Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 4]
[2015] WASC 303
•26 MARCH 2015
WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 4] [2015] WASC 303
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 303 | |
| Case No: | CIV:3041/2010 | 26 MARCH 2015 | |
| Coram: | LE MIERE J | 26/03/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff pay the defendants' and the third party's costs | ||
| B | |||
| PDF Version |
| Parties: | WRIGHT PROSPECTING PTY LTD HANCOCK PROSPECTING PTY LTD HOPE DOWNS IRON ORE PTY LTD HAMERSLEY WA PTY LTD |
Catchwords: | Costs Costs associated with interlocutory applications |
Legislation: | Legal Profession Act 2008 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Consolidated by Orders dated 9 September 2014
- Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
HAMERSLEY WA PTY LTD
Third Party
Catchwords:
Costs - Costs associated with interlocutory applications
Legislation:
Legal Profession Act 2008 (WA)
Result:
Plaintiff pay the defendants' and the third party's costs
Category: B
Representation:
Counsel:
Plaintiff : Mr J Rowland QC
First Defendant : Mr C Bova
Second Defendant : Mr C Bova
Third Party : Mr G R Donaldson SC & Mr J Garas
Solicitors:
Plaintiff : Clayton Utz
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
Third Party : Allens
Case(s) referred to in judgment(s):
Nil
1 LE MIERE J: The plaintiff, Wright Prospecting Pty Ltd (WPPL), and the first defendant, Hancock Prospecting Pty Ltd (HPPL), carried on business in partnership under the former name Hancock & Wright. This consolidated action is concerned with WPPL's claimed entitlements in relation to mining tenements acquired by HPPL or its subsidiaries, now known as the Hope Downs and the East Angelas. The third party, Hamersley, or its parent company, Rio, is a party to a joint venture with WPPL to the development of the Rhodes Ridge tenements. There have in the past been confidential discussions in connection with the restructuring of the Rhodes Ridge joint venture, but no such discussions are currently being engaged in.
2 The second defendant, Hope Downs Iron Ore (HDIO), and Hamersley, are parties to the Hope Downs joint venture agreement for the development and mining of iron ore. Hamersley or its parent company Rio is a party to the Rhodes Ridge joint venture with WPPL to develop a mining project in the Pilbara which is relatively close to the Hope Downs project.
3 On 24 May 2012, by consent, the court made orders in relation to confidentiality of documents. The orders created a regime for access, inspection, copying and use of documents discovered and produced by the parties. The orders provide that documents discovered and produced which a party notifies are confidential, confidential documents, and the contents of those documents, confidential information, are restricted to, relevantly, WPPL's solicitors, their administrative staff, counsel and experts who have signed a confidentiality order in the prescribed form. The orders expressly provided that each party have liberty to apply to vary or vacate the orders.
4 The orders were varied by consent on 14 March 2013 and 5 August 2013. The orders varied the form of the confidentiality undertaking. The confidentiality undertaking prohibited (1) the disclosure of the confidential documents to WPPL directors or employees, (2) the making of electronic copies of the confidential documents, (3) the emailing or electronic storage of documents reciting the defendant’s confidential information on drives other than local drives or the e.law secure data room, (4) a person who has signed the undertaking to act for WPPL in any commercial negotiations with Hamersley or its related entities concerning WPPL's and Hamersley's respective interests in the Rhodes Ridge joint venture, the Rhodes Ridge restriction.
5 WPPL applied by chamber summons of 12 June 2014 to discharge the orders insofar as they apply to the second tier confidential documents. The second tier confidential documents are defined relevantly as documents discovered and produced by HPPL and HDIO which any party specifies as a document it intends to tender at trial, including the documents listed in annexure 1 to the chamber summons, with such redactions as the parties agree or the court orders are necessary to protect HPPL, HDIO, or Hamersley's commercial interests.
6 The proposed orders provided that access, inspection, copying and use of the second tier confidential documents be restricted to specified persons who have signed a prescribed confidentiality undertaking. The prescribed confidentiality undertaking differs from the confidentiality undertaking in the then current orders. It permits access by WPPL's directors and in-house solicitors who have signed a confidentiality undertaking, and the confidentiality undertaking does not prohibit electronic copies of the confidential documents or their emailing or electronic storage, and the undertaking does not include the Rhodes Ridge restriction.
7 The application came before the court on a number of occasions. The substantive hearing of the application commenced on 6 February 2015. On that occasion, Hamersley led evidence from Mr Langford about, amongst other things, whether information in certain documents in connection with the Hope Downs joint venture would advantage an adviser to or representative of WPPL in commercial negotiations with Rio concerning their respective interests in the Rhodes Ridge joint venture. Mr Langford was cross-examined.
8 The application was adjourned to today, 26 March 2015. Following the hearing on 6 February 2015, WPPL proposed a form of orders to the Hancock parties and Hamersley. The parties have agreed on the orders in the plaintiff's minute of proposed orders dated 25 August 2015 with a minor amendment.
9 What remains in contention is the question of costs. The plaintiff says that it should have the costs of the application. The defendants and third party say that the plaintiff should pay the costs, including any reserved costs and costs of the transcript and that the limits under the applicable scale of costs in relation to both the maximum rates and time should not apply.
10 Mr Roland QC, for the plaintiffs, submitted that it had been largely successful in its application and that the delay in resolving the matter and the costs incurred resulted from the failure of the Hancock parties and Hamersley to engage in a process of conferring and agreeing on redactions to the relevant documents.
11 Mr Bova, for the Hancock parties, submitted that the defendants had been largely successful. He submitted that WPPL had effectively capitulated. Further, he submitted that WPPL's application was essentially to seek an indulgence to vary orders made by consent. Mr Bova said that it was not necessary for the Hancock parties to engage in conferral about redactions because the court had effectively absolved it from that obligation, and that it had agreed with the order proposed by the plaintiff when that was proposed and which is the order made by the court.
12 Mr Donaldson SC, for Hamersley, submitted that the orders now made are fundamentally different from those sought by WPPL in its chamber summons, that Hamersley had invited WPPL to engage in a process of conferral, and WPPL effectively engaged in that process only after 6 February 2015, and that conferral led to the present orders made today.
13 I have decided that the plaintiff should pay the costs of the application of the defendants and the third party. The plaintiff has been largely unsuccessful in obtaining the orders it sought in its chamber summons.
14 In its chamber summons, the plaintiff sought that the confidentiality orders be discharged insofar as they apply to the second tier confidential documents as defined in schedule 1A to the summons. The schedule defined second tier confidential documents to mean documents discovered and produced by the defendants which either party specifies as a document it intends to tender at trial, including those listed in annexure 1 to the summons with such redactions as the parties agree or the court orders are reasonably necessary to protect the defendants' or third party's commercial interests. Consent orders made today define the second tier confidential documents as redacted versions of the ten documents annexed to the confidential affidavit of Nicholas Jonathan Cooper sworn 25 March 2015.
15 Thus, whereas the chamber summons sought that all documents which any party specified as a document it intends to tender at trial be excluded from the existing confidentiality orders, the consent orders made today exclude only ten specified documents, and those documents are substantially redacted. Those orders are fundamentally different from those sought by the plaintiff in its chamber summons.
16 The court encourages parties to resolve interlocutory disputes by conferral, compromise and agreement. The court should not discourage that course by awarding costs against an applicant who engages in conferral and reaches a compromise outcome. However, that did not happen in this case until after 6 February 2015. It was only then that the plaintiff departed from its stand that all documents which either party intends to tender at trial should be excluded from the existing confidentiality orders.
17 On 26 June 2014, Hamersley proposed a procedure for determining second tier confidential documents which were to be excluded from the existing confidentiality orders. The essence of that procedure was that the plaintiff give the defendants and third party notice of the parts of each document that it proposed should be second tier confidential documents and the reasons why it is necessary for them to be excluded from the existing regime. The parties would then confer and, if necessary, the matter be resolved by the court. WPPL declined to enter into such a procedure.
18 In early August, WPPL gave notice that in relation to annexure 1, it pressed the application in relation to only ten of the 30 documents listed. However, that did not significantly affect the orders it sought. The plaintiff continued to seek orders to vary the confidentiality orders in relation to all documents which either party intends to tender at trial. It was not until after the hearing of this application on 6 February 2015 that the plaintiff put forward the proposal confined to the ten specified documents with the specified redactions. That proposal has been acceded to by the defendants and third parties and led to the consent orders.
19 The defendants and third party seek a special costs order. Legal Profession Act 2008 (WA) s 280(2) empowers the court if it is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter to, amongst other things, remove limits on costs fixed in the determination.
20 Whether or not the amount of costs allowable under a cost determination is inadequate because of the unusual difficulty, complexity or importance of the matter is to be addressed as a matter of impression rather than detailed evaluation. In this case, I am able to form a view as to the adequacy of the costs allowable under the applicable cost determination from my own knowledge of the case and the application.
21 I case managed this action as well as hearing the application. The application was substantial. All parties were represented by senior and junior counsel. Substantial evidence was adduced, and unusually for an interlocutory hearing, there was cross-examination on an affidavit. I find that the costs allowable in respect of the matter under the relevant cost determination are inadequate because of the importance of the matter.
22 There should be an order in terms of Hamersley's minute, amended by inserting the words 'defendants and the' in line one after the words 'pay the', so that it reads 'the plaintiff pay the defendants' and the third party's costs of and incidental to', and so on.
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