BETWEEN : ERLISTOUN GOLD PTY LTD (formerly ERLISTOUN GOLD NL) (ACN 961 490 211)

Practice and procedure - Discovery - Interlocutory order for discovery of specified documents prior to the repleading in proper form of the plaintiff's statement of claim, (the statement of claim being admittedly defective and requiring to be repleaded) - Whether the learned Master's decision was clearly wrong or at least attended by sufficient doubt to justify leave being granted to appeal - Whether injustice would result if order left undisturbed - Joint venture - Whether parties in a fiduciary relationship

The Supreme Court Act

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80; (1979) 40 FLR 364

Bryant Bros v Thiele [1923] SASR 393

Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22; (1974) 131 CLR 321

Ferrie v Whitehead (1879) 5 VLR 132

Hooker Corporation v Commonwealth (1985) 80 FLR 94

Perry v Smith (1901) 27 VLR 66

Playfair Development Corporation Pty Ltd v Ryan (1969) 2 NSWR 661

Schlam v WA Trustees & Executor & Agency Co Ltd [1964] WAR 178

Sinclair v Rankin (1907) 9 WALR 233

Stewart v Miller [1979] 2 NSWLR 128

Technomin Australia NL v Geometals NL (1991) 5 WAR 346

Veem Engineering Group Pty Ltd v HB Brady & Co Pty Ltd, unreported; SCt of WA; Library No 950017; 20 January 1995

WA v Bond Corporation Holdings (1991) 5 WAR 40

1. On 6 October 1993, the parties entered into an agreement recorded in written Heads of Agreement, whereby they agreed that the respondent would sell to the appellant a 70% interest in Mining Lease 38/2089 ("the Tenement"), of which the respondent was the owner and that they should thereafter be joint venturers in respect of the Tenement in shares of 70% and 30% to the appellant and respondent respectively, upon the terms and conditions contained in the Heads of Agreement. Among those conditions was provision for the appellant to bear the cost of the respondent's share of all exploration and mining costs undertaken on the Tenement, with an entitlement to recoup such costs from the respondent's share of the profits from all production.

2. By a writ issued on 18 September 1998 issued in action CIV 2080 of 1998, the respondent, as plaintiff, claimed against the appellant, as defendant, certain relief arising from that contract. The respondent annexed to the writ a statement of claim to which the appellant objected on the grounds that it was defective in substance and in form. The respondent conceded that the statement of claim was indeed defective and that it would have to be repleaded. In fact, the statement of claim has subsequently been struck out and has not been replaced.

3. Before repleading, the respondent applied to the Master for an order for the specific discovery by the appellant of certain documents.

4. The appellant objected to such an order being made and the matter was heard by the learned Master, who made the following order on 11 December 1998, namely that:

"1. Within 14 days the Defendant provide Discovery and Inspection of the following documents:

(i) The documentation evidencing the offer and grant of call options to the shareholders of the Defendant by Yinnex NL or by the shareholders of the Defendant to Yinnex NL.

(ii) Correspondence to and from the Department of Minerals and Energy relating to the Tenements held by Joint Venture including but not limited to that from the Environmental Inspector of D.O.M.E. relating to rehabilitation and for the provision of a Performance Bond for GML 38/2809.

(iii) Any agreement and correspondence relating to the acquisition by the Joint Venture of Mining Lease 38/170.

(iv) Any correspondence or Agreements relating to the acquisition of the joint venture and or the Defendant in prospecting licences 38/2616 and or any other tenements within a radius of 5 km's from Cox's Find.

(v) Any and all documentation relating to the treatment of part of the one on the surface of 38/2809 by David Ward Farmer and the disposition of any gold obtained therefrom.

(vi) Any and all records minutes or other documents of any of the meetings of the Management Committee of the joint venture.

(vii) Any minutes of any meeting of Director Shareholders of the Defendant which related to the Plaintiff or the joint venture or any prospective sale of the Defendant's interest therein or the grants of options by the Shareholders thereof of their shares therein.

(viii) Any and all records of the Defendant relating to the acquisition, exploration and mining of the tenements held by the joint venture and any expenditure thereon.

(ix) Any and all correspondence held by the Defendant relating to any offer by any other company to jointly prospect or explore the tenements held by the joint venture."

5. The appellant now applies for leave, pursuant to s60(1)(f) of the Supreme Court Act, to appeal against that order. The learned Master directed that that application be heard by this Court together with the appeal itself, if leave be granted.

6. The order of the learned Master was in the nature of an interlocutory order and accordingly an appeal against it requires the leave either of the Master or of this Court. In Wilson v Metaxas [1989] WAR 285 at 294, Malcolm CJ said that:

"The object of the requirement that an appeal lies from an interlocutory order only by leave is to reduce appeals from these orders as much as possible: Perry v Smith (1901) 27 VLR 66; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VicRp 50; [1969] VR 401 at 408. The jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed: Perry v Smith; Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431; Stanley-Hill v Kool [1982] 1 NSWLR 460; Monash University v Burg [1984] VicRp 30; [1984] VR 383; BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VicRp 72; [1985] VR 756. The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case: BHP Petroleum Pty Ltd v Oil Basin Ltd at 759, per Fullagar J."

7. The appellant submits that the decision of the learned Master to grant an order for specific discovery was wrong and that to leave that decision on foot would do substantial injustice to the appellant.

8. The nine grounds of appeal sought to be relied upon are:

1. The Learned Master erred in finding on the evidence before him that the Appellant (Defendant) and Respondent (Plaintiff) were in partnership.

2. The Learned Master erred in finding that the Appellant (Defendant) and Respondent (Plaintiff) were in a fiduciary relationship.

3. The Learned Master erred in considering the Respondent's (Plaintiffs) application for specific discovery in the context of the statement of claim filed by the Plaintiff when the Respondent (Plaintiff) had conceded that that statement of claim was defective and had disavowed the statement of claim in its entirety.

4. The Learned Master erred in finding on the evidence before him that most of the facts relating to the matters in dispute were within the knowledge of the Appellant (Defendant) and were not within the knowledge of the Respondent (Plaintiff).

5. The Learned Master erred in finding that the Appellant (Defendant) had not contended that the documents the subject of the application for specific discovery made by the Respondent (Plaintiff) do not exist.

6. The Learned Master erred in finding that the documents the subject of the application for specific discovery made by the Respondent (Plaintiff) were adequately described in the chamber summons dated 22 October 1998 as to nature and subject matter.

7. The Learned Master erred in finding on the evidence before him that in the financial year 1996-97 the Appellant (Defendant) received an offer from Yinnex NL to acquire all its shareholding in Cox's Find and thereupon all the shareholders of the Defendant entered into call option agreements with Yinnex NL.

8. The Learned Master should have found that the nature of the Respondent's (Plaintiffs) claim, as articulated in the statement of claim, was not clear, or sufficiently clear, to permit an order for discovery prior to the close of pleadings.

9. The Learned Master should have found that the Respondent's (Plaintiff's) application for specific discovery dated 22 October 1998 was in the nature of 'fishing'."

10. The first and second grounds of appeal attack the learned Master's finding that the parties were in partnership and, therefore, in a fiduciary relationship with one another. The appellant submits that whether or not joint venture parties are in a partnership relationship is a question of fact. Usually, it was submitted, the joint venture relationship will need to exhibit characteristics of mutual trust and confidence or a relinquishment of control or management of a party's own property to the other party before a fiduciary relationship arises. Conversely, where the parties retain independent control and management over their respective interests in the joint venture property it is unlikely that a fiduciary relationship will be found to have arisen: United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1. The appellant submitted that there was no proper evidence before the learned Master as to the nature of the relationship between the parties other than the Heads of Agreement. The appellant submitted that the learned Master was in error, therefore, in finding the existence of a fiduciary relationship between them. Citing United Dominions Corporation Ltd v Brian Pty Ltd, (supra) at 15-16**,** the appellant submitted that "the distinction between a partnership and a joint venture may be regarded as a distinction between the sharing of profit, on the one hand, and the sharing of product on the other".

11. Sub-clauses 7.1, 7.3 and 7.4 of the Heads of Agreement provide:

"7.1 Erlistoun will bear the cost of Worth's share of all exploration and mining costs undertaken on the Tenement (but not on any other tenement the subject of this Joint Venture) including the cost of acquisition of any plant and equipment and all treatment costs and administrative expenses PROVIDED THAT Erlistoun shall be entitled to recoup the THIRTY PER CENTUM (30%) share of such costs from profits that would have been otherwise available to distribute to Worth from all production until such costs have been recouped in full. All profits derived from mining operations shall be distributed in the following proportions:

(b) TWENTY-FIVE PER CENTUM (25%) to Erlistoun as and by way of reimbursement to Erlistoun for the THIRTY PER CENTUM (30%) share of exploration of mining costs which would otherwise be due from Worth which has been funded by Erlistoun until Erlistoun has recouped such payments in full and then such profit shall be distributed to Worth or as it may nominate;

(c) FIVE PER CENTUM (5%) to Worth or as Worth may nominate.

If the interest of Worth in the Tenement is sold then any moneys outstanding and due to Erlistoun in respect to the funding of exploration and mining shall be repaid on such sale to Erlistoun.

7.3 Erlistoun shall use its best endeavours to ensure that it undertakes sufficient drilling and/or geological work on the Tenement as it considers appropriate within six (6) months of the date of execution hereof with a view to such drilling and/or geological work being utilised in and towards the public listing of Erlistoun on the Australian Stock Exchange.

7.4 The terms of this Clause 7 shall not apply to the treatment of the untreated ore on the surface of the Tenement as at the date hereof which Erlistoun shall use its best endeavours to treat within twelve (12) months of the date thereof (subject to it being commercially viable to do so)."

"10. A Management Committee shall be established in order to manage the exploration and mining of the tenement and any other tenements the subject of this Joint Venture. The Management Committee shall comprise two (2) representatives of the Erlistoun and Mr R A (Mick) Worth representing Worth."

13. Accordingly, the Heads of Agreement make provision for the appellant to carry out the work on the Tenement and for the parties to share in the profits of such work in the agreed proportions of 70% and 30% respectively. In addition, the appellant agreed to treat certain ore on the surface of the Tenement and (by cl 1(c) of the Heads of Agreement) to pay to the respondent 50% of any profit derived therefrom. It is, therefore, apparent from the Heads of Agreement that the parties entered into a joint venture with a view to the sharing of profits and that the appellant was entrusted with the task of carrying out the exploratory and other mining work on the Tenement directed to that end. While the appellant submits that there was no evidence that mining production did occur or profits were created, that takes the matter no further. The parties expressly agreed upon the sharing of profits and that was the avowed purpose of the joint venture.

14. In my opinion, there is sufficient in the Heads of Agreement to justify the learned Master's finding of a fiduciary relationship between the parties.

Did the learned Master err in ordering discovery when the Statement of

15. Order 26, r7(1) of the Rules of the Supreme Court provides for an application for a discovery order to be made at any time by a party whose request for discovery under r1 has not been satisfied.

16. Rule 1(1) provides:

"Any party may give notice in writing to any other party in a cause or matter requiring him to give discovery of all documents which are or have been in his possession, custody or power relating to any matter in question therein."

17. As a general rule, discovery will not be ordered prior to the close of pleadings: Latec Finance Pty Ltd v Jury (1960) 77 WN (NSW) 674 but that rule will always yield to the demands of justice in the particular instance: Gollin Holdings Ltd v Adcock [1981] 1 NSWLR 691 at 696 (per Rogers J). The reason for the general rule, of course, is that discovery is directed to "matters in question" in the proceedings and they are to be discerned from the pleadings. In addition, the Court will seek to avoid "fishing expeditions".

18. In Mount Isa Mines Ltd v Seltrust Mining Corporation Pty Ltd, (1985) unreported; SCt of WA; Library No 6016; Seaman J approved the statement of principles enunciated by Brett LJ in Waynes Merthyr Co v Radford L Co [1896] 1 Ch 29 at 35, where his Lordship said:

"There is no hard and fast rule as to the class of cases in which particulars should precede discovery, or discovery be ordered before particulars; but the judge must exercise a reasonable discretion in every case after carefully looking at all the facts, and taking into account any special circumstances. Now, on the facts alleged in the statement of claim, it cannot be said that the plaintiffs are presenting a fishing case: there has already been a motion for an interim injunction, when the defendants admitted the fraudulent use of two of the plaintiffs' permits, one of the specific charges made against them in the statement of claim."

19. The appellant submitted that there was an obligation on the respondent to demonstrate on the basis of proper evidence a clearly articulated and tenable claim or cause of action; the material facts alleged to give rise to such claim or cause of action; the relevance of the documents sought to such a claim or cause of action and the existence of the documents sought. The appellant contended that the statement of claim was fundamentally flawed and that, at the relevant time of the respondent's application, the respondent had failed to demonstrate that it had a tenable claim.

20. It is true that the statement of claim was admittedly defective. However, there could be no doubt that the gravamen of the respondent's claims against the appellant was that the appellant was in breach of the contract between the parties evidenced by the Heads of Agreement. The statement of claim which was then on foot set out (however defectively) a number of specific complaints. The respondent submitted to the learned Master that the specific discovery sought by it was needed in order to enable the respondent to plead its claim with accuracy.

21. In the course of his reasons, the learned Master quoted a passage from the Supreme Court Practice UK, 1991 ed, para 18/12/43_,_ reading:

"In certain cases a party who has [sic, is] ordered to give particulars is allowed before giving them to interrogate his opponent, and to obtain discovery of documents (Whyte v Ahrens (1884) 26 Ch D 717; Leitch v Abbott (1886) 31 Ch D 374). 'It is good practice and good sense that where the defendant knows the facts and the plaintiffs do not, the defendant should give discovery before the plaintiffs deliver particulars' ... But no hard or fast rule can be laid down to determine when particulars should precede discovery or discovery should precede particulars. The latter course is most frequently adopted where a fiduciary relation exists between the parties (Zierenberg v Labouchere [1893] 2 QB 183). But the practice is not restricted to such cases ... Each case will depend on its own circumstances and must be decided on its own merits ... "

22. The learned Master said (at page 12 of the appeal book):

"In the present case the plaintiff and defendant are clearly fiduciaries. They are partners in a joint venture agreement and partners are one of those six clear-cut relationships which give rise to fiduciary duties; see Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 96 ...

I have a discretion to exercise and I am convinced that this is one of those cases where the parties are in a fiduciary relationship with one another, and where most of the facts are within the knowledge of the defendant and are not within the knowledge of the plaintiff, and that a much better statement of claim will result if discovery is given of certain documents. The causes of action will be more clearly expressed and, it may be, that one or more causes of action will be dropped after senior counsel has examined the relevant documents. This will surely achieve the objectives of O1 r4A and 4B in that it will lead to a speedier resolution of the pre-trial procedures. The defendant has not contended that the documents do not exist."

23. It must, I think, be rare indeed for an order for discovery to be made against a defendant before the plaintiff has properly formulated his statement of claim, albeit without detailed particulars of all complaints. Usually, such an order will not be made until at least the nature of the plaintiff's case has been identified. The present case is, however, as I have already mentioned, not one in which the nature of the plaintiff's case is in fact unidentified. The plaintiff's claims are for breach of the Heads of Agreement and the plaintiff has, in the statement of claim (albeit defectively) indicated the complaints he makes. The avowed intention of the plaintiff is to replead the statement of claim in proper form - not, as I understand it, to plead entirely new and hitherto undisclosed claims against the defendant - and the Order of the learned Master was made on that understanding.

24. I am not persuaded that the learned Master's decision was, in these circumstances, in error, notwithstanding that the statement of claim had not been put into final form. In any event, I consider that no significant injustice will result under this head if the Order remains undisturbed.

Was the learned Master in error in concluding that "most of the facts"were

25. The appellant based its criticism of this finding by the learned Master upon the affidavit of David Lawrence Smith (the respondent's solicitor) sworn on 29 October 1998. The appellant contented itself with the submission that there was no evidence before the Court which permitted the learned Master to reach that conclusion.

"12. The outcome of the action in my view will depend in part on:-

(i) Whether what the Defendant says is an options agreement entered into by the shareholders of the Defendants to sell their shares to a third party constitutes a sale by the Defendant of its interest in the joint venture.

(ii) Whether the Defendant has met the obligations it has to explore and mine the tenements and or to treat the ore on the surface.

(iii) Whether the Heads Of Agreement have been frustrated by the fact that the limited exploration undertaken by the Defendant indicate that the tenements will not support a mining operation.

(iv) Whether the Defendant has provided the information and reports to the Plaintiff that are required under the Heads of Agreement.

13. The Plaintiff has not been notified of, let alone supplied by the Defendant with a copy of, the options agreement nor has it received any information on what exploration has been undertaken by the Defendant since 1996.

14. The exact nature of the options agreement and what exploration has been undertaken by the Defendant will be one of the critical elements of the Plaintiff's pleadings in this matter.

15. The agreement also provides that the joint venture will acquire other tenements which are or were to be transferred to the parties in the proportion 70:30

16. By this means a Mining Lease 38/170 has been acquired but the Plaintiff has not been provided with a copy of the acquisition agreement so it does not know what its terms are.

17. The Plaintiff also believes the Defendant has entered into other agreements to acquire tenements that ought to be held by the joint venture including exploration license 38/2616.

18. One of the shareholders of the Defendant, one David Farmer has treated some ore from the surface of GML 38/2809 to assess the viability of treating that ore with a on site mobile treatment plant and or carting it to a treatment site. None of the results of this have been provided to the Plaintiff.

19. In several respects the Plaintiff alleges that the Defendant has failed to provide information to the Plaintiff about what it has done or not done to meet its obligations under the Heads of Agreement in order to prevent the Defendant from taking action to enforce its rights under the Heads of Agreements, or to have it set aside on the basis of frustration.

20. Certainly it is difficult to properly plead the Plaintiffs claim when documents which should have been provided to it under the joint venture agreement have not been provided - especially the so called options agreement.

21. The Plaintiff also believes that the security of the Joint Ventures holding of the tenements is being jeopardised by the Defendants inability to fund rehabilitation work or exploration and working conditions that attach to these tenements. All correspondence on these matters goes to the Defendant alone.

22. The calling of joint venture management meetings and the recording of minutes are also the province of the Defendant. Again without access to these minutes the Plaintiff finds it difficult to plead its case.

23. All of the documents referred to in the Application for Discovery and Inspection will in my view need to be discovered when the pleadings are closed in this action, and probably under the Heads of Agreement should have been provided by the Defendant to the Plaintiff without there being any action between them."

27. In the light of that evidence, I am of the opinion that the learned Master did not err in the conclusion to which he came.

Was the learned Master in error in finding that the appellant had not

28. This submission was somewhat strangely framed. The appellant submitted that:

"There was no evidence before the Learned Master upon which he could have based such a conclusion. The position advanced by the appellant's (defendant's) counsel at the hearing at first instance was that the respondent (plaintiff) had failed to demonstrate on the evidence that any of the documents were either relevant or in existence."

29. However that may be, a submission that the respondent had failed to demonstrate the existence of the documents is not a submission that the documents do not exist. Accordingly, the learned Master was quite right to say that the appellant had not contended that the documents did not exist. The appellant has demonstrated that it made no such contention.

30. The appellant's submission to the learned Master was that the documents sought in the respondent's application were "imprecisely described as to date, nature and subject matter".

31. The learned Master dealt with this shortly, by saying:

"I consider that the documents are adequately described in the chamber summons as to nature and subject matter. The relevant period is clearly from October 1993 to date."

"Paragraph (viii) of the application could arguably have extended to all internal memoranda regarding negotiations for the original purchase of the 70% interest in the tenement. Further, the reference in sub-paragraph (vii) to any "prospective sale or the grant of an option is too broad and speculative. Clause 12 of the Heads of Agreement clearly requires a definite sale of an interest in a tenement rather than a 'prospective' sale."

33. The complaint concerning para (viii) is, surely, fanciful. Evidence of prior negotiations leading to the conclusion of the Heads of Agreement would be inadmissible and the paragraph in question should be understood sensibly. In relation to para (vii), even if the appellant is correct in this submission, it has not demonstrated that it would suffer any significant injustice by being obliged to comply with that part of the order.

"In the financial year 1996-97 the defendant received an offer from Yinnex NL to acquire all its shareholding in Cox's Find and thereupon all their shareholders entered into call option agreements with Yinnex NL. The statement of claim says that this offer and the grant of call options constitutes an effective sale of the defendant's share in the joint venture to Yinnex. I realise that this is not a direct sale of the tenement but the plaintiff contends that the sale of shares may amount to a sale of the tenement in equity. This is something which will be considered by senior counsel."

35. The appellant submits that there was no evidence before the learned Master upon which he could base such a conclusion The affidavit of Mr Smith does not refer to this issue but, in the submissions to the learned Master, Mr Smith said:

"15. However, the Plaintiff believes (on the evidence of the Annual Reports of Yinnex NL and the Defendant) that an agreement has been entered into whereby a sale of the Defendant's interest in the joint venture is effected.

My understanding is (from the letter criticising the Statement of Claim) that it is acknowledged that there is an agreement but the Defendant believes it only confers an option to purchase, and is not itself a sale or transfer."

36. In the letter dated 13 October 1998 written by the appellant's solicitors to the respondent's solicitor and copied as an annexure to the affidavit of Charles William Wyndham Quin sworn on 23 November 1998 on behalf of the appellant and placed before the learned Master, para 2.4 reads:

"2.4 paragraph 36 pleads, in part, a failure to secure for the plaintiff an offer on similar terms to that obtained by the defendant from Yinnex. The alleged breach responds to the term of the Heads of Agreement pleaded at paragraph 5. That term, however, requires only that the defendant 'attempt to retain the same terms for the same of the plaintiff's share if it was willing to sell its share' which, although presently nonsensical, would still not appear to correlate to the breach provided at paragraph 36."

37. In these circumstances, even if the appellant is correct in this submission, it has not demonstrated that it would suffer any significant injustice by being obliged to comply with that part of the order.

Was the request for specific discovery "fishing"?

38. The appellant submitted that the respondent's application was in the nature of a fishing expedition. In para 24 of the respondent's solicitor's supporting affidavit, he says:

"24. The documents sought are not part of any fishing expedition by the Plaintiff but their provision prior to the drafting of the Amended Statement of Claim would help ensure this action is about issues based on the real facts rather than any conjecture by the Plaintiff."

39. The appellant submits that that paragraph supports the proposition that the documents are indeed sought as part of a fishing expedition. I am not persuaded that this submission has been made out.

40. In the result, I am of the opinion that the appellant has not demonstrated that the learned Master's decision in any significant respect was wrong or at least attended by sufficient doubt to justify allowing the appeal nor that any significant injustice will be done to the appellant if the order is allowed to remain undisturbed.

41. The application raised matters of sufficient significance, particularly in relation to the question of discovery before the statement of claim was settled, to justify the grant of leave although, in my opinion, the appeal should be dismissed.

42. Accordingly, I would grant the application for leave to appeal against the order of the learned Master but would dismiss the appeal.

43. PARKER J: I agree with the reasons published by White J and have nothing to add.