MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES

DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES

MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES

DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES

MATTHEW JOHN KEADY as executor of the estate of DONOVAN FRANCES DUNCAN RHODES

DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES

Citation : WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 17] [2023] WASC 72

File Number : CIV 2737 of 2013, CIV 3041 of 2010, CIV 2617 of 2012

Citation : WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 18] [2023] WASC 82

File Number : CIV 3041 of 2010, CIV 2617 of 2012, CIV 2737 of 2013

Citation : WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 19] [2023] WASC 114

File Number : CIV 3041 of 2010, CIV 2737 of 2013, CIV 2617 of 2012

Appeals - Practice and procedure - Discovery orders made in primary proceedings - Appeal against discovery orders - Application for stay of discovery orders pending determination of appeal - Stay not necessary to preserve subject matter of litigation - Balance of convenience favours refusal of stay - Whether order should be made to preclude inspection - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O1 r 4B, O 26 r 4, O 26 r 7(7), O 26 r 8, O 26 r 9, O 26 r 11, O 66, r 48(1)

Supreme Court Act 1935 (WA), s 60(1)(e)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1), r 44

1. On 25 May 2023 I heard an application in an appeal dated 18 May 2023 made by the appellants (HPPL parties) seeking to stay discovery orders made by the primary judge (Smith J) on 14 April 2023. The time for compliance with the discovery orders was extended by further order of the primary judge made on 10 May 2023. The HPPL parties were required to comply with the discovery orders by giving discovery of certain categories of documents by 26 May 2023.
2. The discovery orders were made following application by the fourth and fifth respondents (Bianca and John).[1]
3. The HPPL parties sought to stay the discovery orders until delivery of judgment in an appeal against the discovery orders. The practical effect of the grant of a stay order would have been to defer the time for the HPPL parties to serve their lists of documents in compliance with the discovery orders from 26 May 2023 until delivery of judgment in the appeal. The appeal against the discovery orders is listed for hearing on 14 June 2023.
4. After hearing from the parties I determined that I would accept an undertaking proffered on behalf of Bianca and John. I also made other orders designed to balance the parties' respective rights and interests having regard to the discovery orders, the HPPL parties' appeal against the discovery orders and the circumstance that the discovery orders were made in the context that the parties were scheduled to commence a large and complex trial before the primary judge on 10 July 2023. Ultimately, taking all those things into account, together with other relevant circumstances, I was not satisfied that I should order a stay of the discovery orders. Having regard to the limited risk that the right of appeal would be rendered nugatory if a stay was not granted I was of the view that the balance of convenience did not militate in favour of the stay sought by the HPPL parties. To the contrary, the balance of convenience militated against the stay. Thus while, as I have said, I made various orders to better preserve the HPPL parties' position in the event that the appeal against the discovery orders is successful, I otherwise dismissed the application in an appeal.
5. I said that I would provide written reasons for my orders on the stay application. These are my reasons for the orders made on 25 May 2023.

1. The underlying litigation between the parties has been described in a series of decisions in this court.[2] I adopt those descriptions and will, trusting that the parties are familiar with terminology that has been employed previously, use the abbreviations adopted in this court's most recent decision (as delivered on 26 May 2023). For the purpose of providing background context to my decision on the stay application it is not necessary to say any more as to the underlying litigation between the parties.
2. It should, however, be mentioned that one of the earlier decisions of this court[3] dismissed an appeal against discovery orders made by Le Miere J following his Honour's reasons in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14][4] delivered on 29 July 2021. Those reasons concerned an application by Bianca and John that the HPPL parties provide discovery in relation to all matters in question in the primary proceedings. The application was opposed by the HPPL parties. On 12 August 2021 Le Miere J ordered that the HPPL parties give discovery to John and Bianca of specified classes of documents, or documents in relation to specified issues, to be determined by the court. His Honour directed that the parties confer in relation to the discovery.
3. This court dismissed the HPPL parties' appeal against Le Miere J's discovery orders on 2 August 2022.[5]
4. The discovery orders the subject of the present appeal arise out of Le Miere J's orders of 12 August 2021 as were upheld by this court. Le Miere J's orders contemplated the primary court determining the documents to be discovered by the HPPL parties on Bianca and John's application. The discovery orders the subject of the appeal arise from the process that the parties followed consequential on Le Miere J's orders of 12 August 2021.
5. On 14 December 2021 orders were made to list the primary proceedings for a 60 day trial commencing on 12 June 2023.[6] The trial has since been re-listed to commence on 10 July 2023.[7]
6. Since 14 December 2021, as well as the parties and the primary judge dealing with numerous pre-trial matters, there have been a series of interlocutory disputes. These included an application by the HPPL parties to stay the primary proceedings or adjourn the trial until, among other things, an award is made in the Martin Arbitration (an arbitration between the HPPL parties and Bianca and John). The primary judge dismissed that application on 14 December 2022.[8] The HPPL parties appealed. This court heard the appeal from the dismissal of the application for a stay or adjournment on 27 and 28 April 2023. At the time that I heard the stay application the decision on the appeal was reserved.[9] Accordingly, as at the time of the hearing of the stay application, a 60 day trial of the primary proceedings was listed to commence on 10 July 2023.

The progression of Bianca and John's application that the HPPL parties give discovery of categories of documents

1. It might be surprising to some that there are continuing discovery disputes between the parties given the proximity of the primary proceedings to trial - all the more so when the trial was set down for hearing nearly 18 months ago.
2. In practical terms, however, Bianca and John's application that the HPPL parties give discovery of particular categories of documents was delayed by the Rhodes v HPPL 1st Discovery Appeal.[10] Then, following 2 August 2022, the parties became embroiled in the application to stay or adjourn the trial of the primary proceedings. This resulted in the vacating of a late November 2022 two day hearing listed for determination of the discovery application.[11] While significant conferral steps were taken by the parties, resulting in the production of initial and responsive 'Stern Schedules'[12] in 2021,[13] the progression of the discovery application was deferred pending the determination of the application for a stay or adjournment. The discovery application was eventually the subject of further programming orders on 14 December 2022 on the dismissal of the HPPL parties' application to stay or adjourn the trial of the proceedings.[14]
3. In the interim Bianca and John received disclosure of a large number of documents in the Martin Arbitration, some of which Bianca and John seek to rely upon in the primary proceedings.[15]
4. There was a discussion before the primary judge on 25 November 2022 about Bianca and John's discovery application. In the course of that discussion, counsel for Bianca and John stated:

[T]he preferable course would be for [Bianca and John] to be ordered to discover the documents which [they have] received in the Martin Arbitration which are relevant to these proceedings. That way, those documents can be used and that way the remaining discovery requests will be much narrowed because of the universe of documents that we already have is significant.[16]

1. Senior counsel for the HPPL parties observed that this proposal raised some complexities as to the implied undertaking in the Martin Arbitration.[17] Senior counsel was referring to what is commonly called the 'Harman[18] obligation'. In Australia what was once referred to as the 'implied undertaking' is now better understood as a substantive legal obligation arising from the circumstances in which material is generated and received.[19] Where a party to litigation is compelled to disclose documents or information the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given, unless it is received into evidence.[20]
2. Senior counsel for the HPPL parties went on to give an indication of the sort of complexities he was referring to.[21] The matter was left on the basis that there would be further conferral between the parties.
3. On 14 December 2022 the primary judge made programming orders to progress Bianca and John's discovery application. Among other things it was ordered that:
   1. On or before 21 December 2022 [Bianca and John] are to give discovery on affidavit of all documents falling within the classes of discovery set out in Annexure A of the documents received by them pursuant to disclosure or produced to them in answer to subpoenas, as evidence or otherwise in the Martin Arbitration that they consider are relevant to the issues which arise from their defence in these proceedings (Martin Arbitration Documents).
   2. Until agreement between [the HPPL parties] and Bianca and John, or further order of the Court, Annexure A and the Martin Arbitration Documents are not to be provided for inspection to any of the parties to these proceedings who are not also parties to the Martin Arbitration.
   3. On or before 21 December 2022, Bianca and John are to provide a revised Stern Schedule setting out the categories of documents of which they seek discovery from the HPPL parties pursuant to order 6 of the orders of Le Miere J made on 6 September 2021 (Revised Stern Schedule Categories).
   4. On or before 1 February 2023, the parties to these proceedings who are also parties to the Martin Arbitration are to confer with a view to reaching agreement on:

(a) The relevance and any objections to inspection of the Martin Arbitration Documents; and,
>
> (b) The Revised Stern Schedule Categories.

4. Orders 1, 2 and 4(a) were made by consent.[22]
5. There was a defect in the terms of order 1. No annexure A was annexed to the order. Nor was an annexure A prepared or provided to the HPPL parties prior to the HPPL parties consenting to order 1 being made.[23] The primary judge considered this was immaterial because, as will be seen, Bianca and John proceeded to provide discovery in accordance with the order.[24] In substance this amounts to reading and construing order 1 as providing that Bianca and John were to give discovery of the documents received by them in the Martin Arbitration that they considered to be relevant to the issues which arise from their defence in the primary proceedings.
6. On 21 December 2022 Bianca and John gave discovery in accordance with par 1 of the orders made 14 December 2022. Bianca and John identified 2,047 documents they had received in the Martin Arbitration that they considered to be relevant to their defence in the primary proceedings.[25]
7. Also on 21 December 2022, Bianca and John served a revised Stern Schedule - thereby identifying the categories of documents that they sought from the HPPL parties by way of discovery. The revised Stern Schedule contained 48 categories. 34 of the 48 categories were not in the original Stern Schedule served by Bianca and John in 2021.[26]
8. The primary judge stated that the revised Stern Schedule sought the discovery of documents not discovered in the Martin Arbitration. However, her Honour also stated that the categories in the revised Stern Schedule were drawn from references in the Martin Arbitration documents to other documents that are or may be in existence.[27] Thus, in effect, the primary judge was satisfied that Bianca and John used the Martin Arbitration documents to prepare the revised Stern Schedule.
9. On 20 February 2023 the HPPL parties filed chamber summonses seeking, in effect, orders to dismiss or stay Bianca and John's application for discovery pursuant to the revised Stern Schedule as an abuse of process.
10. Among other things, the HPPL parties claimed that in formulating and justifying the categories of documents sought by the revised Stern Schedule:[28]
    1. Bianca and John had, in breach of the Harman obligation, made use of documents disclosed or obtained through subpoena in the Martin Arbitration (in this respect the HPPL parties contended that the orders made 14 December 2022 did not permit Bianca and John to use the Martin Arbitration documents for the purpose of the discovery application).
    2. Bianca and John had, in relation to two categories (ie categories 55J and 55G), misused privileged materials that were inadvertently disclosed to Bianca and John's lawyers.
11. The HPPL parties also claimed that documents sought pursuant to the revised Stern Schedule were sought for an improper purpose, namely, for use in the Martin Arbitration.[29] The primary judge rejected that claim.[30] The improper purpose assertion is not renewed on the HPPL parties' appeal against the discovery orders. Accordingly, nothing further needs to be said in relation to this allegation and her Honour's rejection of it as a reason to refuse the discovery orders sought by Bianca and John.

The primary judge's determination of Bianca and John's discovery application by the revised Stern Schedule

1. The primary judge dismissed the HPPL parties' application to dismiss or stay Bianca and John's application for discovery pursuant to the revised Stern Schedule, and ordered that the HPPL parties give discovery of 24[31] of the document categories, for reasons contained in three judgments - WPPL v HPPL [No 17] (delivered on 7 March 2023),[32] WPPL v HPPL [No 18] (delivered on 27 March 2023) and WPPL v HPPL [No 19] (delivered on 12 April 2023).
2. In WPPL v HPPL [No 17] the primary judge rejected the HPPL parties' contention that Bianca and John had misused Martin Arbitration documents subject to the Harman obligation by the revised Stern Schedule. In the alternative, the primary judge made orders nunc pro tunc permitting use of the Martin Arbitration documents for that purpose. The primary judge ordered that:

The orders made on 14 December 2022 ... are varied nunc pro tunc by adding an additional order 11 as follows:

1. Subject to any further order in respect of the documents referred to in proposed classes 55G and 55J, Bianca and John may refer to any of the Martin Arbitration documents by description for the purposes of the preparation of the Revised Stern Schedule and the Revised Stern Schedule discovery application.
2. The primary judge considered the proper construction of pars 1 and 2 of the orders made 14 December 2022 in the factual and legal context in which they were made.[33] Her Honour considered that par 1 of the orders was clear and without ambiguity. It required Bianca and John to discover the Martin Arbitration documents they considered to be relevant to the issues which arose from their defence in the primary proceedings.[34] The effect of par 1 of the orders was to displace - by compulsive process - the obligation that Bianca and John would otherwise have had to obtain a release from the Harman obligation to use the documents to provide discovery of those Martin Arbitration documents in the primary proceedings.[35]
3. The primary judge considered that the purpose of pars 1 and 2 of the orders was to give the HPPL parties[36] notice of the Martin Arbitration documents that Bianca and John considered to be relevant to the issues which arise from their defence in the primary proceedings, together with access thereto 'in the court proceedings' (ie in the WPPL proceeding and the Rhodes proceeding).[37] Her Honour held that, subject to any claim of privilege, the effect of the 'order for inspection' (also said to be a 'right of inspection') carried with it the right (presumably held by the HPPL parties) to deploy any of the documents against Bianca and John.[38] The corollary of that right as enjoyed by the HPPL parties, on the primary judge's reasoning, was necessarily that Bianca and John may use the Martin Arbitration documents they discovered pursuant to par 1 of the orders made 14 December 2022 against the HPPL parties in Bianca and John's discovery application.[39]
4. Thus, in the primary judge's opinion, the effect of pars 1 and 2 of the orders of 14 December 2022 was to authorise Bianca and John to use the Martin Arbitration documents as discovered by them in the primary proceedings for the purpose of Bianca and John's application for discovery pursuant to the revised Stern Schedule.[40]
5. However, in the alternative, the primary judge was satisfied that an order should be made nunc pro tunc to authorise Bianca and John to use the Martin Arbitration documents for the purpose of seeking discovery of the revised Stern Schedule documents from the HPPL parties.[41] Her Honour stated:

If I am wrong in respect of the construction of the effect of order 2 of the discovery orders [ie the orders of 14 December 2022], and that Bianca and John are not entitled to use the Martin Arbitration documents for the purpose of their revised Stern Schedule categories application against the HPPL parties because the HPPL parties' right of inspection and use of the documents pursuant to order 2 does not carry with it a right of use of those documents by Bianca and John against the HPPL parties, I am of the opinion that the orders made on 14 December 2022 should be varied.

1. Orders to that effect, as reproduced above at [28], were made on 7 March 2023 in each of the WPPL proceeding and the Rhodes proceeding. The HPPL parties have appealed against those orders by appeals CACV/32/2023 and CACV/33/2023.
2. These aspects of the primary judge's reasoning and conclusions are challenged by grounds 1 - 4 in the appeal.
3. In WPPL v HPPL [No 18] the primary judge rejected the balance of the HPPL parties' contentions in support of the dismissal or stay of Bianca and John's discovery application.
4. Specifically, as to the allegation that categories 55G and 55J had been formulated by reference to inadvertently disclosed privileged information, the primary judge held:
   1. While it appeared that earlier document category requests had been formulated in the Martin Arbitration by regard to inadvertently disclosed privileged material, that did not prohibit Bianca and John making a substantially similar request in the primary proceedings if it could be found that the formulation of the request was derived from an alternative source.[42]
   2. Based on the inferences available from identified documents, her Honour was not satisfied that it could be found that there had been any misuse of inadvertently disclosed privileged documents in formulating and requesting the documents in proposed category 55G.[43]
   3. So too, based on available inferences from documents whereby it was open to formulate proposed category 55J from non‑privileged material, her Honour was not satisfied that it could be found that there had been any misuse of inadvertently disclosed privileged documents in formulating and requesting the documents in proposed category 55J.[44]
5. These conclusions are challenged by ground 5 in the appeal.
6. On 27 March 2023 the primary judge made orders in the WPPL proceeding and the Rhodes proceeding dismissing the HPPL parties' application to dismiss or stay Bianca and John's application for discovery as an abuse of process. On 31 March 2023 the primary judge made consequential special costs orders. These orders are all the subject of appeals by the HPPL parties (appeals CACV/45/2023, CACV/46/2023, CACV/47/2023 and CACV/48/2023).
7. In WPPL v HPPL [No 19] the primary judge upheld Bianca and John's application for the HPPL parties to give discovery in respect of 24 of the 48 categories in the revised Stern Schedule (either in whole, in part or as modified). Category 55J was allowed in a modified form;[45] but category 55G was not allowed.[46] The primary judge observed that eight of the categories were single documents. The remainder were 'targeted requests of what should be a relatively smaller number of specific documents'.[47]
8. The primary judge's conclusion that discovery should be ordered in respect of the various categories is challenged by ground 6 in the appeal.
9. On 14 April 2023 the primary judge made orders in each of the WPPL proceeding and the Rhodes proceeding that the HPPL parties give discovery of the categories of documents as determined by her Honour in WPPL v HPPL [No 19] by 12 May 2023.[48] The HPPL parties have appealed against those orders by appeals CACV/43/2023 and CACV/44/2023.
10. The HPPL parties' appeals have been consolidated by order of this court made 20 April 2023. Accordingly, it is convenient to refer to the appeals collectively as 'the appeal' or the 'consolidated appeal'.

The HPPL parties' appeal against the discovery orders

1. There was no contest before the primary judge as to the status of the Martin Arbitration documents ignoring the orders made 14 December 2022. The primary judge observed that Bianca and John would not have been permitted to rely on the Martin Arbitration documents for any purpose in the primary proceedings but for Bianca and John obtaining the order for discovery of the Martin Arbitration documents of 14 December 2022. That was because the Martin Arbitration documents were the subject of the Harman obligation.[49]
2. The HPPL parties contended before the primary judge - and now contend on appeal - that nothing in the orders of 14 December 2022 altered Bianca and John's inability to use the Martin Arbitration documents in the primary proceedings by reason of the implied obligation.
3. In this respect the HPPL parties' initial four grounds of appeal concern the findings made in WPPL v HPPL [No 17] (see [28] - [33] above). Grounds 1 - 3 challenge the findings that Bianca and John were entitled to use the Martin Arbitration documents for the purpose of their discovery application by the revised Stern Schedule:
   1. By ground 1 the HPPL parties contend that the primary judge erred in law and in fact in finding that the HPPL parties (and any other arbitral party) had a right to deploy the Martin Arbitration documents against Bianca and John pursuant to par 2 of the orders made 14 December 2022.
   2. By ground 2 the HPPL parties contend that the primary judge erred in law in finding that - so far as the HPPL parties (and any other arbitral party) had a right to deploy the Martin Arbitration documents against Bianca and John - as a 'corollary' Bianca and John may use the Martin Arbitration documents against the HPPL parties notwithstanding the Harman obligation.
   3. By ground 3 the HPPL parties contend that the primary judge erred in fact and in law in finding that Bianca and John had not made use of the Martin Arbitration documents in breach of the Harman obligation, thereby declining to dismiss or stay Bianca and John's discovery application, on the basis that the orders of 14 December 2022 permitted Bianca and John to use the Martin Arbitration documents for the purpose of their discovery application by the revised Stern Schedule.
4. Ground 3 is expressed as being 'by reason of' the matters set out in ground 1, further or alternatively, ground 2. Accordingly, ground 3 is derivative on ground 1 and ground 2. It is not a stand-alone ground. If the HPPL parties establish one or both of ground 1 or ground 2 then ground 3 must follow. But ground 3 must fail if ground 1 and ground 2 both fail.
5. Bianca and John rely on a notice of contention in answering the HPPL parties' appeal. Bianca and John say that the primary judge's construction of pars 1 and 2 of the orders of 14 December 2022 is supported by a ground not relied on by the primary judge. Bianca and John contend that a reasonable person in the position of the parties, having regard to the surrounding circumstances, would have understood pars 1 and 2 of the orders of 14 December 2022 to permit Bianca and John to use the Martin Arbitration documents against the parties to the Martin Arbitration (including the HPPL parties) in making their application for discovery pursuant to the revised Stern Schedule.
6. By ground 4 the HPPL parties contend that the primary judge erred in law and in fact in varying the orders made on 14 December 2022 nunc pro tunc to permit Bianca and John to use the Martin Arbitration documents for the purpose of their application for discovery pursuant to the revised Stern Schedule.
7. In support of ground 4 the HPPL parties say that:
   1. The variation was procedurally unfair as it was not sought by Bianca and John and was not raised with the HPPL parties who had no opportunity to adduce evidence or make submissions against it.
   2. The variation was procedurally unfair to third-parties who produced documents under compulsion in the Martin Arbitration and related court proceedings (no notice of the proposed order having been given to those parties).
   3. The variation was beyond power as it contravened the prohibition in s 5 of the Commercial Arbitration Act 2012 (WA).
   4. The variation was not supported by evidence or consideration of several material factors identified in the authorities including the ability to obtain a release from the arbitral tribunal, the position of the parties who produced the documents and the likely contribution of the documents to achieving justice in the primary proceedings.
8. Ground 4 addresses the primary judge's alternate finding in WPPL v HPPL [No 17]. Accordingly, the HPPL parties must succeed on ground 4 to make good their assertion, implicit in the appeal, that Bianca and John made use of the Martin Arbitration documents in breach of the Harman obligation. It will not be sufficient to succeed on one or both of ground 1 or ground 2.
9. Ground 5 concerns the findings made as to categories 55G and 55J in WPPL v HPPL [No 18] (see [35] - [36] above). By ground 5 the HPPL parties contend that the primary judge erred in law and in fact in not finding that categories 55G and 55J had been formulated by reference to inadvertently disclosed privileged information. If ground 5 succeeds it can only affect the primary judge's discovery orders to the extent that the orders uphold Bianca and John's claim for discovery in relation to category 55J (category 55G being disallowed in any event).
10. Ground 6 concerns the findings upholding Bianca and John's discovery application in WPPL v HPPL [No 19]. By ground 6 the HPPL parties contend that the primary judge erred in law in ordering discovery in respect of each category by:
    1. finding that the orders made by Le Miere J on 29 July 2021 [sic - actually 12 August 2021] were not conditioned by any test of direct relevance and failing to apply a standard of direct relevance; and
    2. failing to apply a test of whether the discovery sought was necessary for fairly disposing of the primary proceedings.
11. The HPPL parties acknowledge that the appeal against the discovery orders requires leave to appeal.[50] The HPPL parties seek leave to appeal on the basis that their substantive rights as beneficiaries of the Harman obligation are adversely affected. The HPPL parties contend that substantial injustice would result if the various orders were left unreversed.
12. None of the grounds of appeal are conceded.
13. WPPL and Rhodes did not participate in the hearings before the primary judge which resulted in the discovery orders the subject of the appeal.[51] The main interest WPPL and Rhodes have expressed in the appeal is that it be determined as soon as possible so as not to delay the trial of the primary proceedings.
14. Bianca and John oppose the grant of leave to appeal. They say that the orders under appeal concern discretionary decisions by a case manager in the Commercial and Managed Cases List on matters of practice and procedure. In any event it is said that there is no substantial injustice if the discovery orders remain unreversed. On the merits of the appeal Bianca and John contend that the primary judge did not err in the ways alleged by the HPPL parties. Bianca and John seek to uphold the primary judge's conclusions for the reasons given by her Honour. They also allege that, in some respects, the HPPL parties advance new points on appeal. In addition, as previously stated, Bianca and John advance an alternate basis for reaching the primary judge's construction of pars 1 and 2 of the orders made 14 December 2022.
15. The HPPL parties' appellant's case and Bianca and John's respondent's answer contain detailed submissions in support of and in answer to the grounds of appeal.
16. It is not necessary to traverse the parties' respective submissions on the appeal. I have read and considered the HPPL parties' appellant's case and Bianca and John's respondent's answer. In the context of a stay application the question is only whether the appeal has reasonable prospects of success. I am satisfied that grounds 1 - 4 have sufficient prospects of success in the relevant sense to potentially justify a stay of the discovery orders. So too there are sufficient prospects that the court will grant leave to appeal so far as the appeal is based on grounds 1 - 4. I say nothing about grounds 5 and 6. It is not appropriate to say anything more about the merits of the appeal. That is all the more so where those merits will be canvassed fully at the appeal hearing listed for 14 June 2023.

The HPPL parties' application to stay the discovery orders

1. The HPPL parties' application to stay the discovery orders was supported by the affidavit of David Anthony sworn 18 May 2023. Mr Anthony is one of the HPPL parties' solicitors. Mr Anthony explained the background to the discovery orders (pars 4 - 5) and the correspondence and conferral as to the orders sought (pars 6 - 9). Mr Anthony then set out the reasons why the HPPL parties sought a stay of the discovery orders (pars 16 - 19).
2. On behalf of the HPPL parties, Mr Anthony claimed that production pursuant to the discovery orders should be temporarily stayed or deferred until after delivery of judgment in the appeal as:
   1. If the appeal is successful, the HPPL parties will not be required to give discovery in accordance with the discovery orders. However, absent a stay the HPPL parties will already have done so (given the time for compliance pursuant to the discovery orders), meaning that in the absence of a stay the HPPL parties will suffer 'real prejudice' (par 18).
   2. Such prejudice could not be cured by an order requiring return or destruction of documents because Bianca and John and their legal representatives would still have the benefit of information from the documents discovered and produced to them (par 19).
3. Bianca and John relied on an affidavit sworn by one of their solicitors, Timothy Price, on 24 May 2023. The affidavit was objected to by the HPPL parties. I admitted the affidavit over objection. The HPPL parties contended that the affidavit should not be received as it annexed conferral material. That was, with respect, a surprising objection where Mr Anthony's affidavit annexed conferral material. In any event the conferral material was relevant to the stay application and therefore admissible.
4. However, while admissible, I placed little weight on the conferral material.
5. Bianca and John contended, in effect, that a proposal made on behalf of the HPPL parties demonstrated that the appeal would not be rendered nugatory by reason of the HPPL parties being required to comply with the discovery orders. The HPPL parties proposed that they provide their lists of documents by 26 May 2023, as contemplated by the discovery orders, but that any consequential production of any non-privileged documents be deferred until after the determination of the appeal. In other words the HPPL parties sought to defer inspection pending the determination of the appeal. Bianca and John contended that the HPPL parties' offer demonstrated that there was no, or only insubstantial, prejudice in the HPPL parties serving their lists of documents in accordance with the discovery orders.
6. I would not draw that conclusion from the HPPL parties' proposal without more. Whether or not a right of appeal will be rendered nugatory if a stay of an order is not granted is a legal characterisation. The court must itself consider and come to a conclusion on the practical and legal effect that the continued operation of the order will have on the right of appeal. The issue is not answered by the circumstance that an appealing party is willing to offer some compromise position rather than pursue a stay application to a hearing. There may be very good reason for exploring the other party's attitude to some compromise position - not the least being that proposing possible solutions to overcome unnecessary interlocutory disputes is consistent with taking a responsible attitude to the use of the court's process.
7. There was, however, one thing that I took from the HPPL parties' proposal: the HPPL parties were in a position to comply with the discovery orders by serving their lists of documents on 26 May 2023.[52] The compilation of the lists of documents was not itself a matter of significance to be taken into account in evaluating the application for a stay. By the time that the stay application was heard the HPPL parties were in a position to comply with the discovery orders.
8. In written and oral submissions the HPPL parties contended that there should be a stay of the discovery orders as:
   1. The stay was necessary to preserve the subject matter of the appeal. The HPPL parties characterised the subject matter of the appeal as being the orders they sought dismissing or staying the underlying application for discovery as an abuse of process (or, alternatively, to dismiss Bianca and John's application for discovery on the merits). If those orders were made on appeal the HPPL parties would not have to give the discovery.
   2. The appeal had reasonable prospects of success (I have already accepted this submission - see [58] above).
   3. The balance of convenience favoured the grant of a stay - here relying, in effect, on what had been said in Mr Anthony's affidavit as to potential prejudice. By contrast, according to the HPPL parties, if the stay was granted Bianca and John would still obtain the benefit of discovery and inspection in due course if the appeal was ultimately dismissed.
9. The HPPL parties characterised the discovery process as involving an invasion of a private right to keep one's documents to oneself[53] - they said that, in the absence of a stay, they would be required to give discovery before the appeal hearing, overriding that private right. In that way, according to the HPPL parties, the stay was necessary to preserve the subject matter of the appeal.
10. In the alternative to a stay of the discovery orders, the HPPL parties sought an order from this court preventing inspection of the documents to be discovered pursuant to the discovery orders pending the determination of the appeal.
11. Bianca and John contended that the application for a stay was premature. They said that the discovery orders only required that the HPPL parties serve lists of documents; the orders did not, of themselves, require the HPPL parties to allow inspection. According to Bianca and John, no or only insubstantial prejudice could accrue were the HPPL parties required to provide their lists of documents pursuant to the discovery orders.
12. Bianca and John also submitted that the balance of convenience favoured the refusal of a stay. Bianca and John said that the balance of convenience favoured the following course:

The [HPPL parties] should file and serve their list and will (presumably) object to inspection of any of the documents.[54] The parties should then confer to see if sensible agreement can be reached. If not, the question of inspection will be determined by the court below. Should either party be dissatisfied with the court's determination, that can be the subject of appeal and/or a stay application. Only at the point of inspection is there a prospect of substantial prejudice to [the HPPL parties]. The existence and extent of such prejudice and whether steps may be taken to ameliorate it will depend upon the contents of the list. [Bianca and John] would undertake to return or destroy the list and not make any further use of it in the event that the appeals are allowed.[55]

1. In oral submissions, Bianca and John's counsel clarified that the reference that Bianca and John 'would' provide an undertaking was not a mere promise to proffer an undertaking. It was in fact the proffering of an undertaking in those terms.[56]
2. Rhodes and WPPL suggested that it would be relevant to consider and weigh the likely impact of any stay on the parties' preparation for trial - and also to consider and weigh the potential for a stay to disrupt the trial dates. WPPL also addressed the merits of the stay application. WPPL submitted that: (1) compliance with the discovery orders would not render the appeal nugatory; (2) the HPPL parties had not established that the appeal had reasonable prospects of success; and (3) the balance of convenience favoured the refusal of a stay.

Applicable principles on a stay application[57]

1. An application for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) or an interim order for a stay under r 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) is generally considered in the framework of the principles enunciated in Eastland Technology Australia Pty Ltd v Whisson.[58] Those principles were conveniently re-stated by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri in the following terms:

(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
>
> (b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
>
> (c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
>
> (d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
>
> (e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.[59]

2. Accordingly, consideration of whether there are 'special circumstances' justifying an interim stay normally involves assessment of three things:
   1. Is the stay necessary to preserve the subject matter or the integrity of the litigation?
   2. Does the appeal have reasonable prospects of success?
   3. Does the balance of convenience favour the grant of the stay?
3. Those principles are primarily concerned with whether there should be a stay following the entry of a final monetary judgment. The present consolidated appeal has two features which mean that it is different in nature to an appeal following the entry of a final judgment. First, it is an interlocutory appeal. The fact that such an appeal can only be brought with leave emphasises the different nature of the kind of appeal before the court. There is no 'right of appeal' against an interlocutory order. Second, the consolidated appeal is concerned with matters of practice and procedure. This court recognises the need to exercise special restraint when considering challenges to interlocutory orders concerning practice and procedure.[60] Within that general category of case there is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the Commercial and Managed Cases List.[61]
4. The reasons why there must be a tight rein on interlocutory appeals against the exercise of discretion on a point of practice and procedure are well-established. As was said by Jordan CJ in Re the Will of FB Gilbert (Dec):

[T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.[62]

1. Those two features of the present appeal had to be taken into account and informed the approach to be taken to the HPPL parties' application for a stay of the discovery orders. It is not simply a question of applying the principles in Eastland Technology Australia Pty Ltd v Whisson and Tradesman Technologies Pty Ltd v Ameduri.

1. The discovery orders required the HPPL parties to give discovery of the categories of documents allowed in WPPL v HPPL [No 19] by 26 May 2023.
2. Accordingly, the HPPL parties were required to make and serve lists of the documents, within the designated categories, that are or have been in their possession, custody or power.[63] Order 26 r 4(1) RSC requires that the lists be in accordance with Form 17 and that the documents be described sufficiently to enable them to be identified. A generic description is not sufficient. But, in giving a description, a party is not required to indirectly disclose the contents of the documents. The lists of documents must also deal with claims for privilege from production. If it is claimed that any document is privileged from production, the claim must be made in the lists of documents with a sufficient statement of the grounds of privilege (O 26 r 4(2) RSC).
3. Order 26 r 8(1) RSC deals with inspection of documents in a list of documents. A party who has served a list of documents (here, relevantly, the HPPL parties):

must allow the other party [here, relevantly, Bianca and John] to inspect the documents mentioned in the list, other than any which [the discovering party] objects to produce, and must when serving the list on the other party also serve on [the other party] a notice stating a time within 7 days after the service thereof at which the said documents may be inspected at the place specified in the notice.

1. In other words, unless there is an objection to production, the discovering party must give inspection of the documents described in the list of documents within 7 days after service of the list. The party making the inspection is entitled to make copies of any documents produced for inspection (O 26 r 8(5) RSC).
2. Order 26 r 9 RSC provides for orders for inspection. The court has, by O 26 r 9(1) RSC, a discretion to order production for inspection where, among other things, the discovering party fails to serve the notice required by O 26 r 8(1) RSC or objects to produce any document for inspection. The court may impose restrictions or conditions on any order for production.[64] There is a further power to permit inspection under O 26 r 9(2) RSC. No order for production of any documents for inspection is to be made unless the court is of the opinion that the order is necessary to dispose of the proceedings fairly or for saving costs (O 26 r 11 RSC).
3. It can be seen from this review of the Rules of the Supreme Court that, absent a stay, the discovery orders had two immediate consequences:
   1. The HPPL parties were required to make and serve their lists of documents.
   2. The HPPL parties were required to give inspection of the documents so discovered within 7 days, except to the extent that the HPPL parties objected to production.
4. Where the HPPL parties objected to production (or failed to provide for inspection in accordance with the regime contemplated under the RSC) the primary judge might order inspection. That would, however, require that a further application be made in the primary proceedings. The primary judge would need to be satisfied that the order for production for inspection was necessary in terms of O 26 r 11 RSC. And, to the extent that the HPPL parties claimed that the documents were privileged from production, the claims for privilege must be determined. All of this would arise after the HPPL parties provided their lists of documents in accordance with the discovery orders.
5. The HPPL parties' application to stay the discovery orders fell to be assessed within this frame of reference. Also, as I observed at the hearing of the HPPL parties' stay application, the lists of documents to be provided pursuant to the discovery order are themselves subject to the Harman obligation. The parties receiving the lists cannot, without leave of the primary court, use the lists of documents or information within the lists of documents for any purpose other than the purposes of the primary proceedings, unless the lists are used in evidence.[65]
6. Once this is understood I consider that the HPPL parties took an unduly strict approach to their analysis of whether a stay was necessary to preserve the subject matter of the appeal. It is true that, absent a stay, the HPPL parties must give discovery. But this does not mean that Bianca and John (or the other parties) will immediately be entitled to inspect the documents in the HPPL parties' lists of documents. To the contrary, if - as seems inevitable - the HPPL parties object to production, there will not be inspection of the documents until further order of the primary court. It is only at the point that inspection must be given that the compulsory processes of the court will have overridden the HPPL parties' contended for private right to keep their documents to themselves. And, as Bianca and John observed, if there is an order for inspection, that itself may be the subject of a separate application for leave to appeal and application for a stay.
7. The HPPL parties pointed, however, to statements made on Bianca and John's behalf in the primary proceedings to the effect that a list of documents might be of forensic assistance in identifying, in respect of a particular category, that there were or were not privileged documents.[66]
8. Let it be assumed that this is correct. The assumption is not without its difficulties - the HPPL parties and Bianca and John are co‑defendants who do not join issue and any admissions on the part of the HPPL parties as to the existence or non-existence of particular kinds of documents may not bind WPPL or Rhodes. Nevertheless, even if the lists of documents alone may be of some forensic benefit to Bianca and John (or the other parties in the primary proceedings), and concomitantly to the forensic detriment of the HPPL parties, it does not follow that a stay is necessary to preserve the subject matter and integrity of the HPPL parties' appeal against the discovery orders.
9. There is, in my opinion, every reason to expect that the appeal will be determined before the commencement of the trial. An urgent appeal order has been made. The appeal has been listed for hearing on 14 June 2023. This court is well aware that the parties are scheduled to commence a large and complex trial before the primary judge on 10 July 2023. It is to be expected that this court will endeavour to determine the appeal as quickly as possible so as to minimise the risk that the outcome of the appeal may impact on the parties' preparation for the trial or the conduct of the trial itself. What, then, will occur if the appeal succeeds? Bianca and John have indicated their preparedness to undertake to return or destroy the lists of documents and not to make any further use of the lists in the event that the appeals are allowed. In the event the appeal is allowed this court could make orders to similar effect as against WPPL and Rhodes. It is fanciful to suggest that the prior disclosure that certain categories of documents do or do not exist will be to the ongoing detriment of the HPPL parties and the benefit of the other parties where - if the appeal succeeds - Bianca and John and the other parties will have to return or destroy the lists of documents. There is, in my opinion, no perceptible risk that provision of the lists of documents pursuant to the discovery orders will be to the HPPL parties' ongoing detriment if the appeal is allowed.
10. It follows, in my view, that the right of appeal will not be rendered substantially nugatory absent a stay of the discovery orders. To the contrary, subject to one matter that I will come to (see [91] below), if the appeal is successful the court will be able to grant relief that preserves the subject matter of the litigation - this being whether Bianca and John (and the other parties) will be able to use the HPPL parties' lists of documents and inspect and make use of the documents disclosed in the HPPL parties' lists of documents.
11. One exception arises. My consideration has proceeded on the premise that the HPPL parties will object to the production of all non‑privileged documents. I consider it appropriate to proceed on this premise where senior counsel for the HPPL parties informed the court at the hearing of the stay application that inspection would be objected to by a 'blanket objection' on the basis of the extant appeal.[67] However, if that were not to occur - because, for example, the HPPL parties, properly advised, considered this was not a valid ground on which to object to production - the HPPL parties would have to provide inspection pursuant to the RSC. Actual inspection of the discovered documents may, depending on the circumstances, have the potential to render the right of appeal nugatory - or at least to create practical difficulties in fashioning appropriate relief if the appeal is successful. But this possible difficulty does not require a stay of the discovery orders in the terms sought by the HPPL parties. It is instead sufficient to relieve the HPPL parties from complying with any obligation to give inspection of the documents discovered pursuant to the discovery orders in the absence of a further order of this court or the primary court.
12. The limited risk that the right of appeal might be rendered nugatory if a stay was not granted materially affected the balance of convenience. Relevantly, if the appeal was allowed, there was no more than a negligible risk of prejudice to the HPPL parties were the stay to be refused. As long as the HPPL parties were relieved from any immediate obligation to give inspection, and any inspection was to be subject to further order of this court or the primary court, there was, in my view, no real risk of prejudice to the HPPL parties in being required to comply with the discovery orders on 26 May 2023.
13. Also relevant to the balance of convenience were the following matters:
    1. The stay might only be for a very short time - the appeal hearing was listed to be heard in less than 3 weeks after the date on which I heard the stay application. This, in my view, was a factor in favour of the HPPL parties' application.
    2. The trial of the primary proceedings was due to commence on 10 July 2023 - less than 7 weeks after the date on which I heard the stay application and only 3 and a half weeks after the scheduled appeal hearing.
    3. Delaying the provision of the HPPL parties' lists of documents (the inevitable consequence of the stay sought by the HPPL parties) had the potential to impede Bianca and John (and also the other non-HPPL parties) in their preparation for the trial of the primary proceedings and might affect the orderly conduct of the trial. This, in my view, was a significant factor against the HPPL parties' application. That is particularly the case given the undoubted complexity of the primary proceedings and the long history of the primary proceedings. It was necessary to have due regard to the goal in O 1 r 4A RSC and the object in O 1 r 4B(1)(a) & (d) RSC.
    4. Provision of the HPPL parties' lists of documents would be of utility to Bianca and John in determining what steps, if any, to take as concerns making application for inspection before the appeal hearing. For example, if there were very few documents, Bianca and John may consider it appropriate to leave the matter until after the appeal. The position might be otherwise if there were numerous documents. At the time of the hearing of the stay application, however, Bianca and John and their legal representatives were not aware of the dimensions of the likely discovery. This, in my view, was a factor - albeit a lesser factor - against the HPPL parties' application.
    5. It would, in my view, be possible to take steps to further minimise the risk of prejudice to the HPPL parties in being required to comply with the discovery orders on 26 May 2023 - a factor against the HPPL parties' application. In particular:

(a) I could accept the undertaking as proffered by Bianca and John.
>
> (b) I could make orders restricting access to the lists of documents to legal representatives only and make it clear, by such orders, that the legal representatives were to maintain the confidentiality attaching to the lists and only use the lists and information in the lists for the purposes of the primary proceedings.
>
> (c) I could make orders relieving the HPPL parties from any immediate obligation to give inspection of the documents discovered by the lists of documents and thereby ensure that any such inspection was to be subject to further order of this court or the primary court.

14. Finally, it was necessary to take into account that Bianca and John had the benefit of the primary judge's orders in their favour. The proximity of the trial meant that, were a stay to be ordered, Bianca and John might not fully enjoy the benefits of their success before the primary judge. This too was a factor against the HPPL parties' application.
15. In all the circumstances, while I was satisfied I should accept Bianca and John's undertaking and make orders to the effect of those mentioned in [93.5] above, I was satisfied that the balance of convenience militated against staying the discovery orders. The factors against a stay of the discovery orders strongly outweighed the factors in favour of the stay.
16. It is then necessary to deal with the HPPL parties' fallback position, namely, that this court make an order precluding inspection of the discovered documents until determination of the appeal.
17. The HPPL parties' alternate position had more force than the application for a stay of the discovery orders per se. I accept that inspection of the discovered documents may result in prejudice to the HPPL parties - their private right to keep their documents to themselves will be defeated. Further, this prejudice may not be able to be completely eliminated by orders of this court if the appeal against the discovery orders is successful. Against that, however, are the various factors I have referred to as militating against a stay of the discovery orders per se. Also relevant is the traditional reluctance of an appellate court to interfere with pending proceedings at first instance on an interlocutory basis - something that has been described as an 'exceptional jurisdiction'.[68]
18. Ultimately, in weighing the balance of convenience, I was not persuaded that I should make an order preventing inspection of the documents to be discovered by the HPPL parties pursuant to the discovery orders.
19. While inspection, if permitted, may result in prejudice to the HPPL parties, the orders I contemplated in relation to a stay of the discovery orders have the effect that any inspection would require prior order of this court or the primary court. Accordingly, inspection of the documents the subject of the discovery orders will require a positive prior judicial determination that inspection is to be permitted. One of the considerations in evaluating whether to make such an order prior to determination of the appeal will be the ongoing appeal and the risk of prejudice to the HPPL parties as a result of inspection should the appeal be allowed.
20. In all the circumstances I was and remain satisfied that this safeguard adequately protects the HPPL parties and is preferable to an order that operates to preclude inspection absolutely in the period prior to determination of the appeal. There are two reasons for this conclusion in addition to the factors that I have already identified.
21. First, the practical effect of an order precluding inspection pending the determination of the appeal is likely to deter Bianca and John taking any steps towards an inspection application until the determination of the appeal. There is no point in making an inspection application while an order precluding inspection is in operation. The time inevitably lost through making the alternate order urged on behalf of the HPPL parties - which might otherwise be gainfully spent in conferral and programming steps towards the hearing of an inspection application - might be of significance given the imminent commencement of the trial of the primary proceedings.
22. Second, while it might not be possible for the primary judge to hear any inspection application before the appeal hearing - and, indeed, for case management reasons her Honour may consider it appropriate to list any inspection application after the appeal hearing - it may be that this is not the case. It may also be that, when the lists of documents are examined, there is scope for some form of confidentiality regime which might facilitate inspection either consensually or by order of the court prior to the determination of the appeal. For example, as counsel for Bianca and John observed, the parties might agree that certain documents can be inspected with safeguards to ensure that the previously existing state of affairs can be restored if the appeal succeeds. The illustration provided was that inspection might be limited to particular legal representatives who would withdraw from the primary proceedings in the event that the appeal succeeds.[69]
23. The orders I contemplated had the effect of making inspection conditional on prior order of this court or the primary court. I considered it necessary and appropriate to include this court in that carve-out. In making a general order, in the context of the appeal, to relieve the HPPL parties from any obligation to give inspection pending determination of the appeal, this court should be able to vary or modify its order. I would expect, however, that unless there is very good reason to do otherwise, any application for inspection ought to be made in the primary proceedings.
24. The HPPL parties opposed the possibility that the primary court ought to be able to determine whether to permit inspection pending the determination of the appeal. Senior counsel for the HPPL parties referred to this, somewhat disparagingly, as kicking the argument down the road in circumstances where the primary judge had said that this court should determine the stay application.[70] Senior counsel suggested that I was, in determining the stay application, in as good a position as the primary judge - or even a better position than the primary judge - to finally determine whether inspection should be permitted notwithstanding the appeal.
25. I disagree. In hearing the application to stay the discovery orders I did not have the HPPL parties' lists of documents. The lists are likely to be a material consideration on any application for inspection. Nor - there not having been any conferral about the possibility of inspection following examination of the lists - could I anticipate all the possible issues that might emerge. For example, it might be that a suitable confidentiality regime is proposed once the lists of documents become available. And, in any event, the primary judge as case manager of the primary proceedings is far better placed than I to consider the potential for delay in inspection to adversely affect Bianca and John in their trial preparation.
26. It was appropriate in the circumstances, and consistent with the principle that interlocutory appellate interference with pending proceedings should not take place lightly, to permit the primary court to make an order for inspection. That was all the more so where any such order might itself be the subject of an application for leave to appeal and an application for a stay.

1. For these reasons I made orders in the following terms:

UPON the undertaking of [Bianca and John] to return or destroy the lists of documents (lists) to be provided by [the HPPL parties] pursuant to the orders for discovery made 14 April 2023 as extended on 10 May 2023 in consolidated actions CIV/3041/2010 and CIV/2617/2012 (WPPL proceeding) and action CIV/2737/2013 (Rhodes proceeding) and not to make any further use of the lists in the event that the consolidated discovery appeal (ie CACV/32/2023) is allowed IT IS ORDERED THAT:

1. Subject to further order of this court or the primary court, until determination of the consolidated discovery appeal [the HPPL parties] are relieved from complying with any obligation to give inspection of the documents to be discovered by them pursuant to the orders for discovery made on 14 April 2023 (and extended on 10 May 2023) in the WPPL proceeding and the Rhodes proceeding.
2. The lists are to be provided to the counsel and solicitors engaged by the parties in the WPPL proceeding and the Rhodes proceeding, together with in-house legal practitioners with a current practising certificate instructing on those proceedings, on a confidential basis; and those legal practitioners are to maintain the confidentiality attaching to the lists, not providing them to their clients or clients' representatives, and are only to use the lists and information within the lists for the purposes of the WPPL proceeding and the Rhodes proceeding.
3. The application in an appeal dated 18 May 2023 is otherwise dismissed.
4. [The HPPL parties] have leave to amend the appellants' case by amending the orders wanted by 4.00 pm on Monday, 29 May 2023.
5. After I informed the parties that I intended to make orders substantially in the terms of pars 1 - 3 above, senior counsel for the HPPL parties submitted that the orders should also be conditional on WPPL and Rhodes proffering an undertaking in like terms to that which had been proffered on behalf of Bianca and John.
6. I declined to make the orders conditional on additional undertakings on the part of WPPL and Rhodes. Senior counsel for WPPL had acknowledged that the discovery lists to be provided by the HPPL parties would be subject to the Harman obligation.[71] So too had counsel for Rhodes.[72] In any event, the discovery lists were only to be made available to legal representatives of WPPL and Rhodes. Given the terms of par 2 of the proposed orders, those legal representatives could be under no misapprehension as to the confidentiality attaching to the discovery lists and the limited use that could be made of the lists and information in the lists.
7. In any case WPPL and Rhodes were in a qualitatively different position to Bianca and John. Unlike the relationship between the HPPL parties and Bianca and John - one where there have been litigious disputes on multiple fronts for many years and where it may reasonably be anticipated that there will be further disputes - I was unaware of any other current disputes between the HPPL parties and WPPL or the HPPL parties and Rhodes. There was not a perceptible risk of misuse of the discovery lists, or of potential difficulties in the return or destruction of the lists should the HPPL parties be successful in the appeal, so as to require from WPPL and Rhodes an undertaking in the terms proffered on behalf of Bianca and John as a condition of the orders I had foreshadowed making.
8. Finally, senior counsel for the HPPL parties sought the fourth order so that the orders wanted in the appellant's case may be amended to make it abundantly clear that, in the event that the discovery appeal succeeds, the HPPL parties will be seeking that the lists of documents pursuant to the discovery orders are to be uplifted (if filed) and destroyed or returned (so far as served). This was uncontroversial.
9. No party made any application for costs. I am not sure whether this was an oversight. If, following the determination of the discovery appeal, any party wishes to pursue any matter as to costs in relation to the stay application, I will address the issue at that time. Otherwise, O 66 r 48(1) RSC will apply (r 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) providing that those rules must be read with the RSC).

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

[1] The primary judge and the parties have adopted the convention of referring to the fourth and fifth respondents by their Christian names. I will use the same convention.

[2] See generally: Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 (HPPL v Rhodes 1st Stay Appeal) [5] - [10], [16], [47] - [86], [89]; DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 (Rhodes v HPPL 1st Discovery Appeal) [21] ‑ [70]; Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2023] WASCA 88 (HPPL v WPPL 2nd Stay Appeal) [23] ‑ [58].

[3] Rhodes v HPPL 1st Discovery Appeal [262] - [298], [303].

[4] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 14] [2021] WASC 268.

[6] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 16] [2022] WASC 432 (HPPL v WPPL No [16]) [22].

[9] The decision on the appeal was handed down the following day. See HPPL v WPPL 2nd Stay Appeal.

[10] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 17] [2023] WASC 72 (WPPL v HPPL No [17]) [12]; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 19] [2023] WASC 114 (WPPL v HPPL No [19]) [10].

[11] WPPL v HPPL No [17] [14]; WPPL v HPPL No [19] [16] - [25].

[12] A form of schedule sometimes used in an arbitration setting for the convenience of the arbitrator in determining a dispute as to document disclosure. Such schedules commonly provide for: (1) identification of the document or category of documents requested by a requesting party; (2) identification of the contended for relevance and materiality by the requesting party; (3) objections to the disclosure request by the other party; (4) response to the objections by the requesting party; and (5) a section for the arbitral tribunal to set out its decision on the disclosure request.

[13] WPPL v HPPL No [17] [11], [13]; WPPL v HPPL No [19] [12].

[14] WPPL v HPPL No [17] [16] - [18]; WPPL v HPPL No [19] [26] - [27].

[15] WPPL v HPPL No [19] [13], [15]. Some of the documents were obtained on disclosure by other arbitral parties. Others were obtained from third-parties following production on subpoena.

[18] Referring to Harman v Secretary for the Home Department [1983] 1 AC 280.

[19] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [3], [56], [102], [105] - [108].

[22] WPPL v HPPL [No 17] [16], [23].

[28] WPPL v HPPL [No 17] [2](a) - (c); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82 (WPPL v HPPL [No 18]) [4](b), [69].

[29] WPPL v HPPL [No 17] [2](d); WPPL v HPPL [No 18] [4](a).

[30] WPPL v HPPL [No 18] [5](a), [6] - [68].

[31] The primary judge referred to 22 categories being allowed: WPPL v HPPL [No 19] [5]. A review of WPPL v HPPL [No 19] suggests that in fact 24 categories were allowed.

[32] The reasons in WPPL v HPPL [No 17] were published on 10 March 2023. However, the relevant order was made on 7 March 2023.

[33] See generally WPPL v HPPL [No 17] [22] - [40].

[36] As well as any other party to the primary proceedings who is also a party to the Martin Arbitration.

[41] WPPL v HPPL [No 17] [66] - [71].

[43] WPPL v HPPL [No 18] [84] - [87].

[44] WPPL v HPPL [No 18] [88] - [89].

[48] On 10 May 2023 the primary judge extended the time for compliance until 26 May 2023.

[50] See Supreme Court Act 1935 (WA) s 60(1)(e).

[51] WPPL v HPPL [No 17] [1], [71]; WPPL v HPPL [No 18] [1]; WPPL v HPPL [No 19] [5].

[52] Senior counsel for the HPPL parties said as much at the hearing of the stay application: Appeal ts 12.

[53] Referring to Riddick v Thames Board Mills Ltd [1977] QB 881, 896.

[54] In oral submissions counsel for Bianca and John accepted that the pending consolidated appeal itself provided a ground for the HPPL parties to object to inspection of the documents to be discovered pursuant to the discovery orders: Appeal ts 28.

[55] Bianca and John's submissions dated 24 May 2023 par 9.

[57] What follows in this section of these reasons substantially reproduces what was stated by Quinlan CJ and I in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [47] - [51].

[58] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

[59] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].

[60] Dodds v Kennedy [2011] WASCA 32 [5].

[61] Girgis v Poliwka [2016] WASCA 158 [1] (referring to Pearce v International Mining Technologies Ltd [2009] WASCA 239 [25] - [26]).

[62] See Re the Will of FB Gilbert (Dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, 323 (as adopted in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177).

[63] Rules of the Supreme Court 1971 (WA) (RSC) O 26 r 7(4).

[64] Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 [57.5].

[65] A matter accepted on behalf of each of WPPL (Appeal ts 32), Rhodes (appeal ts 32) and Bianca and John (appeal ts 30).

[66] Referring to ts 3058 - 3059, 3125 - 3126.

[68] Thomson v Young [2013] NSWCA 300 [13]. See also: Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 [18], [20]; Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [51] - [56], [74].