BRAZIRON CORPORATE SERVICES PTY LTD -v- ROAD RAIL AND MINE PRODUCTS PTY LTD... [2025] WASC 432 | Case summary

Supreme Court of WA|2025-10-10|Before: Strk J

The application is pressed in circumstances where the plaintiffs have not sought to resist an order for discovery by reference to the Harman obligation or otherwise, and there is no evidence that Ms Anderson is on notice of the application.
I accept that the authorities establish that the implied Harman obligation does not give rise to a privilege from producing documents;[56] and is not of itself a ground for resisting an order for production.[57] The effect of the Court now making an order for discovery in the form promoted by the defendants (if indeed the obligation extended to any of the Anderson Documents) would be to displace the obligation to the Court to obtain a release from the Harman obligation before using the documents so as to provide discovery in the Consolidated Proceeding. Having so concluded, and in circumstances where Ms Anderson appears not to be on notice of the defendants' application, it is not necessary nor appropriate to conclude whether the Harman obligation in fact applies to any of the Anderson Documents.

A party does not have a strict entitlement to an order for discovery, the power to order discovery is discretionary. The request for further discovery was not made in circumstances where there had been any significant delay on the part of the defendants. It was only on 7 August 2025 that the plaintiffs' lawyers, M6:8 Legal, sent an email to MDS Legal thereby informing the defendants that the Anderson Proceeding had been the subject of a mediation and had since been discontinued.

As to inspection of the Anderson Documents, the prima facie entitlement to inspect extends to discovered documents containing confidential and/or sensitive information. The Court however has a discretion under the Rules of the Supreme Court O 26 r 9(1) to make an order for production or inspection, and a power to impose restrictions and/or conditions on inspection.[59]
As noted above, there is no evidence that Ms Anderson is on notice of this application. It is at least arguable that the Harman obligation applies to the pleadings filed in the Anderson Proceeding. Furthermore, none of the Anderson Documents are documents that the defendants could access as of right pursuant to the Rules of the Supreme Court O 67B r 6, or otherwise. In the circumstances, Ms Anderson should be given the opportunity to advance whatever interest she may have in restricting the defendants' right of inspection of the documents.[60]
It is appropriate in the circumstances that the defendants first personally serve upon Ms Anderson a copy of the defendants' application; the defendants' minute of proposed orders filed on 13 August 2025; Ms Radenti's affidavits sworn on 13 August 2025 and on 16 September 2025; Ms Strutt's affidavit sworn on 17 September 2025; the defendants' outline of submissions filed on 1 September 2025; the Court's orders; and these reasons for decision.
I will order that Ms Anderson have liberty to apply with respect to the defendants' inspection of the Anderson Documents. If no application is made by or on behalf of Ms Anderson within 14 days of service of the papers described above on her, the defendants may inspect the Anderson Documents. If an application is made by or on behalf of Ms Anderson, then the defendants shall not inspect the Anderson Documents until further order of the Court.

For these reasons, I will make orders in the following terms:

Within five (5) business days of the date of these orders, the plaintiffs must provide discovery on affidavit of the following documents classes of documents in respect to Supreme Court proceeding CIV 2395 of 2023:

(a) the pleadings filed by the parties in the proceeding; and
>
> (b) any settlement agreement or deed of settlement reached by the parties in those proceedings

The defendants must as soon as is practicable serve upon Catherine Elizabeth Anderson a true copy of:

(a) the defendants' application for further discovery made by letter filed on 13 August 2025;

(b) the defendants' minute of proposed orders filed on 13 August 2025;

(c) the affidavit of Camilla D'Angelo Radenti sworn on 13 August 2025;

(d) the affidavit of Camilla D'Angelo Radenti sworn on 16 September 2025;

(e) the affidavit of Talia Howe Strutt sworn on 17 September 2025;

(f) the defendants' outline of submissions filed on 1 September 2025;

(g) these orders; and

(h) the Court's reasons for decision delivered on 9 October 2025: Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 3] [2025] WASC 432.

Ms Anderson shall have liberty to apply in this Consolidated Proceeding with respect to inspection by the defendants of the Anderson Documents.
If no application is filed in the Consolidated Proceeding by or on behalf of Ms Anderson within 14 days of service on her in accordance with order 2 of these orders, the defendants may inspect the Anderson Documents.
If an application is made by or on behalf of Ms Anderson within 14 days of service on her in accordance with order 2 of these orders, then the defendants shall not inspect the Anderson Documents until further order of the Court.
As to costs, by the consent of the plaintiffs and the defendants, on 26 August 2025 the Court ordered that the costs of the first of the defendants' applications (the subject of these reasons) be in the cause.[61]

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] As to the grant of leave, see ts 313 (17 September 2025).

[2] Affidavit of CD Radenti sworn on 16 September 2025, CDR-2 (page 6), CDR-3 (page 8); ts 313 (17 September 2025).

[3] Order 3 of the orders made on 26 August 2025.

[4] Defendants' outline of submissions filed on 1 September 2025, par 3.

[5] Affidavit of CD Radenti sworn on 13 August 2025, par 4, CDR-1.

[6] It is noted that in the Anderson Proceeding the named second plaintiff is Safety Barriers WA Pty Ltd whereas in the Consolidated Proceeding the named second plaintiff is Safety Barriers (WA) Pty Ltd (underline inserted for emphasis). In both proceedings the originating documents record the same ACN for the named second plaintiff, and the Court proceeds on the basis that the same entity is a plaintiff in both proceedings.

[7] Affidavit of CD Radenti sworn on 13 August 2025, par 6; affidavit of CD Radenti sworn on 16 September 2025, CDR-1.

[8] Affidavit of CD Radenti sworn on 13 August 2025, pars 5, 9, 7 and 8.

[9] Defendants' minute of proposed orders filed on 13 August 2025, proposed order 1.

[10] Defendants' outline of submissions filed on 1 September 2025, par 6.

[11] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [29] ‑ [32].

[12] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [5]; Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [No 5] [2021] WASC 377 [5].

[13] Perpetual Trustees Co Ltd v Burniston [32].

[14] Maek Pty Ltd v Ibrahim [25], citing Singh v Friedman [2013] WASC 78 [3] ‑ [4]; Tah Land Pty Ltd v Western Australian Planning Commission [2022] WASC 219 [14].

[15] Defendants' outline of submissions filed on 1 September 2025, par 12, referring to the affidavit of CD Radenti sworn on 13 August 2025, pars 6 - 7.

[16] Rules of the Supreme Court O 67B r 6(2) (Table Part A, items 4(e) and 4(f)).

[17] Affidavit of CD Radenti sworn on 16 September 2025, par 6, CDR-4.

[18] Affidavit of CD Radenti sworn on 13 August 2025, par 6; affidavit of CD Radenti sworn on 16 September 2025, CDR-1.

[19] Defendants' outline of submissions filed on 1 September 2025, par 12.

[20] Affidavit of CD Radenti sworn on 16 September 2025, CDR-2.

[21] Affidavit of TH Strutt sworn on 17 September 2025, THS-1.

[22] Defendants' outline of submissions filed on 1 September 2025, par 3.

[23] Defendants' outline of submissions filed on 1 September 2025, par 13(a), referring to the plaintiffs' further amended consolidated statement of claim dated 25 November 2024, pars 17 - 21; ts 314 - 316 (17 September 2025).

[24] Defendants' outline of submissions filed on 1 September 2025, par 13(b), referring to the plaintiffs' further amended consolidated statement of claim dated 25 November 2024, pars 48 - 56.

[25] Further amended consolidated statement of claim dated 25 November 2024, pars 8 - 13; as discussed in Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 2] [2025] WASC 44 (which referred to and concerned an earlier version of the statement of claim).

[26] Further amended consolidated statement of claim dated 25 November 2024, pars 4 - 7; defendants' further amended defence to further amended consolidated statement of claim dated 4 March 2025, pars 4 - 7; as discussed in Braziron Corporate Services Pty Ltd v Road Rail and Mine Products Pty Ltd [No 2] [9].

[27] Further amended consolidated statement of claim dated 25 November 2024, par 14.

[28] Further amended consolidated statement of claim dated 25 November 2024, par 15; defendants' further amended defence to further amended consolidated statement of claim dated 4 March 2025, par 14.

[29] Further amended consolidated statement of claim dated 25 November 2024, pars 16.5, 24 - 27, 28, 29, 36, 40, 44 (breach of restraint clause); pars 18, 24 - 27, 28, 29, 37, 41, 45 (breach of restraint clause as implied).

[30] Further amended consolidated statement of claim dated 25 November 2024, pars 21, 24 - 27, 28, 29, 38, 42, 46.

[31] Further amended consolidated statement of claim dated 25 November 2024, pars 23.1, 23.2, 24 - 27, 34, 35 (breach of contractual duty of confidence); pars 30, 31, 32, 33 (breach of equitable duty of confidence).

[32] Further amended consolidated statement of claim dated 25 November 2024, pars 48 - 54, 55.

[33] Further amended consolidated statement of claim dated 25 November 2024, par 16.5.

[34] Further amended consolidated statement of claim dated 25 November 2024, par 19.

[35] Further amended consolidated statement of claim dated 25 November 2024, par 19 (particulars of common intention).

[36] Further amended consolidated statement of claim dated 25 November 2024, par 20.

[37] By reference to the further amended consolidated statement of claim dated 25 November 2024, pars 8 - 20.

[38] Further amended consolidated statement of claim dated 25 November 2024, par 21.

[39] Further amended consolidated statement of claim dated 25 November 2024, par 48.

[40] Further amended consolidated statement of claim dated 25 November 2024, par 49.

[41] Further amended consolidated statement of claim dated 25 November 2024, par 19 (particulars of common intention).

[42] Further amended consolidated statement of claim dated 25 November 2024, par 52.

[43] Further amended consolidated statement of claim dated 25 November 2024, par 52 (particulars of intention).

[44] Further amended consolidated statement of claim dated 25 November 2024, par 53.

[45] Further amended consolidated statement of claim dated 25 November 2024, par 54.

[46] Further amended consolidated statement of claim dated 25 November 2024, pars 55 - 56.

[47] Defendants' outline of submissions filed on 1 September 2025, par 15.

[48] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [69].

[49] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [70], citing Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [106] ‑ [108]; Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149 [25].

[50] Referencing the House of Lords decision of Home Office v Harman [1983] 1 AC 280; [1982] 1 All ER 532.

[51] Defendants' outline of submissions filed on 1 September 2025, footnote 13.

[52] Defendants' outline of submissions filed on 1 September 2025, pars 17 - 20; ts 321 - 325, 328 ‑ 329, 331 ‑ 335 (17 September 2025).

[53] Defendants' outline of submissions filed on 1 September 2025, par 18, citing Esso Australia Resources Limited v Plowman [1995] HCA 19; (1995) 183 CLR 10, 33 as cited in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72 [46] ‑ [47] (Smith J).

[54] Defendants' outline of submissions filed on 1 September 2025, par 19, citing Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 [35] (Brereton J); Canterbury‑Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 [121] ‑ [131] (Henry J); Jones v Treasury Wine Estates Limited; In the matter of Treasury Wine Estates Limited (No 4) [2020] FCA 1131 [63], [64], [71] (Foster J).

[55] Defendants' outline of submissions filed on 1 September 2025, par 20; which submission was corrected by counsel at ts 331 (17 September 2025). The reproduced passage reflects the correction. In addition to the authorities noted as having been reviewed by Foster J in Jones v Treasury Wine Estates Limited; In the matter of Treasury Wine Estates Limited (No 4), the defendants at footnote 16 also referred to Hastwell v Kott Gunning [No 3] [2019] FCA 1641 [202] (Jackson J).

[56] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [2014] WASC 287 [13], applying Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 254 ALR 198 [47] ‑ [50], cited with approval in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [52].

[57] Alcoa of Australia Ltd v Apache Energy Ltd [No 6] [18], cited with approval in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [52].

[58] Affidavit of CD Radenti sworn on 13 August 2025, par 6.

[59] Alcoa of Australia v Apache Energy Ltd [2014] WASCA 148 [57].

[60] City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271; (2014) FCR 462 [10] ‑ [16], cited in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [55].

[61] Order 7 of the orders made on 26 August 2025.

When considering relevance, matters in issue are determined by reference to pleadings, but regard must also be had to the conduct and admissions of the parties and the nature of the action.[12]
As to the final point (the documents ought to have been disclosed), the Court will be satisfied that the documents ought to have been disclosed if there are reasonable grounds to believe that the documents were once in the possession, custody or power of the party against whom discovery is sought.[13]
As was observed by Quinlan CJ in Maek Pty Ltd v Ibrahim [2022] WASC 285 at [25], the contemporary principles in relation to discovery are now well established. They include:[14]
1. A party does not have a strict entitlement to an order for discovery.
2. The power to order discovery is discretionary.
3. The discretion is to be exercised having regard to the timely and cost effective disposal of litigation.
4. On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.
5. Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'.
6. The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings.
7. Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered.
Further, as Martin CJ observed in Roe v The State of Western Australia [2013] WASC 130 at [10] ‑ [11]:

As was observed by Le Miere J in Buswell v Carles [No 2] [2013] WASC 54 at [12], Hayne, Heydon and Crennan JJ did not give an exhaustive list of the documents or information to which the obligation attaches; and further, that the general law protection provided by the 'implied undertaking' or obligation 'is often buttressed by protection from rules of court'.
Counsel for the defendants raised and addressed the question of whether the Harman obligation constrains the ability of the plaintiffs to provide and the defendants to gain access to the Anderson Documents.[52]
As to the impact of the Harman obligation in the context of the defendants' application for discovery of the Anderson Documents, the defendants' position is that first, the Harman obligation must yield to the requirements of curial process in other litigation, for example, discovery and inspection,[53] and as such, the Harman obligation is no impediment to the Court granting the defendants' application to require the plaintiffs to discover and produce the Anderson Documents.
As to this first point, counsel for the defendants referred to, among other things, the decision of Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17], where at [46] her Honour (after describing the effect of the Harman obligation) observed that it is not always necessary for a party who wishes to use documents subject to the Harman obligation in different proceedings to obtain an order releasing them from the obligation prior to being able to use the documents, because the Harman obligation will yield to discovery and production orders of the Court. That is, it was submitted that the effect of an order for discovery in the form promoted by the defendants would displace any obligation that the plaintiffs would otherwise have to the Court to obtain a release from the Harman undertaking to use the pleadings filed in the Anderson Proceeding so as to provide discovery in the Consolidated Proceeding.
Secondly, the defendants say that further and in any event, the Harman obligation does not preclude the Court from granting the defendants' application given that there is persuasive authority that the obligation does not apply to pleadings.[54] As to this second point, counsel for the defendants acknowledge as follows:[55]

That said, the defendants concede that there is some conflict regarding this issue between the authorities and there is some authority, including in the Supreme Court of Western Australia, that the Harman obligation does ... apply to pleadings. Some of these authorities were reviewed by his Honour Justice Foster in Jones v Treasury Wine Estates Ltd (No 4) [2020] FCA 1131, including Eisa Ltd v Brady [2000] NSWSC 929 (Eisa) and Chandrasekaran v Western Sydney Local Area Health District [2019] NSWSC 1461. Foster J preferred at [71] the view of Henry J in Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 for reasons that, with respect, appear correct. It is noted that the decision of his Honour Justice Le Miere in Buswell v Carles (No 2) [2013] WASC 5, that found that the obligation extended to pleadings, relied in part on Eisa at [14] and, in any event, related to an application by a plaintiff that a defendant not be permitted to disclose the content of the statement of claim in a defamation action. (footnote omitted)

BRAZIRON CORPORATE SERVICES PTY LTD -v- ROAD RAIL AND MINE PRODUCTS PTY LTD [No 3] [2025] WASC 432 (9 October 2025)

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