1 BUSS JA: The background facts relating to these proceedings for prerogative, declaratory and other relief are recounted in my reasons in Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources

15 I am satisfied that the documents as a whole, and most of the documents individually, reveal some details of the manner in which the State of Western Australia is or may be willing to negotiate a State agreement to regulate the commercial exploitation of a mining resource, and the manner in which negotiations with the State might usefully be undertaken. Also, various of the documents disclose some information as to issues of concern to the Rio Tinto Group, in its negotiations with the State, which may be of benefit to a current or future competitor. I consider that information in the documents in question in this application is likely to be of commercial advantage to the applicant, especially if it obtains rights to develop the Shovelanna resource. If unrestricted access to the documents is likely to be useful to the applicant then it is also likely to result in some corresponding detriment to the State and the Rio Tinto Group (including the third-named second respondent).

16 In these proceedings, the relevant facts appear to be agreed or not in dispute, even though there may be some argument between the parties as to the extent of the first respondent's actual knowledge, at material times, of the "Statement of Principles", referred to in par 21 of Rio's First Submission, and related and ancillary matters. On the applicant's case, the first respondent's actual knowledge of the Statement of Principles, and related and ancillary matters, appears to be relevant only to the procedural fairness ground set out in par 13 of the re-amended notice of originating motion. Otherwise, the proceedings are concerned with identifying and delineating the applicable legal principles, and determining the proper application of those principles to agreed or undisputed facts.

17 On 27 February 2007, the applicant filed and served written submissions in support of its claim for prerogative, declaratory and other relief. On 6 March 2007, the applicant applied for, and was granted, leave to re-amend the grounds on which it claims relief. The restrictions on the inspection of the relevant discovered documents do not appear to have impaired the applicant's capacity properly to draw the affidavits on which it wishes to rely, its written submissions, or its grounds. The applicant's written submissions are comprehensive in relation to all grounds including the procedural fairness ground.

18 Counsel for the applicant submitted that a party has a prima facie right to inspect discovered documents and that there was an insufficient basis for continuing to impose restrictions on the inspection of the first respondent's discovered documents. Counsel also said:

" ... there are strategic matters as to whether particular arguments - because there's numerous arguments we have put forward ... assume importance over other arguments.

There are always strategic issues in presenting a case ... and ordinarily it's not for the lawyers ... to organise the priorities of the various arguments, some of which are conceivably inconsistent with others ... It's not for the lawyers to choose their own order of presenting arguments, as to how arguments are presented, without the benefit of instructions in doing so, unless there's good reason."

19 It is not apparent that the applicant's legal representatives require instructions from Mr McMahon or Mr Clive Jones on any specific or particular matter which is contained in any of the first respondent's discovered documents. Also, it is not apparent that it is necessary or desirable for Mr McMahon or Mr Clive Jones to have access to those documents for the purpose of providing any specific or particular instructions on the "strategic matters" referred to by the applicant's counsel. It is not suggested that any expert knowledge of the mining industry or any other form of expertise is required to understand the discovered documents. My examination of the documents annexed to Mr Alexander Jones' affidavits indicates that the applicant's counsel and solicitors should be well able to assess the relevance and significance of those documents in the context of the grounds on which prerogative, declaratory and other relief is sought.

20 If Mr McMahon and Mr Clive Jones were to be permitted to inspect the documents in question, the information which they would derive from them would not be forgotten and, as a result, the confidentiality of that information is unlikely to be preserved adequately by the implied undertaking or their execution of the express undertaking which has been offered.

21 In the circumstances, I consider that the facts and matters I have mentioned at [12] - [20] above, in combination, militate against granting the applicant's application to vary the orders made 22 December 2006. The affidavit evidence relied on by the applicant, and the submissions it has made, do not persuade me that the interests of justice require that, for the purposes of this litigation, there be unrestricted or less restrictive access to the documents which the first respondent has produced (or the information they contain). The application to vary the orders will therefore be dismissed. I would, however, reserve to the applicant liberty to apply if it encounters any particular difficulty in the proper presentation of its case at the substantive hearing on 19 and 20 March 2007, without the benefit of specific or particular instructions from Mr McMahon or Mr Clive Jones in relation to a discovered document or documents.