly EGS21) v Commonwealth of Australia.[47] In that matter an application was made in the Federal Court for preliminary discovery concerning the compulsory examination of the applicant by an examiner appointed under the Australian Crime Commission Act 2002 (Cth), on the basis that he did not have sufficient information to decide whether to start a proceedings seeking declarations that the staff of the Australian Crime Commission had made errors or engaged in misconduct in making administrative decisions under the Australian Crime Commission Act. In the application for preliminary discovery before the Federal Court, the applicant sought to make use of documents that were subject to an implied undertaking given to him to the Supreme Court of Queensland, including documents that had been the subject of orders made by the Supreme Court, in particular an order stipulating that the transcript of the compulsory examination not be published, disclosed or used except by further order of the Supreme Court.
[47] Elfar (formerly EGS21) v Commonwealth of Australia [2022] FCA 1402.
After Rangiah J considered a number of authorities which had considered whether an application should be made to the court to which the Harman obligation is owed or to a court to use documents that are subject to an implied obligation owed to a different court,[48] his Honour observed:[49]
These cases have generally distinguished between, on one hand, an application to a court for release of a party from an implied undertaking given to a different court and, on the other hand, an application to a court to use in that court documents that are the subject of an implied undertaking given to a different court. In the former case, the application should properly be made to the court to which the undertaking was given. In the latter case, the court to which the application is made may allow use of the documents in its discretion. The use of such documents has been allowed where, for example, doing so is, 'in the interests of justice', or, 'in the good administration of justice', or is to, 'facilitate the expeditious and just conduct of the case'.
[48] Elfar (formerly EGS21) v Commonwealth of Australia [2022] FCA 1402 [63] ‑ [70].
[49] Elfar (formerly EGS21) v Commonwealth of Australia [2022] FCA 1402 [71].
Bianca and John rely upon this passage in support of this submission to say they are not seeking a release but are seeking to use the Annexure A documents in the curial proceedings, and an application to a court to use that court documents that are subject of an implied undertaking given to a different court may be allowed by the court in its discretion.
I agree that the point Bianca and John relies upon in this passage in support of their application to use documents and not to make an application for release is consistent with the established authorities and should be accepted in this matter. However, I do not agree with the general principle that it is proper to characterise an application for release of the Harman obligation as an application that does not encompass the use of documents that are subject of an implied undertaking.
This point can be illustrated by the facts of Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd.[50] In that matter the appellant had applied for leave to be released from the Harman obligation, including retrospectively, to use documents had been discovered or produced under subpoena in earlier proceedings in the court. The master dismissed the application at first instance. The Court of Appeal allowed the appeal, set aside the orders of the master and in substitution made an order granting leave nunc pro tunc to the appellant and its director, releasing it from the obligation not to use the documents for a purpose other than in connection with the earlier proceedings, for the limited purposes of providing documents to the appellant for use by the appellant in the later proceedings.
[50] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67.
An application to use documents of the subject of an implied undertaking given to a different court if granted by a curial order, in a sense has the effect of replacing the obligation owed to the first court by an obligation owed to the second court but does not take effect as a partial or a whole release of the implied undertaking given to the different court, or a modification of the release owed to the first court. This is because the effect of the curial order in the second proceeding has the effect of yielding or overriding the Harman obligation owed to a court or tribunal in other proceedings, insofar as leave is granted for the particular authorised use.
Although Rangiah J in Elfar (formerly EGS21) v Commonwealth of Australia, did not grant an order for pre‑action discovery to the applicant and refused the application made by the applicant to make use of documents that were subject to an implied undertaking given by him to the Supreme Court of Queensland, his Honour decided the matter on the facts before him which were that:
(a)the applicant had applied to the Court of Appeal for a release from his Harman obligation to use documents for preparation and presentation before the High Court, but had made no application to use such documents for the purpose of his application for preliminary discovery in the Federal Court; and
(b)a number of the documents the applicant sought to use in the Federal Court for the purposes of pre‑action discovery to consider whether proceedings should be instituted were the subject of extant non‑publication orders made by the Supreme Court.
For these reasons, his Honour found that the applicant should not be permitted to act inconsistently with the orders of the Supreme Court. For the reasons that I give in 5.3.3, the factual circumstances upon which Rangiah J relied upon in the matter before him do not arise and are clearly distinguishable. To the contrary, it is clear that the HPPL parties have acted inconsistently in respect of disclosure of the Annexure A documents in these proceedings.
As Bianca and John point out there are a number of cases that establish since Esso Australia Resources Ltd v Plowman, a court has power to make orders with respect to discovery, inspection of documents and the use of documents in proceedings that fall within the scope of the implied obligation that is owed to another court or tribunal.
In Interlocutory Decision 17 I observed in [46] ‑ [47][51] that it is not always necessary for a party who wishes to use documents subject to the Harman obligation in different proceedings to obtain an order releasing the obligation prior to being able to use the documents, because the Harman obligation will yield to discovery and production orders of a court.
[51] The passages referred to are set out in [34] of these reasons.
In Patrick v Capital Finance Pty Ltd (No 4), the matter concerned an application for further and better discovery, which application arose as a consequence of a letter not discovered in the proceedings before Tamberlin J but had been discovered in proceedings pending before the County Court in Victoria by the fifth respondent. Dr Patrick made the application for further and better discovery. Dr Patrick was not a party to the proceedings in the County Court, Dr Patrick contended that because the letter was one which ought to have been discovered in the Federal Court proceedings it was not necessary in the circumstances to obtain a release from the undertaking to the County Court. Tamberlin J dismissed the application but found that if the letter could be shown to be relevant, and that it ought to have been in the subject of discovery, he could and should make such an order without requiring the release of the undertakings by the County Court as a precondition. His Honour explained after referring to Mason CJ's findings in Esso Australia Resources Ltd v Plowman,[52] that the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial processes in other litigation, but that by the Harman obligation yielding this consequence did not mean that the implied undertaking ceased to exist or that it has no application.[53] Tamberlin J then went on to refer to the decision of the Court of Appeal in Australian Securities Commission v Ampolex Ltd,[54] where it was found it was not necessary to first obtain the leave of the court before the documents required to be produced to the Australian Securities Commission, because the obligations attracted by the undertakings to the court were overridden by the obligation imposed by the statutory notice.[55]
[52] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 33.
[53] Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 [16] ‑ [17].
[54] Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504.
[55] Patrick v Capital Finance Pty Ltd (No 4)[2003] FCA 436 [18].
Tamberlin J went on in Patrick v Capital Finance Pty Ltd (No 4) to find that notwithstanding the implied undertaking, and having regard to the factors that apply to the exercise of his discretion, that if the rules of a court's jurisdiction apply to a party who has a document in that party's possession by reason of a process in another jurisdiction, that party is still obliged to comply with the processes in the second jurisdiction and make discovery of the document. Before making this finding, his Honour observed:[56]
There is a clash of two important public interest considerations in this case. First, there is the public interest in protecting the discovery process in the interest of encouraging openness and frankness in discovery made in the County Court proceeding by way of consistent and effectively enforced assurance to the party faced with compulsory discovery that the documents will not be used for any other purpose than the purpose for which they were discovered in that court. Second, there is the competing important public interest in the due and proper administration of justice in the proceedings before this Court by ensuring compliance with its orders. In these circumstances if the document was one which ought to have been discovered I am not persuaded either as a matter of power, discretion or comity that release of the undertaking must or should be first obtained from the County Court.
[56] Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 [20].
In Clifford v Vegas Enterprises Pty Ltd, Barker J made an order for discovery of documents in Federal Court proceedings, produced at or resulting from Family Court proceedings, in circumstances where it was not entirely clear whether those documents were subject to the implied obligation owed to the Family Court. In his Honour's reasons for making the order, his Honour found:[57]
Even without the existence of the public domain exception, this Court has the power to grant leave for the documents used in the Family Court proceedings to be used in this Court: see Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2008] FCA 391; Holpitt Pty Ltd v Varimu Pty Ltd(1991) 29 FCR 576; Griffiths v Duggan (No 2) [2008] VSC 230. In Griffithsat [7] and [8], the Court noted:
Whether a document which is subject to an implied undertaking can be used by a party in subsequent proceedings is a matter that may potentially impinge upon the integrity and authority of two sets of judicial processes. That situation is quite different from the case where the subsequent use of a document obtained with an implied undertaking restricting its use is subject only to the continuing authority of the court which first compelled its production. In that case the party wishing to use the document can only do so if permitted by the court to which the implied undertaking is given. That is not this case. Nor is this a case in which the use of Mr Lin's affidavit may adversely impact upon my hearing and consideration of the issues in dispute before me: that dispute is finalised on all issues except costs.
Whether it should be used in the second proceeding is a question which is best dealt with by the judge in the second proceeding.
Further, the implied undertaking does not prevent or diminish the enforcement of discovery or the compulsion to discover documents used in another court: see Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 at [21]. Unless there is something in the Federal Court Act that limits the power of this Court to order discovery in these circumstances, the power may be exercised.
[57] Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204 [30] - [31].
In Cadbury Schweppes Pty Ltdv Amcor Ltd, Gordon J considered whether an implied undertaking in the Australian Competition and Consumer Commission (ACCC) owed by Visy in earlier proceedings prevented or impeded Visy from production of proofs to Cadbury, who was not a party to the earlier proceedings.[58]
[58] Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 398.
Visy advised the parties that that they did not oppose the making of an order that they be released from the implied undertaking to the extent that release was necessary for their clients to give discovery of the witness statements served on them in the Federal Court, but the release was not to be taken to waive privilege in the witness outlines, nor consent to production of them to their client. After this advice Visy filed and served lists of the 111 witness outlines or proofs.
The ACCC who were a non‑party to the proceedings before her Honour objected to the production of the documents. Gordon J found that the listing of the 111 proofs constituted discovery of the documents, and if listing them was not taken to be for the purposes of discovery, her Honour found that she would order the proofs to be discovered by Visy in the proceedings before her because they were relevant to the issues in the litigation.
Her Honour then dealt with the balance of the arguments put by ACCC and said that those arguments proceeded as to whether Visy was to be released from its implied undertaking or whether the implied undertaking yielded. Her Honour found that the implied undertaking yielded. In making this finding, her Honour observed:[59]
The ACCC placed heavy emphasis on the proposition that no case could be found in which a party had been released from the implied undertaking in circumstances analogous to these. That submission may be accepted but it does not lead to the conclusion asserted by the ACCC. Two points are to be made about the absence of authority directly on point. First, the absence of any decided case is not conclusive of the issue. But secondly, and more importantly, the absence of any decided case points to the importance of identifying accurately the question which now arises. At first sight, the question requires the resolution of what appear to be inconsistent obligations ‑ the obligation to use the documents only for the purposes of the ACCC proceeding in which they were compulsorily produced with the obligation to produce for the inspection of opposite parties in another proceeding all discoverable documents that are not subject to a valid claim of privilege.
However, the resolution of any tension between what would otherwise be competing and inconsistent obligations, is readily apparent; resolution lies in properly identifying the contents of the implied undertaking. In particular, it is necessary to recognise that the undertaking impliedly given in one proceeding not to use documents compulsorily produced in that proceeding except for the purposes of that proceeding is necessarily subject to other requirements of the law. So to take what may be a clearer example of the limits of the undertaking, the implied undertaking given in one proceeding would provide no answer to a subpoena for production of these documents in another proceeding. When a party is subpoenaed to produce documents obtained in another proceeding, it is no answer to say that 'I am subject to an undertaking about how I may use these documents'. The party's undertaking in the first proceeding restricts the uses to which that party may choose to put the documents. But the undertaking is no answer to otherwise valid compulsive processes of law: Esso Australia Resources Ltd v Plowman[1995] HCA 19; (1995) 183 CLR 10, 32, 36‑37, 46. As the Court in Plowman stated (at 33):
'No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.'
See also Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 at [15] ‑ [22]. Accordingly, Visy's implied undertaking in the ACCC proceeding is no answer to its discovery obligations in these proceedings [11] – [13].
[59] Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 398 [12] – [13].
Gordon J then went on to find that if contrary to the view earlier expressed, the question is to properly framed whether Visy should be released from its implied undertaking, her Honour was of the opinion that it should be, on grounds that there were special circumstances that would justify releasing the party from the implied undertaking because the issues that arose in the litigation before her Honour were not substantially different in any relevant way from the issues that arose in the earlier proceeding and the documents in question were statements of what potential witnesses had said and what they were willing to say in their evidence in the earlier proceeding. Her Honour also found that it was not suggested that the documents contained any personal data or commercially sensitive information that could not be dealt with by the arrangements that were in existence between the parties in respect of such matters, and that the production of the documents would contribute to justice in the damages proceedings, and that refusing to permit production would tend to hinder the achievement of that end.

For these reasons his Honour made an order declaring that the applicants were entitled to disclose the confidential information pursuant to s 27F(5) as follows:
The applicants' disclosure in this proceeding of the documents obtained in the course of an arbitration annexed to the affidavit of Andrew James Shute sworn on 24 January 2018 was necessary for the protection of their legal rights and was no more than was reasonable for that purpose and was accordingly permitted under s 27F(5) of the Commercial Arbitration Act 2013 (Qld).
His Honour did not order that the applicants were entitled to use the confidential information. However, it is clear from his Honour's reasons that his Honour formed the opinion that the declaration carried with it a right to use that information for the purposes of the application, as his Honour took the confidential information into account for the purposes of the application before him.[76]
[76] Mango Boulevard Pty Ltd v Whitton [2018] FCA 399 [20].
Although counsel for Bianca and John argue that s 27F(8) empowers a court to make an order to authorise an arbitral party to disclose confidential information, the power conferred under this provision is a separate exception to the restriction on the disclosure of confidential information in s 27E. Section 27F(8) applies where a subpoena is issued by an order of a court to an arbitral party to produce documents that contain confidential information obtained in an arbitral process. This provision can have no application to the orders sought by Bianca and John in this matter.
Although the applicants in Mango Boulevard Pty Ltd v Whitton sought an order releasing them from their implied undertakings to use the confidential material they sought to rely upon in the court proceedings, his Honour declined to rule on this application. This was because the applicants had not addressed the relevance of s 27F to the scope of the implied undertaking, or the court's jurisdiction to release them from the applied undertaking in relation to a private arbitration. His Honour did, however, remark by way of obiter that as s 27F allows use of confidential information in certain circumstances, it may be that the applied undertaking does not apply where the relevant circumstances exist.[77]
[77] Mango Boulevard Pty Ltd v Whitton [2018] FCA 399 [20].
In Sino Iron Pty Ltd v Palmer, Jackson J of the Supreme Court of Queensland made similar observations. In that matter, the court was also called upon to consider the statutory right to use information disclosed pursuant to a compulsory process in an arbitration.[78] The defendants applied for an order dismissing proceedings as an abuse of process on the basis that the proceedings had been commenced relying upon information provided pursuant to a compulsory process in arbitral proceedings. The information was contained in answers to interrogatories. The defendants were not parties to the arbitration.
[78] Sino Iron Pty Ltd v Palmer [2014] QSC 259.
Jackson J accepted that under the general law there was an implied obligation to accord the documents disclosed for the purposes of the arbitration the same confidentiality which would attach to those documents as if they were litigating their disputes as distinct from arbitrating them but found that statement of principle did not necessarily apply without adaptation in the context of the arbitration. His Honour, went on to find that s 27F, created an exception to the obligation of confidentially imposed by s 27E, and that the applicants were authorised to disclose the information disclosed by compulsion in the arbitration by disclosing those matters in the particulars to the statement of claim. On this basis, his Honour dismissed the application to stay the proceedings.
Notwithstanding these authorities, in this matter I do not find it necessary to rule upon the interplay between s 27F(5) and the Harman undertaking.
First, the court has already made discovery orders by consent on 14 December 2022 which orders were complied with by Bianca and John, to which the Harman undertaking owed by Bianca and John to the tribunal has yielded or has been overridden to the extent that the court has authorised by those orders Bianca and John to use those documents for specified purposes.
Second, the court has already made inspection and use orders on 12 April 2023 and 10 May 2023 allowing the plaintiffs and requiring Bianca and John to allow the plaintiffs to inspect and use for specific purposes documents disclosed by Bianca and John in their Annexure A lists, which orders were not made with the consent of Bianca and John but were made by consent by the HPPL parties and the plaintiffs and were orders not objected to by Gina as an interested non‑party. The orders made on 12 April 2023 compelled Bianca and John to make available for inspection the documents discovered by them in Annexure A to the plaintiffs. As discussed in [101], the operative effect of these orders is that the Harman undertaking owed by Bianca and John to the tribunal has yielded or has been overridden to the extent that the court has compelled Bianca and John to provide inspection of the documents to the plaintiffs.
I am of the opinion that it would be open to the court to make a declaration pursuant to s 27F(5), to allow Bianca and John to disclose the Martin Arbitration confidential information for the purpose of the conduct of their defences in the WPPL and HPPL proceedings. To do so would clearly be necessary for the protection of their rights in relation to the plaintiffs who are third parties within the meaning of s 27F(5). Such an order would not constitute an interlocutory declaration, as it would be a final order. However, it is not necessary to make such an order, because in effect the horse has left the barricades by the orders made on 12 April 2023 and 10 May 2023. In these circumstances, there would be no utility in making such a declaration.
In any event, for the reasons that I have given in 5.1 of these reasons, this court has power to exercise its discretion to grant leave to allow the use of documents in proceedings to a party who owes a Harman obligation in respect of those documents, even where that obligation is owed to a different court or to a tribunal, and particularly where the documents in question have been discovered pursuant to extant orders for discovery and/or requiring and allowing inspection.

5.3 Should the court exercise its discretion to grant leave to Bianca and John to use the confidential Martin Arbitration documents for the purposes of their defences?

5.3.1 The source of the Annexure A documents discovered by Bianca and John

It cannot be disputed that some of the documents listed in Annexure A are documents not obtained under compulsion, and some may not properly be said to contain confidential information.
The list of Annexure A documents lists documents that includes documents disclosed by Bianca and John in the Martin Arbitration. Some of the documents that were disclosed in the arbitral proceedings are not confidential documents because they are publicly available, such as a mines register that is available from the Department of Mines, Industry Regulation and Safety. In addition, Annexure A lists 30 documents obtained by Bianca and John by inspecting the court file in proceedings involving the Hancock Family Memorial Foundation Ltd and Mr Fieldhouse.
However, it appears from a review of descriptions of the list of the Annexure A documents that the majority of the documents were disclosed in the Martin Arbitration by the HPPL parties following orders made by the tribunal requiring disclosure. It can be assumed at least for the purposes of this application that a number of these documents may contain confidential information.
Gina's counsel informed the court that the HPPL parties and Gina provided joint discovery because she is a director of HPPL, and therefore documents within the possession, custody or control of the HPPL are also within her possession, custody or control. She also disclosed documents that she had in her own possession, custody or control.[79]
[79] ts 3380 ‑ 3381.
Annexure A lists a number of documents disclosed to the parties in the Martin Arbitration by the production of documents in answer to subpoenas issued by this court. This category of documents are documents compulsorily disclosed in the arbitral process. The documents listed in Annexure A obtained by subpoena comprise 20 documents produced by Herbert Smith Freehills (HSF), and 40 documents produced by Mr Camp.
On 11 April 2023, HSF sent an email to the parties and to the court stating that they had been served with the orders made by the court on 27 March 2023 and advised that they had no instructions to object to the inspection of the documents discovered in the discovery affidavits (of Bianca and John).
Although Mr Camp was also served with the orders made by the court on 27 March 2023, Mr Camp has not sought to be heard in respect of the application made by Bianca and John to use the documents referred to in Annexure A.

5.3.2 The HPPL parties and Gina's objections to the use of the documents by Bianca and John

The HPPL parties argue that they will be prejudiced if the application is allowed because they do not join issue on the pleadings with Bianca and John.
The HPPL parties also contend the application should be dismissed because Bianca and John have failed to address most of the factors relevant to the exercise of the discretion to release a party from a Harman obligation. These factors include 'the importance of the public interest in the preservation of the confidentiality of discovered documents', which 'must be kept squarely in mind', as well as the 'private and public interest in protecting the confidentiality of a person's private documents produced under compulsion to a court'.[80]
[80] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [74] ‑ [76] (Quinlan CJ, Beech & Vaughan JJA).
Gina claims she would suffer significant prejudice if the relief sought in Bianca and John's application were granted.
Gina points out that in a number of confidential deeds that she entered into between (inter alios) Bianca and John over a number of years, a bargain was struck for the benefit of a non-public and confidential process of dispute resolution. In Rinehart v Hancock, Kiefel CJ, Gageler, Nettle and Gordon JJ in 2019 observed in relation to the deeds that:[81]
A critical object of the Hope Downs Deed was the maintenance of confidentiality about the affairs of the Hancock Group, the trust, the intra-family dispute and the provisions of the deeds themselves. This object could not be clearer.
[81] Rinehart v Hancock [2019] HCA 13; (2019) 267 CLR 514 [46].
Following the judgment of High Court, the parties conducted the Martin Arbitration in private and on a confidential basis. Within that confidential setting, Gina was required to disclose documents to the tribunal, and to Bianca and John. That document production occurred solely within the context of the confidential arbitration and with the protection of the implied undertaking preventing collateral use to which all of the parties to the Martin Arbitration were and still are subject.
Gina claims the right to a confidential dispute resolution process that she bargained for, and litigated to preserve, is at risk of being effectively destroyed by a side‑wind if John and Bianca are permitted to use all of the documents they compulsorily obtained from her through that process in these public proceedings to which Gina is not a party.
By Bianca and John now seeking to use their knowledge of those documents gained within that confidential setting in the curial proceedings and by reason of the procedures deployed in that confidential setting in a public setting, will defeat the benefit of the bargain Gina reached with them for a strictly confidential dispute resolution process. This is said to involve inevitable prejudice to Gina.
By letter dated 12 April 2023, Gina notified her objection to inspection of the documents discovered in the Bianca and John affidavits by the plaintiffs or any other party otherwise than in accordance with the inspection regime provided for in the 12 April 2023 orders.[82] Gina submits that the inspection regime put in effect by the 12 April 2023 orders is a regime specifically created to prevent the mere inspection of documents subject to the implied undertaking from creating a springboard for those documents being able to be deployed without limitation in these proceedings.
[82] Affidavit of Crispian Paul Lynch sworn on 2 May 2023, par 30.
Gina claims that the position her solicitors put on her behalf in the 12 April 2023 letter is intended to prevent Bianca and John from using any inspection by the non-arbitral parties, including the plaintiffs, to justify the use by anyone in these proceedings of the Annexure A documents. In respect of this point, Gina is mistaken about the operative effect of the orders made on 12 April 2023 (and the subsequent orders made on 10 May 2023 which orders were agreed to by Gina).
As I have made clear in these reasons those orders authorise the plaintiffs to use the documents for a number of specified purposes in the main trial.
For the reasons that I give in [164] ‑ [165], those orders do not prohibit the tender of any of the Annexure A documents into evidence in the main trial, solely on grounds that the documents were disclosed in private arbitral proceedings. However, those orders provide the HPPL parties and Gina with a right to object to the tender or otherwise use of documents at the main trial, and to propose conditions or restrictions on the use of any document.

5.3.3 Relevant principles

It is well established, that the purposes of discovery are as Brereton J stated, In the matter of Metal Storm Ltd (subject to a deed of company arrangement) ACN 064 270 006, to include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial.[83]
[83] In the matter of Metal Storm Ltd (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306 [17]; See also Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [20] (Le Miere J).
In Davies v Eli Lilly & Co, Sir John Donaldson MR pointed out that litigation is not a war or a game, it is designed to do real justice between opposing parties, and if the court does not have all the relevant information it cannot achieve this object.[84] The Master of the Rolls then went on to observe:[85]
But that said, there have to be safeguards. The party who is required to place all or most of his cards face up on the table is entitled to say, 'Some of these cards are highly confidential. You may see them for the purpose of this litigation but, unless their contents are disclosed to all the world as part of the evidence given in open court, their contents must be used for no other purpose.' This is only fair, because, as has been well said, discovery of documents involves a serious invasion of privacy which can be justified only in so far as it is absolutely necessary for the achievement of justice between the parties.
[84] Davies v Eli Lilly & Co [1987] 1 WLR 428, 431.
[85] Davies v Eli Lilly & Co [1987] 1 WLR 428, 431 – 432.
Consequently, as set out above until documents subject to a Harman obligation are tendered into evidence, the obligation to keep those documents confidential and to only use those documents for the purposes of that proceeding continues.
However, where a curial order is made in another proceeding which has the effect to bring those confidential documents into the other proceeding, the order also has the effect of yielding or overriding the Harman obligation owed to the first court or tribunal in respect of those documents. At the same time the order creates a new Harman obligation on the parties to other proceeding, which obligation binds all of the parties who receive the documents, and others who receive or inspect the documents such as counsel, solicitors and experts.[86]
[86] Hearne v Street (2009) 235 CLR 125 [109] ‑ [111] (Hayne, Haydon & Crennan JJ); applied Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery) [2015] VSC 352 [21].
Although Gina raises confidentiality as a reason why Bianca and John's application should be refused, the fact that the Annexure A documents were disclosed in a private arbitration cannot give rise to an absolute prohibition on the use of those documents in the curial proceedings.
In Esso Australia Resources Ltd v Plowman, the High Court held that the private nature of an arbitration hearing did not provide an absolute protection to documents and information provided during the proceeding.[87] The plurality found that when one party produces documents or discloses information to an opposing party in an arbitration that is to be heard in private, the documents or information are not clothed with confidentiality merely because of the privacy of the hearing. Their Honours also found that the use of a document in such proceedings does not make the document confidential.[88]
[87] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10.
[88] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 33 (Mason CJ), (Dawson & McHugh JJ agreed).
In turning to the matters to be considered when determining whether to exercise the discretion to grant leave to Bianca and John to use the Annexure A documents for the purposes of the conduct of their defences it is relevant that there are existing orders compelling Bianca and John to discover the Annexure A documents and to provide inspection to the plaintiffs, which orders were made by consent by the HPPL parties.
In light of the existing compulsive orders (leaving aside admissibility, relevance, whether an additional confidentiality regime should be imposed over any of the documents if they are sought to be tended in the main trial, and any claims for privilege) there appears to be no proper reason why Bianca and John should be denied leave to use the documents.
However, if contrary to the view that I have expressed (that in light of the existing orders of the court Bianca and John do not need to obtain a release) the question should be whether Bianca and John should be released (in circumstances where their implied obligation not to disclose any of the Martin Arbitration documents had in part yielded to the compulsive orders requiring them to discover and provide inspection of the documents to the plaintiffs) by being granted leave to use the documents for the purpose of the conduct of the defences.
In determining whether a release should be granted it is necessary to have regard to, and apply, the test of 'special circumstances' to determine whether Bianca and John should be released from the Harman obligation.
A court has the discretion to release a party from its Harman obligation if there are special circumstances. The resolution of an application to release in the absence of consent of the persons who compulsorily produced the relevant documents in the first proceedings requires an assessment of character of the relevant documents, the proposed use, and in this matter, the conduct of the parties in the curial proceedings.
The general principles that apply to the release or modification of the Harman obligation were set out by the Court of Appeal in Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd as follows:[89]
The power to dispense with or modify the Harman obligation is not freely exercised, but will be exercised if there are special circumstances.
In a passage in Liberty Funding Pty Ltd v Phoenix Capital Ltd that has been cited with approval many times, the Full Court of the Federal Court said as follows:
The notion of 'special circumstances' does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.
[89] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [72] ‑ [73] (footnotes omitted).

Their Honours then went on list the factors among the considerations that may be relevant to the exercise of discretion,[90] which considerations were formulated by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd. In that matter, Wilcox J relevantly observed:[91]
For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[90] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [74].
[91] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 225.
In Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd, the Court of Appeal observed that the consideration that is recognised as being the most important is the last of these, namely the likely contribution of the document to achieving justice in another proceeding. Their Honours then went on to observe that:
(a)there is a public interest in ensuring that all relevant materials are before the court to enable it to discharge its function; and
(b)special circumstances will fairly readily be found where it is established that the use of documents discovered in proceedings is reasonably required for the purpose of doing justice between the parties and other proceedings.[92]
[92] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [75].
However, their Honours also observed that in the context of documents produced on discovery, in weighing up the competing public interest, the importance of the public interest in the preservation of the confidentiality of discovered documents must be kept squarely in mind, including the public and private interest in protecting confidentiality of a person's private documents produced under compulsion.[93]
[93] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [76].
Importantly, their Honours made it clear that these factors are not the only factors that are relevant to determining whether special circumstances exist.
As Wilcox J observed in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, where the purpose of the release from the obligation is for use in another proceeding, the extent of commonality between the proceedings may constitute special circumstances.[94] In Laen Pty Ltd v At the Heads Pty Ltd, Davies J said:[95]
The mere fact of commonality of subject matter may be sufficient to establish that the party has a legitimate forensic purpose for the use of the material in the second proceeding, but the test is not commonality of subject matter. Generally, use in a subsequent proceeding would not be an improper use of material previously obtained subject to an implied undertaking, unless that material was obtained in the first proceeding for an ulterior purpose.

5.3.4 Disposition ‑ It is in the interests of justice that leave be granted

[94] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 224.

[95] Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315 [10] (Davies J) and Platinum Systems Resourcing Pty Ltd v NRW Holdings Ltd [No 3] [2013] WASC 402 [16] (Le Miere J); applied Mineral Resources Ltd v Wyatt [2021] WASC 185 [15] (Hill J).

I am satisfied that there are special circumstances which make it appropriate to grant leave to Bianca and John to use the documents for the purpose of the conduct of their defences in the WPPL proceedings and Rhodes proceedings.
First, the issues raised by them in their defences in the curial proceedings are in effect a subset of the issues they raise as claimants in the Martin Arbitration.
The stay of Bianca and John's counterclaims and referral of their counterclaims to arbitration has led to a somewhat unique circumstance whereby the issues that arise in their defences in the curial proceedings are replicated in the issues that they raise in the Martin Arbitration in respect of the East Angelas and Hope Down tenements.[96] Consequently, the commonality of the subject matter raised in their defences and in the Martin Arbitration establishes that Bianca and John have a legitimate forensic purpose to use the Annexure A documents in the curial proceedings. This circumstance on its own is sufficient to constitute special circumstances.
[96] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 [32], [82], [87] – [88], [90], [192], [229] – [231], [233(f)], [277] – [280], [433], [453] – [455] (Quinlan CJ), [487] (Beech & Vaughan JJ).
For this reason, it is not necessary to have regard to the specific content of the information in each of the documents listed in Annexure A. In any event, it is apparent from an inspection of the description of each of the documents listed in Annexure A that the documents relate to issues raised in the curial proceedings. It is also apparent from the description of those documents in the list that a small number of the documents came into existence approximately 70 years ago, the majority of the documents were created approximately between 30 to 40 years ago, and except for four documents none of the documents appear to have been created for the purposes of the arbitral process.
Also of importance, the nature and content of the documents are such that WPPL and Rhodes, who bring these proceedings against Bianca and John, have made it very clear that having inspected the Annexure A list of documents, and inspected the majority of the documents listed in Annexure A, they seek permission to use all of the Annexure A documents in these proceedings in support of their case.
In light of the extent of the commonality of issues raised in the Martin Arbitration by Bianca and John and in the curial proceedings, and in the absence of any submission that the documents listed by Bianca and John are not relevant to the issues they raise in their defences, I am satisfied that it is likely that these documents are likely to be reasonably required for the purpose of doing justice between the parties.
Second, and in addition, the position of the HPPL parties and Gina in opposing Bianca and John's use of the Annexure A documents for the purposes of their defence is inconsistent with the positions they have taken in respect of inspection of the Martin Arbitration documents discovered by Bianca and John pursuant to the orders made on 14 December 2022, and to the use of those documents by the plaintiffs to prepare for the main trial.
Since Bianca and John complied with the orders made on 12 April 2023 by serving the plaintiff's with copies of the Annexure A documents, the plaintiffs have had the right to use those documents for a number of purposes in their preparation for the main trial, whereas Bianca and John have not had the same right.
Whilst the orders made on 14 December 2022 did not give rise to the inspection of the Annexure A documents by the other parties, the orders made on 12 April 2023 did so, and together with the orders made on 10 May 2023 the plaintiffs have been allowed the use of the documents for particular purposes in their preparation for trial.
Having consented to the plaintiffs being able to use the Annexure A documents for their trial preparation no proper basis has been put forward by the HPPL parties or Gina as to why Bianca and John cannot use the documents for the same purpose.
To the contrary, fairness requires that Bianca and John have the same right to use the Annexure A documents as the plaintiffs. Importantly, in the proper interests of the administration of justice, the HPPL parties should not be allowed to act inconsistently between the plaintiffs and Bianca and John.
Third, and in addition, the HPPL parties have acted inconsistently in raising an objection to the discovery and use of documents discovered in the Martin Arbitration by Bianca and John. On and from 14 December 2022 until sometime in February 2023 the HPPL parties had led the court and Bianca and John to form the view that at least for the purpose of discovery they consented to Bianca and John making use of the Martin Arbitration documents. The HPPL parties did not press a Harman obligation objection until well after Bianca and John had discovered the Martin Arbitration documents by listing the documents in Annexure A to their affidavits in accordance with consent orders made by the court.
Fourth, and in addition, it is relevant that (although Bianca and John do not object) [Redacted], yet the HPPL parties and Gina have consented to the plaintiffs inspecting documents produced to the Martin Arbitration under compulsion by HSF and Mr Camp, and have consented to the plaintiffs using those documents for some purposes.
It is noted, however, that neither HSF nor Mr Camp have notified any objection to the inspection or use of the documents they produced by any party to these proceedings.
Although the HPPL parties and Gina raise legitimate concerns about the importance of the public interest in the preservation of the confidentiality of documents disclosed in the Martin Arbitration, their concerns can be protected by an additional appropriate confidentiality regime if it is necessary to do so, and the court is satisfied that there is a legitimate reason why such a confidentiality regime should be applied to any particular document that is tended into evidence in the main trial. For example, if any of the Annexure A documents are commercially sensitive those documents can be protected by an appropriate confidentiality regime.
For these reasons, I am satisfied that when all of the relevant factors are considered, including the conduct of the parties in the curial proceedings since 14 December 2022, the public interest in the proper administration of justice, in particular the public interest in the promotion of the ascertainment of truth in litigation, requires that Bianca and John be granted leave to use the Annexure A documents for the purposes of the conduct of their defences.
To refuse Bianca and John leave to use these documents for the purpose of the conduct of their defences would hinder the achievement of doing justice to the parties in the curial proceedings.

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