CONSIDERATION
34 Alliance, pursuant to the orders of 23 May 2013, sought discovery of a further 27 categories of documents from Quasar and Heathgate. Some have been acceded to. To the extent they are presently contentious, they are addressed below by reference to the category number. The 27 categories are an annexure to its application. I will not set them out individually in this judgment.
35 The contention of Alliance, as expressed by its solicitor in his affidavit of 22 September 2013, is that the discovery orders it seeks should not be confined by r 20.14(1)(a) or r 20.14(2). That is, Alliance wants discovery beyond documents which are directly relevant to the issues raised by the pleadings, and it wants discovery extending beyond documents on which Quasar or Heathgate intend to rely, or which adversely affect their respective cases, or which support Alliance's case, or which adversely affect Alliance's case.
36 The first argument for such wide ranging orders is that, in respect of the fresh issues (as identified by Alliance), the categories specified are largely technical so a lawyer might not appreciate the direct relevance of a document or documents. The second argument is that during the previous discovery process the parties had disputes about whether some classes of documents were directly relevant, and an order not restricted by those subrules would avoid further dispute. The third argument is the specified categories are all of directly relevant documents, and discovery by categories is likely to be narrower than a general order for discovery.
37 In relation to the earlier pleadings, and the claim by Alliance for discovery of 97 categories of documents, it should be noted that Quasar and Alliance:
(1) gave general discovery pursuant to an order of 1 October 2010, under O 15 r 2 of the Federal Court Rules 1979 (Cth), and
(2) gave further particular discovery pursuant to the order of 26 March 2012.
38 The SSC is said by Alliance to justify the discovery of the further categories of documents because it is not clear that Quasar and Heathgate have given discovery of all documents held by them directly relevant to the prospectivity of EL 2874 (in part because the orders made on 26 March 2012 were limited in their terms), and because the SSC raises new issues. In oral submissions, reference was made to paras 45, 47 to 48, and 59 to 61 of the SSC and the particulars given in support of them.
39 Paragraph 45 of the SSC, as its heading shows, relates to the "Information known to Heathgate: pre Deed of Assignment". That is pre-17 December 2002. I do not accept that the previous orders for discovery excluded from the documents to be discovered those held by either Quasar or Heathgate relating to the prospectivity of EL 2874 and which came into existence prior to 17 December 2002. There was no such temporal limitation. The discovery required by the two orders for discovery, but in particular the orders of 26 March 2012, focused on documents which would tend to show Quasar's and Heathgate's knowledge of matters concerning the prospectivity, inter alia, of EL 2874. That would not exclude documents which existed prior to 17 December 2002. Indeed, order 5.1 covered the period from the start of the JV on 30 August 2002. Any material concerning the prospectivity of EL 2874 prior to that date would or should have been known to Alliance, as the holder of EL 2874 from 17 June 2002.
40 Paragraphs 47 to 48 of the SSC relate to the period following the Deed of Assignment of 17 December 2002. For the same reason, I do not accept that those allegations raise any new matters. I note from the headings in the SSC, those paragraphs are intended to cover the period to 30 June 2004, or 13 July 2004 (although para 50 refers to a period to October 2004), which is the time when the possible extension to the earn-in period arose.
41 Paragraphs 59 to 61 are in that section of the SSC referring to the period from 13 July 2004 when the request was made to extend the earn-in period. Again, subject to my comments in the following paragraph of these reasons, I do not consider that those allegations give rise to any fresh assertions.
42 If there is any fresh period raised by the SSC, it may be the period from 30 August 2004 to 13 October 2004. That perception arises from the allegations in paras 91 to 95 and 100 to 101 of the SSC, concerning information said to be gathered by Quasar and Heathgate from late August 2004 to 30 September 2004, partly reflecting actions said to be taken by Quasar and/or Heathgate officers during that period.
43 Those pleadings (at paras 104-108) say the JVEA was signed by Quasar on 23 September 2004, and by Alliance on 13 October 2004. It is common ground that it is dated 29 September 2004. The Q-Def and the H-Def say that it took effect from its date. In any event, Alliance says that there is at least an additional six weeks or so from mid-August to the end of September 2004 when Quasar and Heathgate were accumulating information about, or forming views about, the prospectivity of EL 2874 which is recorded in documents which were not conveyed to it, and should have been conveyed to it.
44 It argues that at least for that additional period, further discovery should be ordered.
45 It also argues in any event that there has been no order for general discovery of documents which might relate to the prospectivity of EL 2874, as the orders made on 26 March 2012 were limited in their extent.
46 I do not accept the last proposition. By the Discovery Judgment of 4 April 2012 (relating to the orders of 26 March 2012), Quasar and Heathgate were intended to have to discover documents which related directly to the prospectivity of EL 2874. I found at [64] that Alliance had pleaded that the information held by Quasar and/or Heathgate in the period leading up to the extension of the earn-in period concerning the prospectivity of other tenements in the areas of the Paralana Plains adjacent to EL 2874 was or should have been relevant to the prospectivity of EL 2874. The orders were made on that basis, and in part prompted by specific matters raised by Alliance. I shall not repeat the terms of orders 5.1 and 5.3. They were directed to the objective data available to assess prospectivity of the adjacent areas (that directly concerning EL 2874 having already been discovered) and the recording of any views of either Quasar or Heathgate touching on the prospectivity of EL 2874.
47 Alliance then applied to have that order recalled and varied. On 17 May 2012, I declined to do so: the Second Discovery Judgment. In that judgment, I commented at [11] that the order was:
… to require particular discovery on the basis that - if that particular discovery were given and was capable of advancing the case of Alliance - the subsequent course of pre-trial preparation would reveal further potentially helpful material. At the point of the exchange of witness statements, it could be expected that the background to the decisions of Quasar and Heathgate about their drilling program in late 2004 would be more fully exposed.
That position still stands. The orders made on 23 May 2013 have set a timetable for the exchange of witness statements.
Both Quasar and Heathgate accepted that order 5.3 of 26 March 2012 included internal documents to one or other of them: see at [17] and [25] of the Second Discovery Judgment. And at [12] I said the order:
… was to identify sufficiently to Alliance whether, in the period leading up to the exercise of the extension of the "earn-in" period, there was information available to Heathgate and Quasar as to the prospectivity of tenements adjacent to the Tenement in the Paralana Plains area which was, or should have been, regarded as relevant to the prospectivity of the Tenement. If there was, the Alliance case is that that information was not, but should have been, disclosed to it.
48 That judgment also at [14] addressed the later date specified in 5.1 of the orders made on 26 March 2012. There was no misunderstanding about the fact that Alliance had not signed the JVEA until 13 October 2004. That is why order 5.3 of those orders extended to that date. The reason why, despite that the 30 August 2004 date was inserted in order 5.1 of the 26 March 2012 orders is there explained.
49 In the light of those matters, I have no reason to think that, other than in respect of the period 31 August 2004 to 29 September 2004 (the practical end date pleaded in the SSC), Quasar and Heathgate have not now given discovery of all documents which they considered during the JV and prior to the JVEA and which either related to the prospectivity of EL 2874, or adjoining tenements, or which record any internal views as to the prospectivity of EL 2874 up to 13 October 2004.
50 Indeed, much of the detailed allegations in the SSC referred to above indicates that the documents discovered by Quasar and Heathgate appear to have enabled Alliance to provide such detail. If that is not so, and Alliance makes those allegations on information it has gathered independently of discovery from Quasar and Heathgate, it may be seen that it has a very detailed knowledge of information about, or potentially about, the prospectivity of EL 2874 at material times.
51 I have considered the affidavit material in support of Alliance's present claims for discovery. Largely, it is assertive or in the nature of submissions. For the reasons already given, I do not accept that Quasar and Heathgate have not already given discovery of a great deal of material relevant to the allegations in the SSC, so I reject the bald proposition that "the parties are yet to make any discovery" arising from the amended pleadings. Apart from the previous discovery given, Quasar and Heathgate in addition have agreed to give further discovery of certain categories of documents referred to by Alliance.
52 I have also taken into account the evidence of Mr Kearney by his affidavits as to the processes involved in identifying, and giving discovery of, the documents in the previous tranches of discovery by Quasar and Heathgate. It is obvious that to accede to the application of Alliance will involve significant time and expense on the part of Quasar and Heathgate. It is therefore appropriate to look carefully at the material upon which it is said by Alliance that at this point the further categories of documents will be of assistance in the preparation of, or conduct of, the hearing. I have made some observations about the fact that such evidence is largely lacking when considering Category 2 below, and those comments apply generally to each of the still contentious categories of documents.
53 It is necessary now to consider the particular contentious categories.
54 Category 2 is confined to the period 30 August 2004 to 31 October 2004. It in effect adopts the words of order 5.1 of the orders made on 26 March 2012, but extends the period.
55 The evidence to explain why such an order should be made having regard to r 20.11 of the Rules is scanty. As I have noted, one affidavit of 22 September 2013 recognises that Alliance has not confined its request to documents which fall within r 20.14(1)(a) or r 20.14(2). I have not accepted that submission, so it is necessary to look carefully at why it is said there are further undiscovered documents and why, at this point, their discovery would facilitate a just resolution of the proceedings. That material is then to be assessed having regard to the effect on the timetable set by the orders of 23 May 2013, and in addition on the capacity of Alliance to instruct its experts and for them to provide expert reports and to provide its lay witness statements.
56 There is no material from any officer of Alliance that the further discovery sought, in respect of any of the categories, is either necessary or desirable for it to instruct its experts, for its experts to report, or for its lay witnesses to provide their witness statements. I also refer to the comment quoted above at [47] from the Second Discovery Judgment at [11]. Case management in this matter would be likely to require the proposed documentary evidence of the parties to be listed and produced in an accessible and non-repetitive form. The witness statements should anticipate that, so there are not multiple copies of the same documents. At the point of the consideration of the respective witness statements it might emerge that some documents or categories of documents should be further discovered by Quasar and Heathgate, and which have not been discovered. At that point, an informed assessment of the desirability of those documents being discovered could be made. The ruling in this decision takes account of that possibility. Those observations apply also to my consideration of the other categories of documents in issue.
57 As to category 2, the affidavits relied upon do no more than point to the refined nature of the SSC pleading. The change is only from an agreement alleged to have extended the earn-in period on 5 August 2004, subject to formal documentation and approval, to the agreement being effective only by the formal approval (Quasar's signing of that agreement on 23 September 2004 and Alliance's signing of that agreement of 13 October 2004).
58 I do not accept that the difference in the SSC from the previous Statement of Claim is significant for present purposes. As the Second Discovery Judgment showed at [14], that position was understood at the time. In that judgment, I declined to extend order 5.1 made on 26 March 2012 to a date in October 2004 because it had been made in the awareness that Alliance had not signed the JVEA until 13 October 2004. In my view, this part of the application is merely an attempt to revisit that ruling, but without any fresh material to support it.
59 Whilst it is necessary to separately consider each category of documents in dispute, these comments about the extended period apply in a general way to each of those categories where the extended period is put forward as of itself being the justification for the discovery of that further category of document.
60 In any event, I do not accept that it is shown that there is further documentary material to discover in this category. Both Quasar and Heathgate have previously indicated that they intended to give discovery to reflect the intention of the orders of 26 March 2012. The SSC, as I have noted, seems to reflect that they have done so. There is nothing to indicate the detailed allegations in the SSC concerning the state of mind of Quasar and Heathgate in the period from 30 August 2004 to 13 October 2004, or the investigations they carried out during that period, or their assessment of their results, as they emerged during that period, came to the knowledge of Alliance other than by discovery. Indeed, so much is accepted in the affidavit of Mr Stents of 30 August 2013, at paras 30 and 31. It seems appropriate therefore to accept the assurance through counsel for Quasar and Heathgate to that effect.
61 I have taken those matters into account, both generally in relation to r 20.11 and in accepting the assurance of Quasar and Heathgate that, in respect of certain categories of documents there are no further documents to discovery. The extent of the processes leading to the initial verified discovery given by affidavit of 21 January 2011 by the President of Heathgate and its efforts, and the time and expenses involved, are set out in the affidavits of Anna Sutherland of 2 and 11 May 2011. The subsequent discovery pursuant to the orders of 26 March 2012 has obviously exposed material relating to the period after 30 August 2004.
62 Category 3 is also confined to the extended period. The relevant allegations in the SSC are based upon documents discovered by Quasar and/or Heathgate. Contrary to the assertions in Mr Stent's affidavit, Heathgate's defence to the relevant allegations in the SSC is not merely a denial, but asserts its position in relation to the relevant allegations in the SSC. There is nothing to indicate why the category of documents as described is now necessary for Alliance to prepare its evidentiary material. As I have said, if after the exchange of proposed evidentiary material, and the preparation of the books of documents proposed to be received into evidence, further particular discovery became desirable, Alliance may pursue that request. At present, I am not satisfied that the requested discovery of category 3 documents in the terms sought is either necessary or appropriate to facilitate the just resolution of the claim.
63 Category 4 is also limited in time to the period 1 August 2004 to 31 October 2004. The topic of a gravity low in the Paralana Plains area in the vicinity of EL 2874 is first specifically pleaded in the SSC, but there is no reason to think that Quasar and Heathgate in their compliance with order 5.1 of 26 March 2012 have not discovered the documents they have within its terms, including to the extent they concern a gravity low. Alliance accepts its pleading is based on that discovery. The H-Def responds in detail to those allegations. There is nothing to explain why the further discovery sought is necessary at this point having regard to r 20.11 of the Rules.
64 Category 6 is not confined to documents from the post-July 2004 period. If those documents exist, and they concerned the prospectivity of EL 2874, they should have been discovered pursuant to the previous order. So there is no evidence to show there are undiscovered documents. If there is a dispute about their status, there is no material to explain why their discovery at this point is either appropriate or necessary.
65 Categories 7 and 8 attract the same observations as in relation to Category 3.
66 Category 9 is very broadly expressed. The exchange of views between Quasar and Heathgate is the subject of order 5.3 of 26 March 2012, and has been taken by them as requiring discovery of their internal recording of, and expressions of, views or assessments of material. They have obviously complied with that as Mr Stent's affidavit acknowledges that allegations in the SSC are based upon discovered material. No reason is shown why, in the circumstances, such a broadly expressed order should now be made.
67 Categories 11 and 12 also relate to an earlier period. They attract in part the comments relating to Category 2. No reason is shown why the discovery of this category of documents is either necessary or desirable at this point.
68 Categories 13 and 14 relate to the August to October 2004 period. I note that Quasar and Heathgate have apparently offered to undertake questioning of their records with apparently useful search criteria. I shall assume that that proposal will be followed through, and that if it exposes some directly relevant documents they will be discovered. Alliance's concern is that the search categories will only expose the communications in 2004 between its then officers and a geologist, Mr John Higgins, working for Heathgate in 2004 and relating to the 18 August 2004 Handover Report of Mr Higgins referred to in para 80(e) of the H-Def and the 29 September 2004 Handover Report referred to in para 80(f) of the H-Def. There is no reason to be satisfied that documents, other than such communications, are either necessary or appropriate to be discovered at this point. This request appears to epitomise the comments at [35] above about the scope of Alliance's request, as it suggests that Alliance's further discovery application has been made by trawling through the discovered material and the pleadings to see what other documents existed or might have existed and which might touch on a pleaded issue. The Reports themselves may well be relevant. There is something to suggest that documents upon which they are based may have some potential significance beyond supporting their contents, but on balance I think that does not go far enough at present. The communications between Quasar and Heathgate concerning the prospectivity of EL 2874 in the critically relevant period (including internal recording of views) already have been ordered to be, and have been, discovered: order 5.3 of 26 March 2012.
69 Categories 15 and 16 attract similar comments as those about Categories 13 and 14. In this instance, the relevant paragraphs of the SSC are paras 80(c), (cc) and (cd) and 100(b) and (c). It is not correct simply to describe the H-Def as a denial of what is pleaded by Alliance (based upon discovered documents). Paragraph 80 of the H-Def extends over seven or so pages asserting what Heathgate says about the reports of Mr Higgins upon which the SSC in these respects is based, and para 100 of the H-Def extends over some six to seven pages and also addresses, inter alia, the reports of Mr Higgins.
70 Categories 17 and 20 also relate to the August to October 2004 period. They attract the same comments.
71 Categories 21 and 22 also relate to the later period. At this point, it is neither necessary nor appropriate to make the orders sought. There is no material to explain why the additional documents requested might be material to the claim, especially having regard to the discovery already given.
72 Category 24, as I understand it, is confined to the period between 24 July 2004 (in the affidavit of Mr Stents it erroneously refers twice to 24 July 2013) and 1 October 2004. For the same reasons, I am not persuaded that it is necessary or appropriate to order the further discovery.
73 Category 27 concerns reports for quarters ending on 30 June 2004, 30 September 2004 and 31 December 2004 concerning the possibility of resumed exploration drilling on nearby tenements. The foundation for the awareness of those reports is the discovery given by Quasar and/or Heathgate. There is no material to persuade me that, merely because such reports may exist, they are discoverable in this proceeding so I am not persuaded that the order sought is either necessary or appropriate at this stage.