Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 6]
[2016] WASC 218
•4 AUGUST 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 6] [2016] WASC 218
CORAM: LE MIERE J
HEARD: 21 & 22 JUNE 2016
DELIVERED : 4 AUGUST 2016
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 DefendantHOPE DOWNS IRON ORE PTY LTD
Second DefendantHAMERSLEY WA PTY LTD
Third Party
FILE NO/S :CIV 2617 of 2012
BETWEEN :WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First DefendantHOPE DOWNS IRON ORE PTY LTD
Second Defendant
Catchwords:
Strike out application - Pleadings which may prejudice, embarrass or delay the fair trial of the action - Where defence of laches pleaded - Parts of plaintiff's pleadings struck out - Turns on own facts
Application for further and better discovery - Whether court can be fairly certain documents are or have been in possession, custody or power - Discretion to not order further and better discovery where forensic benefit does not justify the burden - Whether fishing expedition - Turn on own facts
Legislation:
Mining Act 1904 (WA), s 57, s 59, s 276
Rules of the Supreme Court 1971 (WA), O 26 r 6
Result:
Reference to 'any relevant risk' in [31] and [45.3] of the further amended reply should be struck out
Application for further and better discovery unsuccessful
Category: B
Representation:
CIV 3041 of 2010
Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014
Counsel:
Plaintiff: Mr J Rowland QC & Mr A Broadfoot
First Defendant : Mr C Bova & Mr T O'Brien
Second Defendant : Mr C Bova & Mr T O'Brien
Third Party : Mr J Garas
Solicitors:
Plaintiff: Clayton Utz
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
Third Party : Allens
CIV 2617 of 2012
Counsel:
Plaintiff: Mr J Rowland QC & Mr A Broadfoot
First Defendant : Mr C Bova & Mr T O'Brien
Second Defendant : Mr C Bova & Mr T O'Brien
Solicitors:
Plaintiff: Clayton Utz
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Clegg v Edmondson (1857) 44 ER 593
Ernest v Vivian (1863) 33 LJ Ch 513
Roe v The State of Western Australia [2013] WASC 130
Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17; (2011) 278 ALR 291
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2013] WASC 248
LE MIERE J:
Summary
The plaintiff, Wright Prospecting Pty Ltd (WPPL) and the first defendant, Hancock Prospecting Pty Ltd (HPPL) carried on business in partnership under the firm name Hancock and Wright (the Partnership). In 2010 WPPL commenced action CIV 3041 of 2010 in which it makes various claims in relation to mining tenements acquired by HPPL or its subsidiaries and now known as Hope Downs 1 to 3. In 2012 WPPL commenced action CIV 2617 of 2012 in which it makes various claims in relation to the mining tenements acquired by HPPL and its subsidiary, the second defendant Hope Downs Iron Ore Pty Ltd (HDIO) and known as Hope Downs 4, 5 and 6 or the East Angelas tenements. The court ordered that the two actions be consolidated because they involve common questions of fact or law and it is convenient that they be consolidated. WPPL's principal claims are that it is entitled to payment of a royalty from the defendants in respect of Hope Downs 1 to 3 or, alternatively, Hope Downs 1 to 6 and that the East Angelas tenements are held on trust for WPPL and HPPL and/or HDIO must account to WPPL for any profits derived from those tenements.
These are my reasons for determining two interlocutory applications which relate to WPPL's claim for equitable relief against the defendants in relation to the East Angelas tenements. The first application in time is WPPL's application of 16 May 2016 for discovery of the documents or classes of documents described in Schedule A to its application. The second application is an application by the defendants by chamber summons of 10 June 2016 to strike out paragraphs of WPPL's further amended reply of 24 May 2016 (Further Amended Reply) which relate to the defences of laches and acquiescence pleaded by the defendants in their amended substituted defence of 9 May 2016 (Amended Substituted Defence) to WPPL's claims for relief in respect of the East Angelas.
For the reasons which follow the references to 'any relevant risk' in [31] and [45.3] of the Further Amended Reply should be struck out and WPPL's application for discovery of particular documents should be dismissed.
Pleadings
The defendants' application to strike out paragraphs of the Further Amended Reply and WPPL's application for discovery of particular classes of documents must be determined in the context of the pleadings as a whole. The court must look to the pleadings to determine what are the matters in issue between the parties. Before referring to the pleadings it is convenient to make reference to the East Angelas and the Hope Downs Joint Venture.
East Angelas
In 1969 WPPL and HPPL entered into an agreement with James and William Nicholas and DFD Rhodes Pty Ltd who held rights of occupancy pursuant to s 276 of the Mining Act 1904 (WA) in respect of areas of land which included the East Angelas Reserves. The agreement granted, or purported to grant, the Partnership the right to mine ore from the temporary reserves. In 1971 the Minister for Mines decided that the rights of occupancy to the temporary reserves would not be renewed and granted rights of occupancy to another company. Lang Hancock, the life governing director of HPPL, pressed the State government to restore HPPL's access to the reserves. In letters of 20 February 1984 and 3 April 1985 from the Premier and Minister for Minerals and Energy (the Premier's letter and the Minister's letter respectively) the Minister for Minerals and Energy agreed to give HPPL access to the reserves.
On 6 May 1985 HPPL applied for the grant of an exploration licence covering part of the land comprising Hope Downs 1 reserve. Peter Wright, the life governing director of WPPL, died in September 1985. HPPL became managing partner of the Partnership. In 1989 Hancock Mining Ltd (HML), a subsidiary or associated company of HPPL, was granted exploration licences (East Angelas ELs) pursuant to s 57(1) and s 59(4) of the Mining Act 1978 (WA) covering the areas of land formerly comprising the East Angelas Reserves (the East Angeles land). The East Angelas ELs were subsequently transferred to other companies which were subsidiaries of or associated with HPPL and then transferred to HPPL. In 1997 HPPL transferred the East Angelas ELs to the second defendant, HDIO, which is a subsidiary of HPPL. In 2006 the State, in exchange for the surrender by HDIO of three exploration licences, granted to HDIO mining lease 282SA. Later in 2006 the third party, Hamersley, a subsidiary of Rio Tinto, became a registered shareholder of mining lease 282SA and the East Angelas ELs in respect of 50/100th shares. In 2011 the Minister for Mines and Petroleum authorised the inclusion of the East Angelas ELs into mining lease 282SA.
The Hope Downs Joint Venture
In 1998 HDIO and other parties entered into an agreement which made arrangements with respect to exploration and feasibility phases in relation to Hope Downs 1 to 3. A dispute arose which was settled by the parties entering into the Hope Downs Project Option Deed. Pursuant to the Option Deed the Hancock Parties had an option to purchase and take an assignment of the interest of Kumba Resources Ltd in the Hope Downs Project.
On 1 July 2005 HPPL and HDIO entered into an unincorporated joint venture with Hamersley to develop the Hope Downs tenements. The terms of that agreement are recorded in the Cooperation Agreement - Hope Downs Project. The Cooperation Agreement provided, for:
(a)the exercise of the option with Kumba Resources Ltd in relation to Hope Downs 1 to 3 and the funding for the exercise of that option;
(b)sale of a 50% interest in the Hope Downs Project to Hamersley on the happening of certain events;
(c)work and funding in the period prior to Hamersley acquiring a 50% interest in the Hope Downs Project;
(d)funding of the Hope Downs Project;
(e)the development of the East Angelas;
(f)entry into an unincorporated joint venture;
(g)payment of royalties by Hamersley; and
(h)the funding of HDIO's obligations in respect of the estimated capital expenditure and pre‑development for the Hope Downs Project through a suite of project loan documents.
In relation to the development of the East Angelas tenements the Cooperation Agreement provided for, amongst other things:
(a)the continuation of pre‑feasibility work in relation to the East Angelas tenements commenced by HPPL and HDIO prior to the commencement of the Cooperation Agreement;
(b)a feasibility study for the East Angelas tenements comprising a Bankable Feasibility Study in relation to East Angelas 1 and reasonable exploration drilling in relation to East Angelas 2 and 3;
(c)the funding of HDIO's obligations in respect of the pre‑development work in relation to the East Angelas; and
(d)funding arrangements in the event that a decision was made to proceed with the development of the East Angelas tenements.
In April 2005 the defendants commenced pre‑feasibility work in relation to the East Angelas tenements. The work undertaken during that period is recorded in the document titled 'Hancock Prospecting Pty Ltd East Angelas 1 - Resource Estimate' which is a discovered document.
On 16 March 2006 HDIO and Hamersley entered into the Hope Downs Joint Venture Agreement (Hope Downs JV Agreement). The Hope Downs JV Agreement provided for:
(a)the conduct of a feasibility study in respect of the East Angelas which would comprise a Bankable Feasibility Study in respect of East Angelas 1 and exploration drilling in respect of East Angelas 2 and East Angelas 3 (East Angelas Study);
(b)in the event that the East Angelas Study demonstrated that development was technically, commercial and economically viable then the Management Committee would determine whether to develop East Angelas within 24 months after the first production from the Hope Downs 1 mine; and
(c)funding arrangements in respect of the development of Hope Downs by way of subordinated finance and project funding from external financiers.
The defendants have discovered the documents pertaining to the subordinate finance. The defendants have discovered the documents pertaining to external project financing arrangements which at that stage related only to Hope Downs 1 to 3.
During June 2006 Hamersley and HDIO completed the Hope Downs 4 Order of Magnitude Study Report recording pre‑feasibility work carried out in respect of Hope Downs 4. During December 2009 Hamersley HMS Pty Ltd completed the Hope Downs 4 Bankable Feasibility Study.
On 30 August 2010 the Hope Downs Joint Venture Management Committee considered the:
(a)Hope Downs 4 Bankable Feasibility Study; and
(b)Hope 4 Programme and Budget being the Project Development Plan Hope Downs 4,
demonstrated that Hope Downs 4 was technically, commercial and economically viable and resolved to proceed with the development of Hope Downs 4 (East Angelas 1). The minutes of the Management Committee dated 30 August 2010 have been discovered. The Project Development Plan Hope Downs 4 has been discovered.
Following the decision to proceed with the development of Hope Downs 4, Hamersley HMS produced the Hope Downs 4 Mine Project Definitive Engineering Study which has been discovered.
In November to December 2010 new external project financing arrangements were put in place for the additional funding required by HDIO for the development of the East Angelas areas. Those new financing arrangements are recorded in Hope 4 Refinancing Co‑ordination Deed, Global Amending Deed - Security Trust Deed and Securities, and Deed of Amendment and Restatement - Hope 4 Senior Facility Agreement, each of which has been discovered.
Statement of claim
In its fourth further amended substituted statement of claim of 30 May 2016 WPPL pleads that following the receipt of the Premier's letter and the Minister's letter HPPL represented to WPPL, and acknowledged, that the opportunity in the Hope Downs and East Angelas Reserves that had been conveyed by the Premier and the Minister for Minerals and Energy was an opportunity belonging to the Partnership to explore for minerals on Hope Downs 1 and 2 Reserves and to acquire mining tenements covering the Hope Downs and East Angelas areas for future development (the Partnership opportunity in Hope Downs and East Angelas). WPPL says that at all times from at least 3 April 1985, the date of the Minister's letter, the Partnership opportunity in Hope Downs and East Angelas was an existing commercial opportunity of the Partnership obtained by reason of the Premier's letter and the Minister's letter and the Partnership's prior exploration and expenditure on the Hope Downs and East Angelas Reserves, the knowledge that the Partnership had acquired as to the commercial potential of the Hope Downs Reserves and East Angelas Reserves and the Partnership's longstanding and continuing desire to exploit for the Partnership's benefit the area of the Hope Downs and East Angelas Reserves.
WPPL pleads that its primary case is that the rights acquired by HML on or about 2 February 1989 in respect of the East Angelas ELs were rights to which the Partnership was and remained entitled. WPPL says that HDIO holds an interest in the land formerly subject to the East Angelas ELs and East Angelas Reserves contained within mining lease 282SA in respect of 50/100th shares as an asset or interest of the Partnership or alternatively on trust for the Partnership.
WPPL says that to the extent that any mining or other tenements in relation to the East Angelas Reserves acquired by HPPL or its subsidiaries were not acquired on behalf of the Partnership or held on trust for the Partnership or no longer belong to the Partnership then the East Angelas ELs were acquired by HPPL either directly or through its subsidiaries and disposed of by HPPL in breach of fiduciary obligations it owed to WPPL and is liable to pay equitable compensation to WPPL equivalent to 50% of the profits or benefits earned by HPPL and HDIO.
WPPL says that HDIO was aware or is taken to be aware of facts which would indicate to an honest and reasonable person that the East Angelas ELs granted in respect of the East Angelas Reserves were rights to which the Partnership was entitled, were dealt or disposed of by HPPL in breach of fiduciary obligations it owed to WPPL and the transfers of the East Angelas ELs to HDIO gave rise to a receipt by HDIO of the East Angelas ELs with notice that HPPL was in breach of its fiduciary duties.
WPPL claims against HPPL various relief in respect of East Angelas including declarations of entitlement to income and profits, an account of income and profits, and equitable compensation. WPPL claims against HDIO various equitable relief including declarations that HDIO holds its interest as trustee for the Partnership, an account of income and profits and equitable compensation.
The defence of laches
The defendants deny all of the plaintiff's claims. The defendants plead the affirmative defences of laches and acquiescence. It is the defence of laches which is relevant to these interlocutory applications. It is convenient to make some observations about the defence of laches before considering the defendants' pleaded defence of laches.
The defence of laches provides a bar to the grant of relief where the plaintiff has unreasonably delayed in commencing or prosecuting proceedings and where the delay renders it unjust in all the circumstances to grant the relief sought. The defence of laches may be established where, amongst other things, a plaintiff, in delaying in commencing or pursuing an action, has permitted a situation to arise that would be unjust to disturb. A plea of delay will often be successful where the plaintiff seeks to set aside or enforce a transaction regarding property that is speculative in nature, for example mining property. Courts are unwilling to allow a plaintiff to 'play a game in which he alone risks nothing': Clegg v Edmondson (1857) 44 ER 593, 604 (Knight Bruce LJ).
The defence of laches was considered by Murphy JA, with whom McLure P and Buss JA agreed, in Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17; (2011) 278 ALR 291 (Streeter). Murphy JA referred with approval to the statement in Meagher, Gummow & Lehane at [36‑030] that there are cases which traditionally call for special promptitude. One of those classes of case is 'claims in mining cases'. Murphy JA referred to Clegg v Edmondson where at page 604 Knight Bruce LJ said:
Robert Clegg's apologies for delay are, - that he continually claimed and did so to the knowledge continually of James Collinge; that there is no bar from any Statute of Limitations; that if the subject in dispute had been an ordinary farm of which James Collinge had been receiving the rent, instead of mines which he worked, there would have been no answer to the suit; and that the mines having been (as they have in fact been) uniformly prosperous, nor having required (as in fact they have not required) any outlay which the produce did not more than meet and cover, and James Collinge having, from his long acquaintance practically with the property, known (as he must be taken in fact to have known) all along its probable safety and probable advantages, there is no reason for treating and dealing with the claim, otherwise than as a similar claim in respect of an ordinary farm of which James Collinge had been receiving the rents might properly be.
This argument is plausible, but has not convinced me. A mine which a man works is in the nature of a trade carried on by him. It requires his time, care, attention and skill to be bestowed on it, besides the possible expenditure and risk of capital, nor can any degree of science, foresight and examination afford a sure guarantee against sudden losses, disappointments and reverses. In such cases a man having an adverse claim in equity on the ground of constructive trust should pursue it promptly, and not by empty words merely. He should shew himself in good time willing to participate in possible loss as well as profit, not play a game in which he alone risks nothing.
There was here, in my opinion, no sufficient apology, no excuse for the delay from 1846 to 1855.
The characteristic of mining operations which is particularly relevant to the defence of laches is that such operations require time, care, attention and skill and the risk of capital; they are an uncertain and speculative and hazardous adventure: Ernest v Vivian (1863) 33 LJ Ch 513, 517.
Defendants' delay with prejudice defence
The defendants put their case of laches in the sense of delay with prejudice on two bases. The area of prejudice which is relevant to these interlocutory applications is that the grant of equitable relief to WPPL would cause injustice to the defendants because of the change of the economic circumstances since the facts giving rise to the claim occurred. Meagher, Gummow and Lehane state that delay with prejudice may arise in many different situations including:
A third situation arises where the transaction which the plaintiff seeks to impugn is at all hazardous or speculative: if equity permits a plaintiff to rescind or to affirm a transaction, he will not be allowed to let time run by so that actual knowledge of the profitability or otherwise of the transaction determines his choice. There are many decisions illustrating this where plaintiffs seeking to set aside mining transactions have been denied relief for this reason [36-020].
In Streeter, Murphy JA found that prejudice by delay in commencing proceedings against Mr Streeter arose from the fact that the value in the shares there in question was itself in part a product of substantial risk undertaken by Mr Streeter in relation to his contribution of seed capital and in his subsequent investments. His Honour said:
The risks inherent in the appellants acquiring and holding the subject property required that any claim to beneficial ownership of the property be made reasonably promptly once the material facts were known. Also, the exercise of the options entailed risk, albeit different in degree from the risk associated with the provision of seed capital. Further, his Honour was required, in my respectful view, to take into account, and not just dismiss as in effect irrelevant, all the changed circumstances that had occurred since July 2000, by which the value of the property was transformed in the six years after the float. In substance, over that period, the character of the investment changed from being shares in an infant, speculative, exploration company, to shares in a company poised to embark upon substantial and lucrative mining activities. The imposition of a constructive trust in all these circumstances would 'give the party claiming relief an unjust advantage' and impose on the appellants 'an unfair prejudice' [682]. (reference omitted)
The defendants plead that they have expended large amounts of money and put up assets as security for money borrowed in maintaining and developing the mining ventures on the East Angelas. The defendants submit that in maintaining and developing the East Angelas they have risked the loss of that expenditure and those assets.
The defendants' pleaded defence of laches
The defendants' defence is that WPPL is barred from seeking the relief it seeks in relation to the East Angelas by reason of its delay in commencing the proceedings. At [151] the defendants plead that there is no relevant fact pleaded by WPPL in support of the relief it seeks in relation to the East Angelas that was not known to it or made public on or shortly after the date on which the alleged fact occurred.
Paragraphs 152, 153 and 154 were amended on 9 May 2016 at which time [153A] and [153B] were added to the defence. At [152] the defendants plead that HPPL or HDIO spent money in seeking to maintain, prove up and exploit the area of land formerly the subject of the East Angelas ELs (the East Angelas land) by winning iron ore from that area. The 9 May 2016 amendments specified the sums of money expended and that they were expended to maintain, prove up and exploit the East Angelas land 'by winning iron ore from that area'. The defendants give particulars of amounts spent during four periods commencing with the grant of the East Angelas ELs in 1989 and ending in March 2016. The total amount exceeds the GDP of some small countries.
At [153] the defendants plead that WPPL was either actually aware, or should be taken to have had constructive knowledge, that HPPL or HDIO spent money in relation to the East Angelas land on their own account or in joint venture with Rio Tinto or its subsidiaries. WPPL joins issue with those allegations but these interlocutory applications are not concerned with the issue of what WPPL knew or should have known about the expenditure of money by the defendants.
Paragraph 153A is a new paragraph. The defendants plead that in seeking to maintain, prove up and exploit the East Angelas land by winning iron ore from that land the defendants have risked the money referred to in [152] and borrowed significant sums of money secured against the specified assets in respect of which WPPL has no right, title or interest and to which WPPL has no claim.
The particulars subjoined to [153A] set out the risks which the defendants say they bore in making the expenditures and giving the securities particularised. First, from the grant of the East Angelas ELs in 1989 until 1 July 2005, that is when the defendants and Hammersley entered into the Hope Downs Joint Venture, the prospect of mining iron ore from the East Angelas land was uncertain and all expenditure in relation to the East Angelas ELs was speculative and was or was likely to be uneconomic due to the phosphorous levels contained in the ore. Secondly, from 1 July 2005 to 30 August 2010, that is when the Joint Venture Management Committee decided to proceed with the development of Hope Downs 4, the prospect of mining iron ore from the East Angelas land continued to be uncertain and speculative and involved the risk of wasted expenditure and staff time. Thirdly, in making the decision to proceed with the development of Hope Downs 4, the defendants assumed risks which had the potential to result in substantial loss in relation to:
(a)escalation of capital expenditure costs and developing the mine;
(b)variations in product quality adversely affecting demand and price for ore and hence revenue;
(c)variations in the market price for iron ore adversely affecting revenue;
(d)land tenure, due to the East Angelas land not then being included in the Iron Ore (Hope Downs) Agreement Act;
(e)variations in the state of the ore body from that which was known or assumed based on the existing state of geotechnical and hydrogeological assumptions;
(f)the obtaining of environmental approvals; and
(g)variations in project scope due to any one or more of the matters identified in (a), (b), (c), (e) or (f) above, adversely affecting the project schedule and costs.
Paragraph 153B is a new paragraph. The defendants plead that WPPL stood by, with knowledge that the defendants had risked the money and resources referred to in [152] without contributing equally to the cost of maintaining, proving up and exploiting the East Angelas land and without sharing the risks identified in [153A]. The defendants plead that the bringing of the claim and the granting of relief claimed by WPPL would occasion detriment and prejudice to the defendants in that they have spent money and put up assets as security for loans in maintaining, proving up, exploiting and developing the East Angelas ELs and WPPL now seeks to share equally in the benefit of the expenditure and the incurring of the risks without WPPL having contributed equally to the money expended or having shared equally in those risks.
At [155] to [157] the defendants plead that WPPL is guilty of prolonged, inordinate and inexcusable delay in commencing proceeding CIV 2617 of 2012 in September 2012 and in seeking the relief claimed in respect of the East Angelas, that WPPL is barred by laches from claiming the relief it seeks and further or alternatively WPPL has acquiesced in any violation of its rights and is barred from seeking the relief it claims in relation to the East Angelas.
Further Amended Reply
The defendants Amended Substituted Defence was filed on 9 May 2016. The plaintiff's Further Amended Reply to the defendants' Amended Substituted Defence was filed on 24 May 2016 but the amendments do not relate to the amendments to [152], [153], [153A], [153B] and [154] of the Amended Substituted Defence.
In addition to joining issue with the defendants on their allegations of knowledge of the facts giving rise to their claim and of risking the expenditure and assets given as security in maintaining and developing the East Angelas, WPPL advances a positive case that the defendants have not incurred any risk that would justify WPPL being barred from relief by its delay in bringing proceedings. WPPL's positive case in relation to that risk is as follows. First, it was known to HPPL that the East Angelas reserves contained very substantial quantities of iron ore. Secondly, the Hope Downs Joint Venture arrangements between the defendants and Hamersley for the development of the Hope Downs project, including the East Angelas tenements, were and are such that the development costs were funded by project finance with the lender's recourse limited to the project assets and by subordinated loans from the Rio Tinto group. Thirdly, Hamersley purchased 50% of the project from the defendants for $260 million plus a royalty.
It is necessary to refer specifically to [31] and [45.3] of the Further Amended Reply. The defendants apply to strike out the words 'incurred any relevant risk or' from [31] which is as follows:
In further reply to paragraphs 85(c) and 150 to 157 of the defence WPPL says that as set out below HPPL has not incurred any relevant risk or incurred sufficient expenditure that would justify WPPL being barred by laches or acquiescence from obtaining the relief claimed herein, alternatively that would justify WPPL being barred upon the Court assessing an amount in respect of which WPPL should give credit to HPPL by way of allowance, so as to ensure it would not be practically unjust by reason of laches and/or acquiescence to grant to WPPL the relief sought. The quantum of any such allowance should be determined following the proposed hearing on quantum after questions of breach have been determined and after discovery from HPPL on the issue of what gains have accrued to it in respect of the East Angelas tenements. (emphasis added)
In [45.1] and [45.3] WPPL repeats matters in its statement of claim and reply. The defendants apply to strike out [45.3] which pleads:
[WPPL] says further that HPPL has not incurred any relevant risk that would justify WPPL being barred by laches or acquiescence from obtaining the relief claimed herein;
PARTICULARS
WPPL refers to the confidential particulars to paragraph 45.3 of the plaintiff's reply dated 21 March 2016 (emphasis added).
The confidential particulars consist of ten paragraphs, many of which have numerous sub‑paragraphs. The confidential particulars include the following. Particular 1 includes that it was a matter of public record that the East Angelas areas contained very substantial reserves of iron ore. Particular 2 includes:
To the extent that the defendants have incurred risks in developing mining operations to exploit the East Angelas reserves, the nature of the joint venture arrangements entered into with Rio Tinto is such that the defendants have not been exposed to relevant risks such as might otherwise justify a participant in a mining project relying on laches and/or acquiescence … (emphasis added)
Thereafter the particulars refer to the terms of the Hope Downs Joint Venture including the Cooperation Agreement and the Hope Downs Joint Venture Agreement. Particular 8 says that to the extent that HDIO's costs of developing the East Angelas areas were funded by debt, such debt was debt in respect of which the lenders' recourse was limited to the assets of the Hope Downs project and did not include recourse to the assets of HPPL or other companies related to HPPL. Particular 9 says that to the extent the defendants granted security over tenements and royalty streams in which WPPL claims a 50% interest in this proceeding WPPL, albeit unknowingly, equally shared in that risk. Particular 10 says that further particulars may be provided prior to trial after further discovery is obtained relevant to the magnitude of the risks alleged to have been assumed by the defendants and the nature of those risks having regard to the expected profitability of the Hope Downs and East Angelas developments and HPPL's sources of funding for the development costs.
The defendants' 2013 strike out application
In the course of argument WPPL referred to my reasons for judgment in dismissing the defendants' application for summary judgment: Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2013] WASC 248. The defendants had applied for summary judgment or alternatively to strike out WPPL's statement of claim on the grounds that it disclosed no reasonable cause of action, is vexatious or is otherwise an abuse of the process of the court. One of the bases of the defendants' application was that its defence of laches was bound to succeed, that is WPPL's claim was bound to fail because of its delay in commencing the proceedings. I dismissed the defendants' application. In relation to the defendants' case that they have risked large amounts of money and assets put up as security for money borrowed in developing the mining ventures on the East Angelas, WPPL disputed the extent of the defendants' expenditure and the extent of the alleged prejudice.
In determining the defendants' combined application for summary judgment and their strike out application, I was not confined by the manner in which the plaintiff's case was pleaded and considered the facts alleged in the evidence before the court and arguments based on that evidence. In particular, WPPL disputed the extent of the defendants' expenditure and the extent of the alleged risk. WPPL relied upon a report prepared by Lonegan Edwards dated 4 October 2011 (the Lonegan Report). The Lonegan Report suggests that the risk to HPPL may have been significantly less than in many mining ventures on a number of grounds. First, Hope Downs 4 is being developed in conjunction with Hope Downs 1, 2 and 3, an established and operating mine, and in joint venture with Rio Tinto, a large mining company, which in effect controls the project. Secondly, to the extent that HPPL has raised debt capital, that debt is limited to recourse debt, with the recourse of the lender being limited to its security to HPPL's share of the Hope Downs 'Venture Assets'. Thirdly, to the extent that HPPL's share of the Hope Downs 'Venture Assets' comprises its share in the East Angelas tenements, that risk is one shared, albeit unknowingly, by WPPL. WPPL disputed the expenditure alleged by the defendants and the extent of the risk of losing that expenditure and the assets given as security for loans in maintaining and developing the East Angelas.
At [79] of my reasons I stated that:
The extent of the risk to the defendants in developing the East Angelas is a significant factor in evaluating the unfairness to the defendants in granting equitable relief after the delay in commencing the proceedings.
My reasons and decision were based on the evidence then before the court and in particular opinions advanced in the Lonegan Report and arguments based on those opinions. These applications are to be determined on the pleadings and evidence before the court not the facts and opinions referred to by the authors of the Lonegan Report, which is not in evidence, or the arguments based on those opinions.
Paragraphs of reply should be struck out
The reference to 'any relevant risk' in [31] and [45.3] should be struck out on the ground that the pleading may prejudice, embarrass or delay the fair trial of the action.
The defendants' case of laches in relation to risk of loss is as follows. The defendants expended money in maintaining and developing the East Angelas land and gave assets as security for money borrowed to do so. They risked the money expended and the assets given as security in that there was a possibility, chance or likelihood of losing all or part of the money expended and the assets offered as security. The matters which give rise to that risk are those set out in the particulars to [153A] of the Amended Substituted Defence. The plaintiff delayed taking action with knowledge of the facts on which it relies for its claims and it is inequitable for the plaintiff to now make those claims.
Paragraph 31 of WPPL's reply does not make it clear how much of the defendants' case it disputes. WPPL's pleading is ambiguous. WPPL's case might be that the defendants did not incur any risk because they did not incur the alleged expenditure or any expenditure and did not give the alleged securities or any security in maintaining and developing the East Angelas. Alternatively, WPPL's case might be that the defendants incurred expenditure and gave security but there was no risk of losing the money expended or the assets given as security. If that is WPPL's case then it should articulate the basis for that contention and the facts which give rise to that conclusion. Alternatively, WPPL's case might be that the defendants incurred expenditure and gave security over assets and there was some risk of losing that money and those assets but the degree of risk is such that the court should not bar the relief to which WPPL is otherwise entitled. If that is WPPL's case then it should articulate that case and plead the facts which give rise to that conclusion.
Paragraph 45.3 of the reply is also relevantly ambiguous and embarrassing in that it fails to make clear the extent to which the defendants' case is disputed by the plaintiff. The pleading that HPPL 'has not incurred any relevant risk that would justify' WPPL being barred by laches or acquiescence from obtaining the relief claimed might mean more than one thing. It might mean that HPPL has not incurred the risk it has pleaded. It might mean that HPPL has incurred the risk pleaded but it is not relevant. It might mean that HPPL has incurred the risk pleaded, it is relevant, but having regard to all of the facts and circumstances it does not justify WPPL being barred by laches or acquiescence. If WPPL's case is either of the latter two formulations then it must set out the facts and circumstances on which that conclusion or those conclusions is or are based.
The court discourages disputes relating to pleading issues which consume substantial amounts of time and expense which is often disproportionate to their significance to the just and effective resolution of the case. The approach of the court to pleading disputes must take into account the purposes of pleading. Those purposes relevantly include informing the court and the other parties of the case of the party putting forward the pleading. The contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre‑trial directions which include the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial and the exchange of witness statements and expert reports prior to trial. Nevertheless, the fundamental proposition concerning pleadings is that a party is entitled to be informed about the opponent's case with sufficient clarity to allow that party a fair opportunity to meet the case. The court will intervene if the parties do not identify with reasonable precision just what is and what is not in dispute.
There is a wide range of matters which might or might not be in dispute depending upon WPPL's case in answer to the defendants' case that they risked the money expended and the assets given as security in that there was a possibility, chance or likelihood of losing all or part of the money expended and assets offered as security. It is necessary that WPPL plead their reply to that part of the defendants' case with greater precision so that the defendants know the case they have to meet and can prepare their evidence accordingly and so that the court is able to determine the bounds of what evidence is or is not relevant to the dispute concerning the defendants' allegation that in maintaining and developing the East Angelas the defendants risked money expended and assets given as security for money borrowed. To the extent WPPL pleads a positive case that case must be articulated with sufficient precision for the defendants and the court to know the case that is being advanced. If WPPL's case is not more precisely pleaded it is likely that time and resources will be wasted addressing matters that are not truly in issue. For those reasons the references to 'any relevant risk' in [31] and [45.3] of the reply should be struck out.
Power to order discovery of particular documents
The court has inherent power to order a party to give further discovery. In addition, the court may order a party to give discovery of any specified document or class of specified documents that is or has at any time been in his possession, custody or power pursuant to O 26 r 6(1) of the Rules of the Supreme Court 1971 (WA). Whether, in the exercise of its inherent jurisdiction or pursuant to the rule, if, on the face of it, or from material before the court, the court has reasonable ground for being fairly certain that the documents are or have been in the possession of the defendant and the documents relate to a matter in question in the action the court may make an order.
Any order for discovery of specified documents or classes of documents is discretionary. In Roe v The State of Western Australia [2013] WASC 130 Martin CJ considered an application by the plaintiff for further and better discovery of documents. The case is somewhat unusual in that no order for general discovery had been sought or made. Nevertheless, the statements of principle by the Chief Justice are applicable to this case. The Chief Justice said:
The contemporary principles that govern the provision of discovery are conveniently set out in the defendants' submissions which I adopt: Singh v Friedman [2013] WASC 78 [3] - [4] (Allanson J). Put shortly, it is now established that general discovery is no longer regarded as a right. Rather, the extent of the obligation to give discovery and the entitlement to discovery will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court 1971 (WA) and in particular the principles enunciated in O 1 r 4A and r 4B. Those principles include and expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties.
In the context of discovery, this means that when issues arise with respect to the breadth of the discovery to be ordered, the ambit of discovery will be determined taking into account the cost and delay associated with the provision of discovery over a broader ambit, as compared to the forensic benefit likely to be derived from the provision of discovery over that broader ambit. Unless the cost and delay involved in the provision of that discovery is proportionate to the forensic benefit likely to be derived from a broader ambit of discovery, and to the value and importance or complexity of the subject matter of the proceedings, a narrower ambit of discovery will be ordered.
The only proposition I would add to the principles enunciated in the defendant's written submissions is the proposition that at least in cases such as this, when general discovery has not been sought or ordered, adjectival or indirect relevance of itself will no longer determine whether or not a document will be ordered to be discovered, and in particular the approach to general discovery enunciated in cases like Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 will no longer guide the court in relation to issues with respect to informal discovery.
Rather, those issues will be determined by the balancing of the likely forensic benefit to be obtained against the risk of cost and delay in the manner that I have described, viewed in the context of the value, importance and complexity of the subject matter of the proceedings. In that context, the forensic significance of the issue in respect of which discovery is sought and the relevance of the documents sought to that issue, in a qualitative sense, will be pertinent to the proper disposition of any application for discovery [10] - [13].
Matters in question
There was debate between the parties as to the matters in question in relation to the defendants' defence of laches and hence the scope of the documents which relate to any matter in question in relation to the laches defence.
The defendants have particularised the expenditure and assets which they risked in seeking to maintain, prove up and exploit the East Angelas land by winning iron ore from that land. Thus, the scope of the matters in question in relation to the expenditure and assets risked is limited by the particulars.
The defendants have pleaded the matters which they allege give rise to the risk of losing wholly or in part the money expended and the assets given as security. Insofar as WPPL has joined issue with the defendants' pleading it is those particulars which define and limit the matters in question in relation to risk. In addition to joining issue with the defendants WPPL has pleaded a positive case in relation to risk. I have referred to that positive case in [35] above. It is to be found in the particulars to [45.3] of the Further Amended Reply.
Senior Counsel for WPPL, Mr Rowland QC, submitted that the defendants must disclose any document that shows that any expenditure may have enhanced the value of the tenements or shows any matter which the defendants took into account in deciding whether to go ahead with the development. In my opinion, that states the matters too broadly. So far as risk is concerned, the matters in question are defined and limited by the particulars given by the defendants and the particulars given by WPPL in [45.3] of its reply.
WPPL seeks discovery of four classes of documents described as risk and NPV calculations, negotiation of Cooperation Agreement, further documents and tender/bidding process documents. I will consider each of those categories of documents.
Category A
WPPL seeks discovery of:
All correspondence, presentations, notes and other documents prepared between 12 June 1987 and 24 September 2012 and considered by the board or senior management of HPPL or HDIO that contain viability and/or risk assessments, net present value (NPV) calculations or estimates or any other valuations relevant to the East Angelas Tenements or any mining operations conducted or proposed to be conducted in relation to the East Angelas tenements.
In a confidential affidavit affirmed on 17 June 2016 by Darren Pratt, a solicitor with the conduct of the matter for the defendants, Mr Pratt says that the defendants have given discovery of the following documents which may fall within category A:
(1)Hope 4 Order of Magnitude Study Report;
(2)Hope Downs 4 Bankable Feasibility Study; and
(3)Definitive Engineering Study.
Mr Pratt says that he has been informed by John Panegyres, senior litigation counsel for the defendants, that he has overseen a search of the company's secretarial files for HPPL and HDIO between 1 July 2005 and 14 August 2010 to determine whether there are any board minutes or resolutions that record matters falling within this category and there are no such minutes or resolutions.
Mr Pratt says that he is informed by Mark Bickerton, the Information and Records Manager for HPPL and HDIO, that in giving the discovery, including informal discovery, which the defendants have provided on 13 occasions between 14 February 2012 and 7 June 2016 he and people under his supervision have already searched all locations which were likely to contain documents relevant to or relating to the Hope Downs and East Angelas tenements. These locations are numerous and comprise a mixture of electronic and hardcopy documents. Many of those locations would need to be reviewed again. It is unlikely that any new locations would need to be reviewed. Mr Bickerton considers it unlikely that any documents exist which would fall within this category that have not already been discovered. Mr Bickerton estimates that it would take about 150 hours of full time work, which having regard to the resources available to him and his team and their other responsibilities would be likely to take about eight weeks to review all of the locations that may contain documents within this category and to produce any documents that may be discoverable to the defendants' solicitors for review. The parties are well resourced corporations and the value of the claims in issue in this action run into hundreds of millions of dollars. Nevertheless, the burden of reviewing all of the locations that may contain documents within this category and reviewing the documents is substantial.
Mr Rowland submitted that the relevance of this category of documents is not in issue because the defendants have discovered documents within this category. Mr Rowland says that the three documents within this category that have been discovered by the defendants address the question of viability or risk assessments and net present value. Mr Rowland submits that documents that address NPV, risk assessments and calculations or estimates of the valuation of the tenements are critical to understanding what was the nature and extent of the risk that was being borne by the expenditure undertaken by the defendants.
The defendants do not admit that there are documents within this category which are, or have been, in their possession, custody or power which they have not disclosed and there is no direct evidence that they have, or have had, such documents in their possession, custody or power. Mr Rowland says that it is likely that the board or senior management of the defendants considered documents within this category other than the three documents discovered. Mr Rowland added that 'it may be that [the defendants] will search these locations which they know of and they will say "no there is nothing else"; its conceivable; its extremely … unlikely that the board or senior management did not have available to them other documents about net present value and risk assessments than those three'.
Counsel for the defendants, Mr Bova, did not concede that category A documents are discoverable. Mr Bova submitted that the matters to which those documents relate - net present values, risk assessments, viability reports and calculations - do not arise on the pleaded case.
The defendants have provided discovery of some documents within category A. Mr Pratt, on information provided by Mr Bickerton, says that because of the discovery process that has been undertaken it is unlikely that the defendants have, or have had, in their possession, custody or power any other documents falling within category A and the cost of checking again is great. There is, or may be, some overlap between category A and category C documents. Mr Pratt has been informed by Mr Newby, the chief financial officer and company secretary for each of the defendants, that there are no documents within category C that have not been discovered.
It is possible that documents within category A might exist other than the three documents that have been discovered. However, that is not a sufficient basis for ordering the defendants to make discovery of category A documents. The legal test requires, at least, reasonable grounds for belief that it is fairly certain that the documents exist. I am not satisfied that there are reasonable grounds for being fairly certain that there are, or have been, in the possession, custody or power of the defendants any documents which fall within category A that have not been discovered.
Further, in the exercise of my discretion I would not order further and better discovery of category A documents. I am not satisfied that the forensic benefit to WPPL from obtaining documents in addition to the category A documents which have been provided by the defendants justifies requiring the defendants to undertake a further search for such documents having regard to the burden that would be imposed by requiring the defendants to replicate the steps they have already taken in relation to giving discovery.
Category B
Category B is:
All feasibility and pre‑feasibility studies considered by the board or senior management of HPPL or HDIO that evidence the level of risk and the nature of the opportunity associated with the maintaining, proving up, and exploitation of the opportunity to mine iron ore from the area or land formally the subject of the East Angelas ELs and the four specific documents described at (i) to (iv) of the schedule.
In his affidavit Mr Pratt says that he is informed by Mr Bickerton that all pre‑feasibility and feasibility studies relating to the developing of the East Angelas Tenements have been discovered and those documents are the three documents discovered under category A plus Hancock Prospecting Pty Ltd East Angelas 1 Resource Estimate. Mr Pratt says that Mr Panegyres says he has overseen a search of the company's secretarial files for HPPL and HDIO between 1 July 2005 and 14 August 2010 to determine whether there are any board minutes or resolutions relevant to this category and there are no relevant minutes or resolutions.
As to category B(i) Mr Bickerton says that the feasibility studies prepared pursuant to cl 6 of the JV Agreement are one or more of the three documents which have been discovered under category A. As to the specific documents described in categories B(i) to (iv) Mr Bickerton says that the documents falling within those descriptions have all been discovered.
Mr Rowland says that there is evidence that one document falling within category B has not been discovered. The defendants have discovered a confidential document which is an annual report in relation to Hope Downs 4, 5 and 6 and is dated 31 January 2007. The document includes a statement that the project is currently the subject of a pre‑feasibility study managed by Hamersley under the terms of the Hope Downs Cooperation Agreement and that a project status review and order of magnitude study have previously been completed in September 2005 and February 2006 respectively. Mr Rowland says that the defendants have not discovered a pre‑feasibility study subsequent to 2006 and the order of magnitude study report and bankable feasibility study discovered by the defendants pre‑date the date of the annual report which contains the reference to a pre‑feasibility study which is said to be in the course of being produced in 2007.
Counsel for the defendants, Mr Bova, said that category B relates to feasibility and pre‑feasibility studies considered by the board or senior management of HPPL or HDIO and there is no evidence that a pre‑feasibility study being managed in January 2007 was at any time considered by the board or senior management of the defendants. Mr Bova says that annexures NJC 41 and NJC 42 to Mr Cooper's affidavit of 8 June 2016 do not establish the existence of the documents referred to by Mr Rowland. There is no evidence that the defendants have, or have had, the document referred to at NJC 42. Mr Bova says that Hamersley were managing the pre‑feasibility study and there is no reason to suppose that the document, if it exists, was ever considered by the board or senior management of the defendants. Mr Pratt's evidence, from information from Mr Bickerton, is that all pre‑feasibility and feasibility studies relating to the East Angelas tenements have been discovered.
I am not satisfied that there is reasonable ground to be fairly certain that the defendants have, or have had, in their possession, custody or power a pre‑feasibility study or other category B documents that have not been discovered.
Furthermore, I am not satisfied, having regard to the documents already discovered by the defendants, the forensic benefit of the further discovery to WPPL and the burden that would be imposed on the defendants, that it is reasonably necessary for fairly disposing of the issues in this case that the defendants give particular discovery of category B documents.
Category C
This category is:
All documents prepared on or after 1 July 2005 recording or evidencing matters taken into account by the board or senior management of HPPL or HDIO in deciding whether, and when, to proceed with the development of Hope Downs 4 and including any report from the manager of the Hope Downs Joint Venture to the joint venturers containing recommendations to proceed (or not) and any report prepared within HPPL or HDIO for consideration by the board or senior management containing HPPL's consideration of the matters identified by the manager of the joint venture.
In his affidavit Mr Pratt says that the minutes of the meeting of the Hope Downs Joint Venture Management Committee dated 20 August 2010, at which the decision to proceed with Hope Downs 4 was made, have been discovered. Mr Pratt says in relation to the two documents referred to by the committee, those documents are identified. One is the feasibility study which has been provided to WPPL. The other is a document which has now been located and will be discovered. That document has now been provided to WPPL. Mr Pratt says that he is informed by Mr Panegyres that he has overseen a search of the company's secretarial files for HPPL and HDIO between 1 July 2005 and 14 August 2010 to determine whether there are any board minutes or resolutions and there are no relevant minutes or resolutions relevant to this category. Mr Pratt says he is informed by Mr Newby, chief financial officer and company secretary for HPPL and HDIO, that he was an alternate director of HPPL and HDIO, the company secretary and chief financial officer of HPPL and HDIO and a member of the senior management team of those companies at the time when the decision was made to proceed with the development of Hope Downs 4. Mr Pratt says he is further informed by Mr Newby that except insofar as documents have been discovered, or HPPL and HDIO have indicated they will give discovery of the Hope Downs 4 programme and budget, there are no documents falling within this category.
Mr Rowland says that documents annexed to Mr Cooper's affidavit of 8 June 2016 give rise to an inference that there are such documents which have not been discovered. Neither that reference nor the arguments advanced by Mr Rowland satisfy me that there is reasonable ground to be fairly certain that the defendants have, or have had, in their possession, custody or power documents within category C that they have not disclosed.
Category D
Category D refers to a number of specific documents. WPPL does not press discovery of documents D(i) and D(ii). The other documents or classes of documents are:
D(iii): the initial 'Base Case Financial Model' as defined in the Hope 4 Senior Facility Agreement dated 24 November 2010;
D(iv): any update of the Base Case Financial Model including any update referred to in the Senior Facility Agreement;
D(v): the initial Life of Mine Plan as defined in the Hope Downs Senior Facility Agreement;
D(vi): the financial and management and operating reports referred to in the Senior Facility Agreement;
D(vii): each Joint Venture Budget delivered under the terms of the Senior Facility Agreement;
D(viii): the initial Hope 4 Life of Mine Plan as defined in the Hope IV Senior Facility Agreement;
D(ix): the financial and management and operating reports referred to in clauses of the Senior Facility Agreement; and
D(x): each Joint Venture Budget delivered under clauses of the Senior Facility Agreement.
The first point made by the defendants is that documents do not necessarily relate to a matter in question merely because they are referred to in a discovered document. The documents D(iii) to D(x) are documents that were required to be provided to the defendants' bankers pursuant to express undertakings. Mr Bova says that the Senior Facility Agreement is dated 24 November 2010. The date of the decision to proceed with the East Angelas was 30 August 2010. Mr Bova says that any documents required to be provided to the defendants' bankers under the Senior Facility Agreement after the decision to proceed with the East Angelas has been made are not relevant to the risk undertaken by the defendants. That is not necessarily so. However, it cannot be inferred from the character of the documents that they are relevant. Unless a class of documents can be demonstrated to be relevant by their character, a prima facie case must be made that they are relevant by virtue of their contents. There is no evidence to that effect. Therefore, I am not satisfied that the documents are relevant to any matter in question.
Furthermore, I am not satisfied that, having regard to the documents already discovered by the defendants, the likely forensic benefit to WPPL from the documents it seeks and the burden imposed on the defendants of conducting further searches for documents within the category, an order for further and better discovery of the category D documents is necessary for fairly disposing of the issues in this case. The defendants have already discovered documents which disclose the contractual arrangements with Hamersley in 2005 and 2006, the financing documents and financing arrangements. Further discovery of category D documents is of marginal forensic benefit having regard to the issues raised on the pleadings.
Category E
The plaintiff does not press for further and better discovery of the category E documents.
Category F
Category F is:
(i)monthly reports recording the total expenditure on the development of Hope Downs 1 - 3 and Hope 4 after May 2005; and
(ii)the 'four side letters from Sam Walsh to Gina Rinehart' referred to in HPPL.012.0001.
Insofar as the monthly reports are concerned, WPPL says that they are relevant because they record expenditure on the development of Hope Downs 1 to 3 and Hope Downs 4 after May 2005.
The defendants have discovered three monthly reports which are directly relevant to the pleaded expenditure relied upon by HPPL at [152] of its defence. Mr Bova says that WPPL does not plead any fact relevant to expenditure of Hope Downs 1 to 3 or Hope Downs 4. WPPL's case is to the effect that the project was always expected to be highly profitable and there was a very high level of confidence that a lucrative development of the East Angelas areas could be achieved.
The defendants have discovered the monthly reports which relate to the expenditure pleaded by the defendants. WPPL has not pleaded any other expenditure by the defendants. Unless a class of documents can be demonstrated to be relevant by their character, a prima facie case must be made that they are relevant by virtue of their contents. I am not satisfied that monthly reports are by their character relevant to any matter in issue on the pleadings and there is no evidence of the content of any of the reports other than those which have been discovered. I am not satisfied that the other monthly reports relate to any matter in question. Furthermore, I am not satisfied having regard to the matters in issue on the pleadings and the documents which have already been discovered that discovery of the further monthly reports is reasonably necessary for disposing fairly of the issues in this case.
The second class of documents sought under category F is four side letters from Mr Walsh to Ms Rinehart. In his affidavit Mr Pratt says that he has reviewed the letters, that the first three relate to matters which are not on any arguable basis relevant to the matters in issue in this proceeding and the fourth relates to the amount of the initial commingling charge for the services provided pursuant to the Services and Commingling Agreement and, based on the matters in issue as defined by the pleadings, the amount of the commingling charge is not relevant to any matter in issue in the proceedings. WPPL accepts Mr Pratt's assessment in relation to the first three letters but not the fourth. Mr Rowland submits that the commingling and the circumstances in which it came about are relevant to the risk because the ore at Hope Downs 4 contained high phosphorus. I am not persuaded that the letter relates to any matter in question in the action. At [153A] of their defence the defendants say that the prospect of mining iron ore from the East Angelas land was uncertain and all expenditure in relation to the East Angelas ELs was speculative and was or was likely to be uneconomic due to the phosphorous levels contained in the ore. However the subject of the letter is not the phosphorous content of the ore or the commingling of ore from Hope Downs 4 with other ore. The letter is concerned with the amount of the initial commingling charge for the services provided pursuant to the Services and Commingling Agreement. Neither the defence nor the reply refers to the Services and Commingling Agreement or to the charge for services provided pursuant to that agreement. The amount of the initial commingling charge does not sufficiently relate to any matter in question in the action. Furthermore, I am not persuaded that, having regard to the matters in issue on the pleadings and the documents that have already been discovered, discovery of the letter concerning the initial commingling charge is reasonably necessary for fairly disposing of the issues in the case.
Categories G - J
These categories of documents relate to what Mr Rowland described as a process of tendering or bidding to join HPPL in the Hope Downs Joint Venture. Mr Cooper annexes to his affidavit of 27 April 2016 a press report which WPPL submits suggests that the defendants either undertook a formal tender and/or bidding process or initiated discussions with interested parties, including Consolidated Minerals and Mitsubishi, in relation to those entities potentially taking an interest in and/or funding the Hope Downs Project. The press release is dated 17 June 2005.
The documents sought by WPPL are:
(g)documents (including dataroom contents if there was such a depository) made available to the Interested Parties (including the documentation relating to the actual bidding/tendering process - whether formal or otherwise) at any time between 1 January and 1 July 2005 for the purpose of tendering to acquire an interest in some or all of the six tenements comprising the Hope Downs project and/or undertaking due diligence on the Hope Downs project including correspondence between negotiating teams;
(h)any contracts, heads of agreement or draft agreements between the Defendants and the Interested Parties with respect to the Hope Downs project;
(i)documents containing the terms or proposed terms on which the Interested Parties expressed interest in the Hope Downs project including financing arrangements, development timetable and feasibility assessments including initial bids through to final binding proposals;
(j)to the extent not covered by (i) above, documents relating to any proposals received by the Defendants from financiers at any time between 1 January and 1 July 2005, which may not ultimately have been pursued by the Defendants, in relation to the terms on which those financiers were prepared to fund developing at Hope Downs.
In correspondence WPPL's solicitors stated that the documents may be relevant to:
(a)the extent to which the defendants' anticipated claims by WPPL with respect to the Hope Downs and East Angelas tenements; and
(b)the extent to which the defendants were involved in a 'risky venture' with respect to the East Angelas tenements.
In its application for further discovery of category G to J documents WPPL relied upon the second of the arguments put by its solicitors in correspondence and did not press the first argument.
In his oral submissions Mr Rowland said that the documents in categories G to J relate to the bidding process which are relevant to what was perceived to be the very attractive proposition of being able to acquire an interest in Hope Downs and develop it with HPPL and in that process there will be documents that were made available to those interested parties that relate to tendering so that they could undertake the usual due diligence and inform themselves about what the risks were of entering into the project and the terms of any proposals to enter into the project and the terms of what financing might have been available. Mr Rowland said that all of that will inform how attractive or otherwise and how risky or otherwise the Hope Downs Project was perceived to be at the time.
There are not reasonable grounds for being fairly certain that documents within these categories exist. The highest the evidence goes is that Consolidated Minerals put two fully funded proposals to HPPL and Mitsubishi had several meetings. That does not establish that there was a bidding or tendering process, that there were any contracts, heads of agreement or draft agreements between the defendants and Consolidated Minerals, Mitsubishi or any other bidders or interested parties or any of the other documents listed in categories G to J.
I am not satisfied that the documents in categories G to J relate to any matter in question. They are not relevant to whether the defendants undertook the expenditure and put up the securities pleaded by the defendants. They do not go to the risk undertaken by the defendants in making the pleaded expenditure and putting up the pleaded securities. Third parties perceptions of the value of some unspecified investment in or in relation to the Hope Downs project is too far removed from an objective assessment of the risk of the capital and assets invested or put up as security by the defendants in maintaining and developing the East Angelas. The documents do not relate to any of the matters set out in HPPL's particulars to [153A] of its Amended Substituted Defence or WPPL's particulars to [45.3] of its Further Amended Reply.
What other parties might or might not have perceived to be the value of some unspecified contractual arrangement with the defendants in relation to the Hope Downs Project goes beyond the limits of relevance to the matters in issue as disclosed by the pleadings. Furthermore, the description of the categories of documents is too broad. On the face of it, it is a fishing expedition.
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